P. C. MISRA, J. ( 1 ) THE plaintiff is the petitioner in this revision challenging the order dated 25-9-81 passed by the learned Subordinate Judge of Bhubaneswar in O. S. No. 61 of 1978 refusing to call for the file containing the papers relating to the meeting held on 14-4-76 with the representatives of the plaintiff on the ground that the same is an unpublished official record relating to the affairs of the State, the disclosure of which will lead to public injury. ( 2 ) THE petitioner as plaintiff filed O. S. No. 61 of 1978 in the court of the Subordinate Judge, Bhubaneswar for a decree against defendant No. 1 and/or defendant No. 2 jointly and/or severally for Rs. 8,21,215. 34 with pendente lite and future interest towards the balance amount payable by the defendants for the chrome ore supplied at the instruction of defendant No. 2 to defendant No. 1. In the said suit one of the issues which arises for consideration is as to the rate at which the price of the ore is payable. According to the plaintiff there were certain differences between the parties regarding the price payable for the materials supplied by the plaintiff for which a meeting was called by the Secretary to the Government of Orissa, Mining and Geology Department on 14-4-76. That meeting was attended by the representatives of the plaintiff and defendant No. 1 amongst others. Certain decisions were taken in that meeting and a separate file regarding the meeting exists. The plaintiff filed an application on 3-8-81 before the learned Subordinate Judge praying to direct defendant No. 2, the State Government, to produce the documents mentioned in the schedule of that application, the purpose of which was stated to be that the said documents are necessary for a just adjudication of the disputes between the parties. The defendant No. 2 filed objection to the petition on the ground that the documents called for are not relevant. The file relating to the aforesaid meeting dated 14-4-76 was described in S1. No. 10 of the schedule in respect of which privilege was claimed by defendant No. 2 under Sec. 123 of the Indian Evidence Act. Shri L. I. Parija, Commissioner-cum-Secretary to the Govt. The file relating to the aforesaid meeting dated 14-4-76 was described in S1. No. 10 of the schedule in respect of which privilege was claimed by defendant No. 2 under Sec. 123 of the Indian Evidence Act. Shri L. I. Parija, Commissioner-cum-Secretary to the Govt. of Orissa in the Mining and Geology Department filed an affidavit on 10-8-81 stating that the said document (the file containing the papers relating to the meeting held on 14-4-76 with the representative of the plaintiff) is an unpublished official record relating to the affairs of ' the State and it contains communications made in official confidence and the views confidentially expressed by the officers of his Department. As the head of the Department he stated that he considers that the disclosure of the said document would lead to public injury. It was also stated in the said affidavit that the documents in question deals with the policy decision of the Govt. with regard to fixation of price for different grades of chrome ore and disclosure of it would cause injury to public interest. It was submitted that in the relevant document notings have been made, opinion expressed and decisions reached and if the said document is disclosed, it would materially affect the freedom and condour of expression of opinion in the determination and execution of public policy so vitally essential to the functioning of public services. In exercise of his powers as the head of the Department he did not grant permission to any one to produce the document in question or to give any evidence derived therefrom. ( 3 ) THE plaintiff filed a counter-affidavit in the trial court stating that the State Govt. was not entitled to claim privilege in respect of the aforesaid file containing the papers relating to the meeting held on 14-4-76 which deals with the suit transaction and the claim of privilege is thoroughly misconceived in law. It was also stated that the document in question is not an unpublished official record relating to the affairs of the State and the disclosure of the said document would not lead to any public injury. According to the plaintiff, the document in question does not in any way relate to the affairs of the State nor the disclosure of the same would in any way impair security of the State. According to the plaintiff, the document in question does not in any way relate to the affairs of the State nor the disclosure of the same would in any way impair security of the State. It was ultimately contended that there would be no injury to public interest by the disclosure of the said documents and in all fairness the said documents should be directed to be produced in Court. ( 4 ) THE learned Subordinate Judge after hearing the parties at length allowed the petition of the plaintiff directing defendants 1 and 2 to produce all other documents excepting the document in Sl. No. 10 in respect of which claim of privilege was made by defendant No. 2. ( 5 ) THE learned Subordinate Judge while coming to a conclusion that the disclosure of the aforesaid document will lead to public injury relied mainly upon the decision reported in AIR 1961 SC 493 , State of Punjab v. Sodhi Sukhdev Singh. ( 6 ) BEFORE entering into the merits of the contentions of the respective parties, it is profitable to appreciate the scope and principle of Sec. 123 of the Indian Evidence Act which is quoted below for ready reference :"s. 