Journalist qualified privilege - not to disclose source

AIR 1987 Bom 339 - Javed Akhtar
68 (1997) DLT 259 - re, the pioneer

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Disclosure of source of document

1.         Writ can be considered and disposed of, and a separate inquiry can be ordered    into circumstances of disclosure. Without setting up an inquiry in the        circumstances of disclosure of document, state has lesser strength in arguing that         a certain document cannot be relied upon.

B. Sudhakar Reddy v. Engineer-in-Chief, 1998(6)ALD326

“18. Before parting with this case, I would like to place on record one more aspect of the matter : the internal notings and correspondence of the officers at various level in the Government are generally confidential opinions. In the context of law of contempt, such notings fell for consideration of the Supreme Court in State of Bihar v. Kripalu Shanker, MANU/SC/0166/1987 : 1987CriLJ1860 , wherein Their Lordships observed (at para 13):

"......... ....... .. .... ... .....

It would be dangerous to found an action for contempt for the views expressed in the notes filed, on the discovery of unpleasant or unsavoury notes, on a perusal of the notes filed by the Court after getting them summoned. This would impair the independent functioning of the civil service essential to democaracy. This would cause impediments in the fearless expression of opinion by the officers of the Government. The notings on files differ from officer to officer. It may well be that the notes made by a particular officer, in some cases, technically speaking is in disobedience of an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him. To rely upon the notings in a file for the purpose of initiating contempt, in our view, therefore, would be to put the functioning of the Government out of gear. We must guard against being over sensitive, when we come across, objectionable notings made by officers, sometimes out of inexperience, sometimes out of over zealousness and sometimes out of ignorance of the nuances of the question of law involved."

the same logic, applies even in the context of maintaining the confidentiality of the notes, especially in the context of awarding of Government contracts of high-stakes, where day-in and day-out, we find in the newspapers that attempts are made to prevent competing contractors from participating in the tenders by use of force and complaints of threats to the officers in-charge of such process. Unless, the confidentiality is strictly maintained, the officers would not be in a position to take decisions fearlessly and independently. Invariably in a number of cases before this Court, such internal correspondence is relied upon without disclosing the source of information, by some parry or other; the State on the other hand, raises a routine objection that such material could not be relied upon, in the absence of any explanation as to the source of information, but hardly do we hear that, in any case the State took the follow-up action in the sense, that it tried to identify the person who is responsible for the leakage of such information and dealt with him appropriately in accordance with law. In the circumstances, I am of the view, having regard to the stand taken by the State that it had already initiated an enquiry into the matter of leakage of certain internal correspondence pertaining to this case, though the writ petition is disposed of, the respondents 1 and 2 are directed to complete the enquiry within a period of 30 days from to-day and report to this Court the result of such an enquiry.”

2.      Argument about source of documents are not relevant if they  are no disputed facts or documents are admitted

            Balkrishna v. State of Maharashtra, 2010(1)BomCR626

50. The consideration above clearly shows that no disputed question of facts are required to be looked into by this Court while deciding the controversy. The documents placed on record are not disputed by respondent Nos. 1,2 and 3. Most of the documents considered are the orders of the Courts/ Authorities. The arguments about source of document or then about defective affidavit in support of Writ Petition are therefore not relevant as the same have got no bearing on merits of the controversy. As adjudication in writ petition turns only on interpretation of law, no finding on alleged malafides either way, is relevant. It is therefore, not necessary to consider the cases cited by petitioners or respondent No. 6 for that purpose.

3.         Private law of confidentiality etc prevails over public interest  (decision by Justice            Chelameshwar – now in the supreme court)

            Bharat Biotech International Limited v. AP Health & Medical Housing and         Infrastructure             Development Corporation, 2003(1)ALD463

55. But that does not solve the problem in the present case. The third respondent filed an affidavit along with certain documents indicating that the petitioner had also made an attempt in the month of July, 2001 to obtain WHO Pre-qualification, but failed. This fact is not disputed by the petitioner though the petitioner raised some objections regarding the production of the document on the ground that it is a confidential correspondence between the petitioner and WHO, the third respondent being the trade rival of the petitioner cannot be permitted to place the document on the record of the Court, without disclosing thesource from which he had obtained the document.

56. In a case like the present one the larger public interest, that is the requirement of maintenance of higher standards in the health care of the society, should prevail over the private law rights of the parties. The examination of the said document discloses that the WHO made certain observations to the effect that the petitioner's manufacturing operations did not meet the good manufacturing practices set up by the WHO. Such observation was made an year and half back. The learned Counsel for the petitioner vehemently submitted that, now the first petitioner meets all the standards set up by the WHO. In fact in the counter-affidavit filed in response to the implead petition, the writ petitioner also made an assertion that the petitioner has already initiated the process once again to obtain WHO pre-qualification.

