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1986 DIGILAW 198 (PAT)

Lakshmi Kant Mishra v. State of Bihar

1986-07-01

R.N.PRASAD, S.S.SANDHAWALIA

body1986
JUDGMENT : S.S. Sandhawalia, C.J. Whether the crime directory enjoined by rules 355 and 374 of the Bihar Police Manual, 1978 is a confidential unpublished record relating to affairs of State, and consequently is a privileged document within the meaning of section 123 of the Indian Evidence Act-is the solitary, though meaningful, question in this reference to the Division Bench. 2. The petitioners herein are being tried on the charge under section 302 read with section 149 of the Indian Penal Code for causing the death of Radhey Shram Mishra on the night of the 20th July, 1982. A part of the defence plea therein is that the deceased was accused in a large number of cases and was also a suspect even in a greater number of cases and his name was entered in the crime directory maintained at the police station. 3. The petitioners, during the course of the trial, filed a petition on the 11th July, 1984, praying for a direction to the prosecution to produce the crime directory part III maintained at Sarwan Police Station, and the learned trial court by its ORDER :dated the 10th of August, 1984, called for the said document therefrom. The petitioners having entered their defence, sought to exhibit the entries in the crime directory aforesaid and to lead evidence with regard thereto. However, the learned Additional Sessions Judge, by his detailed ORDER :dated the 19th October 1985. held that the same was a confidential and privileged document and declined to admit the entries therein into evidence. Aggrieved thereby, the present criminal miscellaneous case has been preferred, which came up for hearing before my learned Brother Ram Nandan Prasad, J., sitting singly. Since the question involved was of considerable importance he directed that the case be placed for an authoritative decision before the Division Bench. 4. Ere one notices the rival stands and c0ntentions it is apt and indeed, necessary to scan the legal geneology of the crime directory and its true nature which has been put in issue herein. The Indian Police Act was enacted way back in 1861 and sections 7 and 12 there of authorise and mandate the framing of the rules thereunder. Presumably stemming from that legal source, the Bengal Police Manual was first issued in 1884 and in the undivided province of Bengal it was applicable to the territories of Bihar and Orissa as well. The Indian Police Act was enacted way back in 1861 and sections 7 and 12 there of authorise and mandate the framing of the rules thereunder. Presumably stemming from that legal source, the Bengal Police Manual was first issued in 1884 and in the undivided province of Bengal it was applicable to the territories of Bihar and Orissa as well. A number of subsequent revisions thereof took place but for our purposes it suffices to refer to the revision in 1914 when its name was changed to Bihar and Orissa Police Manual consequent upon the separation of the provinces of Bihar and Orissa from Bengal in 1911. After the Independence a number of revisions followed and the translation of the Bihar and Orissa Police Manual was also done in Hindi. Later a Police Manual Revision Committee was constituted and on the basis of its recommendation the State Government approved the revised Manual in December, 1977 which was subsequently promulgated and published as the Bihar Police Manual, 1978 (hereinafter to be referred to as the Manual). It is not in dispute that the three volumes of the Manual have been issued under sections 7 and 12 of the Police Act, 1861 by the authority of the State Government. The preface to the Manual expressly declares it to be both binding and authoritative. 5. It is unnecessary to elaborate this aspect because it has not been disputed at all before us that the Manual is statutory in nature. Chapter XIV thereof comprises of rules 355 and 408 pertaining to surveillance and prevention of crime. The opening rule 355 of the said Chapter enjoins and prescribes maintenance of a crime directory which shall be kept at a police station and shall consist of three parts. Rule 374 emphasises and highlights the confidential nature of the surveillance record obviously including the crime directory maintained under rule 355. Since the whole controversy herein turn upon the provisions of the aforementioned two rules and the applicability of section 123 of the Indian Evidence Act (hereinafter to be referred to as the 'Act') thereto, it is apt to read them at the very outset :- Manual:- "355. Description of crime directory.-(a) The Crime directory, which shall be kept at Police-Station, shall consist of three parts: Part I.-A file of dossiers of individual criminals and suspects in P.M. Form no. 74. Description of crime directory.-(a) The Crime directory, which shall be kept at Police-Station, shall consist of three parts: Part I.