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Indian Evidence Act,

1872

COMPETENCY TO TESTIFY AND


PRIVILEGE COMMUNICATIONS (SECTION
118 – 132)

SUBMITTED TO: SUBMITTED BY:

MRS. ANJU VARANPREET KAUR

SIGNATURES: ROLL NO. 174/15

_______________________ B COM LLB (HONS.)

SECTION – C

7th Semester (2018)


ACKNOWLEDGEMENT
I would like to be greatly thankful to my project mentor Mrs. Anju who has provided me
guidance about the “Indian Evidence Act, 1872” and my project topic ‘COMPETENCY TO
TESTIFY AND PRIVILEGE COMMUNICATIONS ’. She has told me the way to get the
job done , not providing the exact way to do it , but the concept behind the complexities so
that I can make better of my knowledge and build up higher skills. However , at some places ,
where I could not understand the provisions or I were unable to follow the procedure laid
down in the Act, she taught me the work done in efficient and best manner and given up
explored details about the problem and explained the provisions and the articles.

It is my great honour to express my gratitude to those who have been kind enough to help me
initiate and complete my project. I must acknowledge my debt of gratitude to my classmates
and friends. By whom we received substantial inspiration, encouragement and congenial
atmosphere, necessary for such academic accomplishment.

Varanpreet Kaur

174/15
TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................... 6
WITNESS .................................................................................................................................. 7
SECTION 118 ............................................................................................................................ 8
SCOPE ................................................................................................................................... 8
CHILD WITNESS: ................................................................................................................ 9
RUSTICE WITNESS: .......................................................................................................... 10
INDEPENDENT WITNESS: ............................................................................................... 11
PERSON OF UNSOUND MIND: ....................................................................................... 12
SECTION 119 .......................................................................................................................... 12
SECTION 120 .......................................................................................................................... 13
PRIVILEGE COMMUNICATIONS ....................................................................................... 14
SECTION 121 .......................................................................................................................... 15
JUDICIAL PRIVILEGE ...................................................................................................... 15
SECTION 122 .......................................................................................................................... 17
OBJECT: .............................................................................................................................. 17
SCOPE ................................................................................................................................. 17
CONDITION TO AVAIL PRIVILEGE .............................................................................. 18
THE COMMUNICATION MUST HAVE BEEN MADE DURING THE
CONTINUANCE OF THE MARRIAGE ............................................................................ 19
PROTECTION WHEN NOT AVAILABLE ....................................................................... 19
SECTION 123 .......................................................................................................................... 21
SCOPE: ................................................................................................................................ 21
PRINCIPLE:......................................................................................................................... 21
UNPUBLISHED OFFICIAL RECORDS: .......................................................................... 22
SECTION 124 .......................................................................................................................... 24
SCOPE: ................................................................................................................................ 24
SECTION 125 .......................................................................................................................... 26
SCOPE: ................................................................................................................................ 26
SOURCES OF INFORMATION AS TO OFFENCES: ...................................................... 26
SECTION 126 .......................................................................................................................... 27
COMMUNICATIONS BETWEEN ADVOCATES AND CLIENT: ................................. 28
CONDITIONS TO AVAIL THIS PRIVILEGE: ................................................................. 28
SCOPE: ................................................................................................................................ 28
EXCEPTIONS: .................................................................................................................... 29
SECTION 127 .......................................................................................................................... 30
POSITION OF INTERPRETERS ETC.: ............................................................................. 30
SECTION 128 .......................................................................................................................... 31
WAIVER OF PRIVILEGE: ................................................................................................. 31
SECTION 129:......................................................................................................................... 32
SECTION 130 .......................................................................................................................... 33
TITLE DEED OF WITNESS ............................................................................................... 33
SECTION 131 .......................................................................................................................... 34
SECTION 132 .......................................................................................................................... 35
MEANING OF COMPULSION: ......................................................................................... 36
DIFFERENCE BETWEEN ARTICLE 20 (3) OF CONSTITUTION OF INDIA AND
SECTION 132 OF INDIAN EVIDENCE ACT ................................................................... 36
CASES
1. Barati v. State of U.P AIR SC 839............................................................................... 12
2. Datta Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 ............................ 10
3. Dilbagh Rai Jarry v. Union of India, AIR 1974 SC 130 .............................................. 25
4. Duke of bucelench v. Metropolitan Board of works , (1872) L.R. 5 H.L. 418 .......... 16
5. Emperor v. Banarsi , (1923) 46 All. 234...................................................................... 36
6. Fatima v. Emperor, AIR 1940 Lah. 380 ...................................................................... 21
7. Guinness Peat Properties Ltd. v. Fitzroy Robinson Partnership (1987) 2 All E.R. 716
...................................................................................................................................... 30
8. L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj. 2 ................................................. 25
9. M.C. Verghese v. T J. Ponnam AIR 1970 SC 1876 .............................................. 19,20
10. Madras Port Trust v. Hymanshy International, AIR 1979 SC 1144 ............................ 25
11. Moss v. Moss, (1963) 2 QBD 829 ............................................................................... 19
12. P.R.Ramakrishnan v. Subramma AIR 1988 Ker 18 .................................................... 31
13. Queen- Empress v. Donoghue I.L.R (1899) 22 Mad. 194 ........................................... 20
14. R v. Johnson 1 All E.R. 121......................................................................................... 27
15. R. Dinesh Kumar v. State AIR 2015 SC 1816 ............................................................. 36
16. Raja RamYadav v. State of Bihar, AIR 1996 SC 1613 ............................................... 10
17. Ram Bharosey v. State of U.P AIR 1954 SC 704 .................................................. 18, 20
18. Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 ............................. 10
19. S.P. Gupta v President of India AIR 1982 SC 149 ................................................. 22,23
20. Shankar v. State of Tamil Nadu, (1994) Cri. L.J 3071. ............................................... 18
21. Shivaji Sahebrao Bhobade v. State of Maharashtra 1973 Cri. L J 1963 ..................... 11
22. State of Orissa v. Purna Chandra Kusal (2008) Cri L. J. 4597 .................................... 11
23. State of Punjab v Sodhi Sukhde Singh AIR 1961 SC 493........................................... 23
24. State of Rajasthan v. Darshan Singh AIR 2012 SC 1973 ............................................ 13
25. Union of India v. Orient Engineering and Commercial Co., (1978) 1 SCC 10, .......... 16
INTRODUCTION