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. "in this connection reference is also necessary to be made to Sec. 162 of the Indian Evidence act under which a person summoned to produce a document is bound to bring it to court notwithstanding any objection which there may be to its production or to its admissibility. The said section further says that the validity of such objection shall be decided on by the Court. It also provides that the Court, if it sees fit, may inspect the document unless it refers to matters of State, or take such other evidence to enable it to determine on its admissibility. ( 7 ) THE underlying principle of Sec. 123 of the Evidence Act is that the interest of the State will prevail over the interest of an individual. ( 7 ) THE underlying principle of Sec. 123 of the Evidence Act is that the interest of the State will prevail over the interest of an individual. The privilege claimed under Sec. 123 of the Evidence Act is based on public policy as being detrimental to public interest or service. Section 123 of the Evidence Act is a departure from the ordinary rules of evidence that a document which is material and relevant in a suit or proceeding should not be withheld from the Court. The departure from the ordinary rules of evidence in Sec. 123 proceeds on the basis of the theory that production of the document in question would cause injury to public interest which should override and prevail over the interest of an individual. ( 8 ) IN the decision reported in AIR 1961 SC 493 the Constitution Bench consisting of five Judges indicated the responsibility of the Court in dealing with such a matter in the following words :". . . . . . Seading secs. 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned, to decide, but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Sec. 123 of not. In this enquiry the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not. . . . . . . . . In exercising his discretion under Sec. 123 in many cases the head of the department may have to weigh the pros and cons of the problem and objectively determine the nature and extent of the injury to public interest as against the injury to the administration of justice. . . . . . . . . In exercising his discretion under Sec. 123 in many cases the head of the department may have to weigh the pros and cons of the problem and objectively determine the nature and extent of the injury to public interest as against the injury to the administration of justice. That is why we think it is not unreasonable to hold that Sec. 123 gives discretion to the head of the department to permit the production of a document even though its production may theoretically lead to some kind of injury to public interest. While construing Secs. 123 and 162, it would be irrelevant to consider why the enquiry as to injury to public interest should not be within the jurisdiction of the Court, for that clearly is a matter of policy on which the Court does not and should not generally express any opinion. "discussing whether the evidence in question relates to any affairs of the State, their Lordships observed as follows :". . . . . In the latter half of the Nineteenth Century affairs of State may have had a comparatively narrow content. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighbourly relations. Thus, if the contents of the documents were such that their disclosure would affect either the national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State. There may be another class of documents which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy. In the efficient administration of public affairs government may reasonably treat such a class of documents as confidential and urge that its disclosure should be prevented on the ground of possible injury to public interest. In the efficient administration of public affairs government may reasonably treat such a class of documents as confidential and urge that its disclosure should be prevented on the ground of possible injury to public interest. In other words, if the proper functioning of the public service would be impaired by the disclosure of any documents or class of documents such document or such class of documents may also claim the status of documents relating to public affairs. It may be that when the Act was passed the concept of governmental functions and their extent was limited, and so was the concept of the words 'affairs of State' correspondingly limited; but, as is often said, words are not static vehicles of ideas or concepts. As the content of the ideas or concepts conveyed by respective words expands, so does the content of the words keep pace with the said expanding content of the ideas or concepts, and that naturally tends to widen the field of public interest which the section wants to protect. The inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent activities which were formerly treated as purely commercial, and documents in relation to such commercial activities undertaken by the State in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State. . . . . " ( 9 ) RELIANCE was placed on a decision reported in AIR 1975 Madh Pra 196 Durga Prasad v. Mst. Parveen in which it was held that the State was justified in claiming a privilege against the production of the relevant file concerning the grant of the mining lease, as it contained letters written by the Head of the Department to the subordinate officers of the Department and vice versa and between that Department and other Departments for which it must be taken to be unpublished official records and were secrets of the State. The learned counsel for the petitioner relied upon the following observations of Chief Justice Chagla (as he then was) in a decision-reported