Report No. 185
This Section refers to 'information as to commission of offences'. It reads as follows:
"125. No Magistrate or Police-officer, shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue-officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
Explanation:- "Revenue officer" in this Section means any officer employed in or about the business of any branch of the public revenue."
Similar principle is found in Sections 162 and 172 of the Code of Criminal Procedure, 1973. It has been held that the discretion for production of a 350 document under Section 91 of Cr.P.C. (old Section 94) concerning a criminal offence should be exercised so as not to conflict with Section 125 of the Evidence Act. (R v. Bilal Md: AIR 1940 Bom 768).
In the 69th Report, the Commission referred to the earlier English law which gave protection in regard to identity of informers where the disclosure would help the accused (see Marks v. Beyfus: (1890) 25 Q.B.D. 494 (CA); Roggers v. Secretary of State: 1972(2) All ER 1057 (HL); Regina v. Richardson (1863) 3F&F 693, Hardy (1794)24 St. Tr. 751.)
In paras 67.17 to 67.21 in the 69th Report, the Commission considered the need for change and dealt with cases of malicious prosecution. It was felt that it would be difficult for the plaintiff to produce evidence unless he knew the name of the informant on whose information another person made a false complaint to the police or who started a criminal proceeding in a Court.
The Commission then referred to three alternative proposals (see para 67.21) and finally came to the conclusion that the third one which gave discretion to the Court was the best. It said that the Section requires some relaxation.
"Such a relaxation would not be in conflict with the principle underlying the Section. A person honestl.- even mistakenl.- giving information of an offence should have nothing to fear by such disclosure. At the same time, a person dishonestly giving false 351 information does not deserve protection where the person aggrieved by his conduct wishes to pursue his lawful claim for compensation."
We may add that an informant who has given information which is correct and true about a crime must also be protected, in as much as any disclosure of his identity can be harmful to him. Such disclosure may be harmful to public interest if honest informants should feel inhibited from informing about crime. They may remain silent for fear of reprisals.
We shall refer to some important aspects covered by Section 125 and in that context first refer to the English law and then the Indian law.
Cases of complaints by citizens against police officers resulting in investigation by the departments against the officers have already been dealt with in Ex parte Wiley: 1994(3) All ER 420 while dealing with Section 123 and as to how far the record relating to the police officers can be summoned and disclosed. But here we are concerned with informants to the police and their privilege.
In Thomas Hardy's case (1794) 24 How St. Tr., 199, Eyre J observed (see Phipson, 1999, 15th Ed para 24.05) "that the identity of informants should not 'unnecessarily' be disclosed. If it can be made to appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to sign it".
Lord Esher M.R. in Marks v. Beyfus: (1890) 25 QBD 494 observed that while the non-disclosure is a matter of public policy, however if upon the trial of a prisoner, the Judge should be of the opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy which must prevail. This line of authority was accepted by Lord Lane CJ in R v. Hallett : (1986) Crl. L.R. 462. This was accepted by the Court of Appeal in R v. Agari (1990) 90 Cr. App Rep 318.
The case of places used for surveillance and to identification thereof, so far as police observation posts are concerned were dealt with in R v. Rankine : (1986) 83 Cr. App. Rep 18 and the same principles were extended thereto.
In R v. Governor of Brixtone Prison ex parte Osmam (1992)(1), All ER 108 which was a criminal case, a further refinement was laid by Mann LJ that the Judge should balance the public interest in non-disclosure against the interest of justice in the particular case, and that the weight to be attached to the interests of justice in a criminal case touching and concerning liberty was greater. The earlier criminal cases under law such as R v. Hallett were not cited. But when the matter came before the Court of Appeal (criminal Division) in another case, R v. Keane (1994) 99 Crl. Appl. Rep 1, all the authorities were cited. The Judgment of Lord Esher in Marks v. Beyfus and of Mann LJ in Osman's case were approved. It was observed:
"We prefer to say that the outcome in the instances given by Lord Esher and Mann LJ results from performing the balancing exercise not from dispensing with it. If the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it."
See also 'Public interest and criminal proceedings' by Andrews in (1988) 104 L.Q.R. 410 and also R v. Preston:: 1993(4) All ER 638 (HL), R v. Horseferry Road Magistrates, ex. p. Bennett (No2) 1994(1) All ER 289.
