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Report No. 88

2.8. Recommendations made in Report on Evidence Act.-

All these provisions of the Evidence Act received detailed discussion by the Law Commission in its Report oh the Evidence Act. The recommendations made in that Report in so far as they concern sections 123, 124 and 162, may be summarised at this stage for convenience of reference.1

The recommendation relating to section 123 was ta. revise the section on the following lines:-

(1) No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, unless the officer at the head of the department concerned has given permission for giving such evidence. (This proposition was intended to state the position, to start with. It would operate primarily as between the witness and his superior. There was no change of substance).

(2) Such officer should not withhold such permission unless he is satisfied that the giving of such evidence would be injurious to the public interest. He should make an affidavit also in this regard. The Court may, if it thinks fit, call for a further affidavit from the head of the department. (This proposition was intended to amplify the section, by highlighting the test of "injury to the public interest"-a test discernible from case law on the subject-and by codifying the procedure that had already been indicated judicially).

(3) Where such officer has withheld permission for the giving of such evidence, and the Court, after inspecting the unpublished official records concerned and after considering the affidavit, is of the opinion that the giving of such evidence would not be injurious to the public interest, the court should record its decision to that effect and thereupon the section will not apply to such evidence. [This proposition was intended to modify the existing section, in so far as the textual law was concerned. The change was an important one, as the decision as to injury to the public interest would be with the Court and not with the officer at the head of the Department].

1. Law Commission of India, 69th Report (Indian Evidence Act, 1872), Chapter 65, 66 and 93.

Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back

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