JUDGMENT - A.B. PALKAR, J.:---This revision application is filed by original plaintiff in Special Civil Suit No. 62/1991, on the file of the learned Civil Judge, Senior Division, Jalgaon, against an order passed on 3-1-1998 on Exhibit 23. 2. Petitioner/plaintiff is medical practitioner at Bhusawal and since the year of 1990 he is doing private practice. Defendant is related to plaintiff and plaintiff's sister had filed a complaint against her husband under section 498-A of the I.P.C. wherein, respondent /defendant is also an accused. It appears that due to this, respondent was having grudge against the petitioner and he filed false complaint to the Income Tax Department against petitioner. In pursuance of that complaint, Income Tax authorities conducted an enquiry and ultimately came to the conclusion that, there was nothing against petitioner that is to say the complaints filed to the Income Tax Department against the petitioner/plaintiff were without any substance. 3. Thereafter petitioner filed Special Civil Suit No. 62 of 1991 for damages and in order to prove his claim of damages sought directions from the Court to issue summons to the Income Tax department, for production of the complaint and relevant documents of enquiry held against the petitioner on the basis of false complaint filed against petitioner, which had led to the enquiry being conducted by the Income Tax authorities against petitioner. 4. In pursuance of the summons on 19-10-1992, Income Tax Officer appeared in Court, filed an application Exhibit-23, claiming privilege for production of the documents, which were called by the Court. The application was resisted by petitioner. The learned trial Judge heard arguments and by order dt. 23-3-1993, the learned Judge called upon the concerned authorities to produce the original complaint in the concerned proceedings for inspection. Thereafter, on 3-1-1998, the learned Judge passed order allowing the application Exhibit 23 and thereby accepting the contentions of the Income Tax Officer that the documents are privileged documents and the Court cannot direct the Income Tax authorities to produce the same. 5. According to petitioner, his entire case is dependent on the production of the complaint, which, according to him, is false and fabricated and which has caused him mental torture, agony and defamation, for which he has filed the present suit for damages. 5. According to petitioner, his entire case is dependent on the production of the complaint, which, according to him, is false and fabricated and which has caused him mental torture, agony and defamation, for which he has filed the present suit for damages. In case the documents are not allowed to produce before the Court and or taken on record, plaintiff will not be in a position to prove his claim and would be virtually non-suited. 6. In this Court, on behalf of the Income Tax Department, one Ramesh Mahadeo Khiste working as Income Tax Officer, Jalgaon has filed affidavit, whereas respondent No. 1 did not even file any affidavit. He has stated in his affidavit that the production of the documents would affect public interest and secrecy of confidential enquiry. The enquiry and the investigation conducted by the Department against plaintiff are of confidential nature and, therefore, it will not be in the public interest to call upon the Income Tax Department to produce the documents. If said production of document is allowed by the Court, then the public at large is not likely to come forward to disclose the details of economic offenders and, therefore, affidavit was filed in the trial Court claiming privilege which the trial Court accepted. The order passed by the learned Civil Judge, Senior Division, has no jurisdiction to direct the Income Tax authority to disclose confidential information with respect to any assessee in view of the provisions of section 138 of the Income Tax Act, 1961. The applicant can approach the Chief Commissioner of Income Tax by an application in the prescribed form, for seeking information relating to any assessee and if the Chief Commissioner is satisfied that it is in the public interest to do so, he may furnish the said information. However, his decision in this regard is final and cannot be called in question in any Court of law. Civil Court cannot set aside or modify order of the Commissioner. The applicant without exhausting the remedy of approaching Chief Commissioner of Income Tax has resorted to move application to the Court for calling record and such documents called by the Court are privileged documents, the Department is claiming privilege. 7. The learned Civil Judge, Senior Division, accepted contentions of the Department and rejected the application of plaintiff and hence the present Revision. 8. 7. The learned Civil Judge, Senior Division, accepted contentions of the Department and rejected the application of plaintiff and hence the present Revision. 8. It is pertinent to note that since the respondent No. 1 has not filed any affidavit in this Court obviously he had moved application to the Department for holding enquiry against the petitioner. In view of the relations of parties and admitted fact that the petitioner's sister has filed criminal case for an offence under section 498-A of I.P.C. against her husband and the other respondents, this strained relationship has resulted in filing of complaint to the Income Tax Department. 