Gujarat High Court Civil Manual (subordinate court practice), 1960
Under Government Resolution, Home Department, No. 8996/6, dated the 28th April 1954, certain instructions have been issued for the guidance of Government servants when they are summoned by a Court to produce official documents. The following relevant instructions are re-produced for the guidance of Court :— (1) The law relating to the production of unpublished official records as evidence in Courts is contained in Sections 123, 124 and 162 of the Indian Evidence Act, 1872 (Act I of 1872). (1A) A Government servant other than the Head of a Department who is summoned to produce an official document should first determine whether the document is in his custody and he is in a position to produce it. In this connection, it may be stated that all official records are normally in the custody of the Head of the Department and it is only under special circumstances that an official document can be said to be in the custody of an individual Government servant. If the document is not in the custody of the Government servant summoned, he should inform the Court accordingly. If, under any special circumstances, the document is in the custody of the Government servant summoned, he should next determine whether the document is an unpublished official record relating to affairs of State and privilege under section 123 should be claimed in respect of it. If he is of the view that such privilege should be claimed or if he is doubtful of the position, he should refer the matter to the Head of the Department, who will issue necessary instructions and will also furnish the affidavit in Form No. I in suitable cases. If the document is such that privilege under section 123 could not be claimed but if the Government servant considers that the document is a communication made to him in official confidence and that the public interest would suffer by its disclosure, he should claim privilege under section 124 in Form No. II. In case of doubt, he should seek the advice of the Head of the Department. (2) The Government servant who is to attend a Court as a witness with official document should, where permission under section 123 has been withheld, be given an affidavit in form No. I duly signed by the head of the Department in the accompanying form. He should produce it when he is called upon to give his evidence, and should explain that he is not at liberty to produce the documents before the Court, or to give any evidence derived from them. He should, however, take with him the papers which he has been summoned to produce. (3) The Government servant who is summoned to produce official documents in respect of which privilege under section 124 has to be claimed, will make an affidavit in the accompanying Form No. II. When he is not attending the Court himself to give evidence, he shall have it sent to the Court along with the documents. The person through whom the documents are sent to Court should submit the affidavit to the Court when called upon to produce the documents. He should take with him the documents which he has been called upon to produce but should not hand them over to the Court unless the Court directs him to do so. They should not be shown to the opposite party. (4) The head of the department should abstain from entering into correspondence with the presiding officer of the Court concerned in regard to the grounds on which the documents have been called for. He should obey the Court's orders and should appear personally, or arrange for the appearance of another officer in the Court concerned with the documents and act as indicated in paragraph 2 above, and, produce the necessary affidavit if he claims privilege.