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2009 DIGILAW 624 (PNJ)

Punjab National Bank v. R. L. Vaid

2009-03-31

M.M.S.BEDI

body2009
Judgment M.M.S.Bedi, J. 1. Punjab National Bank has questioned the legality and propriety of the order passed by Special Judge, Chandigarh, dated March 5, 2003, dismissing the application filed by the petitioner claiming privilege of certain documents by the Bank. It has been claimed by the petitioner that the said documents are in the nature of confidential correspondence between the Punjab National Bank, Officers of the Vigilance Department and the CBI as well as the Central Vigilance Commissioner. 2. Briefly stated facts of the case are that CBI had registered a case under the Prevention of Corruption Act against R.L. Vaid alleging that while functioning as Regional Manager, Punjab National Bank, he had entered into a criminal conspiracy with V.K. Singla, the then Manager, Punjab National Bank, Sector 19 Branch, Chandigarh and Dr. A.K. Sinha, IAS, the then Secretary, Town and Country Planning Department, Government of Haryanna, Chandigarh during the year 1981-82 with a view to cheat the Punjab National Bank. He had dishonestly and fraudulently sanctioned a sum of Rs. 2.70 lacs to Rama Sinha, wife of Dr. A.K. Sinha, for construction of a building at Panchkula so that the premises may be rented out to Punjab National Bank at exorbitant rate of rent of Rs. 4985/- per month. Vide order dated July 6, 1999, an application filed by the accused was allowed by the Special Judge, Chandigarh, summoning the following documents : "1. Letter No. Vig./1618/3303 dated 17.11.1990 of Senior Manager Vigilance Cell, PNB to CBI, new Delhi. 2. Office copy of letter No. Vig./1618/3303 dated 17.11.1990 addressed to R.K.Bhattacharya, S.P. CBI, New Delhi. 3. Letter No. 448514(A) 90 dated 2.12.1992 from CBI New Delhi to Chief Vig. Cell, PNB. 4. Letter No. Vig. 1618 dated 23.12.1992 from PNB To communicate the decision of the competent authority. 5. Letter dated 4.3.1993 from CVC New Delhi addressed to Chief Vigilance Office, PNB in respect of Y.K. Singla for review of the decision for not granting of sanction for prosecution. 6. Office copy of Letter No. 1618 dated 16.3.1993 from PNB HO New Delhi to the Director, CVC suggesting for dropping the matter. 7. Letter No. 5048/3/4/90-ACU-II dated 17.12.1993 from CBI addressed to CMD of PNB again asking for grant of sanction for prosecution of the accused considering the advice of the CVC given vide their letter dated 12.11.1993. 8. 6. Office copy of Letter No. 1618 dated 16.3.1993 from PNB HO New Delhi to the Director, CVC suggesting for dropping the matter. 7. Letter No. 5048/3/4/90-ACU-II dated 17.12.1993 from CBI addressed to CMD of PNB again asking for grant of sanction for prosecution of the accused considering the advice of the CVC given vide their letter dated 12.11.1993. 8. Letter dated 31.8.1992 from the DIG of Police I/C AC-I of CBI New Delhi addressed to the Joint Secretary and Chief Vigilance Office, Department of Economics Affairs, Banking Division, MOF, GOI, New Delhi, a copy of this letter was forwarded to the Chairman and Chief Vigilance Office of the PNB vide Endst. No. 3112/3/4/90ACU-II/AC-I dated 31.8.1992." 3. Claiming that the abovesaid documents constituting confidential communicate between CBI, Punjab National Bank and Central Vigilance Commissioner, New Delhi, relating to the grant of sanction for prosecution of the accused, the same cannot be produced in the Court. Privilege was claimed by moving an application by Sh. Mulakh Raj Karara, Assistant Manager (Legal). An affidavit of Sh. Jagat Ram, Assistant General Manager, Vigilance Department, Punjab National Bank, Head office, New Delhi was also filed on October 1, 2002 stating there in that he was AGM, Vigilance Department of the Bank and is head of the Department for the purpose of documents for which privilege has been claimed. As the privilege under Section 124 of the Evidence Act was claimed on the ground the said communications were strictly official confidential documents, the Special Judge, Chandigarh, vide order dated March 5, 2003, dismissed the application on the following grounds : i) Application cannot be allowed as the affidavit has not been filed by head of the Department to make compliance of the provisions of law properly; ii) By eight letters accused only wants to show that G.D. Guliani had to issue the sanction order for their prosecution under compelling circumstances as was pressurized by Sh. A.K. Handa, the then Director, Central Vigilance Commissioner; iii) Generally the State Departments should not make efforts to hide the official correspondents and important documents from the Court which are urgently needed by the litigants; iv) Summoning of the letters will facilitate the Court to arrive at a just decision regarding the circumstances of grant of sanction; v) The letters of correspondence, in case produced in the Court, no injury will be caused to the public interest; vi) The Court should have all possible access to the relevant material and the letters are not connected with sovereignty, security and integrity of the country; and vii) As per judgment in R.K. Jain v. Union of India and others, 1993(4) SCT 181 : AIR 1993 SC 1769. every official correspondence cannot be treated as confidential and privileged, As such the application dated October 15, 1999 filed by CBI as well as the application dated November 5, 1999 filed by Mulakh Raj Karara, Assistant Manager, (Legal), Punjab National Bank were dismissed. 4. This Court had dismissed the revision petition vide order dated July 11, 2003 by passing the following orders : "Present : Mr. H.R. Bansal, Advocate Though the affidavit of A.D.M., who was head of the Department, is stated to have been filed, for claiming privilege of documents, yet in the light of the decision in R.K. Jain v. Union of India, 1993(4) SCT 181 : AIR 1993 SC 1769, the petitioner has no case. Dismissed." 5. The matter had been taken to the Apex Court by the petitioner. The order passed by Court was set aside, inter-alia on the ground that the relevancy of the decision of R.K. Jains case (supra) has not been spelled out clearly regarding its applicability to the facts of the present case. The matter was remanded back for fresh consideration in context to the judgment of Kishan Narain v. State of Maharashtra, (1974)3 SCC 368, dealing with the question of privilege. 