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TMI Blog1988 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Chief Metropolitan Magistrate (Economic Offences-l) Egmore, Madras, as C.C. No. 248 of 1987, has filed this petition, to set aside the notice issued by the above Court under Section 165 of the Evidence Act, directing him to produce the recorded information, regarding the commission of the offence and the order granting rewards, if any. 2. Facts briefly are :- On information that a huge consignment of foreign made zip fasteners was arriving by lorry from Thanjavur - Nagapattinam side, for delivery to the first accused, in his furniture shop at Door No. 144, Greams Road, Madras-6 and that the zip fasteners, would be immediately removed by a car and a taxi, the Revenue Intelligence Officer (P.W.I) on31-8-1982atabout11.45p.rn. reached the above premises along with others. Round about midnight, an Ambassador Car bearing T.M.Q. 7713 and an Ambassador Taxi, bearing Registration No. MDO 3401 entered the compound and about 15 minutes latter, a lorry bearing Registration No. MDF 4047 also came there. The respondent was present in the taxi. Under the supervision of the respondent, one of the bags were loaded inside the dicky of Ambassador Car TMQ 7713. P.W. 1 and other Officers came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to find out the truth of the alleged information existing, it is hereby ordered that the alleged recorded information as well as the alleged order granting rewards if any, are directed to be produced before this Court on or before 22-6-1987." The petitioner invokes the inherent powers of this Court under Section 482 Cr. P.C. to quash the above notice. 4. Thiru P. Rajamanickam, learned counsel for the petitioner, contended that both the documents, called for by the trial court, came within the purview, of Sections 124 and 125 of the Evidence Act as being privileged and, since the disclosure of the same would affect public interest, the petitioner could not be compelled to produce the documents. Learned counsel also contended that the documents were irrelevant and had no bearing on the issues in the trial. Reliance was placed upon certain decisions, which I shall refer to later. 5. The question that arises for consideration is whether the recorded information regarding the commission of an offence against the public revenue and the order granting rewards to informants of such information, are entitled to the immunity extended under Sections 124 and 125 of the Evidence Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a privilege communication, coming within the purview of Section 124 of the Evidence Act. 9. The next question is whether such a communication can be said to be made in official confidence. This aspect has also been discussed by the bench of the Andhra Pradesh High Court in the decision already referred to viz., Public Prosecutors. P.S. Ismail (1973 Crl. LJ. 931). They quoted with approval a decision of the Bombay High Court in Bhalachandra v. Chanbasappa (A.I.R. 1939 Bombay 237). In my opinion a communication in official confidence requiring protection under Section 124, Evidence Act, must be such as to necessarily involve the willful confiding of secrets with a view to avoid publicity by reason of the official position of the person in whom trust is reposed, under an express or implied promise of secrecy. The test must be whether the disclosure would result in betrayal of the person confiding by the publication of the communication having regard to the nature thereof. The prerogative right therefore has to be distinguished from the evidence showing how it arises in a particular case. Finally the Bench observed : The heart of the matter is whether the disclosure of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the petitioner contended that if under Section 123 of the Evidence Act, such a class immunity could be offered to documents coming within the purview of that section, in the same way and for the same purpose for which such class immunity would recognise, official communications of a particular kind, could be classified as a class and privilege under Section 124 of the Evidence Act extended, irrespective of the contents of the individual documents. According to the learned counsel information about the commission of a crime, is a class, to which immunity should be extended under Section 124 of the Evidence Act and which, therefore, the Court cannot order production. In the instant case, according to the learned counsel, the trial court knew the nature of the documents it was calling for and that itself should indicate to the court that it belonged to a class for which privilege should be extended and, the question of granting or rejecting privilege should not depend upon the contents of the particular document. The trial court, was not justified in calling for the production of the recorded information about the crime to decide whether the document is privileged or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Is a criminal trial. Recorded information about the commission of an offences, cannot constitute a class, to which immunity should be extended irrespective of the contents of each document. 14. It is seen that the petitioner has come to this Court, with this petition, immediately on receipt of the impugned notice. No privilege as such has been claimed under Section 124 of the Evidence Act by the official concerned. Proper procedure, therefore, would be for the official, to apply to the trial court, which would decide as to whether the claim of privilege of the official is not based upon a perverse, unjust or mala fide exercise of discretion. No doubt the public officer is the sole judge to decide, as to whether the disclosure of the contents of the document would impair public interest. These would be matters for the trial court to decide. 15. Learned Counsel also referred to the decision reported in State of Andhra Pradesh v. P.S. Ismail (1973 CrI. L.J. 931), wherein, on identical facts, the information received by the Collector of Customs from a private citizen leading to the search of premises and seizure of contrabands was held to be a privilege under Section 124 of the Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation. A plain reading of Section 125 of the Evidence Act indicates that when the order granting reward to the informant in this case is called for, it has the effect of requiring the petitioner to disclose the name of the informant as well. It would be impossible to split up the order into parts to eschew the name, identity and address of the informant. It is significant that while under Section 124 of the Evidence Act a Public Officer can claim privilege only if he considers that the public interest would suffer by the disclosure of the communication, under Section 125 of the Evidence Act, the Police, Magistrate and the Revenue Officer can claim privilege from disclosing the name of the informant, without any other consideration coming in. No further proof of, public interest being adversely affected by the disclosure of the name of the informant, is necessary under Section 125 of the Act. In the instant case, the petitioner, even in the counter filed to the application of the respondent under Section 91 Cr. P.O. had claimed privilege under Section 125 of the Evidence Act regarding details about the reward given to the informant. 18. Learned Counsel for the petitioner also con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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