Chapter 9 of Indian Evidence Act, 1872 deals with the examination of witnesses. All persons
are competent to testify, unless the court orders that by reason of: (i) tender years, (ii)
extreme old age , (iii) disease of mind or body, or (iv) any other such cause, they are
incapable of understanding the question put to them and of giving rational answers. A lunatic
is not incompetent to testify unless he is prevented by the lunacy from understanding the
persons put to him and giving rational answers to them. Dumb witnesses my testify by
writing or signs made in open court. Husbands and wives are competent witnesses against
one another- both in the civil and criminal proceedings. Sections 118, 119 and 120 deal with
competency of persons to become witnesses.

Competency to give evidence should be distinguished from capability to give evidence. A


witness though capable to give evidence, may be privileged or protected from answering
certain questions.

Sections 121-132 deal with the privilege of certain classes of witnesses. Evidence of the
following matters are excluded on the grounds of public policy:-

1. Affairs of the State (Section 123)


2. Official communications (Section 124)
3. Information as to commission of offences (Section 125)

The witnesses cannot be compelled to answer in the following cases:-

1. Privilege of Judges and Magistrates (Section 121)


2. Communications during marriage (Section 122)
3. Professional communications to barristers, attorney, pleader etc. (Section 126).1

1
M.P.TANDON, Indian Evidence Act, New Era Publications, Faridabad , p. 386
WITNESS

As per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to
clarify or help determine the rights and liabilities of the parties in a legal proceeding.
Witnesses can be the people or experts with valuable input for the case. It is through
witnesses and documents that evidence is placed before the court. Even the genesis of
documents can be proved by the witnesses. Thus, the law has to be very clear with regards to
certain issues like who is a competent witness? How many witnesses are needed to prove a
fact? Can a witness be compelled to answer every question posed? How can the credibility of
the witnesses be tested? Whether a witness can refer to notes to refresh his memory and what
are the judges standing with respect to the witnesses.

In India, it is a common problem that many do not come forward as witnesses whether due to
unreasonable delay in police or court proceedings or fear of persecution can not be
determined that easily. In some countries like the USA, Canada and China, ‘Protection of
Witnesses’ Acts have been enacted to offer protection and equity to a person who is a
witness.2

2
https://kanwarn.wordpress.com/2011/03/01/indian-evidence-act-1872-witness-1-competency/
SECTION 118

“ Who may testify. —All persons shall be competent to testify unless the Court considers that
they are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether of body or
mind, or any other cause of the same kind.

