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evidence_law:privileges-of-witness-not-to-answer

Privileges to a witness not to answer

The privileges from disclosure of witnesses are provided in Sections 121 to 132 of the Evidence Act. It can be divided into following heads:

  1. Privilege to judges and Magistrates (Section 121)
  2. Marital Privilege (Section 122)
  3. Privilege as to affairs of State and Official Communication (Sections 123 and 124)
  4. Privilege as to non-disclosure of regarding receipt of information as to commission of offences (Section 125)
  5. Professional privilege (Sections 126 to 129)

Privilege to judges and Magistrates

Section 121

  1. No Judge or Magistrate shall be compelled to answer any questions as to
    1. his own conduct in Court as such Judge or Magistrate or
    2. anything which came to his knowledge in Court as such Judge or Magistrate
  2. He may be examined as to other matters which occurred in his presence whilst he was so acting.

The privilege does not apply in such situation. Illustration (c) clarifies that, A is accused before the Court of Session of attempting to murder a police-officer whilst on has trial before B, a Session judge. B may be examined as to what occurred.

Illustrations (a) and (b) clarify the application privilege:

  • A says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this. He is to answer this question upon the special order of a superior Court.
  • A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.

Marital Privilege

Section 122 provides the following principles:

  1. A person is or has been married.
  2. He or she shall not be compelled to disclose any communication made to him or to her during marriage.
  3. Such communication is made by any such person to whom he or she is or has been married
  4. Such person shall not be permitted to disclose any such communication, unless the person who made it, or his representative-in-interest, consents.
  5. Such person is excepted in suits between such married persons, or
  6. Such person is excepted to communicate such facts in proceedings in which one married person is prosecuted for any crime committed against the other.

Privilege as to affairs of State and Official Communication

Sections 123 and 124

Section 123 enunciates the following principles:

  1. There are certain unpublished official records relating to any affairs of State
  2. A person while acting in official capacity derived certain from unpublished official records relating to any affairs of State
  3. Such person shall not be permitted to give any evidence on such facts.
  4. He can depose such facts only with the permission of the officer at the head of the department concerned.
  5. He shall give or withhold such permission as he thinks fit.

Section 124 enunciates the following principles:

  1. A public officer is communicated or knew certain facts.
  2. Such facts are made to him in official confidence.
  3. Such public officer shall not be compelled to disclose such communication when he considers that the public interests would suffer by the disclosure.

Privilege as to non-disclosure of regarding receipt of information as to commission of offences

Section 125

According to Section 39 (1) of CrPC: A person who is aware of the commission of , or of the intention of any other person to commit, any offence punishable under sections 121 to 126, and section 130 (offences against the State specified in Chapter VI); sections 143, 144, 145, 147 and 148 (offences against the public tranquility specified in Chapter VIII of the said Code); sections 161 to 165A(offences relating to illegal gratification); sections 272 to 278 (offences relating to adulteration of food and drugs, etc.); sections 302, 303 and 304 (offences affecting life); section 382 (offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft); sections 392 to 399, both inclusive, and section 402 (offences of robbery and dacoity); section 409 (offence relating to criminal breach of trust by public servant, etc.); sections 431 to 439 (offences of mischief against property); sections 449 and 450 (offence of house-trespass); sections 456 to 460, (offences of lurking house-trespass); and sections 489A to 489E (offences relating to currency notes and bank notes) IPC, should give information to the nearest Magistrate or police officer of commission or intention of committing such offences. Here the term “offence” includes any act committed at any place out of India which would constitute an offence if committed in India.

For the protection of such general public from being harassed by offenders, section 125 of the Indian Evidence Act allows officials to keep the source of information regarding commission of an offence secret. Section 125 provides that:

  1. No Magistrate or Police Officer shall be compelled to say when and from whom he got any information as to the commission of any offence.
  2. No Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
  3. Explanation clarifies that “Revenue Officer” means any officer employed in or about the business of any branch of the public revenue.

Professional privilege

Sections 126 to 129

Section 126 provides that

  1. The client communicated facts to barrister, attorney, pleader or vakil in the course and for the purpose of his employment as such.
  2. Such barrister, attorney, pleader or vakil shall not at any time be permitted to disclose such facts.
  3. Such barrister, attorney, pleader or vakil shall not state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment.
  4. Explanation clarifies that such obligation of barrister, attorney, pleader or vakil continues after the employment has ceased.
  5. Such barrister, attorney, pleader or vakil can communicate such fact with his client's express consent.
  6. Section 126 shall not protect from disclosure -
    1. any such communication made in furtherance of any illegal purpose
    2. any fact observed by barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
    3. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf or his client.

Section 127 provides that the principles in Section 126 apply to interpreters and the clerks or servants of barristers, pleaders, attorneys and vakils.

Section 128 provides that such privilege is not waived by volunteering evidence. It means if any party to a suit gives evidence at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126. Similarly, if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which he allowed. For other question such barrister, pleader, attorney or vakil would not be at liberty to disclose.

Section 129 provides privilege as to confidential communications with legal advisers. No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser. If he offers himself as a witness, he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given but no others.


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Created on 2021/03/23 17:10 by LawPage • Last modified on 2021/04/09 22:12 (external edit)