Phipson says (15th Ed., 2000, para 24.23) in regard to 'protection of sources and informant' as follows:
"The importance of informants to statutory and quasi-statutory organizations in carrying out their functions was recognized by the House of Lords in D v. NSPCC: 1978. A.C. 171, where documents identifying an informer who had suggested a mother was beating her child were withheld. Lord Hailsham said that the categories of public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and social legislation develop. There may be a distinction to be drawn between investigators who have statutory or quasi-statutory powers to obtain information and those who rely on voluntary information."
But, as pointed in our comments under Section 123, Lord Woolf in ex parte Wiley 1994(3) All ER 420 (at 425)(HL) while agreeing with the above statement clarified that normally the class of immunities should not be extended.
Phipson says that the principle of non-disclosure of the identity of a person in civil and criminal proceedings can be traced to the eighteenth century (R v. Hardy (1794) 24 St. Tr. 199) and other cases referred to earlier. He says that the only exception is where the disclosure of the name of the informant would help in establishing the person's innocence. Once that is shown, the Court must perform the balancing act and if it helps in proving innocence, it must be disclosed but only after proper scrutiny. The author again cites the cases earlier referred to in R v. Keane etc.
Immunity, he says, can also attach to certain police techniques (Goodwin v. Chief Constable of Lancashire(The Times Nov. 3, 1992 (CA); but the opposite view was given in R v. Brown and Daley (1988) 87 Crl.A. Rep. 52 while dealing with unmarked police cars.
The Canadian Supreme Court had to deal with this problem of anonymous informers in the context of a defence under the Canadian Charter of Rights and Freedoms in R v. Leipert: (1997) 143 DLR (4th) 38 (SCC). It stated that the principle of non-disclosure of identity of informants is intended to prevent retribution and referred to Bisaillon v. Keable :1983(2) SCR 60 (105) and R v. Scott: (1990)(3) SCR 979 (994). The Court referred to the US case from California in People v. Callen: (1987) 194 Cal App (3d) 558 or 587 which was a case of an anonymous informant as was the case in R v. Leipert.
The Court held that the police had no duty to determine or disclose the identity of anonymous informers. Such an investigating burden would be onerous. Anonymity was the key to certain programmes by 'Crimestoppers' and others. The informer's privilege belonged to the Crown: Solicitor General of Canada v. Royal Commission of Inquiry into Confidentiality of Health Records of Ontario: 1981 (2) SCR 494. The Crown cannot waive the informer's privilege without his consent. In that sense it belongs to the informer. "Crime stoppers" remain anonymous on telephone.
The only exception is to cases of "innocence at stake", that is where it would be necessary from the point of view of proving the innocence of the accused. Otherwise the privilege remains and there should not be revelation even of a small aspect pertaining to the informants lest there may be danger (R v. Garofoli) 1990(2) SC R 1421. The "innocence at stake" exception was laid down by Lord Esher as an exception in Mark v. Beyfus (1890) 25 QBD 494 (CA).
In R v. Leipert, above referred to, McLachlin J referred to a plea that there could be another exception necessitated by the Canadian Charter and held that to the extent the informant's identity would help the accused to prove his innocence, the Charter would help. It was held that there was basically no inconsistency between the Charter's right to disclosure of Crown documents as affirmed in R v. Stinchombe 1991 (3) SCR 326 and the common law rule of informer privilege.
The procedure, it was stated in the above case, was for the accused to show some basis that the identity of the informant was helpful to prove his innocence and then the Court may review the information to determine whether the information was necessary to prove the accused's innocence. If the Court concluded that disclosure was necessary, the Court should only reveal as much information as is essential to prove innocence. But before 356 disclosing, the Crown should be given an opportunity to disclose the identity to help the accused to prove his innocence.
Having reviewed the case law in England and Canada, we may now refer to the Indian view.
Before the Indian Evidence Act, 1872, the law in India was narrower. The Calcutta High Court held in In re Mohesh Chandra: (1810)13 W.R. page 1 (Cal) that the rule that a witness could not be examined about the information given by him to the Government for the discovery of an offender, was confined to offences against the State or breach of revenue laws. That was also the English law at that time (para 67.4. of 69th Report).
In our view, Section 125 of the Act is too narrow and is not on par with today's concepts in England, Canada and other countries. It does not contain any provision to seek disclosure of identity of a informant if that is likely to help the accused prove his innocence. Further, if the identity is not known, cases of defamation and malicious prosecution will be seriously handicapped. A person who gives false information to police or a Magistrate may, in certain circumstances, be liable for malicious prosecution or for damages.