Explanation.— A lunatic is not incompetent to testify, unless he is prevented by his lunacy


from understanding the questions put to him and giving rational answers to them.”

SCOPE

This section makes all persons competent to testify unless the court considers that they are
prevented from understanding the question put to them or from giving rational answers to
those questions:

a) By tender years
b) Extreme old age
c) Disease of mind or body.

Thus understanding is the sole test of competency. The court has to ascertain, n the best
possible way whether from the extent or intellectual capacity and understanding, he is able to
give a rational account of what he has seen or heard on a particular occasion. If a person of
tender years can satisfy these requirements, his competency as witness is established. No
doubt , Section 5 of the Indian Oath Act is imperative but under Section 13 of that Act, no
omission to make any oath invalidates a proceedings or renders evidence inadmissible. The
court should ask questions to satisfy itself that the witness understands the question put to
them and gives rational answers though omission to ask such questions will not vitiate the
trial. It has nothing to do with his religious belief or his idea of the consequence of falsehood
of this world or next. Even lunatics and drunkards are competent to testify in their lucid
intervals. 3

3
Supra 1 p. 387
CHILD WITNESS:

As for children it was observed in an early case “that no testimony whatever can be legally
received except upon oath and that an infant though under the age of seven years, may be
sworn in a criminal prosecution, provided such infant appears on strict examination by the
Court, to possess a sufficient knowledge of the nature and the consequences of an oath. For
there is no precise or fixed rule as to the time within which infants are excluded from giving
evidence; but their admissibility depends upon the sense and reason they entertain of thee
danger and impiety to falsehood, which is to be collected from their answers to the questions
propounded to them by the Court; but is they are found incompetent to take an oath, their
testimony cannot be received.4

Raja RamYadav v. State of Bihar,5

The evidence of a child witness is not required to be rejected per se but the court as a rule of
prudence considers such evidence with close scrutiny and only one being convinced about the
quality of such evidenceand reliability bases the conviction of accepting the deposition of the
child witness.

Datta Ramrao Sakhare v. State of Maharashtra, 6

A child witness if found competent to depose to the facts and reliable one, such evidence
could be the basis of conviction. In other words, even in the absence of oath the evidence of
the child witness can be considered under Section 118 if the Indian Evidence Act, 1872
provided that such evidence is able to understand the answers thereof. The evidence of a child
witness and credibility thereof would depend upon the circumstances of each case. The only
precaution which the court should bear in mind while assessing the evidence of child witness
is that the witness must be reliable one and his/her demeanour must be like any other
competent witness and there is no likelihood of being tutored.

Rameshwar Kalyan Singh v. State of Rajasthan, 7

A judge who recorded the statement of a girl of 7 or 8 years certified that she did not
understand the sanctity of the oath and accordingly he did not administer oath to her. He did

4
Dr. Avtar Singh, Principles of the Law of Evidence, Central Law Publications 23rd edn, p. 516
5
AIR 1996 SC 1613
6
(1997) 5 SCC 341
7
AIR 1952 SC 54
not however certify that the child understood the duty of speaking the truth. The question was
whether this omission rendered the evidence of child inadmissible. It was held that:

1. An omission to administer oath even to an adult goes only to the credibility of the
witness and not to his competency to testify and therefore irregularity in question
cannot affect the admissibility of the child evidence.
2. It is however desirable that the judges and the Magistrates should always record their
opinion that the child understands the duty of speaking the truth and the courts should
also state as to why they think that the witness understands the duty of speaking the
truth. That is to say, the courts should certify that he is of opinion that the child
witness understands the duty of speaking the truth and that he should also give the
reasons as to why he holds that opinion. If a court does not act as said above the
credibility of the witness may be seriously affected so much that, in some cases it may
be necessary to reject the evidence altogether.
3. Whether the Magistrate or judge really was of that opinion can be gathered from the
circumstances when there is no formal certificate. One can presume that the court has
that in mind from the fact that he examined the child after referring to a fact which
arises from the provision. In the present case it was plain that the learned judge had
the provision in mind because he certified that the witness does not understand the
nature of the oath and so did not administer oath but despite that went on to take her
evidence.

State of Orissa v. Purna Chandra Kusal8

It is well settled that the trial courts should record their opinion that the child witness
understands the duty of speaking truth and why they think so. The court has to accept the
evidence of child witness with caution but when such evidence in substantially
corroborated by other prosecution witnesses one can safely conclude that the child has
spoken the truth.