-A file of dossiers of individual criminals and suspects in P.M. Form no. 74. Part II.- A record of crime and criminals according to P.M. Form no. 75. Part III.- General notice on crime, land disputes, festivals, fairs, etc. in P.N. Form no. 75C. (b) The crime directory is intended to be a permanent record of crime and criminals. It is not a surveillance register and no person shall be subjected to surveillance merely because his name is entered in it. These shall be kept in Police-Stations but in case of dossier holders concerning more than one P.S. a copy shall be kept in D.C.B. also. It is strictly confidential, coming under the class of documents mentioned in rule 374, and shall not be allowed out of the Police-station or exhibited in court without due authority (see Appendix 73). It is open to inspection by magisterial and police authorities but no outsider may see it or obtain copies of its contents." "374. Confidential nature of surveillance records. - All papers connected with the surveillance work are kept under sections 12 and 45 of Act V of 1861 and fell within the category of unpublished official records relating to affairs of State. They are, therefore, privileged documents and under section 123. Indian Evidence Act, no one can be permitted to give any evidence derived from them except with the permission of the appointed authority (see Appendix 73) and no judicial officer can compel the police for their production in court (section 165, Indian Evidence Act) :- Act :- "123. Evidence as to affairs of State.-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." Reference in the aforesaid rules has been made to Appendix 73 in Volume III of the Manual which, in some detail, provides for the procedure to be followed when a Government servant is summoned by a Court to produce official document for the purpose of giving evidence. 6. 6. Now, a plain reading of the aforequoted two rules would leave no manner of doubt that the crime directory is maintained under the mandate of statutory rules framed by virtue of section 12 of the Police Act. The said directory is intended to be a permanent record of crime and criminals to be kept at the police station. It is obvious that it is an official record and no serious dispute could be raised about its confidential nature. Consequently it follows that the crime directory comes fairly within the ambit of the unpublished records to which reference is made in section (sic) of the Act. 7. Learned Counsel for the petitioners, Mr. Braj Kishore Prasad had attempted to argue that though the crime directory may be an unpublished record, it does not necessarily relate to the affairs of the State. In any case, the argument was that the Court's powers are now not at all limited or constricted for determining whether evidence thereof should be given or not and, the mere ipsi dixit of the officer at the head of the department concerned is not enough. Basic reliance herein was placed on S.P. Gupta and others v. The President of India and others A.I.R. 1982 Supreme Court 149, wherein the earlier lone standing view in The State of Punjab v. Sodhi Sukhdev Singh (A.I.R. 1961 Supreme Court 493) has been overruled. 8. It is true that the strictitude of the rule in Sodhi Sukhdey Singh's case has now been overturned and the concept of privilege for documents had been liberalised and the court's power for determination of the same stands widened by the recent decision in S.P. Gupta and others v. The President of India .and others (supra). However, these are principles of general application, whilst herein one cannot but be governed by the special mandate of Rules 355 and 374 of the statutory provisions of the Manual. It bears reiteration that the binding nature of these rules was not disputed before us. Once that is so, the particular mandate thereof with regard to the provisions contained in Chapter XIV of the Manual has to be necessarily given effect to. Now Rule 355 itself declares that the crime directory is strictly confidential and comes within the class of documents mentioned in the latter Rule 374. Once that is so, the particular mandate thereof with regard to the provisions contained in Chapter XIV of the Manual has to be necessarily given effect to. Now Rule 355 itself declares that the crime directory is strictly confidential and comes within the class of documents mentioned in the latter Rule 374. That being so when a statutory provision itself declares the class and nature of the document (and its vires were not challenged), then inevitably it is not possible for the court to hold to the contrary in teeth of the mandate of the law itself. Rule 355 then prescribes that the crime directory was not to be allowed to go out of the Police Station or exhibited in court, without the authority. Appendix 73 in volume III of the Manual then gives an indication of such authority as being the Head of the Office in whose custody the document required by the court is. Little discretion is thus left in view of such