State of Kerala Vs. T.P. Nandakumar and anr. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - it was also argued that the procedure adopted by the learned magistrate is perfectly legal and correct and even the privilege was not properly claimed as mandated by the apex court in various decisions and the reasons for justifying or substantiating the claim of privilege was not disclosed and.....orderm. sasidharan nambiar, j.1. whether an order rejecting the privilege claimed by the state in producing a report submitted by the dig of police, ernakulam to the government in respect of illegal trade in kidney is revisable under section 397 of the code whether the state is entitled to the privilege claimed in respect of the report submitted by the dig of police ?. whether the report relates to the affairs of the state these are the important questions to be decided in the revision.2. second respondent a private hospital at kozhikode represented by its managing partner filed a complaint under sections 499 and 500 read with section 34 of ipc against the petitioner and others which was taken cognizance of by the learned magistrate. accused pleaded not guilty and evidence on the side of.....

Judgment:
ORDER

M. Sasidharan Nambiar, J.

1. Whether an order rejecting the privilege claimed by the State in producing a report submitted by the DIG of Police, Ernakulam to the Government in respect of illegal trade in kidney is revisable under Section 397 of the Code Whether the State is entitled to the privilege claimed in respect of the report submitted by the DIG of Police ?. Whether the report relates to the affairs of the State These are the important questions to be decided in the revision.

2. Second respondent a private hospital at Kozhikode represented by its Managing Partner filed a complaint under Sections 499 and 500 read with Section 34 of IPC against the petitioner and others which was taken cognizance of by the learned Magistrate. Accused pleaded not guilty and evidence on the side of the second respondent was recorded. Part of the defence evidence was also recorded. At that stage, first respondent filed a petition to summon and produce a report submitted by the DIG of Police, Ernakulam in the enquiry conducted by him regarding the kidney trade racket allegedly revealing the persons and the hospitals involved. The complaint itself was originated on publication of a report in the newspaper published by the first respondent alleging the involvement of second respondent hospital in the kidney trade racket. The report thought to be summoned was to justify the report published by the first respondent as the truth. According to first respondent, involvement of second respondent hospital is clear from the report submitted by the DIG of Police after proper investigation. As directed by the learned Magistrate under Secretary to the Government of Kerala produced the report in a sealed cover and privilege was claimed under Sections 123 and 124 of Evidence Act contending that the report shall not be made public as it is a privileged document as it pertains to unpublished unofficial records and relate to the affairs of the State. Learned Magistrate after hearing the counsel for the parties and the Assistant Public Prosecutor appearing for the State, as per order dated 12-4-2005 allowed the petition and directed to open the sealed cover containing the report and made it available to the parties to the case, which is being challenged by the State in this revision.

3. It was contended by the State in the revision that the finding of the Magistrate that the report will not affect public interest or security of the State or functioning of any public service is erroneous and the very procedure adopted by the learned Magistrate is illegal. It was contended that when a privilege is claimed in respect of a report stating that the report relates to the affairs of the State, the Magistrate before opening the sealed cover should have decided whether the privilege claimed is sustainable or not and as the sealed cover was opened and report was perused by the Magistrate before passing the order, the order is illegal and unsustainable. It was also contended that without deciding the question of relevancy of the report to the question involved in the case summons should not have been issued and in the impugned order also it was not found that the report is relevant and necessary for the purpose of resolving the disputes involved in the case. It was also the contention that the procedure and methodology adopted by Investigating Officer on the basis of which he submitted the report are unverified facts and if the report is published it would unnecessarily point out suspicion on the persons allegedly involved and in such circumstances the report should have been kept secret and confidential and the privilege should have been granted.

4. Additional Advocate General Mr. Rajan Joseph relying on the decisions of the Apex Court and this Court argued that learned Magistrate before finding that the report sought to be summoned is relevant for deciding the case before him, should not have issued summons to produce the report and when privilege was claimed the sealed cover should not have been opened before deciding that question and in any case the claim for privilege should have been upheld. It was further argued that as far as the privilege claimed by the State is concerned, impugned order is final and therefore the order is revisable.

