Rajvi Roop Singh, J.C.
1. This is a Criminal Reference made by the learned Sessions Judge, Tripura, in Criminal Motion No. 25 of 1964 with a recommendation for setting aside the orders dated 9-12-63 and 10-1-64, passed by the Magistrate First Class, Sadar in G. R. Case No. 741 of 1961.
2. The facts leading up to this reference are as follows:
On 4-8-61 P. W. 1 Shri A. Dhar Choudhury, District Sub-Registrar sent a written report dated 31-7-61 signing his name for the District Registrar, Tripura to the Superintendent of Police intimating that the special audit in respect of Sadar Sub-Registrar's Office for the period from 1-4-57 to 31-3-61 had been completed and that the audit party had pointed out that the amount of Rs. 2,235.08 was less credited into Treasury and an amount of Rs. 50.29 was not accounted for. It was also mentioned in the said report that the duplicate copy of challans and the relevant papers in respect of the six items constituting the amount of short credit were also not available. On the basis of the said report there was an investigation by the Police, following which a charge-sheet under Section 409/420/477 I. P. C. was filed on 10-1-63 against 4 accused persons including the petitioner Pulin Behari Biswas who was the Head Clerk, Sub-Registrar's Office, Sadar and 3 other employees attached to the Sub-Registrar's Office, Sadar namely (1) Khagendra Chandra Chakraborty Thakur, Accountant, (2) Manindra Kumar Acherjee, Peon and (3) Angshu Priya Roy, the then Sub-Registrar. Shri K. P. Putt, Magistrate First Class, Sadar, to whose file the case was transferred started enquiry under Chapter XVIII of the Code of the Criminal Procedure.
In course of enquiry, examination and cross-examination of P. W. 1 Shri A. Dhar Choudhury was finished on 5-12-63. During his examination-in-chief P, W. 1 stated that the cash was kept in the iron safe of the Office under the joint custody of the Sub-Registrar and the Head Clerk and that one set of key of the iron safe was held by the Sub-Registrar and another set of key was held by the Head Clerk. He also stated that during the material time he was elsewhere and admitted in cross-examination that he could not say who handled the cash and who held the keys of the iron safe of Sadar Sub-Registrar's Office during the material time. In course of cross-examination P. W. 1 also admitted that a file had been opened in the District Sub-Registrar's Office in respect of embezzlement and this file contained all correspondences of the District Registrar about embezzlement matter from time to time, but he denied having any knowledge of any letter written by Mr. O. Kathipri, the then District Registrar to the Deputy Secretary, Revenue Department, Tripura on 26-2-63 to the effect that during the material time of embezzlement Khagendra Kumar Chakraborty Thakur handled the cash till his suspension and Shri A. P. Roy, the then Sub-Registrar held the keys of the iron safe of Sadar Sub-Registrar's Office.
On 6-12-1963 an application was filed before the learned Magistrate on behalf of the accused petitioner Pulin Behari Biswas praying for calling for, under Section 94 Cr. P. C., the letter dated 26-2-63 addressed by Mr. O. Kathipri, the then District Registrar, Tripura to the Deputy Secretary, Tripura Administration, Revenue Department as also the despatch book containing entry of the said letter. The learned Magistrate by his order dated 9-12-63 rejected the petition upon the view that the document is inadmissible in evidence as the same did not come within the purview of Section 35 of the Indian Evidence Act. Thereafter on 28-12-1963 the petitioner filed another application under Section 94 Cr. P. C. praying for the under-mentioned documents to be called for from the respective Officers mentioned below:
From the Deputy Secretary, Revenue Department:
(1) The letter, dated 26-2-1963 from the District Registrar to the Deputy Secretary.
(2) Copy of the letter, dated 20th January, 1963 to the District Registrar from the Deputy Secretary.
From the District Registrar;
(1) Copy of the letter dated 26-2-1963 to the Deputy Secretary, and the relevant entry of the same in the (ii) Despatch Book.
3. The learned Magistrate, however, held that the letter dated 26-2-1963 addressed to the Deputy Secretary was an inter-departmental communication and was not a public document and conies under the category of unpublished official record. He further held that these inter-departmental communications relate to affairs of State, being communications relating to matters of public nature with which the State is concerned'. In that view by his order dated 10-1-1964, the learned Magistrate found that the documents called for were exempted under Section 94(3) of the Code of Criminal Procedure being protected under Section 123 of the Indian Evidence Act and rejected the petitioner's application.
