CASE ANALYSIS OF THE STATE OF UTTAR PRADESH V.

RAJ
NARAIN

AIR1975SC 865

Civil - official record - Section 123 of Indian Evidence Act, 1872 – whether a blue book is an unpublished
official record - High Court held that 'Blue Book' is not unpublished official record within meaning of
Section 123 because Rule 71 (6) of 'Blue Book' quoted by Member of Parliament was cited before a court
as evidence- but it was held that it cannot be said that 'Blue Book' is a published document as publication
of parts of 'Blue Book' may be described as innocuous part of document and it would not conclude entire
document as published one - judgment given by the high court was set aside and the appeal was allowed

BY
SHRUTI PANDEY
INTERN
4th YEAR,
ICFAI LAW SCHOOL,
HYDERABAD
Mob- 7997263402
[email protected]
 24th APRIL 2020
RAJ NARAIN CASE AND THE IMPACT IT HAS ON POWER OF THE
COURTS

BACKGROUND OF THE CASE

On 27th July, 1973 Shri Raj Narain, the petitioner had made an application in the High Court
for summoning certain witnesses along with certain documents. The witnesses were the
Secretary General Administration State of Uttar Pradesh Lucknow, the Chief Secretary,
Government of Uttar Pradesh Lucknow, and the Head clerk of the office of superintendent of
police of district Rae Bareli. On 3 rd September summons was issued and on 6 th September,
1973 S.S.Saxena, was deputed by R.K.kaul, Head of the Department, to go to the High Court
with the documents summoned and to claim the privilege under Section 123 of Evidence
Act. On 10th September an application was made on behalf of the Election Petitioner that the
claim of the privilege by Saxena in his evidence be rejected. It was stated by the election
petitioner that no affidavit claiming the privilege has been filed by the Head of the
Department and that the document does not relate to the affairs of the state. The application
made by election petitioner was put up for disposal and the documents were asked to be left
at the court in the sealed cover. Subsequently an application was made by Ram Sewak Lal
Sinha on an affidavit that the superintend of the police, Rae Bareli claimed privilege under
Section 123 of the Evidence Act. The witness was discharged. On 13 th September Saxena
filed an application along with affidavit of R.K.Kaul, which stated that the documents
summoned are unpublished official record relating to the state and their disclosure will be
harmful to the public interest. On 20 th March, 1974 court held that no privilege could be
claimed in respect of three set of papers, which were Blue Book, circulars regarding security
and tour arrangement of Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli
and the third set summoned from the head clerk of the office of the superintended of police
relates to the same. The court held that an affidavit claiming the privilege ought to be filed
by the head of the department at the first instance and in the present case no such affidavit
was filed. The Blue Book is not an unpublished official record within the meaning of Section
123 of the Evidence Act because Rule 71(6) of the Blue Book was quoted by a Member of
Parliament the Minister did not object or deny the correctness of the quotation. Thus an
appeal was made against this order holding the no privileges can be claimed by the
Government of Uttar Pradesh under Section 123 of the Evidence Act in respect of what is
described for the sake of brevity to be the Blue Book summoned from the Governments and
certain documents summoned from the superintended of police, Rae Bareli, Uttar Pradesh.
FACT IN ISSUE

The present appeal is made in regard to the order that was passed by High Court stating that
Government of Uttar Pradesh cannot claim privilege under section 123 of Indian Evidence
Act, as an affidavit was not filed by the Head of the Department at the first instance and the
documents in question cannot be considered as unpublished official records as a part of such
documents had already been taken as evidence. The petitioner claims that since a part of the
document has been used as evidence it does not make the whole document as published and
thus the Government can claim privilege under section 123 of Indian Evidence Act, as
publication of such document may harm the public interest. The document in question the
Blue Book consists of information regarding the rules and arrangement of security that were
made in relation to the tours and travel of the Prime Minister, the maintenance of public law
and order on the occasion of the visits of the Prime Minister.

Petitioner’s Arguments

a. The documents summoned were asked for two reasons. First, that these documents
would have a bearing on allegations of corrupt practice, second the candidate had the
assistance of the Gazetted Officer for furthering the prospectus of the candidate’s
election.
b. The objection was taken in regard to the documents as these were secret papers of the
state, but no objection was taken by the affidavit by the head of the department and
the superintended is not the head of the department and either the minister or the
secretary should have affirmed in the affidavit.
 c. It was for the court to decide whether the disclosure and production of the documents
by the state would cause prejudice to the public interest or whether non-disclosure of
the documents in question would cause harm to the interest of the public at large as
they have right to information.
d. Since the part of the document was made public by lawful custodian of the document
in question, the document cannot be regarded as an unpublished document.