5. Advocate Mr. Ramakumar learned, counsel appearing for first respondent challenged the very maintainability of the order on the ground that the order is only an interlocutory order pure and simple and because of the bar under Section 397(2) of the Code revision is not maintainable. The argument was that by upholding or rejecting the privilege claimed by the State in respect of a document summoned proceedings pending before learned Magistrate, will not be terminated and so the order is not revisable. It was also argued that the procedure adopted by the learned Magistrate is perfectly legal and correct and even the privilege was not properly claimed as mandated by the Apex Court in various decisions and the reasons for justifying or substantiating the claim of privilege was not disclosed and in any event a report submitted by the police after investigation is not a privileged document and the report is relevant and necessary to prove the case of first respondent that he is justified in publishing the report for public good and therefore the order is legal and correct and warranting no interference.

6. Under Sub-section (2) of Section 397 the powers of revision conferred under Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. The expression interlocutory order is not defined in the Code of Criminal Procedure, hereinafter referred to as the Code. Ordinarily and generally, the expression 'interlocutory order' has been understood as converse of the term final order. In general a judgment or order which determines the principal matter in question is termed 'final'. An order which does not deal with the final rights of the parties but either is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure or is made after judgment, and merely directs how the declarations or right already given in the final judgment are to be worked out, is termed 'interlocutory'. But an interlocutory order even though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals. The following principle laid down in Salaman v. Warner, (1891) 1QB 734 was quoted with approval in Kuppuswami Rao v. The King, AIR 1949 FC 1 : (1948 (49) Cri LJ 625).

'If their decisions, whichever way it is given, will if it stands, finally dispose the matter in dispute, I think that for the purpose of the rules it is final. On the other hand, if their decision if given in one way, will finally dispose of the matter in dispute, but, if given in the other way, will allow the action to go on, then I think it is not final, but interlocutory.'

But the test laid down to decide whether an order is an interlocutory order or not i.e. 'If that objection of the accused succeeded the proceeding could have been ended but not vice versa and the order can be said to be final order only if, in either event, the action will be determined' is held to be not the correct law by the Apex Court in Madhu Limaye v. State of Maharashtra, : 1978CriLJ165 . Holding that such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order cannot be accepted as this will render the revisional power conferred by Sub-section (1) of Section 397 nugatory, the Apex Court held (Para 13) :--

'In such a situation it appears to us that the real intention of the Legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order'. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami case (1948 (49) Cri LJ 625) (PC) but, yet it may not be an interlocutory order -- pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders.'

The Apex Court also laid down that even though an order may not be final in one sense but is surely final on other aspect and such an order is not interlocutory so as to attract the bar under Sub-section (2). It was held that it must be taken to be an order falling in the middle course which is interpreted as not a final order or interlocutory order but an intermediate order. The same question was considered in K. K. Patel v. State of Gujarat, : 2000CriLJ4592 and in State v. N.M.T. Joy Immaculate, : 2004CriLJ2515 . In the former case a revision was filed challenging the dismissal of a petition for discharge on the ground that no sanction as contemplated by Section 197 of the Code has been obtained. The Sessions Judge allowed the objection raised by the accused based on Section 197 and allowed the revision which was challenged before the High Court on the ground that the order passed by the Metropolitan Magistrate was an interlocutory order and therefore no revision would lie. The Apex Court held that in deciding whether an order challenged is interlocutory or not the sole test is not whether such an order was passed during the interim stage instead the test is whether by upholding the objections raised by a party it would result in culminating the proceedings. If so, the order passed on such objections would not be merely interlocutory as envisaged in Section 397(2). Analysing the objection raised by the accused in that case it was held that if the objections were upheld the entire prosecution proceedings would have been terminated and therefore the order was not an interlocutory order and consequently it is revisable. In the later case, the order of the Magistrate granting custody of the accused to the police was challenged in revision before the Apex Court. Their Lordship held (Para 13) :--

'The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Threfore, applying the test laid down in Madhu Limaye's case (1978 Cri LJ 165) (SC) it cannot be categorised even as an 'intermediate order'. The order is, therefore, a pure and simple interlocutory order and in view of the bar created by Sub-section (2) of Section 397, Cr. P.C., a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day.'

