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Bombay High CourtIndian Cases

Excelsior Film Exchange And Ors. vs Union Of India And Ors. on 5 December 1966

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Bombay High Court
Excelsior Film Exchange And Ors. vs Union Of India And Ors. on 5 December, 1966
Equivalent citations: AIR1968BOM322, (1967)69BOMLR878, AIR 1968 BOMBAY 322, 1968 MAH LJ 126 69 BOM LR 878, 69 BOM LR 878
(1) I was not inclined to deliver any judgment but I propose to deliver a short judgment as I think that the matter involves serious but somewhat important question relation to the claim of privilege of document by public officials.

(2) The matter arises out of a chamber summons taken out by the petitioners on November 22,196, requiring the respondents to disclose certain documents set out in the schedule A to the chamber summons. One of the documents of which disclosure is sought for is item 16. Being and annexure to G. L. I. 50/66 dated 13-7-1966 as also said G. L .I. referred to in connection with the screening committee in paragraph 19 of the third Respondent’s affidavit in sur-rejoinder .

(3) In paragraph 19 of the affidavit made by the third Respondent in sur-rejoinder it has inter alia been stated: “I say that the screening Committees are to be appointed by the 2nd Respondent and I deny that the 4th Respondent is to appoint aforesaid statement is still further supported by the communication which was received by my office on 21st October 1966. From the 2nd Respondent. Which inter alia, reads as under:

“From Shri P. D Kasbekar chief controller of imports & Exports to Shri N. H. Nagarwalla, Joint Chief controller of imports & Exports.
Refer para 13 of Annexure to C. L. 1.50/66 dated 13th July, 1966.
Screening Committee at Bombay, Calcutta and Madras will be appointed by the Chief Controller of Imports & Exports, New Delhi. Screening committee will scrutinise all offers including those secured by IMPEC direct.
Jt. Chief Controller of Imports & Exports concerned will be convenor of the screening committee which be appointed shortly. Until then, as already advised the Registration Committee will function as screening Committees. Make suitable amendment to letter you might issue to Film Association in pursuance of Para 7 of G. L. I. 50/66 dated 13th July 1966”
(4) The petitioners seek by this application that Respondents 1 to 3 be compelled to disclose the communication bearing No. G. L .I. 50/66 dated 13th July 1966 and the annexures thereto.

(5) Respondents 1 to 3 have resisted this application and have claimed privilege under Section 124 of the Evidence Act. The third Respondent in his affidavit in reply dated 25th November 1966 has inter alia, stated: “with regard to the document at Item 16 in the said letter of the petitioners’ Attorneys, I say that this is a communication made to me in official confidence and the public interest would suffer by the disclosure of such communication and privilege is claimed against the disclosure thereof”. Now the document of which disclosure is sought is said to be dated 13th July 1966, but in fact the same is dated 30th July 1966. On account of some mistake committed by the Respondents 1 to 3 in making an incorrect reference to the date of the document the petitioners sought disclosure of the document dated 13th July, 1966. On the last occasion when this Chamber Summons was argued before me Mr. Mukhi on behalf of the Respondents Nos. 1 to 3 stated that the document in question was dated 30th July 1966 and not 13th July 1966. Respondent No. 3 has made an affidavit to the above effect pursuant to the direction given by me on the last occasion.

(6) Section 124 of the Evidence Act confers right on the public officers to claim privilege from disclosure of confidential communications. But before exercising that right the officer concerned must come to the conclusion that the disclosure of such document would be detrimental to the public interest. He is the sole judge to decide that fact but his decision should not be arbitrary or capricious. He should not claim privilege merely because such disclosure would either advance the case of the adversary or damage his case. The only relevant consideration which should weigh with him is that the disclosure of such document would prejudice the public interests. If he honestly comes to the conclusion that it would adversely prejudice the public interests, he in exercise of the discretion vested in him should claim privilege from disclosing such document. But exercise of such privilege should not be abused. Section 124 of Evidence Act should in no event be resorted to as a cloak to shield the truth from the Court.

(7) Mr. Cooper on behalf of the Respondents contended that the third Respondent had waived the privilege by making a reference to the said communication in the said document or in any event the said communication must be deemed to have been incorporated in the said affidavit. I do not think it necessary to decide these question as in the present case, the privilege exercised by the third Respondent has been exercised as a cloak to conceal the truth from the Court.

(8) In order to satisfy myself as to whether the document for which privilege is claimed is a confidential communication or not I called for the same. After going through the same, to my utter surprise, I found that the claim for privilege is nothing but an abuse and has been put forth with a view to conceal the truth from the Court. The entire object of claiming privilege is that the contents of the document are of such a nature that the disclosure thereof would be detrimental to the public interest. Detriment to the public interest is a condition precedent to the exercise of privilege. But on going through the document one finds that there is nothing in the document which will in any way harm or prejudice the public interest. Now, if one refers to clause (7) of this document it is evident that clauses (1) to (6) of the document were to be brought to the notice of the Associations of the producers and exporters by means of circulars. If that be so it is inconceivable that this document could be said to be confidential and that the disclosure thereof would prejudice the public interest. On going through clause (13) of the annexure to the said document one finds that the Screening Committees were to be appointed by the fourth Respondents hereto and not by the second Respondent as contended by the third Respondent in his affidavit in reply and the affidavit in Sur-rejoinder. The third Respondent has all along asserted in Respondent were to appoint the Screening Committees. Not only that but in the affidavit in Sur-rejoinder dated 24th October 1966, the third Respondent has inter alia, stated that the aforesaid fact finds support from the communication received by him on 21st October 1966 and referred to hereinabove. It appears to me that the third Respondent did not want to disclose this document in order that his statement on oath may not be proved to be false.

(9) It appears to me that the whole object of the third Respondent in claiming privilege is to suppress the true facts coming to light. The privilege claimed by the third Respondent should not be allowed to be used as a cloak to suppress the correct facts from the Court. In my opinion the present case is glaring instance of the abuse of privilege under Section 124 of Evidence Act, the Court will never countenance any abuse of the powers by a public officer and will put its strong foot at any attempt made to hoodwink the Court.

(10) I therefore disallow the claim of privilege made by Respondents No. 1 to 3 and direct Respondents Nos. 1 to 3 to disclose the document dated 30th July 1966 together with the annexure thereto and to give inspection thereof forthwith to the Petitioners.

(11) Respondents 1 to 3 to pay to the Petitioners, costs of this Chamber Summons. Counsel certified.

(12) Order accordingly.