6. I have heard counsel for the petitioner and considered relevant law on the subject of privilege. There is no dispute regarding the scope of Sections 123 and 124 of the Evidence Act in context to privileges. The law regarding privilege has been summed up to large extent in of R.K. Jains case (supra), as follows : "12. 6. I have heard counsel for the petitioner and considered relevant law on the subject of privilege. There is no dispute regarding the scope of Sections 123 and 124 of the Evidence Act in context to privileges. The law regarding privilege has been summed up to large extent in of R.K. Jains case (supra), as follows : "12. Section 123 of the Indian Evidence Act, 1872 postulates that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with permission of the officer at the head of the department concerned, who shall give or withhold permission as he thinks fit. Section 124 provides 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 the disclosure. Section 162 envisages procedure on production of the documents that a witness summoned to produce document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it deems fit, may inspect the documents, unless it refers to matters of the State, or take other evidence to enable it to determine on its admissibility. xxx xxx xxxx xxx 59........ If public interest immunity under Article 74 (2) or Section 123 of Evidence Act is claimed, the Court would first consider it in camera and decide the issue as indicated above. The immunity must not be claimed on administrative route and it must be for valid, relevant and strong grounds or reasons stated in the affidavit filed in that behalf. Having perused the file and given our anxious considerations, we are of the view that on the facts of the case and in the light of the view we have taken, it is not necessary to disclose the contents of the records to the petitioner or his counsel." 7. In Kishan Narains case (supra), the petitioner had been convicted by Special Judge of Bombay under Section 165 A IPC. The High Court had upheld the conviction but reduced the sentence of imprisonment to six months. In Kishan Narains case (supra), the petitioner had been convicted by Special Judge of Bombay under Section 165 A IPC. The High Court had upheld the conviction but reduced the sentence of imprisonment to six months. In Special Leave Petition before the Apex Court, a question had arisen regarding the privilege in context to the provisions of Sections 123, 124 and 125 of the Evidence Act. It was observed in para 7 as follows : "7. It is not necessary for the purposes of this case to consider the scope of the powers of the Court to examine the documents in respect of which privilege is claimed under Sections 123, 124, and 125 of the Evidence Act. Nor do we think that the English decisions on the point would be wholly apt in the circumstances of this country. In England the law regarding evidence is wholly judge made law but in this country the duty of the Judge is to interpret the provisions of the Evidence Act in its application to the particular circumstances of a case. Whether if in any particular case the guilt or innocence of an accused depended on the production of a document in respect of which privilege is claimed the Court could overrule the claim of privilege is not a question which we need consider. That question does not arise in this case. The documents in respect of which privilege is claimed in this case do not impinge on the question of guilt or innocence of the accused. They do not relate to what happened on August 13 and 14, 1964. We do not therefore, feel it is necessary to consider the decision in Conway v. Rimmer, (1968)1 ALL ER 874 and Marks v. Beyfus, (1890)25 KB 494." 8. I have carefully considered the documents which have been ordered to be summoned by the Special Court. The Supreme Court in the case of Peoples Union for Civil Liberties and another v. Union of India and others, (2004)2 SCC 476, has while considering issue for determining the question of privilege observed as follows : "70. I have carefully considered the documents which have been ordered to be summoned by the Special Court. The Supreme Court in the case of Peoples Union for Civil Liberties and another v. Union of India and others, (2004)2 SCC 476, has while considering issue for determining the question of privilege observed as follows : "70. For determining a question when a claim of privilege is made, the Court is required to pose the following questions : (1) whether the document in respect of which privilege is claimed, is really a document (unpublished) relating to any affairs of State; and (2) whether disclosure of the contents of the document would be against public interest?" It was further observed as under : "73. In order to claim immunity from disclosure of unpublished State documents, the documents must relate to affairs of the State and disclosure thereof must be against interest of the State or public interest." 9. In the present case, the respondents are accused in a case under Prevention of Corruption Act of for having released a loan of Rs. 2.70 lacs to Rama Sinha wife of Dr. A.K. Sinha. It is always open to the accused to challenge the validity of the criminal prosecution on the ground that there has been no proper sanction for prosecution. The said plea of defence can be established by summoning the relevant communications between the sanctioning authority and the prosecution agency. The trial Court has given specific reasons for rejecting the claim of privilege. The documents which have been permitted to be produced do not seem to fall in the class of documents which would, in any manner, cause injury to the public interest. It is felt that in case the documents are not allowed to be produced it would cause a greater injury to the respondents who are facing trial. Striking balance between the disclosure of the documents and the public interest involved, I am of the opinion that disclosure of documents will not injure public interest or national interest but their production is necessary in the interest of administration of justice. Dismissed.