7. Identical is the case herein. The impugned order even if allowed will not terminate the proceedings. Even if the privilege claimed by the State was upheld, it would not have resulted in acquittal or conviction of the accused. If so, the order cannot be either a final order or an intermediate order. It can only be an interlocutory order pure and simple and would attract the bar provided under Sub-section (2) of Section 397 of the Code.

8. The Full Bench decision of the High Court in Manohar v. State of Jammu and Kashmir, 1980 Cri LJ 292 supports the view. In that case the accused was charged for the offence under Section 5(2) of the Prevention of Corruption Act. During the pendency of the trial, prosecution examined a witness and while the witness was being examined an application was filed on behalf of the accused for summoning the interrogation report and some other record connected with the detention of the witness under the Defence of India Act. The prosecutor filed objection to the application raising privilege on the ground that the records sought to be summoned was top secret being connected with the security of the State and being an unpublished official record its disclosure was likely to prejudice public interest. The Special Judge disposed the application upholding the privilege claimed by ' the State. The question of privilege was considered by the Full Bench in that decision. Discussing the case law, the Full Bench held :--

'In the instant case, however, the impugned order only granted the claim of privilege to the State under Section 123 of the Evidence Act. An order allowing or disallowing a claim of privilege does not put to an end the proceedings in which the order is made. Such an order is only a step in the proceedings and only relates to a procedural matter and does not purport to decide the rights of the parties. Such an order can only be termed as an 'interlocutory order'.

The Apex Court in State of U. P. v. Col. Sujan Singh, : 1965CriLJ94 , has also considered this question. In that case privilege was claimed when the Secretary, Ministry of Home Affairs was called upon to produce a document on the ground that production of the record containing nothings would not be in the interest of the State. The privilege claimed was rejected by the Special Judge which was upheld by the High Court. The matter was taken up before the Apex Court. Their Lordships held (Para 8) :--

'An order allowing the application of the accused for the production of a document by the Union Government and rejecting the claim of privilege by the Union Government I a pending criminal proceeding even if confirmed by the High Court in revision is only an interlocutory order ad not a final order within the meaning of Article 134(1). It does not purport to decide the rights of the parties, namely, the State of U.P. and the accused. It enables the accused to have the said document duly proved and exhibited in the case. It relates only to a procedural step for adducing evidence. The indirect effect of that order on a third party to the proceedings, viz., the Union Government who does not seek to question that order, does not deprive the order of its interlocutory character.'

In the light of the settled legal position it can only be held that the impugned order is a pure and simple interlocutory order which is not revisable. The revision is not maintainable.

9. As the learned Counsel on both sides addressed at length on sustainability of the claim for privilege claimed by the State, it is necessary to consider the claim for privilege. The learned Magistrate summoned the report submitted on the basis of an inquiry on an allegation about kidney racket made by an adivasi in Idukki District. According to first respondent, the report is relevant and necessary to justify the truth of the report published by him, which is alleged to be defamatory by the second respondent, that is pending before the learned Magistrate. The Deputy Inspector General of Police who was summoned to produce the report was examined as DW15. He deposed that the report was submitted by Deputy Superintendent of Police, Thodupuzha which was forwarded to the Government and State Government is claiming privilege as it is confidential and it cannot be published in public interest. An affidavit was filed before the learned Magistrate claiming privilege by the Principal Secretary to the Health Department. What was stated in the affidavit is that -- the report called for is under the purview of Sections 123 and 124 of Indian Evidence Act. Since the report pertains to unpublished official records which relates to the affairs of the State, and it cannot be published'. Stating that the report was produced in accordance with the provisions of Section 162 of the Evidence Act in a sealed cover along with an affidavit, the Principal Secretary claimed that the report cannot be shown or given to anybody as it is hit by Sections 123 and 124 of Indian Evidence Act. The basis of claiming privilege is stated in the affidavit as follows :--

'I had claimed the privilege on behalf of Government on the bona fide belief that it is a privileged document which cannot be published and Government still hold the above stand.'