4.         If a document is relevant and admissible under the Evidence Act, 1872, it cannot be        discarded merely because source is not disclosed.

Devidas v. State of Maharashtra, 2006(2)MhLj100

9.… It is further found by the Tribunal that the letter purportedly written by Ex-Chairman of the Legislative Council filed on record with the rejoinder cannot be taken into consideration as the source from where the letter is obtained had not been disclosed. Learned counsel for respondent No. 6 has canvassed this reasoning before us. We cannot approve such an approach. A document cannot be discarded merely because the source is not disclosed. What is required to be considered is whether the document is relevant and admissible. If it is admissible in evidence, the document can be considered if it is properly proved according to the Rules of Evidence. In this behalf, a reference can be made to the ruling of the Apex Court in the matter of Pushpadevi M. Jatia v. M. L. Wadhavan reported in : 1987CriLJ1888 . In this case, the Apex Court endorsed the already established principle that relevant evidence can be taken into consideration irrespective of the method by which it was obtained.

Further Note:

Section 5 of the Evidence Act 1872 permits relevance of a piece of evidence as the only test of admissibility of evidence.  The courts have taken the view there is no law in force that excludes relevant evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained. (See: Shyni Varghese v.  State (Govt. of NCT of Delhi), 147 (2008) DLT 691; M.P. Sharma v. Satish Chandra,  AIR 1954 SC 300; State of Madhya Pradesh v. Ramesh C. Sharma, (2005) 12 SCC 628; R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471; State v.  Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600)

The Hon’ble Supreme Court has gone to the extent of holding that “it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence….  It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.” (See: Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345)

5.         If genuineness of document is not denied, there is no infirmity if the source of       document is not disclosed

Jyoti Rastogi v. State of UP, 2004 3 AWC2662

Headnote

Official Secrets Act, 1923--Sections 3 and 5--Selection proceeding for appointment--Whether confidential?--Held, “no”--Document can be said to be confidential only if it has protection of Official Secrets Act or any other valid law--And such confidentiality claimed by making proper affidavit--Petitioner being candidate has right to information of proceedings of selection--Fact that she obtained it from source not disclosed--Not to make document inadmissible in evidence--Genuineness of document not denied by respondents.

Admissibility of Illegally obtained evidence

 The courts have taken the view there is no law in force that excludes relevant evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained. (Shyni Varghese v.  State (Govt. of NCT of Delhi), 147 (2008) DLT 691; M.P. Sharma v. Satish Chandra,  AIR 1954 SC 300; State of Madhya Pradesh v. Ramesh C. Sharma, (2005) 12 SCC 628; R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471; State v.  Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600)

 The Supreme Court has gone to the extent f holding that “it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence….  It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.” (Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345)

No pleading, No evidence.

Pleadings are foundation on which evidence can be lead. No evidence is permitted if there is no pleading. 2011 (2) Bom CR (OS) 266.

Examination of witness - presence of other witnesses

There is no specific provision in CPC to provide that when a witness is being examined, other witnesses who are proposed to be examined by party concerned should not be present in court. Indur Kartar Chhugani, 2011 (2) Bom CR (OS) 12.

CPC and arbitration

Strict provisions of Evidence Act or CPC are not to be followed by arbitrator, but principles of natural justice cannot be over looked at any stage of proceeding. Shunk Corrugators, 2011 (2) BomCR (OS) 19

Without Prejudice

2006(14)SCALE300

Re: Legal Aid

Mere ground that petitioner is a woman, she is not entitled to legal aid. Existence of prima facie case for granting of legal aid is necessary. AIR 2011 NOC  212 AP

Pleadings are foundation of a case

Pleadings are foundation on which evidence can be lead. Opportunity of proof and evidence need not be given if pleading to effect are not there. 2011 (2) Bom CR (OS) 266

Presence of witnesses in cross examination

There is no specific provision in CPC to provide that when a witness is being examined, other witnesses who are proposed to be examined by party concerned should not be present in court.
2011 (2) Bom CR 12 (OS)

Courts cannot decide outside pleadings

(Gajanan Krishnaji Bapat and Anr. v. Dattaji Raghobaji Meghe, AIR 1995 SC 2284; Kalyan Singh Chouhan v. C.P. Joshi, JT 2011 (2) SC 97).  It is not permissible for the court (and also arbitral tribunal) to travel beyond the pleadings

Expert Witness

In a medical negligence case, expert witness is not always necessary.
V. Kishan Rao v. Nikhil Super Speciality Hospital, 2010 (6) Bom CR 155 (SC)

Amendment / Deletion of Affidavits

Once affidavit in lieu of examination in chief is filed, it partakes character of examination in chief. There is no provision in the Code to enable court to order its deletion. 2010 (6) Bom CR 379