RUSTICE WITNESS:

In case of witnesses in a criminal case who are rustics, their behavioural pattern and
perceptive habits have to be judged as such. Too sophisticated approaches familiar in
courts based on unreal assumptions about human conduct cannot obviously be applied to

8
(2008) Cri L.J. 4597
those given to the lethargic ways of villages. When scanning the evidence of various
witnesses, the court has to inform itself that variances on the fringes, discrepancies in
details, contradictions in narrations and embellishments in inessential parts, cannot
militate against the veracity of the core of the testimony, provided there is the impress of
truth and conformity to probability in the substantial fabric of the testimony given. It was
observed by the court in Shivaji Sahebrao Bhobade v. State of Maharashtra 9.

INDEPENDENT WITNESS:

There is no law which says that in the absence of any independent witness, the evidence
of interested witness should be thrown out at the behest of or should not be relied upon
for convicting an accused. What the law requires is that where the witnesses are
interested, the court should approach their evidence with care and caution in order to
exclude the possibility of false implication. The evidence of interested witnesses is not
like that of an approver which is presumed to be tainted and requires corroboration but
said evidence is as good as any other evidence.10

In some case Supreme Court has also held that from the fact the witness is a relation of
the deceased, it would normally be presumed that he would not implicate falsely any
other person except the real assailant. In this connection, the observation of the Supreme
Court in the case of Barati v. State of U.P 11 may be aptly extracted:

Close relatives of the deceased would normally be most reluctant o spare the real
assailants and falsely mention the name of another person as the one responsible for
causing injuries to the deceased.

The interestedness by itself is no ground to discard the testimony of the witnesses. On the
other hand, the fact that the witness is a relation of the deceased, it would normally be
presumed that he would not implicate falsely any other person as the assailant except the real
assailant.12

9
1973 Cri L.J.1963
10
Supra 1 p. 388
11
AIR SC 839
12
Supra 1 p. 389
PERSON OF UNSOUND MIND:

About mentally abnormal persons the explanation to Section 118 makes it clear that the
evidence of such a person is not necessarily inadmissible unless, he is prevented by the
disease of mind from rationally understanding or answering questions. Human evidence
shares the frailties of those who give it. It is subject to many cross- currents, such as ,
partiality, prejudice, self interest and above all, imagination and inaccuracy. These are the
matters which (the judge), helped by cross – examination and common sense, must do (his)
best. So, it must be allowable to call medical evidence of mental illness which makes a
witness incapable of giving reliable evidence, whether through the existence of delusions or
otherwise. 13

SECTION 119

“ Witness unable to communicate verbally .—A witness who is unable to speak may give his
evidence in any other manner in which he can make it intelligible, as by writing or by signs;
but such writing must be written and the signs made in open Court. Evidence so given shall
be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the court shall take the
assistance of an interpreter or a special educator in recording the statement and such
statement shall be video graphed.”

The original section 119 has been replaced by a new provision under the heading “witness
unable to communicate verbally”. A witness who is not able to speak may give his evidence
in any other manner in which he can make it intelligible, as by writing or by signs, such
writing must be in written form with signs made in the open court. Evidence so given is to be
deemed as oral evidence. Where a witness is unable to communicate verbally, the court may
take the assistance of an interpreter, or a special educator in recording the statement , such
statement has to be video graphed. 14

13
Supra 4 p. 519
14
Supra 4 p.521
State of Rajasthan v. Darshan Singh15
When a deaf and dumb person is examined in the court, the court has to exercise due caution
and take care to ascertain before he is examined that he posses the requiste amount of
intelligence and that he understands the nature of oath. On being satisfied on this, the witness
may be administered oath by appropriate means and that also be with assistance of an
interpreter. However, in case a person can read and write, it is most desirable to adopt that
method being more satisfactory than any sign language. Law requires that there must be a
record of signs and not interpretation of signs.
The court while recording the evidence of dumb witness, must record both signs as well as
the interpretations of the interpreter and then only it becomes admissible under the Indian
Evidence Act.

SECTION 120

“Parties to civil suit, and their wives or husbands.- Husband or wife of person under
criminal trial.—In all civil proceedings the parties to the suit, and the husband or wife of any
party to the suit, shall be competent witnesses. In criminal proceedings against any person,
the husband or wife of such person, respectively, shall be a competent witness.”

