[1940] EACA 53

### APPELLATE CRIMINAL

### Before SIR JOSEPH SHERIDAN, C. J. and HAYDEN, J.

### BISHEN CHAND MOHINDRA, Appellant $\mathbf{v}$

# MATHRA DASS, Respondent

## Criminal Appeal No. 48 of 1939 (Case Stated)

Criminal Law and Procedure-Whether private prosecutor a party to criminal proceedings within the meaning of section 353 of the Criminal Procedure Code-Withholding by the police of communications made to them in official confidence—Section 124 of the Indian Evidence Act and its application to private informers—Section 125 of the same Act.

The appellant brought a private prosecution for criminal libel against the respondent in the Court of the First Class Magistrate at Eldoret alleging that the respondent had made certain defamatory remarks about him in a written statement to the local Superintendent of Police.

For the purpose of proving his case the appallent subportaged the Superintendent of Police as witness directing him to bring with him an inquiry file concerning certain complaints against the appellant by members of the local community and containing, inter alia, the written statement above referred to.

The Superintendent duly attended the Court in accordance with the summons, but when requested to produce the said inqury file he objected to do so, saying that he was acting in accordance with instructions from his superior officer the Commissioner of Police.

The Magistrate gave a ruling and found, inter alia, that the document in question was not a State document, but that as the Superintendent had stated on oath that both the Commissioner and himself were of opinion that its production in the present proceedings would be against the public interest, the witness could not be compelled to produce it.

The case for the prosecution was then closed and the Magistrate was asked by counsel for the appellant for an adjournment pending a case being stated. Counsel for the respondent asked for an acquittal. The respondent was acquitted on the grounds that there was no case for him to answer. Later, on a written application by the appellant's legal advisers, the Magistrate stated a case to the Supreme Court in accordance with section 353 of the Ciriminal Procedure Code.

Held (28-3-41).—(1) A private prosecutor can ask for a case to be stated if dissatisfied with the decision of a subordinate court, and the present proceedings were perfectly regular.

(2) The production in Court of the communication made by a private individual to the police was rightly withheld in the circumstances by reason of section 125 of the Indian Evidence Act.

(3) It was immaterial whether the Magistrate in allowing the evidence to be withheld had considered the relevant section of the law, provided that he had in fact come to a decision which was clearly right.

### Khanna for the Appellant.

### Figgis for the Respondent.

JUDGMENT.—The first question raised on behalf of the respondent Mathra Dass in this case was that the complainant Mohindra was not entitled to have a case stated, not being a party, as it was contended, within the meaning of section

353, Criminal Procedure Code. The original proceedings were brought as a private prosecution entitled Complainant Bishen Chand Mohindra v. Accused Mathra Dass. Mr. Figgis contended that had the proceedings been described Rex (through Bishen Chand Mohindra) v. Mathra Dass he would not have raised the point. There is, we may say, ample precedent for proceedings such as the case under consideration being described by the names of the parties. One is the case of Hans Pfeiffer v. Max Steffens, 2 T. T. L. R. 25, and in that case Muir Mackenzie, J. put the matter now under consideration aptly when he said, "Pfeiffer, the appellant, and Steffens, the complainant, who have been allowed to take the position of prosecutor and respondent, though the case is listed as Rex v. Hans Pfeiffer. . . . . " That case, like the present one, was one of defamation. Another case of defamation entitled Bai Shanta v. Umrao Amir Malik is reported in I. L. R. 50 B. 162; it was a full Bench decision.

The position with regard to the question is the same in England. India and East Africa. In England criminal proceedings are allowed to be instituted by a private prosecutor, that is to say the person who has been himself the victim of the alleged offence, and the Director of Public Prosecutions under section 2 of the Prosecution of Offences Act, 1879, may inter alia take action in cases in which special circumstances or the refusal or failure of a person to proceed with a prosecution appears to render such action necessary. Mr. Slade put it correctly in his argument when he said that a private prosecutor is allowed to take the Crown's place, and naturally the cases in which a private prosecutor does so are cases like the present of a personal or private nature. The reasons for the role of a private prosecutor and the conditions to which it is subject are identical in Kenya. Much argument and judicial consideration were addressed and given to this part of the case and at this stage it is a little difficult to understand why, for the answer to the question now appears quite clear to our minds. Mohindra, the victim of the alleged offence, is unquestionably a party within the meaning of section 353, Criminal Procedure Code, and as such entitled to have a case stated and to be heard thereon.

The second part of the case is whether the magistrate was correct in holding that a particular decument was inadmissible on objection being taken to its production by the Superintendent of Police, Mr. Laws, acting on instructions from the Commissioner of Police. The statement it is admitted was made to Superintendent Cochrane, who was succeeded at Eldoret by Mr. Laws. The statement was included in a police file which was brought to court by Mr. Laws, and in his evidence he said: "I regret that on instructions received from the Commissioner of Police I am unable to produce the record asked for. . . . I have no objection to producing file for perusal of trial magistrate". It is obvious that the production of the statement would have involved the disclosure of the source of such information. Amongst reasons for the objection Mr. Laws said that the production of the document would be contrary to public interests (S. 124 Evidence Act, which reads: -

"124. 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.").