Respondent’s Arguments

a. Privilege can be claimed under 123 of the Evidence Act as it states that no person
shall be permitted to give any evidence derived from unpublished official records
relating to the affairs of the state, except with the permission of the officer at the head
of the department concerned, who shall give or withhold such permission ass he
thinks fit.
b. The document in question is an unpublished official record and thus privilege can be
claimed.
c. Court does not have power to disclose those documents which contain affairs of the
state as it will be harmful to the public at large.

Unpublished official records

The word ‘publish’ means to make public, to divulge, to announce and to proclaim or to intimate to
the public regarding certain information which are vital for the public. Thus those documents which
are disclosed and intimated to the party or such as are open for inspection or information of office or
public at large or that information which have been printed and are freely available would not fall
under the category of unpublished document category.

To fulfil the legal character of being an unpublished document it must not only be unpublished i.e.
the content of which have not been made public or have remained under the blanket of secrecy or
confidentiality but are a part of the state’s record i.e. the official records of a ministry, Division,
Department, agency etc. 1

The only ground sufficient to justify non production of an official document marked confidential is
that production would not be in the public interest, for example where disclosure would be injurious
1
Mohtarma Benazir Bhutto V The President Of Pakistan Through The Secretary To The President [1992] PLD
S.C. 492
to national defence or to good diplomatic relation or where the practise of keeping a class of
documents secret is necessary for the proper functioning of public service

In Henry Greer Robinson v. State of South Australia2, their Lord of ships observed “that the privilege
the reason for it being what it is can hardly be asserted in relation to documents the contents of which
have already been published .The learned Government Advocate contended that the
word unpublished in Section 123 of the Evidence Act should be given the same meaning as is given
to that expression in the law of libel and that mere communication of the contents of a document to a
party will not amount to publication”.

3
The meaning of unpublished official records was briefly discussed in cammell laird case (supra)
where it was held that a document cannot be withheld because they had already been produced before
the Tribunal of Enquiry into the loss of the “Thetis”. The House of Lords held that “if a claim was
validly made in other respect to withhold documents in connection with the pending action on the
ground of public policy it would not be defeated by the circumstances that they had been given a
limited circulation at such an enquiry, because special precautions might have been taken to avoid
injury and the tribunal’s sitting might be secret”.

Affairs of the state

In English law the expression “affairs of the state” signifies the whole concept or principle of
crown privilege. Article 6 of the qznun-e-shahadat order, however deals not only with the
said concept of principle but also other related matters; and the remaining portion to the
nature of record out of which evidence sought to be reproduced is derived and the person
who can exercise the privilege to withhold or to grant the permission to produce the
evidence. Information regarding the relations of a state with other state or International
bodies or organization could provide confidential matters relating to treaties, international
relations, foreign policies, international communication, diplomatic relations etc. The
internal working and activities of the state could generate confidential matter relating to inter
departmental communication, advice or notes exchanged between reports communicated or
received or decision taken by ministers, head of departments or government official relating
to various field of activity within the compass of their jurisdiction. Basically what is covered
by expression ‘affairs of the state’ is a matter of public policy.

2
Henry Greer Robinson v. State of South Australia,[1931] AIR PC 254 (at p. 259)
3
Duncan v. Cammell Laird & Co. [1942] AC 642
The expression “affairs of the state” in section 123 was explained with the reference to
section 162 of Evidence Act in the case Sukhdev Singh’s Case 4 in this particular case the
expression was explained in three limbs. The first limbs states that section 162 required a
witness to produce a document to bring it to the court and then raise an objection against its
production or its admissibility. The second limb refers to the objection both as to production
and admissibility, the third limb talks of translation of documents which is not relevant here.

According to Phipson “Phipson on Evidence”5, ‘witnesses may not be asked, and will not be
allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the
public service, and this exclusion is not confined to official communications or documents, but
extends to all others likely to prejudice the public interest, even when relating to commercial matters.
He thinks that it is the duty of the court to prevent disclosure of facts where serious injury to the
national interest would possibly be caused, that in deciding whether a claim for Crown privilege
should apply to a document, there are two kinds of public interest to be considered by the court, and
they are : (1) the public interest that harm shall not be done to the nation or the public service; and (2)
the public interest that the administration of justice shall not " be frustrated by the withholding of
documents which must be produced if justice is to be done; and that if a judge decided that, on
balance, the documents probably ought to be produced, it would generally be best that he should see

them before ordering production’.