9. I have heard the arguments of the learned Advocate for petitioner Shri Katneshwarkar and the learned Counsel for the Union of India Shri R.G. Deo; as well as the learned Counsel for the respondent No. 1 Shri M.K. Deshpande today. Learned Counsel for the Central Government produced the concerned file for my perusal alongwith Civil Application No. 4037/1998. After having considered the arguments advance at length by the learned Counsel for the parties, I am satisfied that the claim of privilege by the Income Tax Department is totally unsustainable and not at all justified. 10. In this regard, Shri R.G. Deo, learned Counsel for respondent No. 2, submitted that, he is claiming privilege under section 124 if the Indian Evidence Act, although in the trial Court it was stated to be under section 123 of the said Act. Section 124 of the Evidence Act is in respect of Confidential communication and is to the effect that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by that disclosure. Even plain reading of the section would show that this privilege lies to the disclosure of communications made to public officer in official confidence. What is contended by respondent No. 2 is that the disclosure of document i.e. the complaint made to the Income Tax Department and the statements recorded in pursuance thereof, would affect adversely the interest of public at large. Nobody would come forward to complain against any person even if he finds that such person is guilty of evasion of tax. It is, therefore, in the interest of public at large not to compel the department to produce the concerned documents in the Court of law. Nobody would come forward to complain against any person even if he finds that such person is guilty of evasion of tax. It is, therefore, in the interest of public at large not to compel the department to produce the concerned documents in the Court of law. Reliance has been placed by the learned Counsel for the respondent on section 138 of the Income Tax Act, 1961. Section 138 is as below : "138(1) (a) The Board or any other income tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to -- (i) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty or cess or to dealings in foreign exchange as defined in section 2(d) of the Foreign Exchange Regulation Act, 1947 (7 of 1947); or (ii) such officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary to do in the public interest, specify by notification in the Official Gazette in this behalf, any such information (received or obtained by any income-tax authority in the performance of his functions under this Act,) as may, in the opinion of the Board or other income-tax authority, be necessary for the purpose of enabling the officer, authority or body to perform his or its functions under that law. (b) Where a person makes an application to the (Chief Commissioner or Commissioner) in the prescribed form for any information relating to any assessee (received or obtained by any income-tax authority in the performance of his functions under this Act), the (Chief Commissioner or Commissioner) may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for and his decision in this behalf shall be final and shall not be called in question in any Court of law.) (2) Notwithstanding anything contained in sub-section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assesses or except to such authorities as may be specified in the order.)" Emphasis is led by learned Counsel for the respondent on the provisions of section 138(1)(b), according to which, the order of the Chief Commissioner that it is the public interest to furnish or not to furnish information is final and cannot be questioned in the Court of law. It is also not disputed before me that in the present case, the Commissioner of Income Tax has passed an order refusing petitioner's request for disclosure of information to the Court and in view of this, learned Counsel for the respondent contended that the said order of Commissioner having finality cannot be called in question in a Civil Court and, therefore, the impugned order is legally justified. 11. The learned Counsel relied on A.I.R. 1935 Madras 342(1) (Srila Sri Vythilinga Pandurasannidhi v. Secy. of State)1, where it has been held that : "No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by that disclosure. There are two matters involved in this section : first whether a particular documents for which the privilege is claimed, falls within it, that is to say, whether the document is a communication made to a public officer in official confidence. On a proper construction of the section, it is for the Court to decide that question. There are two matters involved in this section : first whether a particular documents for which the privilege is claimed, falls within it, that is to say, whether the document is a communication made to a public officer in official confidence. On a proper construction of the section, it is for the Court to decide that question. Secondly, should the Court decide that the documents