In the olden days it was a favourite doctrine that husband and wife were one person in law.
Consequently when one of the spouse was a party to a judicial proceeding the other was
supposed to be a party and therefore , he or she was not allowed o appear as a witness for or
against. Section 120 removed this bar and the husband and wife are competent witness for
and against the other in both civil and criminal proceedings.16

In English law, in civil cases there are no exceptions but in a criminal cases a husband and
wife cannot be competent witness for or against the other, except in certain cases such as
personal injury by the one against the other.17

15
AIR 2012 SC 1973
16
Batuk Lal, The Law of Evidence, Central Law Agency, 12 th edn, p.327
17
Supra 1 p.392
In maintenance proceeding under section 125 of the Criminal Procedure Code the wife is
competent witness. Both husband and wife is competent witnesses to give evidence in order
to prove non-access against each other.” The question whether evidence given by husband, as
a power of attorney is useful of deciding issues in suit or not has to be decided by the court at
time of disposal of case, but not at stage or recording evidence.18

PRIVILEGE COMMUNICATIONS

There are certain matters which a witness cannot be either be compelled to disclose or even if
the witness is willing to disclose, he will not be permitted to do so. Such matters are known
as privileged communications. For example, a wife cannot be permitted to disclose what her
husband told her about the matter under inquiry.

Privileged communications are of two kinds, namely. Those which are privileged from
disclosure and those which are prohibited from being disclosed.

The protection from disclosure is to be found in the following provisions of the Act.

“Sections 121 to 132 provide exception to the general rule that a witness is bound to tell the
whole truth and to produce any document in his possession or power relevant to the matter in
issue.” There are cases in which the witness is a “privileged” with respect to certain matters
and he cannot be made bound to answer questions while giving evidence.19

18
http://www.shareyouressays.com/knowledge/section-120-of-the-indian-evidence-act-1872/120500
19
Supra 4 p. 523
SECTION 121

“Judges and Magistrates.—No Judge or Magistrate shall, except upon the special order of
some Court to which he is subordinate, be compelled to answer any question as to his own
conduct in Court as such Judge or Magistrate, or as to anything which came to his
knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters
which occurred in his presence whilst he was so acting. Illustrations
(a) A, on his trial before the Court of Sessions, says that a deposition was improperly taken
by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the
special order of a superior Court.
(b) A is accused before the Court of Sessions 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.
(c) A is accused before the Court of Sessions of attempting to murder a police officer whilst
on his trial before B, a Sessions Judge. B may be examined as to what occurred.”
A judge or a magistrate is a competent witness. A judge can be a witness to relevant facts. If
a judge is personally acquainted with any material or particular fact he may be sworn as a
witness in the case. If he saw something happen, he can testify to it even if happened before
him when he was presiding as a judge or magistrate. For example, the accused attempted to
shoot down a witness while he was testifying before a judge, the judge may be questioned as
to what he saw.20

JUDICIAL PRIVILEGE

But subject to this, no judge or magistrate can be questioned as to his judicial conduct. “Even
judges are competent witness, though he may not be compellable to testify so to matters in
which they have been judicially engaged; but their evidence has been received upon matters
which did not involve the exercise of judicial discretions or power”. Arbitrators too, are
equally competent as witnesses, though they cannot be compelled to testify as to the reasons
which influenced them in the exercise of their discretionary powers or to explain, vary,
contradict or extend their awards. 21

20
Supra 4 , p. 522
21
Duke of bucelench v. Metropolitan Board of works , (1872) L.R. 5 H.L. 418
Thus the extent of privilege is that no judge can be questioned as to his judicial conduct or as
to any matter that came to his knowledge while acting as such judge or magistrate. The
Supreme court has extended this category to arbitrators also by holding in Union of India v.
Orient Engineering and Commercial Co., 22 that though an arbitrators can be summoned as a
witness he cannot be required to explain how he arrived at his award. “If arbitrators are
summoned mindlessly whenever an application for setting aside an award is inquired into,
there will be few to undertake this job.”

The privilege admits of the following exceptions:

1. A judge can be questioned even as to judicial matters with the order of the court to
which he is subordinate.
2. He can be questioned as to matters which occurred in his presence while he was
acting in his judicial capacity.
3. He can waive his privilege and voluntarily offer to explain his conduct as such judge
or magistrate. 23

22
(1978) 1 SCC 10
23
Supra 4 p.522
SECTION 122
“Communications during marriage.- No person who is or has been married, shall be
compelled to disclose any communication made to him during marriage by any person to
whom he is or has been married; nor shall he be permitted to disclose any such
communication, unless the person who made it, or his representative in interest, consents,
except in suits between married persons, or proceedings in which one married person is
prosecuted for any crime committed against the other.”