As rightly pointed out by Advocate Sri. Ramakumar, the affidavit does not disclose that the Principal Secretary had even read the report to find out whether the report relates to the affairs of the State or whether publication is not in public interest. The privilege was claimed only on the basis of the bona fide belief that it is a privileged document. Section 123 of Evidence Act mandates that no 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. Section 124 of Indian Evidence Act provides that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that public interests would suffer by the disclosure.

10. Section 162 of Indian Evidence Act deals with production of documents. First clause of Section 162 requires that a document summoned to produce a document must bring it to the Court and raise an objection against either its production or its admissibility. It casts an authority and also an obligation on the Court to decide the validity of both or one of the objections. The objection contemplated relates to all claims of privilege provided by the relevant sections of Chapter IX of Part III of the Act. When an objection against the production of a document is raised under Section 124, the Court has first to determine whether the communication is made in official confidence. If the answer is negative, then the document is to be produced. If on the other hand, answer is in the affirmative, then it is for the officer to decide whether the document should be disclosed. The second clause of Section 162 refers to the objections as to the admissibility of document. It empowers the Court to inspect the document while dealing with the objection.

11. The argument of Additional Advocate General Sri. Rajan Joseph is that the report produced is an unpublished official record which relates to the affairs of the State and the report was prepared on the basis of unverified facts and if it is to be published the report may generate suspicion on persons who may not have involved in the kidney racket, as the Investigating Officials were not obliged to adhere to the principles of natural justice while gathering information for the report, the publication of the report will affect the secrecy and confidentiality of the investigation which has a direct bearing in the affairs of the State.

12. The Apex Court in R. K. Jain v. Union of India, : 1993(65)ELT305(SC) laid down the criterion to be born in mind while deciding the question of privilege to withhold an evidence in a criminal case. It was held (Para 45) :-

'Allowing privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the Courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific, and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminary shown to have some bearing on the pending criminal cases. If the privilege is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. Exemptions were engrafted only to the evidence relating to 'the security of the State, diplomatic relations and defence'. It was held that 'the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candour with a concern for appearances and for their own interest to the detriment of the decision making process.'

It is natural temptation for people in executive position to regard the interest of the department as paramount forgetting that interest of justice itself is of greater importance. The factors to decide the public interest immunity were held to include :--

(a) where the contents of the documents are relied upon, the interests affected by their disclosure; (b) where the class of documents is invoked, whether the public interest immunity for the class is said to protect; (c) the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents themselves came into existence; (d) the seriousness of the issues in relation to which production is sought; (e) the likelihood that production of the documents will affect the outcome of the case; and (f) the likelihood of injustice if the documents are not produced.'

The Apex Court cautioned that immunity must not be claimed on administrative rule and it must be for valid relevant and strong grounds or reasons stated in the affidavit filed on that behalf.

The Apex Court in State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 has considered the procedure to be followed when an officer is summoned to produce the document and privilege is claimed. The Apex Court laid down the principle as follows (Para 23) :--

'The sole and the only test which should determine the decision of the head of the department is injury to public interest and nothing else. Since it is not unlikely that extraneous and collateral purposes may operate in the mind of the person claiming the privilege it is necessary to lay down certain rules in respect of the manner in which the privilege should be claimed. We think that in such cases the privilege should be claimed generally by the Minister in charge who is the political head of the department concerned; if not, the Secretary of the department who is the departmental head should make the claim; and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary the Court may, in a proper case, require an affidavit of the Minister himself. The affidavit should show that each document in question has been carefully read and considered, and the person making the affidavit is satisfied that its disclosure would lead to public injury. If there are a series of documents included in a file it should appear from the affidavit that each one of the documents, whose disclosure is objected to, has been duly considered by the authority concerned. The affidavit should also indicate briefly within permissible limits the reason why it is apprehended that their disclosure would lead to injury to public interest.'

This principle was followed by the Apex Court in State of U. P. v. Raj Narairi, : [1975]3SCR333 as follows (Para 42) :--

'It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court.'