4. Being aggrieved by this order of learned Magistrate, the petitioner filed a revision petition in the Court of learned Sessions Judge and he has made this reference.
5. Heard the learned Government Advocate and the counsel for the petitioner.
6. The learned Government Advocate con. tended that the letter dated 26-2-1963, addressed to the Deputy Secretary by the District Registrar, was an inter-departmental communication and was not a public document, therefore, it comes under the category of unpublished official record. He further pointed out that these inter-departmental communications relate to affairs of State, being communications relating to 'matters of public nature with which the State is concerned' therefore the documents called for were exempted under Section 94(3) of the Code of Criminal Procedure being protected under Section 123 of the Indian Evidence Act, The order of the learned Magistrate therefore on this point is correct and the reference made by the learned Sessions Judge should be rejected.
7. The learned Counsel for the petitioner, Shri S. R. Burman while supporting the reference averred that the order of learned Magistrate that the letter dated 26-2-1963 is inadmissible in evidence as the same did not come within the purview of Section 35 of the Evidence Act and that the documents called for are exempted under Section 94(3) of the Code of Criminal Procedure being protected under Section 123 of the Indian Evidence Act is Improper. He further pointed out that a file was maintained in the Office of the District Sub-Registrar containing inter-departmental correspondence in respect of the embezzlement of Government money. The said file contained a letter dated 26-2-1963 from the District Registrar Shri O. Kathipri, addressed to the Deputy Secretary. Revenue Department, mentioning that during the material time of embezzlement Shri K. K. Chakraborty Thakur was handling the money of Sadar S. R. Office till his suspension and the then Sub-Registrar held the key of the iron safe. This letter relates to a fact in issue or a relevant fact in the present case, therefore, it is an important piece of evidence. Besides that this document has been made by the public servant in the discharge of his official duties and it is contained in a public or official record, therefore, it is admissible in evidence under Section 35 of the Indian Evidence Act. In support of his contention he placed reliance on the case reported in Sevugan Chettiar v. Kaghunatha Doraisingam AIR 1940 Mad 273. In this case it has been laid down that where according to official practice a book is maintained in the Collector's Office containing the copies of the communications sent by the Collector to various subordinate Officers, the book of copies thus maintained is itself an official register within the meaning of Section 35 and a public document within the meaning of Section 74.
8. He next contended that it is true that Sub-section (3) of Section 94 Cr. P. C. lays down that nothing in this section shall be deemed to affect the Indian Evidence Act, Sections 123 and 124. So there can be no doubt that the Court, while exercising its discretionary power under Section 94 (1) Cr. P. C. for calling the record, has to see that the protection given under Section 123 of the Evidence Act in respect of unpublished official records relating to any affairs of State from being given in evidence should not be infringed. But it will appear from the reading of Section 123 of the Evidence Act that even if a document forms part of an unpublished official record and relates to any affairs of the State, the same may be given in evidence, if the head of the Department concerned grants permission for the purpose. In the present case, the learned Magistrate has not ascertained the views of the officer at the head of the Department concerned as to whether he will permit the document or documents in question to be given in evidence. Even if the view of the learned Magistrate that the documents In question relate to affairs of State be accepted as correct, he must be held to be absolutely wrong in thinking that those documents were exempted under Section 94(3) of the Code of Criminal Procedure without calling upon the Heads of the Department, in which the documents were lying, to produce them. There appears great merit In the contention advanced by the learned Counsel for the petitioner. In view of the facts of the case and the ruling cited by the learned Counsel for the petitioner I find that the document in question is a public . document,
9. Now the question for consideration is as to whether the document forms part of an unpublished record and it relates to any affairs of the State or not. This fact can be ascertained by the learned Magistrate after going through the record. Besides that, if the document forms part of an unpublished official record and relates to any affairs of the State even then it can be given in evidence if the Head of the Department concerned grants permission for it. In the instant case, the learned Magistrate has not ascertained the views of the Head of the Department concerned as to whether he would permit the document in question to be given in evidence or not. I find that this Is an important and relevant document therefore, the Magistrate should first ascertain the views of the Head of the Department as to whether he is prepared to give it in evidence or not. If the Heart of the Department refuses to give it as an evidence then he should decide the point afresh on merits.
10. In view of the aforesaid discussions, I accept the reference and remand the case back to the learned Magistrate to decide the point again after ascertaining the views of the Head of the Department concerned as to whether he would permit the document in question to be given in evidence or not.