J. R. CHOPRA, J. - (1.) BY this order, I propose to dispose of two application : one filed by the learned counsel appearing for the petitioner for inspection of the file No. No. 2/8/82/home-5/86 and the other filed by Mr. J. P. Joshi, the learned Addl. Advocate general for the State claiming privileges as regards the unpublished Official record relating to public affairs.
(2.) IN the application filed on behalf of the petitioner, it was claimed that the aforesaid file has been submitted to the court by the learned Add. Advocate General and the Court by its order dated 21. 10. 1990 has ordered that this file be kept under a sealed cover and put in custody of the Addl. Registrar (Judl.) of this Court. The petitioner has, therefore, prayed that he be allowed inspection of this file. This application has been filed on 8. 11. 1990. Mr. J. P. Joshi, the learned Addl. Advocate General has also moved an application on 5. 12. 1990 wherein he has contended that in compliance of the directions of this Court, the file No. 2/8/82/home-5/86 of the Home Department of Govt. of Rajasthan has been submitted for perusal of the Court and it is now in the custody of the Addl. Registrar (Judl.) of this Court It the Custody of the Addl. Registrar (Judl.) of this Court. It was submitted that this file has already been inspected by Shri S. C. Pagoriya, the then Special Secretary to the Govt. Home Department Shri S. R. Bhansali, Secretary to the Govt. , Law Department and Shri M. I. Khan, the then Addl. Advocate General of the state, against whom, notices have been ordered to be issued for initiating contempt proceedings. In this case, the petitioner has also applied for the inspection of this file. As the petitioner is neither an official of the State Govt. nor he has dealt with the file in any capacity and, therefore, he is not entitled to inspect this file, which contains certain privileged communications relating to the public affairs of the State. It was claimed that such unpublished official record and the communications made by the Public Officer in official confidence cannot be disclosed to the petitioner in public interest. It was further submitted that besides the file also contains the opinion given by the Addl. Advocate General as a legal professional advise. The State has, therefore, claimed privileged regarding note-sheets contained in the aforesaid file of the Home Department. This privilege has been claimed under Ss. 123,124 and 129 of the Evidence Act. I have heard Mr. J. P. Joshi, the learned Addl. Advocate General for the State as also Mr. Ramjathmalani, the learned counsel appearing for the petitioner and have carefully gone through the record of the case. In this case, the aforesaid file of the Home Department was produced for the perusal of the Court on 11. 10. 1990 and on that day, no privilege was claimed this Court after going through several note-sheets of this file as also the opinion given by the them learned Addl. Advocate General Shri M. I. Khan and the opinion expressed by Hon'ble Mr Justice M. H. Beg and Shri Kuldeepsingh, Solicitor General, which were obtained by the respondent No. l Shri Arunsingh and submitted to the state has ordered for the issuance of notices to show cause as to why contempt proceedings be not initiated against Shri M. I. Khan , the then Addl. Advocate General of the State, Shri S. R. Bhansali, the Secretary to the Govt. in the Law Department. It was after perusal of these note- sheets and these documents that the Court issued ordered that this file be kept in the custody of Addl. Registrar (Judl.) of this Court because when certain note-sheets have been made the basis for issuing notices for contempt of this court that record forms part of the judicial record. It may be stated here that at the time when this file was submitted to the Court and at the time when it was ordered on 11. 10. 1990 that show cause notices as to why contempt proceedings be not initiated were ordered to be issued to Shri M. I. Khan, the then Addl. Advocate General and Shri S. R. Bhansali, Secretary to the Govt. , Department of Law, then too no privilege was claimed by the learned Addl. Advocate General. Even no objection was raised why this file is being retained by this Court and why it is not being returned back to the learned Add. Advocate General. Once that has been used so much so certain application have been made for inspection of this file by Shri S. C. Pagoriya, the then special Secretary to the Govt. , Home Department, Shri S. R. Bhansali, Secretary to the Govt. Law Department and Shri M. I. Khan, the then Addl. Advocate General and inspection of this file has been allowed to them without any demur from the side of the state. I must, therefore, say that it is too late now for the learned Addl. Advocate General to claim privilege over these documents which form part of the judicial record. This case relates to the property dispute between two private parties. This dispute has nothing to do with the affairs of the State. S. 123 of the Evidences Act provides that on 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 Officer at the head of the Department concerned, who shall give or withhold such permission as he thinks fit. In this case, this unpublished official record has no relation whatsoever to any affairs of the State. As stated above, it is a property dispute between two private parties. The state, somehow on the request of the Collector took upon it duty to ascertain as to whom the possession of the property should be given in this case. That does not make if an affair of the State and, therefore, S. 123 the Evidence is not at all applicable. S. 124 of the Evidence Act provides that no public Officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure. Now, this question has remained only an academic question because when the communications which were part of the aforesaid files were submitted to the Court, it was never claimed that certain communications mentioned in it have been made to a particular Officer in official confidence and, therefore, the disclosure to the court or to anybody else would result in an injury to the public interest when that was not claimed at that time, it cannot be claimed now because these document form part of the court record and they have already been disclosed to the Court. Not only that they have also been inspected by the parties concerned.
