Judgment :- The petitioner has embarked upon an evidence hunting spree to substantiate his allegations in the complaint filed before Court. The said complaint is based on certain news items which appeared in newspapers. Apart from the clippings from those newspapers, the petitioner is not possessed of any acceptable legal evidence to substantiate the averments made by him in the complaint. Therefore he wanted to examine the respondents herein and to direct them to produce certain documents. The respondents, on getting summons filed affidavits and petition before Court. In the affidavit the third respondent contended that none of the documents referred to in the summons is in his custody and that he is not in a position to produce the same. The first respondent averred that out of the two documents directed to be produced by him, the second did not reach him and that the first document has been entrusted with the second respondent in connection with the enquiry which is being conducted by him. The second respondent has stated that the documents summoned to be produced are unpublished official records, disclosure of which will be prejudicial to the interest of the State and that they are to be protected from disclosure under section 123 of the Evidence Act. Respondent also filed a petition under section 203 of the Cr.P.C. praying for the dismissal of the complaint. For a proper understanding of the stand taken by the respondents it will be advantageous to read paras 3 to 5 of that petition. "3. The State Government have taken serious notice of the various allegations - in newspapers and otherwise - regarding the visit of the two Kuwaiti Nationals and have ordered a comprehensive enquiry by the Additional Chief Secretary to Government. The State Government will be taking appropriate action against any one found guilty of any illegal or irregular act. The Hon'ble High Court has taken notice of this undertaking of the State Government while disposing of the O.P. No. 2128/86 on 7-4-86. The second petitioner is entrusted with the inquiry into the allegations made with respect to the foreigners who visited Kerala without necessary travel documents and in that connection he has come into possession of unpublished official records, the disclosure of which will certainly prejudice the affairs of the State and the object of the enquiry. The second petitioner is entrusted with the inquiry into the allegations made with respect to the foreigners who visited Kerala without necessary travel documents and in that connection he has come into possession of unpublished official records, the disclosure of which will certainly prejudice the affairs of the State and the object of the enquiry. If the petitioners are examined, the petitioners would be certainly compelled to disclose what they have gained during the course of the enquiry being made into the self-same matter and this is disclosed in a Court of law, it would be a public document which could legitimately be published. 4. The publication of such information relating to matters of State will certainly prejudice not only the enquiry but also the result of the enquiry. In this context, the petitioners submit that the examination of the petitioners should be dispensed with considering the disastrous consequences resulting from such examination. 5. The petitioners further submit that a reading of the complaint will certainly disclose that it is an unsustainable complaint in a Court of law without necessary sanction under S. 197 of the Cr.P.C. which is mandatory. The sanction is to be accorded by the Government and while considering that matter the consequences of according sanction in a matter like this will certainly be taken into consideration by the Government. Hence it is submitted that on a prima facie unsustainable complaint a S. 202, Cr.P.C. enquiry is an abuse of the process of the Court." 2. When this petition came up for admission, without ordering notice to the respondents, I requested the learned Director of Public Prosecutions to take notice of the petition and to argue the same on merits. The learned Director of Public Prosecutions got really with the case. I heard the learned Counsel for the petitioner and the learned Director of Public Prosecution, in extenso. 3. Before dealing with the various aspects pressed before me, I think it advantageous to refer to some earlier proceedings which took place before this Court in connection with the visit of two Kuwaiti Nationals to the State. Petitions were moved under Art. 226 of the Constitution of India for taking action against the Ministers, MLAs and other officials who are stated to be connected with the said visit. In those original petitions the first respondent herein was made a respondent. Petitions were moved under Art. 226 of the Constitution of India for taking action against the Ministers, MLAs and other officials who are stated to be connected with the said visit. In those original petitions the first respondent herein was made a respondent. While disposing of O.P. 2128/86-C my learned brother Sukumaran, J. observed : "5. Doubtless, there are serious allegations. When the writ petition came up for admission on 26-3-86, this Court sought information from the Government about the stand and action taken by it in the matter. The learned Advocate-General responded to it. The fact that the Government had noticed that two Kuwaiti Nationals who did not have valid visa and who were included in the prior reference category were allowed entry into India through Trivandrum Airport on 29-1-1986 had been brought to the notice of the State Government, even as early as on 22-2-1986, and at a time much earlier than the reporting in the press. A seventy two hour landing permit given to the individuals by the Port Registration Officer, had been extended upto 7-2-1986 by the Superintendent of Police, Malappuram and the Additional District Magistrate, Malappuram. The State Government caused enquiries to be made. Prima facie certain lapses on the part of the officials had been found established. Disciplinary action had been taken against the Superintendent of Police and two deputy Superintendent, who had been placed under suspension. The facts have been reported to the Government of India. The State Government have taken serious note of the allegations and have ordered a comprehensive enquiry by the Additional Chief Secretary to Government. The stand of the Government is that it would be taking appropriate action against anyone found guilty of any illegal or irregular act. The findings of the enquiry would be reported to the Government of India. The Government of India also would be taking their own action. According to the State Government, it is understood that the Government of India Agencies are making their own enquiries. 6. There cannot be any dispute that a proper and meaningful enquiry into the allegations, would necessarily consume some time Entrustment of such an enquiry with a top official like the Additional Chief Secretary, would prima facie indicate the seriousness attached to it by the State Government. 