Documents Issued By Public Servant Are Supposed To Be In Public Domain: J&K&L High Court Sets Aside Direction For Inquiry On Source Of Detention Order

Setting aside an order directing Anti Corruption Bureau to inquire how a litigant managed to get hold of the detention order and certain official communication prior to execution of the order, the Jammu and Kashmir and Ladakh High Court on Wednesday said such documents issued by a public servant are supposed to be in a public domain and they were neither classified nor relating to official secrets.

"In view of the law laid down by the Hon'ble Apex Court, that the court has to look into the veracity and admissibility of the documents produced and relied upon, instead of going into as to how they were procured, we are of the opinion that the view taken by the writ court was not the correct view to reject the petition on the ground, that the documents had not been legitimately obtained," said the court.

The observations were made by the division bench of Justices Sindhu Sharma and MA Chowdhary in its decision on an appeal challenging the single bench decision of dismissal of a habeas corpus petition. In its judgement, the single bench had also asked Director Anti Corruption Bureau Union Territory of J&K to inquire how the documents were obtained.

Challenging the impugned directions, the counsel for the appellant submitted that direction to the Anti Corruption Bureau J&K, on the issue of the availability of copy of the detention order to the appellants at pre execution stage is unwarranted and beyond the scope and domain of the Court as the Single Judge had not sought any explanation or reply from the appellants herein as to how the copy of the order came in their possession.

The learned Single Judge ought not to have made such directions, with serious criminal consequences against the appellants herein which, if allowed to stand, will result in harassment to them at the hands of the police and even the arrest for none of their fault or any such act which could be termed as criminal in nature, the appellant contended.

Dealing with this contention of the appellant, the bench observed that no serious view should have been taken in the matter as it was for the Writ Court to rely or not to rely on the documents produced but it should not have gone into the aspect of the case, as to what was the source of receiving those documents.

The bench relied on Supreme Court's decision in Umesh Kumar v/s State of Andhra Pradesh,  wherein the top court observed:

"It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation."

The court also relied on Magraj Patodia v. R.K.Birla & Ors wherein the apex court had held that a document which was procured by improper or even illegal means could not bar its admissibility provided its relevance and genuineness were proved.

The appeal was allowed and the direction passed by the Writ Court to the Anti-Corruption Bureau to enquire into the matter was set aside.

Case Title: Mohd Yousuf Vs UT of J&K.

Citation: 2022 LiveLaw (JKL) 270

Coram: Justice Sindhu Sharma & Justice MA Chowdhary

Counsel For Petitioner: Mr.P.N.Raina,Sr. Advocate with Mr. M.A. Bhat, Advocate

Counsel For Respondent: Mr Amit Gupta AAG

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