The Privy Council, in Gaya Prasad v. Bhagat Singh (1908) ILR 30 All 525 accepted that not only the person who made the formal complaint to a Court but a person who made a false complaint to the Police who set the criminal law in motion could also be sued. The Allahabad, Orissa, Patna, Madhya Pradesh and Andhra Pradesh High Courts have applied this principle in several cases. (see case law cited in para 67.18 of the 69th Report). In some of these cases, it was held that the person who gave the information to the police is the real prosecutor who is liable.
There are other problems as seen from the earlier case law referred to in Sarkar 15th Ed., 1999, pp 2020-2024. In State v. Randhir AIR 1959 All 727, it was held that the police officer can refuse to disclose the source of his information as to the commission of any offence, while public policy demands that no adverse influence be drawn against the prosecution for withholding the information at the trial. In Amritalal v. R: ILR 42 Cal. 957, it was held, following the English rule that witnesses for the Crown in criminal prosecution undertaken by the State are privileged from disclosing that channel through which they received or communicated information.
So, the defence is not entitled to elicit from individual prosecution witnesses whether he was a spy or informer, and also discover from police officials, the names of persons from whom they had received information. It was however held that a detective could not refuse on grounds of public policy to answer a question as to where he secreted the information.
In Majju v. Lachman ILR 46 All 671, it was held that a report made to a police station though not within the rule of absolute privilege is prima facie privileged, that is to say, the person making has a right to make it if he honestly believes in it and the person receiving has a duty to receive. But a qualified privilege can provide only a qualified protection and the person charged with defamation must prove that he used the privilege honestly believing the truth of what he said or in other words, having reasonable grounds for making the 358 statement.
The privilege applies only to the identity of the informant and not to the contents of the communication to the prosecutor. It has been held that the police, Magistrate and the Revenue officers can claim privilege from disclosing the name of the informant in respect of offences under the Customs Act, without any other consideration coming in (Asstt. Collector of Central Excise, Madras v. T.K. Prasad 1989 Crl. LJ (NUC) 28 : 1988 Mad L.W (Cri) 338 (DB).
The source of information as to the commission of an offence is only prohibited and not the custody of any document or other materials that might have been seized and tendered in the evidence (Public Prosecutor v. Govindaraja: AIR 1954 Mad 1023). The privilege contemplated is merely in respect of the source of information (Munna Singh Tomar v. State of MP: 1989. Crl LJ 580 (MP).
Sarkar says (ibid p. 2024) that statements made to the police are in their nature confidential and Section 162 of the Code of Criminal Procedure illustrates the limited purpose for which their protection should be required. Questions mentioned in Section 125 (or Sections 121, 124) are not barred. They only deal with a privilege which can be waived (Md Ally v. R. 4 Bur LT 113).
The Section rests upon public policy and protects the name of a spy or informant and the nature of the information and it has no application to an informant who lays sworn information and thereby initiates criminal proceedings (Liladhar v. R : 8. Sind L.R. 309 : 29 I.C. 79) Examination of a spy or informant of the police is neither necessary nor desirable (State v. Dhanpat: AIR 1960 Pat 582.
In our view, the above case law in India, does not either cover cases where the identity of the accused may help the accused to prove innocence,- a principle as old as Lord Esher's judgment in Marks v. Bevfus (1840) 25 QBD. 494 (CA) nor help a plaintiff in a suit for defamation or malicious prosecution wants to sue the proper person. It does not help one to know who the real prosecutor is. The law in England, Canada and in USA is not so rigid as it is in Section 125. Finally, discretion has to be vested in the Court.
In the circumstances, we agree that the third alternative stated in para 67.21 of the 69th Report and the recommendation for insertion of an 'Exception' as stated in para 67.22 below Section 125. We agree with the said recommendation.
Thus, below Section 125, we recommend the following Exception to be added:
"Exception: Nothing in this Section shall apply where it appears to the Court that the giving of the information is a fact in issue on which the liability of a party depends or is otherwise a material fact, and the Court, for reasons to be recorded and in the interests of justice, directs the disclosure of such information by the Magistrate, Police officer or Revenue officer".
Sections 126, 127, 128, 129 to go together.