This is a Criminal Reference made by the learned Sessions Judge, Tripura, in Crimi­nal Motion No. 25 of 1ft.,4 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 Sec. 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 CWakraborty Thakur, Accountant, (2) Manindra Kumar Acherjee, Peon and (3) Angshu Priya Roy, the then Sub-Registrar. Shri K. P. Dutt, 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. 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 Sec. 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 dispatch 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 Sec. 35 of the Indian Evidence Act. Thereafter on 28-12-1963 the petitioner filed another application under Sec. 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 29th 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) Dispatch 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 comes under the category of unpublished official record. (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 comes under the category of unpublished official record. He further held that these inter-departmental communi­cations relate to affairs of State, being commutations 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" Sec. 94(3) of the Code of Criminal Procedure being protected under Sec. 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. i (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 Sec. 94(3) of the Code of Criminal Proce­dure being protected under Sec. 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 Sec. 35 of the Evidence Act and that the documents called for are exempted under Sec. 94(3) of the Code of Criminal Procedure being protected under Sec. 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. 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. Kathlpri, 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 Sec. 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 ac-cording 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 Sec. 35 and a public document within 'the meaning of Sec. 74. (8) He next contended that it is true that sub-sec. (3) of Sec. 94 Cr. P. C. lays down that nothing in this section shall be deemed to affect the Indian Evidence Act, Sees. 123 and 124. So there can be no doubt that the Court, while exercising its discretionary power under S. 94 (1) Cr. p. c. for calling the record, has to see that the protection given under Sec. 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 Sec. 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. But it will appear from the reading of Sec. 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 Sec. 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 Head of the Department refuses to give it as an evidence then he should decide the point afresh on merits. 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 Head 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. Reference accepted.