Gujarat High Court Criminal Manual (subordinate court practice), 1977
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following relevant instructions are reproduced for the guidance of Courts:— (1) The law relating to the production of unpublished records as evidence in Court is contained in Sections 123, 124 and 162 of the Indian Evidence Act, 1872 (Act I of 1872). (2) 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 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the document is in the custody of the Government servant summoned, he should next determine whether the document is an unpublished official record relating to affairs of state and privilege under section 123 should be claimed in respect of it, if he is of the view that such privilege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 furnish the affidavit in Form 47 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 48. In case of doubt, he should seek the advice of the Head of the Department. (3) The Government servant who is to attend a Court as a witness with an official document should, where permission under section 123 has been withheld, be given an affidavit in form No. 47 duly signed by the Head of the Department. He should produce it when he is called upon to give evidence, and should say 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. (4) 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 Form No. 48. 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 over to the Court unless the Court directs him to do so. They should not be shown to the opposite party.