Report No. 69
IV. American Law
67.8. It will be possible to refer to only a few important features.
67.9. Position in U.S.A.-Limitations.-
The privilege which protects from disclosures the identity of informers is not applicable in all situations in the U.S.A. The United States Supreme Court has said1 that no fixed rule with respect to disclosure of the identity of an informer is justifiable; that the problem is one that calls for a balancing of the public interest in protecting the flow of information against the individual's right to prepare his defence; and that whether a proper balance renders non-disclosure erroneous must depend upon the particular circumstances of each case, taking into consideration the crime charged, the possible defence, the possible significance of the informer's testimony, and other relevant factors. There is authority for the proposition that once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
1. Annotation in 1 Lawyer's Edn. 2d, 1998, 2001-2002.
67.10. The privilege is also held to be inapplicable where, in claiming it, the government seeks to avoid disclosure of the contents of a communication from the informer, but, in fact, it appears that the contents of the communication will not tend to reveal the informer's identity.
67.11. The most important limitation on the applicability of the privilege of non-disclosure of the identity of an informer arises from the fundamental requirements of fairness. Thus, it is held that where the disclosure of an informer's identity is relevant and helpful to the defence of an accused, or is essential to a fair determination of the cause, the privilege must give way. In the Scher case,1 the Supreme Court said that "Public policy forbids disclosure of an informers' identity unless essential to the defence as, for example, where this turns upon an officers' good faith."
1. Scher case, 305 USA 254.
67.12. Position in U.S.A.-
Subject to important limitations, it is a general rule applicable in the U.S.A.-applicable in civil as well as criminal cases-that the Government is privileged to withhold from disclosure1 (notwithstanding its relevance), the identity of persons who furnish information relating to violations of law to officers charged with enforcement of that law.
1. Annotation in 1 Lawyer's Edn. 2d, 1998-2000.
67.13. The privilege is founded upon public policy, and seeks to further and protect the public interest in effective law enforcement.1 It recognises the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officers, and by preserving their anonymity, encourages them to perform that obligation. The privilege is designed to protect the public interest, and not to protect the informer.
1. Annotation in 1 Lawyer's Edn. 2d, 1998-2000.
67.14. Professional informers.-
In the United States, the leading case on the subject is Reviaro.1 In that case, the Supreme Court stated that the purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The theory is that if persons desirous of assisting law enforcement are constantly threatened with exposure of their identity, the utilisation of informants would virtually disappear. From the statements and discussions contained in the various text-books and in the literature on the subject, it would appear that in this context, by the 'informant' is meant a professional informer.
In other words an informant is a person who regularly supplies information to the law enforcement agency and who is compensated in some form for the furnishing of the information. The emphasis is on the paid informant, of the quasi criminal supplier of information-the paid informer receives money while the latter is compensated not in cash but by premises of immunity or of lessened charges or punishment. Wigmore has described the privilege in these words2:-
"A genuine privilege, on fundamental principle must be recognised for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged "if the informer's identity is disclosed. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities."
1. Reviaro v. United States, (1957) 453 US 53.
2. John H. Wigmore Evidence (1961), Sec. 2374 and emphasis added.
67.15. In many States in the U.S.A., the statutory provision requires the court, in effect, to balance the interests of the competing parties. Thus, the California Evidence Code1 allows the privilege if disclosure of the identity of the informer is not in the public interest-in other words, if the need to preserve the confidentiality of the identity outweighs the necessity for disclosure in the interest of justice.
1. Section 1041 a (2), California Evidence Code.
67.16. It would appear the one method1 of placing the competing interests in proper perspective is a review of the informant's disclosures by a magistrate in order to determine the question whether revealing his identity is necessary. This method has been held to be constitutional,2 and is generally favoured.
1. An illustration of this method will be found in Mc Cray v. Illinois, (1967) 386 US 300.
2. Mc Cray v. Illinois, (1967) 386 US 300.
V. Need for Change
67.17. Need for change in Indian law.-
We now revert to a consideration of the Indian Law and we cannot help the comment that the section states the rule too widely and overlooks certain important limitations which ought to have been taken note of. If regard be had to the limitations recognised in the U.S.A. and in England as set out in the above discussion, it seems that the Indian Law is mere stringent than the rule in these countries. That in itself is not a ground for changing the law; but it shows that the limitations cause no harm in other countries.
In our view the existing section is likely to cause serious hardship in a few situations For example, where a person takes civil proceedings for defamation or malicious prosecution against another person who had given false information to the police or a Magistrate, it would be impossible for him to prove an essential part of his case-namely, that the defendant was the person who gave the information-if disclosure thereof is not allowed.
Secondly, a person who wishes to prosecute another person for making a false charge or for instituting false criminal proceedings1 or for giving false information to a public servant2, would find it difficult to prove that the person against whom the prosecution is now filed took the initiative in making the false charge or in instituting criminal proceedings or gave the false information, unless the rule contained in the section is relaxed.
