Decided on April 15,1952

P.S. Narayanaswamy Appellant


RAMASWAMI, J. - (1.) THIS is a civil revision petition filed against the order made by the learned Subordinate Judge of Ootacamund in I.A. No. 335 of 1950 in O. S. No. 74 of 1949.
(2.) THE facts are: The petitioner P.S. Narayanaswami before us was employed in the Chinchona Directorate located at Ootacamund. He has been dismissed from service. Thereupon, he has filed the suit O. S. No. 74 of 1949 against the State of Madras. This former dismissed employee wanted the production of a considerable quantity of unpublished official records. Therefore, summons was issued to the Director who is the head of this department. He looked into the records asked to be produced. Then he has filed an affidavit classifying the records sought to be produced under two heads, viz., those in regard to which he claimed privilege on the ground that the disclosure of those documents would be prejudicial to public interest and those which might be disclosed. The records were sent to court with an affidavit. The learned Subordinate Judge applied his own mind and upheld the claim of privilege in regard to documents for which privilege was claimed. In regard to documents which the director had no objection to disclose the plaintiff stated them to be irrelevant for his purpose. Thereupon the learned Subordinate Judge has passed an order to that effect and the present petition is preferred against that order. There are no merits in this petition at all because what has been done in the lower court is in strict compliance with Section 124 of the Indian Evidence Act as interpreted in leading decisions. The substance of these leading decisions can be summarised as follows. On an application by a party for the production of these documents, summons should be issued to the head of the department concerned. That head of the department must thereupon apply his mind to the documents sought to be disclosed and come to his own conclusion whether public interest would or would not be suffered by such disclosure. He has then to claim privilege if he chooses to do so by means of a communication, preferably in the form of an affidavit, claiming privilege and sufficiently indicating why he is claiming the privilege. It is also desirable but not indispensable that the records should be sent in a sealed cover through an officer of the department claiming privilege. The statement of the head of the department would be considered conclusive unless for compelling reasons to the contrary and the privilege will be upheld. But in any event it is the duty of the court to apply its own mind as to whether the claim is not arbitrary and capricious and if need be it would be open to the court to look into the documents and come to its own conclusion. In other words, under Section 124, Evidence Act, the four stages are, summoning, application of the mind of the head of the department to the documents sought to be disclosed and coming to the conclusion whether the privilege should be claimed or not, communicating this claim of privilege preferably by means of an affidavit and sending wherever possible the concerned documents in a sealed cover through an officer of the department claiming privilege and the application of the presiding Judge's mind to the claim put forward and accepting it unless the claim is arbitrary or capricious or false. The final decision of both the departmental head as well as the presiding judge will be governed by only one consideration viz., whether the disclosure would result in an injury being caused to the public interest as the section gives effect to the principle that public interest must be paramount and private interest must give way when there is a conflict between public and private interests. The only loyalty which the section contemplates and which must undoubtedly prevail over private interest is the loyalty to the State in the sense that public interest must prevail over private interest and the disclosure of a particular document will damnify public interest and so even though injustice may be done to private interest it is much better that such injustice should be done rather than public interest should be injured by the disclosure of a document: vide - - 'Dinbai v. Dominion of India', : AIR1951Bom72 decided by Chagla C. J. and Bhagavati J.
(3.) THE aforesaid principles which constitute the four stages are deducible from the following decisions on this matter which can be grouped into, the decisions of the Madras High Court, the decisions of other High Courts and the decision of the House of Lords. In - -'Nagaraja Pillai v. Secretary of State', 39 Mad 304 a Bench of this court held that the object of Section 124, Evidence Act, is to prevent the disclosures to the detriment of public interests and the decisions as to such detriment rests with the officer to whom the communication is made and does not depend upon the special use of the word 'confidential'. The decision in - - 'Venkatachala Chettiar v. Sampathu Chettiar', 32 Mad 62 was followed. In - - 'Secretary of State v. Saminatha : AIR1930Mad342 , Jackson J. held that the public officer concerned and not the Judge is to decide whether the evidence referred to should' be given or withheld and if the objection is taken by the proper person the court will not go behind it. Under Section 124, it rested exclusively with the public officer concerned to withhold or give permission as he is the. sole judge as to whether public interest will or will not suffer by the disclosure though such discretion must naturally be exercised on well established principles and not arbitrarily. In - - 'Makky Moithu in re : AIR1943Mad278 Horwill J. on a question whether a certain report made by the Deputy Tahsildar of a Government Forest to the Collector was privileged, held that Section 124, Evidence Act, left it to the court to consider whether the communication was of the nature covered by the section; that is, the court has to decide whether the section can be applied. If it does the court has to exclude the document if the public officer concerned considers that public interest will suffer by the disclosure. Where the report was undoubtedly a confidential document and was not intended to be revealed to the public but only to such persons to whom the Collector thought fit to send it, the court cannot question the decision.;

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