- (1.) S. K. Phaujdar, J. The matter was heard on 6-8-1998.
(2.) THE applicants are facing S. T No. 270 of 1987 before the special Judge (D. A. A.), Farrukhabad. At the initial stage of the proceedings there were certain prayers for calling certain documents as also for keeping certain documents in sealed cover. THE court had allowed the prayers. By subsequent application, at the initial stage itself, certain other papers were called for and the court had directed that the matter shall be considered at the defence stage. However, when the defence stage came and the accused persons pressed for production of the documents (a wireless register and Mool Panchayat Nama), the Stale took up a plea of privilege under Sections 123,124 and 125 of the Indian Evidence Act and the plea was accepted by the Trial Judge and the defence prayer was disallowed. This order dated 21-7-1998, passed in S. T. No. 270 of 1987, is under challenge in the instant proceeding. Section 233, Cr. PC. speaks of entering upon defence in trials before a Court of Session and in sub- clause (3) of this Section it is provided that if the ac cused applies for issuance of any process, for compelling the attendance of any wit ness, or the production of any document, or thing, the Judge shall issue such process, unless he considers for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The law is, thus clear that the defence has a right to require production of a document and it is incumbent upon the court to call for the same, unless, of course, the grounds for refusal of the prayer, as indicated above, are manifest from the records. That the papers were not called for vexation or delay is clear from the simple fact that the defence had been harping for their produc tion since the initial stage and it was not an innovation at the final stage only for the purpose of delaying the matter. The only other ground available to the court for refusing the prayer was that the purpose of the application was to defeat the ends of justice which may include defeating any express bar under any enactment. Sections 123, 124 and 125 of the Indian Evidence Act may be quoted to see if the defence prayer could have been refused on the ground of defeating any one of these provisions - "123. Evidence as to affairs of State-No one shall be permitted to give any evidence derived from unpublished official records relat ing to any affairs of State, except with the per mission of the officer at the Head of the Depart ment concerned, who shall give or withhold such permission as he thinks fit. " "124. Official communications-No public officer shall be compelled to disclose communication made to him in official con fidence, when he considers that public interests would suffer by the disclosure. " "125. Information as to commission of offence-No Magistrate or Police Officer shall be compelled to say when he got any informa tion as to the commission of any offence. . . . . . . "
(3.) WHAT Section 123 prohibits is of giving evidence derived from unpublished official records relating to any affairs of the State. The documents called for were the Mool Panchayat Nama and certain wire less registers wherein despatch and receipt of wireless messages and the contents of such messages are maintained. It is the defence that the wireless message on which the defence proposed to rely would contradict certain other statements brought on record. The Mool Panchayat Nama or the wireless registers could not be regarded as unpublished official record and the privilege herein is a narrow one whose foundation is an apprehended in jury to public interest. It was not indicated in the letter of the Superintendent of Police or the order of the learned Court below as to how public interest would be injured by production of Mool Panchayat Nama or the wireless register. Privilege under Section 123, therefore, could not have been claimed in the instant case. The same logic would apply towards applica tion of Section 124 to the given set of circumstances. Here also the primary con sideration for claiming privilege is that the public interest would suffer by such dis closure. The Mool Panchayat Nama or the wireless registers, moreover, are not com munications in official confidence as those were routine procedural affairs of police station or investigation. Section 124 of the Indian Evidence Act, therefore, may not also have application in the instant case. For Section 125 it may also be stated that the documents, production of which was being insisted, are not covered by this section as no police officer is being compelled to disclose the source of his information, rather some evidence, which is there in the official record, is sought to be brought oh the case record.;