We do not, of course, imply that in a suit for malicious prosecution, nothing else is to be proved. There are other ingredients essential of create liability; but we are concerned, at the moment, with one feature which is essential namely, the giving of false information. In the proceedings to which we nave referred, irremediable hardship would be caused if the provision prohibiting disclosure of the information is enforced rigidly. The right to recover compensation for malicious prosecution or to take the other proceedings mentioned above would be rendered almost nugatory if the section is not relaxed.
1. Section 211, Indian Penal Code.
2. Section 182, Indian Penal Code.
67.18. We need not go into the difficult question-in what cases a person who gives false information to the police can be liable in damages for malicious prosecution. It cannot be disputed that a person who gives false information to the police or the magistrate or other law enforcement officer may, in certain Circumstances, be liable to such action. In Gaya Prasad v. Bhagat Singh, (1908) 35 Ind App 189: ILR 30 All 525 (533) (PC), the argument that only a person who had made a formal complaint to a court could be sued for malicious prosecution, was rejected by the Privy Council in these terms:
"In India the police have special powers in regard to the investigation of criminal charges and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the police, and the police without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, itwould be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witnesses to support it; if he influences the police to assist him in sending an innocent man for trial before the Magistrate-it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him."
Decisions of High Courts make it clear that1 the defendant is liable if the prosecution was by the police for the State at his instance and on his information.
1. (a) Amaldar v. Sabhajit, AIR 1963 All 580;
(b) Nitya Nanda v. Binayak, AIR 1955 Ori 129;
(c) Mohan Singh v. Bhirgunath, AIR 1952 Pt 283;
(d) Ucho Singh v. Nageshar Prasad Singh, AIR 1956 Pat 285.
67.19. In determining the liability for malicious prosecution, an important question to be considered is, who is the real prosecutor. The defendant's conduct before and during the trial will be material in deciding it1. This is a question of fact2, and the onus is on the plaintiff to prove the affirmative. The point to be made is that if the plaintiff wishes to sue for malicious prosecution, the name of the informant would be a very material circumstance and the nondisclosure thereof would constitute a serious obstacle. This hardship in itself is, again, not a conclusive argument against the privilege. But it can legitimately be taken into consideration.
1. (a) Radha Krishna v. Kedar Nath, 1924 ILR 46 All 815;
(b) Rishabha Kumar v. Sharma, AIR 1961 MP 329 (330).
2. (a) Lakshmojirao v. Venkatappaish, AIR 1966 AP 292;
(b) Jagoendra v. Lingraj, AIR 1970 Ori 91 (94), para. 7.
67.20. To draw an illustration from an Orissa case,1 it was held relying on the case law, that if the defendant gives information of the commission of a cognizable offence and names the accused in that report, in consequence of which a charge-sheet is filed by the police after investigation against the persons mentioned in the information, it can be said that the defendant is the prosecutor.
In that case, the defendant also attended the hearings on some dates, but the High Court did not rely merely on that fact, and expressly dissented from an earlier ruling2 where the proposition was enunciated that the mere giving of false information cannot give a cause of action to the plaintiff in a suit for malicious prosecution. It would thus appear that in the very interests of law enforcement, a false information should not be protected from disclosure-since its disclosure would really encourage law enforcement-i.e. the enforcement of remedy of malicious prosecution-in the situation discussed above.
1. Nita Nand v. Vishnu Sahai, AIR 1955 Ori 129 (132, 133) (Narasimhan and P.V.B. Rao, B.).
2. Radhu v. Dhandu, AIR 1953 Ori 56.
67.21. Possible alternatives.-
If the hardship likely to be caused in certain cases, as explained above, is to be removed or reduced, there are several alternatives, as follows:-
(i) The scope of the section could be limited to offences against the State and offences against the revenue- which was the previous law in India.1
(ii) Suits for damages or malicious prosecution or defamation or prosecutions for making a false charge may be excluded from the prohibition imposed by the section.
(iii) The court may be given a discretion to dispense with the requirements of the section in the interests of justice.
Alternative (i) may perhaps be considered radical. In that case either the second or the third alternative should be considered. On the merits, in our opinion, the third alternative is the best, because, while leaving the matter elastic, it will ensure that the privilege is relaxed only where the interests of justice so require. Such a relaxation would not be in conflict with the principle underlying the section. A person honestly- even mistakenly- giving information of an offence should have nothing to fear by such disclosure. At the same time, a person dishonestly giving false information does not deserve protection where the person aggrieved by his conduct wishes to pursue his lawful claim for compensation.
1. See para. 67.4, supra.
For the reasons stated above, we recommend that the following exception should be inserted in section 125:
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."