This court took reference to a landmark judgment Sodhi Sukhdev Singh’s 6 case that there are
three views possible on matter. The first view is that it is the head of the department who gets
to decide as to which class the document belongs. When he comes to a conclusion that the
document in question is innocent, he can give permission to its production of those
documents before the court. If however, he comes to the conclusion that the document in
question is not innocent and is noxious, he will withhold that permission and claim privilege
under Section 123 of Indian Evidence Act. The court however does not have any say in this
picture while deciding the nature of the document in question. The second view is that it is
for the court to decide the nature of the document and if necessary to enquire into the
possible consequences of its disclosure. The third view is that the court can determine the
character of the document and if it comes to the conclusion that the document to decide
whether its production should be permitted or not, it is not the policy of Section123 that in
the case of every noxious document the head of the department must withhold permission.

4
State of Punjab v. Sodhi Sukhdev Singh [1961]2SCR371
5
Phipson, “Phipson on Evidence”[first published in June, 1970] 11th ed.p.240
6
State of State of Punjab v. Sodhi Sukhdev Singh [1961]2SCR371
This court while deciding the present case took into the consideration the third view as the
correct one. The reading of section 123 and section 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 the matter of the head of the department to decide whether the
document can be presented as evidence or not in the court.
Thus a conclusion can be drawn that even though the head of the department refused to grant
permission, it is open to the court to go into the depth of investigating the document and
finding out whether the production and disclosure of such document would be injurious to
the public interest and the expression “as he thinks fit” in Section 123 need not mean that the
court from deciding the question as it is as mentioned in section 162 empowers the court to
determine the validity of the objection finally.
Who is to determine the validity of the privilege raised by the head of the
department?

When a public officer is summoned by the court to submit the documents in respect of which
he desires to claim a privilege he is under a liability to appear before the court
notwithstanding any objection that he may have as to its inadmissibility. The court has power
to decide as to whether the document in question relates to any affair of the state and once
the court holds that the document is of the kind in regard to which privilege can be claim
which is an unpublished official record relating to the affairs of the state, the question
whether the disclosure of the content would be against public interest and whether the
privilege should be claimed for it or not is entirely within the head of the department 7.

The court in this regard has an absolute and unquestionable right to send for any document
whether privileged or not privileged from government or person in whose possession or
power the document may be and the government or person so be directed shall be bound
under the law to obey the court and submit the required document to the court. Thereafter if
the government or person in his right claims privilege under Section 123 of Evidence Act for
the inspection of the document he may do so by way of communication in the form of
affidavit indicating why the privilege is claimed. Where such a privilege is claimed the
general rule is that the court can look at the document to determine the claim as the content
of the document are the best evidence of existence or non-existence of the privilege claimed.
But if the privilege is claimed on the ground that the document relates to the affairs of the

7
P. D. Sharma vs State Bank Of India PLD 1969 Lah 985
state which means of public nature in which state is concerned and such disclosure of which
will be prejudice to public interest or endanger national defence or is detrimental to good
diplomatic relation then the general rule ceases and the court shall not inspect the document
or show it to the opposite party unless the validity of the privilege claimed is determined.

High Court in the said case held that “the court has power to inspect the document regarding
which privilege is claimed. But since the Blue Book is not an unpublished official record,
there is no necessity to inspect the Blue Book”.

Rule of exclusion

It was in the case of Duncan v. Cammell Laird & co 8 that the earlier law on the rule of
exclusion of documents from the production on the ground that it may be harmful to the
public policy or as being detrimental to the interest of the public at large or service. In this
case the respondent claimed that production of certain documents referred in the treasury
solicitor letter directing the respondent not to produce the document as it was in
contradiction to the public policy. An affidavit in regard to the same was filed. On summons
for inspection of such document it was held that it is not common in modern practise for the
minister’s objection to be conveyed to the court at any rate in the first instance by an official
of the department who produce a certificate by this method the court can request for personal
attendance of the head of the department.

It was also held that a document may be excluded from the production if the public interest
requires that they should be withheld. Two tests were laid down in this regard for excluding
the document from production. First, the nature, content and particulars of such document.
Second, the class of the document which on ground of interest of public must be a class
withheld from production.

But in this case the present case the Supreme Court held that “the documents in this case,
class of document through they may be are in different category, seeking protection, not as
state documents of political or strategic importance, but as requiring protection on the ground
that ‘candour’ must be ensured” thus the court has set aside the judgment given by the High
Court and directed it to consider the matter afresh.