6. There cannot be any dispute that a proper and meaningful enquiry into the allegations, would necessarily consume some time Entrustment of such an enquiry with a top official like the Additional Chief Secretary, would prima facie indicate the seriousness attached to it by the State Government. It is premature at this stage to State Whether due to the political influence or other reasons, such an enquiry would be ineffective and only a smoke screen to conceal the real culprits, as apprehended by the petitioner. It has also to be remembered, that the Union of India, necessarily and vitally concerned in safeguarding the security of the country and unity of the Nation, is also causing enquiries to be made independently through its own agencies. At such a stage of enquiry and investigation, it may not be proper or expedient for this Court to decide the various issues in proceedings under Art. 226 of the Constitution." My learned brother Paripoornan, J. while disposing of O.P. Nos. 2467/86R and 2535/86B observed : "The learned Advocate General submitted that the Government of Kerala as also the Union of India are enquiring into the matter and that the enquiry is wide spread. The Additional Chief Secretary of the State Government was summoned to Delhi and had discussions with the high officials of the Union Government. The facts and circumstances that were focused in the Legislative Assembly as also in the Press with regard to the visit of the above two Kuwaiti Nationals, require a prudent and effective investigation and that is being done. The Government should be given an opportunity to conduct a proper and meaningful enquiry and obtain a proper report which alone will enable the Government to act. This Court should not interfere in the matter, at this stage, since any interference may seriously hamper or affect, a proper and effective enquiry. An opportunity to make a proper and effective enquiry. An opportunity to make a proper and meaningful enquiry and as a result of which further action should be taken, should not be denied to the Government. No interference is called for, at this stage. An opportunity to make a proper and effective enquiry. An opportunity to make a proper and meaningful enquiry and as a result of which further action should be taken, should not be denied to the Government. No interference is called for, at this stage. The Original Petitions are premature." When this Court refused to proceed with the matter concerning the visit of the two Kuwaiti Nationals, the petitioner herein approached the Criminal Court to fish out details regarding their visit and to make public, security lapses on the part of the officers of the State, under the pretext of prosecuting the accused. 4. The learned Magistrate by his order dt. 28-5-86 came to the conclusion. "As the Additional Chief Secretary is now enquiring into the self-same matter it is not fair to call and examine him at this stage and to ask him to produce the documents in his possession. The other two witnesses have stated in their affidavits that they are not in possession of any of the documents. In the above circumstances, I direct that the examination of those three witnesses be dispensed with at this stage." According to the learned Counsel for the petitioner the above order is clearly illegal. The learned Magistrate is conducting an enquiry under S. 202 of the Code. Respondents 1 to 3 were summoned for being examined in that enquiry. These witnesses have to be examined at this stage of the enquiry. If their examination is dispensed with at this stage, there will not arise a further stage for examining them. So, the order must be taken as one dispensing with the examination of these witnesses in the course of the enquiry under section 202 of the Code. I think this argument of the learned Counsel is well founded. The order in effect is one finally dispensing with the examination of these respondents in the enquiry under section 202 of the Code. 5. The question that arises for consideration is whether the learned Magistrate was justified in refusing to examine the witnesses and in allowing privilege to the documents sought to be produced in Court. The learned Counsel appearing for the petitioner submits that these respondents were summoned only to give evidence with reference to the documents called for by the complaint. They were not to testify to any fact other than those relating to those documents. The learned Counsel appearing for the petitioner submits that these respondents were summoned only to give evidence with reference to the documents called for by the complaint. They were not to testify to any fact other than those relating to those documents. So if those documents are not to be disclosed in Court and are entitled to the protection under section 123 of the Evidence Act, then the petitioner need not require these respondents as witnesses in the case. 6. The learned Director of Public Prosecution submits that two Kuwaiti Nationals visited Kerala without valid visa. That was on account of serious security lapses on the part of some of the officers and other authorities. The petitioner now wants those lapses to be made public. According to the learned Director of Public Prosecution if those lapses and omission are made public it will even affect the security of the Nation. By the disclosure of those documents called for the flaws in the security arrangement, the means of getting entry into India without valid visa and other connected matters will be known to one and all. Such publication will give room for other undesirable elements to chalk out their plans to make their entry into India and thereby to undermine the security. The learned Director of Public Prosecution further submits that at a time when the terrorist activities are in its peak, the security lapses on the part of the officers in admitting the Kuwaiti nationals, if disclosed will be detrimental to the national security even. This argument cannot be lightly brushed aside. 7. The learned Counsel appearing for the petitioner would contended that when the documents summoned are claimed to be privileged, that claim has to be considered by the Court after perusing the documents. So the documents ought to have been produced in Court and the Court should have examined the same to see whether any privilege is to be granted or not. In the instant case the Court did not have the opportunity to see the documents. Therefore the Court could not determine whether the documents relate to the affairs of the State. In this view the learned Counsel wants this Court to set aside the order of the Court below. In the instant case the Court did not have the opportunity to see the documents. Therefore the Court could not determine whether the documents relate to the affairs of the State. In this view the learned Counsel wants this Court to set aside the order of the Court below. The learned Counsel brings to my notice the following passage from the decision S. P. Gupta v. Union of India 1981 Supp SCC 87 : (AIR 1982 SC-149) in support of his argument. "The Court would allow the objection if it finds that the document relates to affairs of the State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the Public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document. 