Report No. 27

Order XI, rule 19(2)

1. This rule, which confers power on the court to inspect any document for which privilege is claimed, is to be read as subject to the provisions of section 162, Evidence Act, as has been held by the Supreme Court1-2-3-4.

2. The contrary view5 is no longer good law, in view of the Supreme Court's decision.

3. As to English law, see (a) section 28, Crown Proceedings Act, 1947; (b) old R.S.C., Order 31, rule 19A; (c) Revised R.S.C., Order XXIV, rule 15 and Revised Order LXXVII 12, and the under-mentioned case6.

(There is vast literature in England on Crown privilege, but it is unnecessary to go into it for the present purpose.)

4. The rule is also subject to section 123, Indian Evidence Act7. As to the meaning of the words "affairs of State" in section 123, see the observations of the Supreme Court8, that they are identical with the words "matters of State".

5. It is considered, that the position on the subject, as it has emerged from the decision of the Supreme Court, should be codified. It will suffice if a proposition is inserted to the effect that the rule does not apply to documents relating to affairs of State.

6. Reference may be made to the express provision in section 94(3), Criminal Procedure Code, on the subject.

7. Generally, as to procedure to be followed when the Crown claims privilege, the undermentioned cases may be seen9-10.

1. State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371: AIR 1961 SC 493 (513), para. 48.

2. See also Governor-General-in-Council v. Peer Mohd, AIR 1950 EP 228 (234) (FB).

3. See also Brijnath Kedarnath v. State, (1957) Criminal Law Journal 134 (Madhya Bharat).

4. See also AIR 1944 Lah 209 (212).

5. Ijjatali Talukdar v. Emp., AIR 1943 Cal 539.

6. Grosvenor Hotel, London (in re:), (No. 2) (1964) 3 WLR 992.

7. Lakhu Ram v. Union of India, AIR 1960 Pat 192 (193) makes it clear that it is subject to

section 123, Evidence Act.

8. AIR 1961 SC 493 (503).

9, Dinbai v. Dominion of India, AIR 1951 Born 72 (Chagla

10. Rajul Raojibhai v. Provincial Government, ILR 1950 Nag 690: AIR 1951 Nag 212.