8
Duncan v. Cammell Laird & co [1942] AC 642
The rule that the interest of the state must not be put into trouble by producing the documents
which would harm it is in the principle quite unconnected with the interests or claims of
particular parties in litigation and indeed, it is a matter on which the judge should, if
necessary even though no objection is taken at all. So the mere fact that Saxena brought the
document to the court in pursuance to the summons and did not file an affidavit which is
required under Section 162 of the Evidence Act by the head of the department concerned
claiming privilege would not conclude that the right to object to any evidence derived from
an unpublished official record relating to the affair of the state has been forever waived.

As no affidavit was filed by the head of the department on time claiming the privilege, it
might be that a legitimate interference could be made by the court looking into the
permission by the head of the department for the production of such document. But Saxena
had informed the court that the head of the department had not permitted the production of
the document. Although that statement was not really an objection which could be taken
cognizance by the court or evidence derived from it being given.

Section 123 of the Evidence Act obligates the court the duty to see that no one is permitted to
give any evidence which is an unpublished official record in regard to the secret affairs of the
state unless an express permission is provided by the head of the department in the form of
an affidavit.

9
In Crompton Ltd. V. Custom & excise Comrs. held that if none parties take objection in
regard to production of those document which are unpublished official records which if
disclosed may reveal the secret affairs of the state that is harmful to the public policy and
interest of public at large, the attorney general may come to the court and himself take
objection for the production of the document.

Judgment at Glance

1. Section 123 of Evidence Act although empowers the head of the department to object
the production of the document which relate to the affairs of the state it also
empowers the court to take cognizance and take objection in the production of those
document if neither parties take such objection.

9
. Crompton Ltd. V. Custom & excise Comrs C.A[1972]2 O.K. 102
 2. Section 162 of the Evidence Act states that validity of the document shall be decided
by the court.
3. Even though the affidavit was not presented at first instance, an objection of the
production of the document can be made later if the disclosure of the document may
harm the public policy and interest of the public at large.

Overview of the Judgment

The case revolves around the point that whether the Blue Book which is an official record of
the government and when a part of it i.e. rule 71(6) has been filed by the respondent does it
make the whole document as published one and can it be presented as evidence in the court.
High Court has taken into consideration various cases in reference and has stated that an
affidavit was required by the head of the department for raising an objection for the
production of that document as evidence in the court. But the Supreme Court took a different
averment where it mentioned that if an affidavit are not full and complete, the court has
liberty to ask for further affidavit as per the requirement. And if the court is satisfied by the
affidavit that the Blue Book belongs to a class of document, then no further inspection of
such document is required and the court will not inspect into such document. But if the court
is not satisfied that the Blue Book does not belong to that class and evidence submitted are
not sufficient enough to enable the court to decide whether the disclosure of such document
will injure the public interest, the court may make an inspection of the document produced to
decide whether such document relates to affairs of the state. If the court comes to a
conclusion that the disclosure will not harm the interest of the public then the court is free to
disclose the document and uphold the objection will not give a misleading impression.

It was held by the court that “the principle of the rule of non-disclosure of records relating to
affairs of state is the concerned for the public interest and the rule will be applied no further
than the attainment of the objective requires Taylor or Evidence”.

The court has laid emphasis on Sodhi Sukhdev Singh’s (case) where it concluded that section
123 and 162 of the Evidence Act together that court can hold enquiry into those document
against which the head of the department has refused to grant permission of the production of
such document as evidence in the court by keeping in mind the importance of the public
interest and public policy.
 Suggestions

The main thread of the case was interest of the public at large. Indian laws have always made
sure that it is the interest of the public which is to be kept in mind no action of the legislative
or the executive should hamper that interest. In the case Supreme Court has also taken this
prospective that it is the interest of the public that is to be kept in mind while disclosing any
document which relates to the affairs of the State, interference of the Court while enquiring
the document is in the hands of the court itself it has a liberty to decide whether an enquiry
into the document is to be made or not and whether such document should be disclosed or
not. It also overruled the judgment of the High Court where it was held that affidavit is
required by the head of the department in regard to objection in respect of disclosure of the
document. The main focus of the Court is to be interest of the public and further the court
can decide whether the disclosure is to be made or not.

References

1. State of Punjab v. Sodhi Sukhdev Singh [1961]2SCR371

Brief of Author

Shruti Pandey is pursuing B.B.A LL.B (Hons.) from ICFAI Law School, Hyderabad. She is
currently an intern and Junior Research and Internship Coordinator at ProBono India. She
had published many article and research paper in various legal platforms. She had actively
taken part in various competition held at ICFAI Law School, Hyderabad. By being part of
Team ProBono, she is contributing to society through legal aid.