is of the nature contemplated by the section, then the public officer himself is the sole judge as to whether by its disclosure public interests would suffer (that alone being the ground of privilege)." As against this on behalf of the petitioner reliance was placed in a judgment of the Apex Court reported in A.I.R. 1992 S.C. 990 (M/s. Dagu Ram Pindi Lall and another v. Trilok Chand Jain others)2. In this case, the Apex Court has pointed out in categorical terms in para 00.14 : "14. The finality which has been attached to the order of the Commissioner under section 138(1)(b) of the Act is applicable only in cases where application is made to the Commissioner by a party or any other person for receiving documents or information. It has nothing to do with the powers of the courts to summon the production of assessment record of an assessee, filed after 1-4-1964. The privilege as to secrecy, which the assessee had acquired under section 54 of the 1922 Act remained unimpaired by the repeal of that Act or even by the omission of section 137 of the 1961 Act in respect of record filed prior to 1-4-1961 and relating to the assessments prior to that date. That privilege did not extend, after April, 1964, to record filed before the income tax authorities, for the assessment years 1964-65 onwards. Section 6 of the General Clauses Act as well as section 138(1)(b) of the 1961 Act cannot extend the ban on the exercise of the jurisdiction by the courts to summon the production of documents from the income-tax authorities after April 1,1964 relating to assessment year 1964-65 in respect of the record filed after April 1, 1964." The High Court had observed while defining the scope of section 138(1)(b) of the Act that the provision attached a finality to an order of Income Tax Commissioner and that applied to cases where the record was summoned even by High Court. The Supreme Court, however, did not agree with these observations of the High Court; and allowed the appeal and observed: "Clause (b) of sub-section (1) of section 138 is limited in its scope and application. Under it, any person can make an application to the Commissioner for any information relating to an assessee in respect of any assessment made either under the 1922 Act or under the 1961 Act on or after the 1st April 1960 and the Commissioner of Income tax has the authority to furnish or cause to be furnished the information asked for on being satisfied that it is in the public interest so to do and such an order of the Commissioner is final and cannot be called in question in any Court of law. The Commissioner of Income Tax under this clause performs only an administrative function, on his subjective satisfaction as to whether it is in the public interest to furnish the information or not to any person seeking such information and his decision in that behalf is final and aggrieved person cannot question it in a Court of law." It has been observed by the Apex Court in categorical terms further : "By enacting this provision, the legislature could not be said to have intended that the Commissioner of Income Tax would have the authority to sit in judgment over the requisition made by a Court of law requiring the production of record of assessment relating to an assessee in a case pending before the Court. When a Court of law, in any matter pending before it desires the production of record relating to any assessment after applying its judicial mind and hearing the parties and on being prima facie satisfied that the record required to be summoned is relevant for the decision of the controversy before it, it passes a judicial order summoning the production of that record from the party having possession of the record. The Commissioner of Income-tax cannot, therefore, refuse to send the record as he certainly is not authorized to set at nought a judicial order of a Court of law. He must obey the order of the Court by sending the record to the Court concerned. The Commissioner of Income-tax cannot, therefore, refuse to send the record as he certainly is not authorized to set at nought a judicial order of a Court of law. He must obey the order of the Court by sending the record to the Court concerned. Indeed, it is open to the Commissioner of Income-tax to claim privilege, in respect of any document or record so summoned by a Court of law, under sections 123 and 124 of the Indian Evidence Act even then it is for the Court to decide whether or not to grant that privilege. Had the legislature intended that no document from the assessment record of an assessee should be produced in a Court on being summoned by it, without the approval of the Commissioner of Income Tax, it would have said so in section 138 of the Act itself .............................". Learned Counsel for the petitioner relied on a judgment of the Rajasthan High Court, reported in A.I.R. 1972 Cri.L.J. 1496 (Jetha Nand v. The State of Rajasthan and others)3. In this case, before Rajasthan High Court, a criminal complaint was made by the petitioner and to substantiate his complaint, it was necessary to arrange for the production of the communications which the accused persons addressed to the Income Tax authorities in order to link them with the crime. The responsibility of the Court in a matter like this is great. The Court has a right to expect that the Government Department would place all the facts as will enable the Court to reach a positive conclusion on the issues raised. After all, the public interest is also the interest of every subject of the country; and while in exceptional cases, the private citizen may be denied what is to his immediate advantage, he would suffer if the needs of protecting the interest of the country as a whole were not ranked as a prior obligation. The Income-Tax Department under the circumstances, was not entitled to claim privilege, regarding the production of the letters in question." 