- (1.) IN this election petition privilege has been claimed regarding three sets of documents. Sri S. S. Saxena is alleged to have claimed privilege regarding four papers, including copy of a blue book with the title as "Rules and Instructions for the Protection of Prime Minister when on Tour or in Travel". Privilege was claimed by the Superintendent of Police, Rae-Bareli, regard ing two papers which relate to the Tour Programme of Smt. Indira Nehru Gandhi at Rae-Bareli during the election period. Sri K. P. Sood claimed privilege regarding two documents. Sri Sood is an officer of the Ac countant General's Office, Central Revenue, New Delhi. Sri Saxena is alleged to have claimed privilege orally as an agent and re presentative of Sri R. K. Kaul, Home Secre tary, Uttar Pradesh Government. This pri vilege was claimed by Sri Saxena on 10-9-1973, but an affidavit was filed by Sri Kaul claiming that privilege on 20-9- 1973. Much stress was laid by the parties' counsel in sup port of their respective contentions regarding the production of the blue book with the title "Rules and Instructions for the Protec tion of Prime Minister when on Tour or in Travel". It shall hereinafter be called as the 'blue book'.
(2.) ACCORDING to the petitioner, firstly, privilege under Section 123 of the Evidence Act could not be claimed orally. Secondly, Sri Saxena did not claim privilege. The third contention of the petitioner's counsel was that after a lapse of ten days the affidavit of Sri Kaul should not be considered as Sri Kaul knew full well that Sri Saxena was bringing that book to Court for production and, as such, if he had to claim any privi lege he should have armed Sri Saxena with the necessary affidavit. The fourth conten tion was that requisite conditions of Sec tion 123, Evidence Act, were not fulfilled. Section 123 of the Evidence Act reads as below:- "S. 123. No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the offi cer at the head of the department concern ed, who shall give or withhold such permis sion as he thinks fit."
(3.) IN this connection, reference to Sec tion 162 will also be relevant because it lays down the procedure which should be adopt ed while deciding the question of privilege. Section 162 of the Evidence Act reads as be low: "S. 162. A witness summoned to pro duce a document shall, if it is in his posses sion or power, bring it to Court, notwith standing any objection which there may be to its production or to its admissibility. The validity of any such objection shall be de cided on by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to deter mine on its admissibility. If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the trans lator to keep the contents secret, unless the document is to be given in evidence; and if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code." ;