in AIR 1951 Bom 72 Lady Dinbai Dinshaw Petit v. Dominion of India. The learned counsel for the petitioner relied upon the following observations of Chief Justice Chagla (as he then was) in a decision-reported in AIR 1951 Bom 72 Lady Dinbai Dinshaw Petit v. Dominion of India. "it is unnecessary to state that a privilege of this nature should be rarely claimed and should only be claimed after the responsible Minister or the head of the department has fully satisfied himself that the document whose disclosure is being resisted is really a document relating to the affairs of the State and whose disclosure will result in injury to public interests. The scales are always weighed against the subject who fights against Govt. and Govt. should be loath to throw against him more weight in the scales by refusing disclosure of documents which are relevant to the issues in the suit. Government should always bear in mind that it is incumbent upon it to see that there is a fair trial between itself and the subject who is fighting the Govt. It should also realise that refusal to disclose material documents makes it difficult or impossible for the subject to make good his allegations against the Government. Govt. should also bear in mind that the loyalty of its officers to the cause of Govt. should not prevail to the extent of injustice being done to the subject. Even if disclosure of a document may result in the subject succeeding or in getting heavy damages or compensation against the Govt. that is no reason why a material document should not be disclosed. The only loyalty which the section contemplates and which must undoubtedly prevail over private interests is the loyalty to the State in the sense that public interests must prevail over private interests and the disclosure of a particular document will damnify public interests. Even though, I readily admit, injustice may be done to a private interest, it is much better that such injustice should be done rather than public interest should be injured by the disclosure of a document which is a document relating to the affairs of the State. " ( 10 ) THE approach to the problem has recently acquired new dimensions. In the famous case of S. P. Gupta v. Union of India reported in AIR 1982 SC 149 a Bench of seven Judges of the Supreme Court had the occasion of examining the question in issue. " ( 10 ) THE approach to the problem has recently acquired new dimensions. In the famous case of S. P. Gupta v. Union of India reported in AIR 1982 SC 149 a Bench of seven Judges of the Supreme Court had the occasion of examining the question in issue. They approached the matter keeping in view the requirements of the fast changing society which is undergoing rapid and economic transformation. It was observed that law is not an antique to be taken down, dusted, admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the Judge is called upon to perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivery of justice. In para 65 of the judgment they expressed the need for disclosure of certain functions of the Government which according to their Lordships is essential in the interests of the nation. The relevant para, is quoted below for ready reference :"there is also in every democracy a certain amount of public suspicion and distrust of Government, varying of course from time to time according to its performance, which prompts people to insist upon maximum exposure of its functioning. It is axiomatic that every action of the government must be actuated by public interest but even so we find cases, though not many, where governmental action is taken not for public good but for personal gain or other extraneous considerations. Sometimes governmental action is influenced by political and other motivations and pressures and at times, there are also instances of misuse or abuse of authority on the part of the executive. Sometimes governmental action is influenced by political and other motivations and pressures and at times, there are also instances of misuse or abuse of authority on the part of the executive. Now, if secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse of abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open government with means of information available to the public, there would be greater exposure of the functioning of government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clear and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency. " ( 11 ) IN view of the law as enunciated by the Supreme Court, I do not find any substance in the claim of privilege made by the opposite parties in respect of the document in serial No. 10 of the Schedule. As already stated, the said document is the file relating to the meeting dated 14-4-76 which on the face of it is a file relating to a commercial transaction. No objection appears to have been taken in the court below that the description of the document as given in serial No. 10 of the Schedule is not sufficient for identification of the papers sought to be produced. It is, therefore, appropriate that the State Government should be directed to produce the same. ( 12 ) ON production of the document in question the Court shall keep the same in a sealed cover in safe custody and shall permit inspection of the documents so produced in Court in the presence of the counsel appearing for the parties. It would be open to the party producing the documents to raise objections as to the relevancy and admissibility of any of the documents contained in the file. ( 13 ) THE revision is accordingly allowed. In the facts and circumstances of this case, there shall be no order as to costs. Revision allowed. .