It is of some importance to consider how the request for the statement which was held to be inadmissible originated. The prosecutor on the 2nd February, 1939, had applied for and obtained a summons addressed to the Superintendent of Police, Eldoret, directing him "to produce Inquiry File No. 4/38 Re Complaints against Mr. B. C. Mohindra, Court Clerk, Eldoret, and containing statement by Mathra Dass, Indian, Eldoret". The officer who was Superintendent of

$\overline{a}$

Police at the time at Eldoret was Mr. Laws, and he in accordance with the summons attended with the file which was requested in the summons. As we have pointed out, he objected to its production on the instructions of his superior officer the Commissioner of Police. It would be in the ordinary course of his official duties that he would have ascertained the Commissioner's instructions.

Mr. Khanna relied on the case of Majju and another v. Lachman Prasad and another, 46 All. 671, in which it was held that statements contained in a report of an alleged offence made to a police officer were prima facie privileged but the privilege was qualified and not absolute. The case was a civil suit for damages for defamation and the defendants pleaded justification admitting the correctness of the report. This is sufficient to distinguish the case from the present one, where the issue is whether a police officer can be compelled to produce a report without which it would seem that the applicant could not prove his case, a criminal prosecution for defamation contra section 177 of the Penal Code, not that the character of the proceedings affects the question. To put it in another way, it is one thing to contend in a libel action that a defendant said certain words on a privileged occasion, and something completely different to ask that a public officer should disclose an official communication. Whether or not the communication was made to the police officer who was not summoned it must be regarded as disclosed to any police officer into whose hands it came officially as disclosed to him in official confidence. It is interesting to observe that in the commentaries to section 124 in the 9th edition of Woodroffe & Ameer Ali's Law of evidence it is stated: "Objection may be taken by the public officer or by the party interested in excluding the evidence or by the Judge himself". This commentary is taken<br>from the dictum of Wills, J. in *Hennessy v. Wright*, 21 Q. B. D. 509 at p. 509, in which he said: "There are undoubtedly many matters in respect of which it is the duty of the Judge, quite apart from objection taken, to prevent disclosures of a class which it would be undesirable in the public interests to permit. If a police officer, for example, were asked in court from what source he got his information in respect of an offence, it would, I apprehend, as a general rule be the duty of the Judge to direct him not to answer the question, since the mere possibility of having such information disclosed would operate as a powerful check upon persons disposed to give information in respect of such matters". The fact that the statement was made to a police officer and, as in this case, as the result of the person making it being sent for and questioned by a police officer strengthens the argument in favour of non-disclosure. There is a universal rule that the names of persons who are the channel by means of which detection of crimes is made should not be unnecessarily disclosed (vide Taylor on Evidence, 9th edition, Vol. I, 613, para. 939).

Our attention has been drawn to the case of Ngaraja Pillai v. The Secretary of State, 39 Madras (1916), p. 306 at p. 311, where Oldfield, J. says: "Communications in official confidence import no special degree of secrecy and no pledge or direction for its maintenance but include generally all matters communicated by one officer to another in the performance of their duties", and it has been argued that the communication in the present case was made by a private individual. We shall deal later with the question whether the fact of its having been made by a private individual would per se exclude the operation of section 124. Supposing that an officer to whom a communication is made by a brother officer in the course of their duties were to die or leave the service can it be contended that such a communication must be produced even though it is considered by the Head of the Department that the public interests would suffer by its production? If this narrow view were to obtain then the dictum of Swinfen Eady, L. J. in the case of Asiatic Petroleum Co. Ltd. v. Anglo-Persian Oil Co. Ltd. (1916) 1 K. B. 822 at 830: "The foundation of the rule is that the information

cannot be disclosed without injury to the public interests and not that the documents are confidential or official, which alone is no reason for their nonproduction", no longer holds good. As we see it the position of a communication such as that in issue in this case is that after it has been taken and recorded, as was done in this case, it comes under the control of the Commissioner of Police, who is entitled to give such directions to his subordinates with regard to it as he may think proper. Thus it was the file containing the statement came into the hands of Superintendent Laws and his possession of it was in our opinion in official confidence. As to whether it is a prerequisite of section 124 that the communication should be between public officers, all we wish to say is that the section does not appear to us to have any words of limitation and there is the case of The Collector of Jaunpur v. Jamna Prasad, 44 A. 360, which is an authority to the contrary. The case is quoted in both Ameer Ali & Woodroffe and Sarkar in the commentaries to section 124. But even if the case does not fall under section 124, the argument put forward by Mr. Figgis on section 125 is in our view irresistible. Superintendent Laws was summoned to produce a police file, that file when produced would reveal not only the information but the source of the information. Whether the course adopted in asking for the production of the file was due to misconception or was an attempt to get round the provisions of section 125 is immaterial; the application was rightly refused by the Magistrate and it matters not whether he considered the provisions of the section or not, so long as the result was right.

Our answer to the case stated is that the statement was rightly excluded by the Magistrate. We make no order as to costs, for while we consider that the objection taken on behalf of the respondent was bound to fail, on the other hand the respondent succeeds in the case stated, for the bringing of which on the facts there was little or no justification.