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 interests 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 S. 123 would always be with the Court by reason of S. 162." Basing on this it is argued that the documents called for ought to have been produced in Court and the Court should have taken a view granting or refusing the privilege after examining the same. Since that procedure was not resorted to, the order is bad in law. 8. I find it difficult to agree with this argument. Since that procedure was not resorted to, the order is bad in law. 8. I find it difficult to agree with this argument. In para 70 of the above judgment their Lordships observed : "Where immunity from disclosure is claimed on the ground that disclosure of the contents of the documents would be injurious to the interest of the State or the Public service it would not difficult to decide the claim because it would almost invariably be supported by an affidavit made either by the Minister or by the head of the department asserts that to disclose the contents of the document "would or might do to the nation or the public service a grave injury, the Court will be slow to question his opinion or to allow any interest, even that of justice, the prevail over it" unless there can be shown to exist some factor suggesting either lack of good faith or an error of judgment or an error of law on the part of the Minister or the Head of the Department." In para 75 Their Lordships proceeded to State : "Since the immunity is founded on public interest, it is necessary that the Court should have the power and the duty to prevent the disclosure of a document when it would be injurious to public interest to disclose it, even if the proper procedure for objection by or on behalf of the Minister or the Secretary has not been followed. The Court must intervene proprio motu if it appears that the public interest requires the document to be protected from disclosure." Thus even without the production of the document before Court, the Court can grant immunity from disclosure to any document if it is otherwise proved that it would be injurious to the public interest. If the document relates to affairs of State the Court cannot inspect the same under section 162 of the Evidence Act. This bar comes into operation if the document is established to be one relating to affairs of State. Of Course, it is the Court to decide whether the document is one relating to the affairs of State. In case the Court comes to the conclusion that a particular document relates to the affairs of State on the basis of the affidavit filed by the Head of the Department, the Court need not insist upon its production. Of Course, it is the Court to decide whether the document is one relating to the affairs of State. In case the Court comes to the conclusion that a particular document relates to the affairs of State on the basis of the affidavit filed by the Head of the Department, the Court need not insist upon its production. In doubtful cases the Court can direct the production of the document to see whether its disclosure will be injurious or not. Their Lordships of the Supreme Court dealing with this aspect of the matter observed : "Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the Minister or the Secretary, the issue in the case and the relevance of the document whose disclosure is sought." In the instant case the head of the department, the Additional Chief Secretary to the Government of Kerala, has filed an affidavit claiming privilege. From that affidavit and on hearing the arguments if the Court comes to the conclusion that the documents fall within that category the disclosure of which is previous to the interest of the State, then the Court is justified in granting privilege under section 123 of the Evidence Act. 9. The nature of the proceeding pending before Court and the importance of the document in determining the issue arising in it are of vital importance. Those aspects are to be taken into account by the Court in determining whether the documents are to be disclosed or not. If the documents called for are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, the document must be ordered to be disclosed. In such a situation the nature of the document may not be of must importance. The public interest that no innocent man should be convicted of crime is so powerful, that it should outweigh the general public interest which might be injured by the disclosure of the document. The case on hand does not belong to that category. The petitioner's life or liberty is not at stake. He is only fishing out evidence in his attempt to book the accused in the case. The case on hand does not belong to that category. The petitioner's life or liberty is not at stake. He is only fishing out evidence in his attempt to book the accused in the case. In such a circumstance the sole and only consideration must be whether the disclosure of the document would be detrimental to the public interest. As observed by their Lordships : "Even in a democracy, Government at a high level cannot function without some degree of secrecy. No Minister or Senior Public Servant can effectively discharge the responsibility of his office if every document prepared to enable policies to be formulated was liable to be made public. It is therefore, in the interest of the State and necessary for the proper functioning of the public service that some protection be afforded by law to documents belonging to this class. "......" 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 non-disclosure, the Court would uphold the objection and not allow the document to be disclosed." Their Lordships went on to State : "It would thus seem clear that in the weighing process which the Court has to perform in order to decide which of the two aspects of public interest should be given predominance, the character of the proceeding, the issues arising in it and the likely effect of the documents on the determination of the issues must form vital considerations, for they would affect the relative weight to be given to each of the respective aspects of public interest when placed in the scales." 10. On an anxious consideration of the entire facts and circumstances of the case, I am of the view that the disclosure of the documents called for would cause greater injury to public interest than on its non-disclosure. In this view the learned Magistrate was perfectly justified in refusing to examine the respondents herein and in not directing them to produce the documents summoned, in the enquiry under section 202 of the Code. It therefore follows that this petition is devoid of any substance. It is accordingly dismissed. Petition dismissed.