It was argued by Additional Advocate Genera] Sri. Rajan Joseph that the Court has committed an illegality by opening the sealed cover before deciding the claim of privilege. The objection is bereft of merit. The Apex Court in Raj Narain's case (supra) has held (Para 44) :--

'It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may do so.'

13. What was argued by the learned Additional Advocate General is that if the report is to be published, it would affect the persons whose names were mentioned in the report. On that ground no privilege could be claimed as the privilege is not to safeguard their interest. When privilege is claimed with the support of an affidavit filed by a Principal Secretary, who has not even claimed that he had seen the report, much less got satisfied that the report relates to the affairs of the State, the claim cannot be upheld. When the affidavit does not disclose the grounds on which the privilege is claimed, the learned Magistrate rightly rejected the claim for privilege. In the absence of an affidavit of the Head of the Department disclosing the ground for claiming privilege, it cannot be granted. There is force in the submission of Advocate Mr. Ramakumar that when the report produced is the report prepared on investigation on a complaint of trade in kidney by the Deputy Superintendent of Police, the Head of the Department is not the Health Secretary but Home Secretary who did not file any affidavit. When there is no effective claim for privilege and the Principal Secretary who filed the affidavit does not disclose that the document has been carefully read and considered and was satisfied that its disclosure would lead to public injury and when the affidavit does not indicate the reason why it is apprehended that its disclosure would lead to Injury to public interest the privilege claimed can only be rejected.

14. Then the question is whether the document summoned relate to the affairs of the State. In Section P. Gupta v. President of India, : [1982]2SCR365 , the Apex Court speaking through Bhagwati, J. observed (Para 68):--

'The basic question to which the Court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the Court by reason of Section 162.'

Analysing Sections 123 and 162 of Indian Evidence Act it was held :--

'The Court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies. If the Court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its nondisclosure, the Court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the Court finds that the balance between competing public interest lies the other way, the Court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the Court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for. documents belonging to such class.'

The privilege claimed is also to be appreciated in the background of the right of the citizen to know the affairs of the State. Even though in transactions which have serious repercussions on public security, secrecy may be claimed legitimately because In the public interest such matters are not publicly disclosed. Apex Court in Dinesh Trivedi, M.P. v. Union of India, : [1997]3SCR93 holding that even documents which effect diplomatic relations or relate to some State secrets of highest importance which Court would ordinarily uphold Government's claim of privilege have to be tested against the basic guilding principle which is that wherever it is clearly contrary to the public interest for a document to be disclosed it is in law immune from disclosure held :--

'What then is the test? To ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the Government and the basis thereof. Democracy, therefore, expects openness and openness is a concomitant of a free society. Sunlight is the best disinfectant. But it Is equally important to be alive to the dangers that lie ahead. It is important to realise that undue popular pressure brought to bear on decision-makers in Government can have frightening side-effects. If every action taken by the political or executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision-maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to a grinding halt. So we have two conflicting situations almost enigmatic and we think the answer is to maintain a fine balance which would serve public interest.'

The right of information is now a facet of the freedom of speech and expression as contained in Article 19(1)(a) of the Constitution of India. In People's Union for Civil Liberties v. Union of India, : AIR2004SC1442 . Apex Court laid down the law that Right of Information indisputably is a fundamental right. As declared in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, : [1995]1SCR1036 'the freedom of speech and expression includes right to acquire information and to disseminate it'. True a reasonable restriction on the exercise of the right is always permissible in the interest of the security of the State.

15. In State of U. P. v. Raj Narain, : [1975]3SCR333 , rejecting the privilege claimed relating to the Blue Book summoned from the Superintendent of Police, Apex Court held that the people of this country have a right to know every public act, every thing that is done in public way.

16. The privilege claimed in this case relates to the report submitted after an investigation on kidney trade. The report cannot be said to be on the affairs of the State. It cannot be said that its disclosure is against the public safety. If at all the publication of the report may affect the persons against whom materials were unearthed, State is not entitled to claim privilege to safeguard their interest. In any event the granting of privilege is not for the public interest. In such circumstances, the rejection of the privilege is perfectly legal and proper.

Criminal Revision Petition is dismissed.