OBJECT:

Basic objective of enactment of the Section 122 is to promote family peace and at the same
time husband-wife solace relation from being disturbed. So long the wed-lock continues both
the husband and wife are under solemn responsibility to maintain the dignity of married life.
Anything said or made by the husband to wife or vice-versa is treated to be privileged
communication founded on law and ethic. “This protective provision is based on the
wholesome principle of preserving domestic peace and conjugal confidence between the
spouses.” The communications between husband and wife cannot be permitted to be
disclosed unless the spouse other than one in witness box has consented to such disclosure.24

SCOPE

Section 122 prevents communications between a man and his wife from being disclosed.
Marriage inspires confidence and confidence inspires openness of heart and feeling. This
enables a married person to make a clean breast of everything to his or her spouse. Naturally,
therefore such matters should be free from the risk of being disclosed. The policy of
protection is thus stated by an American Judge. Communications and transactions between
husband and wife early recognised as privileged and neither could be compelled to disclose
what took place between them and neither was a competent witness to testify such
transactions or communications of a confidential nature or induced by marital relations.
Those living in the marriage relation should not be compelled or allowed to betray the
mutual trust and confidence which such relation implies.

24
www.shareyouressay.com
The ban applies to all kind of communication between a man and his wife. But this privilege
is not extended to a mistress as held by the court in Shankar v. State of Tamil Nadu,25 . In an
action, for example involving adultery the woman’s husband was called as witness and asked
if he had any conversation with his wife in relation to another. The court prevented such
conversation being disclosed. Letters and written communications between husband and wife
are equally protected from disclosure.26

Ram Bharosey v. State of U.P 27


In the instant case before the Supreme court, the accused was on trial for murdering his
neighbour. His wife was summoned as a witness. She stated that her husband told her that he
would give her ornaments. She them asked him where he had gone so early in the morning
and he replied that he had gone to the middle house ( the house where the deceased lived) to
get them. This conversation was held to be irrelevant under Section 122.

CONDITION TO AVAIL PRIVILEGE

# The most important condition for its use is a legal marriage. Courts will not permit its use
by partners who merely live together or by those who have a common-law marriage or a
sham, or false, marriage.
# The consent has to be positive, and not that it may be imported from mere waiver.
# The presence of third persons at the time of the communication usually eliminates
confidentiality and thus destroys the privilege, although courts have granted exceptions for
the presence of children.
# The privilege cannot be claimed in certain situations, such as where one spouse is subject to
prosecution for crimes committed against the other or against the children of the couple28.

25
(1994) Cri. L.J. 3071
26
Supra 4, p.523
27
AIR 1954 SC 704
28
http://www.legalserviceindia.com/article/l96-Privilege-In-Matrimonial-Communication-And-The-Abuse-Of-
Its-Sanctity.html
THE COMMUNICATION MUST HAVE BEEN MADE DURING THE
CONTINUANCE OF THE MARRIAGE

The bar to the admissibility in evidence of the communications made during marriage
attaches at the time when the communication was made) and its admissibility will be
adjudged in the light of the status at that date and not the status at the date when evidence is
sought to be given in court.29

In Moss v. Moss, 30 it was held that in criminal cases, subject to certain common law and
statutory exceptions, a spouse is incompetent to give evidence against the other, and that
incompetence continues after a decree absolute for divorce or a decree of nullity (where the
marriage was annulled was merely voidable) in respect of matters arising during cover time.

