S.D.BAJAJ,J - (1.) CRIMINAL Revision No. 1-M of 1989 has been filed by the State of Punjab against the orders dated 18th January, 1989 of learned Judicial Magistrate Ist Class, Chandigarh, disallowing the claim of privilege in respect of a note submitted by Adviser Shri J.F. Ribeiro to the Governor Shri S.S. Ray on 20th July, 1988 and the orders passed by the Governor thereon on 27th July, 1988. Both these documents had been summoned by respondent No. 1 from the custody of Secretary to Governor, Punjab, Shri Y.S. Ratra, Adviser to the Governor Shri J.F. Ribeiro for being produced as part of his preliminary evidence, being adduced by him before the learned trial Court in his complaint against respondent No. 2 under sections 341, 342, 352, 354, 355 and 509 of the Indian Penal Code, for indecent behavior towards his wife in a drunken condition inside house No. 288, Sector 16, Chandigarh, allotted to Home Secretary, Punjab, Shri S.L. Kapur.
(2.) THE State had claimed privilege on the grounds, that the documents aforesaid related to the affairs of State of Punjab, Chief Secretary Shri R.P. Ojha submitted his own affidavit in support of the claim for privilege. Relevant paragraph 2 of the affidavit reads :- "I, R.P. Ojha, Chief Secretary to Government, Punjab, Department of Personnel and Administrative Reforms do hereby solemnly affirm and declare as under :- 2. That, I, as Head of the Department of Personnel and Administrative Reforms exercising control over the record have carefully gone through the said file. I have come to the conclusion that it is an unpublished official record relating to the affairs of the State which includes notings, comments and opinion of officers at various levels and communications made in official confidence and that the disclosure of the same may expose the said officers to criticism. As such, the disclosure thereof will hamper the proper functioning of the public service as the officers would in future feel hesitant in expressing their opinions fearlessly in such administrative matters." 3. The summoned documents were also forwarded to the learned trial Court in a sealed cover to facilitate their perusal by the learned trial Court; if deemed necessary. On receiving them learned trial Court initially ordered : "18.1.89 Present :- Complainant with counsel Shri Balwinder Singh, District Attorney for witnesses Sh. Y.S. Batra and Shri J.F. Ribeiro. The documents for which the privilege, has been sought have been produced in sealed envelope. But until and unless it is opened it cannot be said as to what is the nature of documents and what sort of privilege has been sought. So let it be opened. Sd/- (G.S. Sewak) Judicial Magistrate Ist Class, Chandigarh." Announced. Dt. 18.1.1989.
(3.) AFTER opening the sealed cover learned trial Court made the impugned order which reads :- "18.1.89 Present :- Complainant with counsel Shri Balwinder Singh, District Attorney for the witnesses Shri Y.S. Ratra and Sh. J.F. Ribeiro. The envelope opened. I have gone through the documents which do not concern the affairs of the State at all rather these concern the individual and the privilege sought does not fall under the provisions of sections 123 and 124 of the Indian Evidence Act, which are as under : Sec. 123 "Evidence as to affairs of State - No one could be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit." Sec. 124 "Official Communications :- No Public Officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure." 2. In view of this position, the application seeking the privilege is disallowed." ;