Indian Evidence Act, ss. 123 and 162--Scope of. 

Section 123 of the Evidence Act states that no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold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., Section 162 provides that when a witness brings to Court a document in pursuance of summons and then raises an objection to its production or admissibility the Court has to determine the validity of the objection to the production or admissibility and for so doing the Court can inspect the document except in the case of a document relating to the affairs of State or take such other evidence as may be necessary to determine its admissibility.

In connection with his election petition the respondent made an application be- fore the High Court for summoning the Secretary. General Administration and Chief Secretary of the State Government and the head clerk of the office of the Superintendent of Police of the District for the production of the Blue Book en- titled "rules and instructions for the protection of the Prime Minister when on tour or in travel", and certain other correspondence exchanged between the Government of India and the State Government in that connection, The Home Secretary deputed one of his officers to go to the court along with the documents but with clear instructions that he should claim privilege in respect of those documents under s. 123 of Evidence Act. No affidavit of the Minister concerned or the Head of the Department was, however, filed at that time. In the course of examination the witness claimed privilege in respect of the documents. The election petitioner there- upon contended that the Head of the Department had not filed an affidavit claiming privilege and that the documents did not relate to the affairs of the State. The documents in respect of which privilege was claimed were sealed and kept in the custody of the Court. When the matter came up for hearing. however, the Home Secretary to the State Government, filed an affidavit claiming privilege for the documents. In respect of the documents summoned from the office of the Superintendent of Police an affidavit claiming privilege under s. 123 of the Evidence Act was filed by the Superintendent of Police.

The High Court held that (i) under s. 123 of the Evidence Act the Minister or the Head of the Department concerned must file an affidavit in the first instance and since no such affidavit had been filed in the first instance the privilege was lost and the affidavit filed later claiming privilege was of no avail, (ii) that it would decide the question of privilege only when permission to produce a document had been withheld under s. 123; (ii) that the Blue Book in respect of which privilege was claimed was not an unpublished official record relating to the affairs of the State because the Union Government had referred to a portion of it in one of its affidavits and a member of Parliament had referred to a particular rule of the Blue Book in Parliament; (iv) that no reasons were given why the disclosure of the documents would be against public interest; and (v) that it had power to inspect the documents in respect of which privilege was claimed.