11A. Learned Counsel for the respondent tried to distinguish information in respect of assessment and the complaint made to the Income Tax Officer. In my view, this distinction is without any difference. The Income-Tax Department under the circumstances, was not entitled to claim privilege, regarding the production of the letters in question." 11A. Learned Counsel for the respondent tried to distinguish information in respect of assessment and the complaint made to the Income Tax Officer. In my view, this distinction is without any difference. In this case complaint has been made to the Income Tax Officer to find out as to whether the assessee petitioner had given correct information of his income and properties and to take action against him, in case there was evasion of tax by him. It is, therefore, not possible to accept the contention of learned Counsel for the respondent that the complaint did not per se pertain to any assessment under the Income Tax Act. Had the Income Tax authority been satisfied, it would have reopened the assessment of past few years of the assessee as is permissible under the Act. 11B. The concerned file was produced for my perusal by the learned Counsel for the respondent and it is pertinent to point out that, in respect of the same matter a news-item was published in "Daily Lokmat" dt. 16-10-1989. Respondent Jawed Siraj Quazi has filed a detailed complaint under his signature to the Income Tax Department for investigation into the unaccounted money and evasion of tax by the petitioner which was enquired into. Statement of petitioner was recorded under section 132 of the Income Tax Act. Section 132 pertains to power of search and seizure by the Director General; Director of Chief Commissioner of Income Tax. Wide powers are conferred on the Director General or Chief Commissioner of Income Tax by section 132-A. Wide powers of search and seizure are conferred on the Income Tax authorities by this section and there is nothing to show that any statement recorded in the public interest, by the Income Tax authority is to be treated as secret and confidential. Bare statement by the Income Tax Officer that the information received by the Income Tax Officer or the complaint received by them against the petitioner is confidential and secret will not make the enquiry confidential unless such claim is supported by any provision of the Income Tax Act, 1961. 12. Bare statement by the Income Tax Officer that the information received by the Income Tax Officer or the complaint received by them against the petitioner is confidential and secret will not make the enquiry confidential unless such claim is supported by any provision of the Income Tax Act, 1961. 12. In this case, in fact, the main issue on which the question of damages or compensation can be considered by the Court is as to whether the complaint was false fabricated and whether there was any intention to harass the petitioner and he was defamed. If the said complaint is not allowed to be produced before the Court, then it would eventually amount to closing further enquiry by the Court and thereby preventing the Court from deciding the material issue involved in the suit. It is not a case of an information being sought by any person. It is a case of information having been sought by the Court and as held by the Apex Court the powers of the Court are totally independent of the provisions of section 138 of the Income Tax Act. Allowing such claim of privilege of not producing the documents before the Court amounts to surrendering by the Court of its power and jurisdiction to the department. The Court would thereby abdicate its functions to decide the claim damages on the basis that complaint filed against petitioner even if it was false and concocted and was filed with mala fide intention. In this view of the matter, I find that petition will have to be allowed. 13. Petition is allowed. 14. Order passed at Exhibit 23 by Civil Judge, Senior Division, Jalgaon dt. 3-1-1998 in Special Civil Suit No. 62 of 1991 is hereby set aside and the Resp. No. 2-Income Tax Officer, (Investigation) Jalgaon Tq. and Dist. Jalgaon is directed to produce the record before the Civil Judge, Senior Division, Jalgaon, in pursuance of the summons issued. 15. Rule made absolute in the above terms. 16. On request of Shri R.G. Deo, learned Additional Counsel for Resp. No. 2-Union of India, six weeks time is granted for production of the documents before the Civil Judge, Senior Division, Jalgaon. 17. Certified Copy expedited. Petition allowed.