an unequivocal direction in Rule 355. This is then further buttressed by Rule 374. This apart, from highlighting the confidential nature of the crime directory is further declaratory of the fact that it falls within the category of unpublished official record relating to the affairs of the State. When a statutory provision in these terms mandates so, would it be possible for a court to hold to the contrary and say that the same does not relate to the affairs of the State? The answer has obviously to be rendered in the negative. What seems more is the further provision in this rule that no judicial officer can compel the police for the production of the crime directory in court. Even the wide-ranging powers under Section 165 of the Indian Evidence Act, entitling a Judge to put questions or ORDER :production of any document or thing are by express provision sought to be curtailed. In face of these provisions, it is not possible to accede to the submissions of the learned Counsel for the petitioners that the court is entitled to determine, whether the crime directory is confidential or otherwise and whether it pertains to the affairs of the State or not. To my mind, in this particular context of the crime directory, the issue is concluded against the petitioners by the unequivocal provisions of Rules 355 and 374 of the Manual. 9. To my mind, in this particular context of the crime directory, the issue is concluded against the petitioners by the unequivocal provisions of Rules 355 and 374 of the Manual. 9. Learned Counsel for the petitioners had then placed reliance on Mohan Singh Bath and others v. the Emperor (A.I.R. 1940 Lahore 217). Therein it was held that the diary of a foot constable, who was shadowing the movements of a suspect, could not come within the ambit of the affairs of the State and was thus not privileged under Section 123. The said JUDGMENT : is completely distinguishable. The matter therein was considered only under the general provisions of Section 123 of the Evidence Act. There in no indication, whatsoever, as to any statutory provision with regard to the maintenance of a diary by a foot constable shadowing the movements of a suspect, nor was there the remotest mention to any corresponding statutory rule of the Punjab Police Manual, mandating confidentiality and declaring a document to be privileged, as is the case before us. The JUDGMENT : thus in no way aids or advances the stance of the petitioners. 10. The next JUDGMENT : relied upon was in Teja Singh v. Emperor (A.I.R. 1945 Lahore 293), which had followed the earlier view. Who has been said above applies mutatis mutandis to this case as well. It was observed that the reports made with regard to a suspect by the Sub-Inspector to the Inspector from time to time, or, even by the Inspector to the Superintendent of Police, could not be regarded as privileged under Sections 123 and 124 of the Evidence Act. A close examination of the JUDGMENT : will disclose that no statutory basis for those reports was even remotely indicated, and, what is more there was no reference to any provision of law pertaining to their confidentiality or the same being privileged. The JUDGMENT : is thus distinguishable. 11. On the other hand, learned Council for the Respondent State has rightly placed reliance on a Division Bench JUDGMENT : of this Court in The State of Bihar V. D. Kumar and others (1975 Criminal Law Journal 1411). The JUDGMENT : is thus distinguishable. 11. On the other hand, learned Council for the Respondent State has rightly placed reliance on a Division Bench JUDGMENT : of this Court in The State of Bihar V. D. Kumar and others (1975 Criminal Law Journal 1411). Therein even dehors any statutory provision of the Manual, it was held that the secret service fund account was an unpublished record pertaining to the affairs of the State and was thus a privileged document under Sections 123 and 162 of the Evidence Act. Therein further the hallowed rule was reiterated that in the event of a conflict between the public interest and private interest, the former will obviously override the latter. 12. To finally conclude, the answer to the question posed at the outset is rendered in the affirmative and it is held that the crime directory, enjoined by Rule 355 of the Manual is a confidential unpublished record relating to the affairs of the State, and, consequently, is a privileged document within the meaning of Section 123 of the Indian Evidence Act. 13. Once it is held as above, it follows that the learned Additional Sessions Judge was right in upholding the objection of privilege and denying the prayer to admit and exhibit the entries from the crime directory in evidence on the record. There is thus no merit in this criminal miscellaneous case, which is hereby dismissed. In view of the fact that the trial in the court below has already been delayed by the pendency of this case, it is directed that the same should now be disposed of expeditiously. Application dismissed.