(3.) SIMILAR is the case with regard to Sec. 129 of the Evidence Act, which provides that no one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness in which case he may be compelled to disclose any such communications as may appear to the Court, necessary to be known in order to explain any evidence which he has given but no others. In this case, these communications and the legal advice have been disclosed to the Court and on their basis, the Court has come to the prima facie finding that notices should be issued to Shri M. I. Khan, the then Addl. Advocate General of the State and Shri S. R. Bhansali, the Secretary to the Govt. Law Department to show cause as to why contempt proceedings be not initiated against them. Once these documents formed part of the court record and on their basis,a particular order was passed certain persons were calls open to show cause as to why contempt proceedings be not initiated against them, the inspection of those documents cannot be denied to any party. In this respect, Mr. Ramjethmalani, the learned counsel appearing for the petitioner has drawn my attention to a decision of their lordship of the Supreme Court In A,d. M. Jabalpur V. S. Shukla (1), wherein in para 486 of the Judgment, it was observed a follows:- Damnoo's case did not involve any question of privilege at all and in fact, the relevant file was produced by the Govt. for the perusal of the Court. The case also did not involve any question under Art. 359 (1) and the effect of provision like section 16a (9) was not even hypothetically considered by the Court. " Thereafter, in para 487 of the Judgement, it was observed that the view of the Bombay High Court that S. 16a (9) may be read down so as to enable the Court to examine the forbidden material is impossible to sustain What was can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matter not disclosed to a party before it It is, therefore, clear from these observations that once the Court uses the particular material and forms a particular opinion then that material becomes the part of the judicial record and that has to be disclosed to the parties concerned. It is one thing that if such privilege is claimed, the High Court can satisfy its curiosity while going through the file to find out whether the file containing the relevant information and material should enter into its judicial verdict or not ? Once that file has been submitted to the Court without any demur and the Court has acted upon on the Basis of Certain note sheets and certain informations and opinion contained in the file then that record forms part of the judicial record and nobody can be denied inspection of that file. In this respect, we may also refer to a decision of their lordships of the Supreme Court in S. P. Gupta and Others V. President of Indian and others (2 ). In para 51 of the Judgment, which related to the conclusion about privilege claimed over certain documents and correspondences that have transpired between the high signatories, their lordships of the Supreme Court after referring to the Decision in Duncan V. Commell, Laird & Company Ltd. (3) decided during the second world war by the House of Lords and Robinson's case (4) and number of other authorities held that production could also be withheld when the public interest would otherwise be damnified as where disclosure would be injurious to national defence or to good diplomatic is relations or where the practice of keeping a case of documents secret was necessary for the proper functioning of the public service. In such a case, It was held that the Court should not require to see the document for the purpose of ascertaining whether disclosure would be injurious to the public interest. It was further observed: This decision, it may be seen, laid down that privilege could be claimed in respect of a document of on two alternative grounds viz. , (a) that the disclosure of the contents of the document would be injurious to the public interest by endangering national security or diplomatic relations and (b) that the document belonged to a class which should not be disclosed to ensure the proper functioning of public service. " If we examine this application filed on behalf of the state, even on these two grounds, it cannot stand any scrutiny because the disclosure of these documents cannot be held to be injurious to public interest by endangering national security or diplomatic relations nor these documents belong to a class which should not be disclosed to ensure the proper functioning of the public service. In Robinson's case (supra), it was held that the Court had always in reserve, the power to inquire into the nature of the document for which protection was so sought and to require some indication of the injury which would result from its production. In this case, the affidavit that has been filed by the some Commissioner it has not been disclosed that the production of these documents would result in an public injury. He has given his own verdict in his affidavit that after examining this file, he has reached the conclusion that they are privileged communications. ;