Report No. 69

Chapter 67

Information as to Offences

Section 125

I. Introductory

67.1. Introductory.-

The disclosures of matters injurious to public interest in general has been discussed so far. A particular species of matters involving the public interest is dealt with in section 125. Under section 125, no Magistrate or Revenue Officer or Police Officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

"Revenue Officer" in this section means any officer employed in or about the business of any branch of the public revenue.

67.2. Principle.-

The principle underlying the section is this. While it is perfectly right that all opportunities should be afforded to discuss the truth of the evidence given against a prisoner, on the other hand, it is absolutely essential to the public welfare, that the names of parties who give information should not be divulged; for otherwise-be it from fear, or shame, or the dislike of being publicly mixed up in enquiries of this nature-few men would choose to assume the disagreeable part of giving or receiving information respecting offences, and the consequences would be that many great crimes would pass unpunished.1 For the same reason, counsel for the defence is not entitled to elicit from a witness for the prosecution that he is a spy or informer.2

1. Woodroffe Evidence Act (1941) referring to Taylor Evidence, section 941; R. v. Hardy, (1794) 24 Howard ST 808 (816); Home v. Bentink, 2 B&B 162; Hennesay v. Wright, 21 QBD 509.

2. Amrita v. R., 1815 ILR 42 Cal 957.

67.3. Rule without limitations.-

While the principle may be taken as sound in a broad sense, it must be noted that the rule is enacted in the section without any express limitations. The source of information may be a very material fact in the proceeding in question, and yet the section makes no exception. The broad question to be considered then, is whether it is absolutely essential that the section should be retained with its present broad sweep, or whether some exceptions, should be created, in the interest of justice, to meet hardships which are likely to be caused in practice, to which we shall presently advert. Before discussing those hardships, let us have a look at the-(i) previous law in India, and (ii) the English law. The previous law was much narrower than the present section and so is the present English law, as will be evident from the ensuing discussion.

II. Previous Law

67.4. Previous law.-

Before the passing of the Act, the law in India was narrower than what it is under the section. It was held1 by the Calcutta High Court that the rule which laid down that a witness cannot be examined about the information given by him to the Government for the discovery of offender, was confined to offences against the State or breach of revenue laws. The propositions so laid down would seem to be in accord with the English law as was understood at that time.2

1. Mohesh Chandra (in re:), (1810) 13 WR 1 (10) (Cal).

2. Reg. v. Richardson, (1863) 3 F&F 693, see para. 67.6, infra.

III. English Law

67.5. Position in England.-

This matter is usually discussed under the head of informer's privilege. The "informer's privilege" is recognised in England also but the privilege1 is not absolute or unlimited. The channel of communication of detection of a crime, it is said, is exempt from disclosures, but the privilege is stated to be subject to the consideration that no injustice is caused to the accused. That the identity of police informers must, in the public interest, be kept secret, is not disputed.2 But the consideration of justice, referred to above, prevails. In Rogers v. Secretary of State, (1972) 2 All ER 1057 (HL),, for example, Lord Simon of Glaisdale observed:

"Sources of police information are a judicially recognised class of evidence excluded on the ground of public policy unless their production is required to establish innocence in a criminal trial.3

Although Lord Simon's observations speak merely of establishing innocence, some earlier cases state the limitation in wide terms. Lord Marks v. Beyfus, (1890) 25 QBD 494 (498), observed that if, upon the trial of a prisoner, ' the Judge should be of opinion that the disclosure of the name of the informant was necessary or right in order to show the prisoner's innocence, then, one pubic policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. Lord Esher was dealing with one aspect of injustice but the scope of the limitation is wider. Regina v. Richardson, (1863) 3 F&F 693 Susset Spring Assizes (Cockburn, C.J.), furnishes an example.

It was an indictment for administering poison with intent to murder. The police had, in consequence of certain information, found the bottle containing the poison in a place used by the prisoner-a maid servant. It was held, that the police were bound to disclose from whom they had the information. The disclosure was compelled because the court found it material to the ends of justice. Then, in Hardy's case4the following question was put to a witness: "How came you to go there?" (to the seditious meetings). He replied, "I was sent by a gentleman". He was asked, "By whom?" This question was objected to, and Eyre, C.J., said, "He has said what is proper and material for the purpose do net think it is proper;" and the question objected to was withdrawn.

Another witness was afterwards asked, without objection, whether he gave the information to a Magistrate; which he answered in the negative. The next question was: "Then to whom was it?" This was objected to by the Attorney-General, who said, he could not see what it had to do with the justice of the case. Eyre, C.J., said-"It is perfectly right that all opportunities should be given to discuss the truth of the evidence given against a prisoner; but there is a rule which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed. If it can be made to appear that really and truly it is necessary, for the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it."5

1. Marks v. Bevfus, (1890) 25 QBD 494 (CA).

2. Roggers v. Secretary of State, (1972) 2 All ER 1057 (HL).

3. Emphasis supplied.

4. Hardy, (1794) 24 ST 751.

5. Emphasis supplied.

67.6. There is, in the English case law, sufficient material for taking the view that the privilege relating to information concerning an offence originated in regard to matters of high state policy, that is to say, offences against the State or the revenues of the State. In fact, the Reporter's note to the case of Reg. v. Richardson, (1863) 3 F&F 693 (Cockburn, C.J.), quotes the views of Greenlead, Tayor and Best, to the effect that the privilege is confined to offences of a political nature. We are referring to these authorities to show an important limitation on the privilege of the informer in England.

67.7. Finally, it may be mentioned that the Lord Chancellor announced1 in 1962 that in future, in proceedings against the police for such matters as malicious prosecution or wrongful arrest, no claim to exclude evidence relating to the justification for the conduct of the police will be made unless its disclosure would reveal the name of a police informer. We have so far considered one limitation of the privilege in England. The second limitation should also be noted. The rule in England does not seem to apply to a private prosecution.2-3

1. See (1962) 237 HL Deb Cols 1191-1193: 1962 Public Law 203.

2. Attorney-General v. Briant, 15 M&W 169.

3. Stephen's Digest, Article 113.

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