PROTECTION WHEN NOT AVAILABLE

The privilege admits of certain exceptions also. It is not every communication which is
exempt from disclosure. The exceptions are as follows:
➢ ACTS APART FROM COMMUNICATIONS: A wife can testify as to what her
husband did on a certain occasion, though not as to what he said to her. The best
authority is the decision of the Supreme Court in Ram Bharosey v. State of U.P31.
The accused was on his trial for murdering a neighbour for the purpose of robbing
some ornaments and then present them to his wife. While presenting them to his wife
he said that he had gone to the middle house, (where the deceased lived) tp get them.
His wife told the Court that she saw one early morning her husband coming down the
roof. He then went inside the Bhusa Kothari (fodder store) and had a bath. He put
back the same clothes and came to her to present the things. Venkataram Ayyer J.,
held that what the husband said to his wife was not admissible, but she could testify
his conduct.
Ordinary conversation or letters relating to business should not be regarded as
privileged.
➢ EVIDENCE BY THIRD PERSONS: Communications or conversations between
husband and wife taking place in the presence of third person or when overheard by a

29
M.C. Verghese v. T J. Ponnam AIR 1970 SC 1876
30
(1963) 2 QBD 829
31
AIR 1954 SC 704
third person, can be testified to by the third person. The privilege is that of parties to
marriage and not of others.
In Queen- Empress v. Donoghue32 the question was whether a communication sent
by the accused to his wife which was recovered by the police during the investigation
while making a search could be proved by the prosecution. It was held that it could be
relied upon by the prosecution as the wife was not being examined in the case and
was neither compelled to disclose nor being permitted to do so.
In M.C. Verghese v. T.J. Ponnan, 33 certain letters by a man to his wife containing
matter defamatory of her father were passed on by her to her father., who wanted to
prove them. But the evidence of them was rejected by Kerala High Court. The
Supreme court overruled this decision and observed that Section 122 consists of two
branches-
(i) that the married person shall not be compelled to disclose any communication
made to him during the marriage by his spouse;
(ii) that the married person shall no except in two special classes of proceedings be
permitted to disclose by giving evidence in court the communication, unless the
person who made it, or his representative in interests, consents thereto.
However, the rule that the husband and wife are one in the eyes of law has not been
adopted in full force under our system of law and certainly in our criminal jurisprudence.34
➢ WAIVER OF PRIVILEGE: Evidence of a privileged communication can be given by
a spouse with the consent of the party who made the communication or with the
consent of his representative in interest. This is known as waiver of privilege. Waiver
may take place by the reason of an advance consent to the disclosure or by the fact
that husband or the wife had gone to the witness box to testify and the other spouse
has not in good time objected to the disclosure.35
➢ CRIMES OR SUIT BETWEEN MARRIED PERSONS: The last words of Section
122 clearly recognises this exception by providing such communications may be
disclosed in suits between married persons or proceedings in which one married
person is prosecuted for any crime committed against the other. If a husband is being
prosecuted for an offence which he has committed against his wife, the wife may

32
(1899) 22 Mad. 194
33
AIR 1970 SC
34
Supra 4 p. 525
35
ibid
disclose any communication made to her by the husband which is relevant to the
matter in question. 36
In Fatima v. Emperor,37 Mrs. Fatima was convicted of murder of her stepson. The
session court had admitted the evidence of her confession to her husband on the ground
that the alleged murder was Abdullah’s (her husband) son and therefore an offence was
committed against him.

SECTION 123

“ Evidence as to affairs of State.- No one shall be permitted to give any evidence derived
from unpublished official records relating to any affairs of State, except with the permission
of the officer at the head of the department concerned, who shall give or withhold such
permission as he thinks fit.”

SCOPE:

This section and Section 124 deal with state privilege relating to the protection of
unpublished official records as well as confidential records of the state. Both the sections are
based on principle that the public interests must not be jeopardised.

PRINCIPLE:
Section 123 is basically founded on the maxim salus populi est suprema lex, which means
that regard for public welfare is the highest law. This section lays down that no person shall
be permitted to give any evidence derived from unpublished public records relating to affairs
of state. Such an unpublished record can be had of from the official head of the department
concerned, who may also withhold the permission in case of necessity. The section also
prohibits the disclosure of any evidence derived from unpublished official records.

Under the section unpublished official records of the state are protected from being disclosed.
Only exception laid down is that such unpublished document may be disclosed with express

36
Supra 4, p. 526
37
AIR 1940 Lah. 380
permission of the head of the department. “The court is also bound to accept without question
the decision of the public officer.”

Section 123 has to be read with Section 162 to ascertain whether any claim is made by the
state in respect of any document and whether the document belongs to the privilege class.
The second question is whether the disclosure of the document would cause injury to the
public interest and fall within the discretion of the head of the department concerned. It was
considered by the Supreme Court in S.P. Gupta v President of India 38 and held that if the
disclosure of the contents of the document was injurious to public interest and that the
document belonged to the state which should not be disclosed to secure proper functioning of
the public service.

UNPUBLISHED OFFICIAL RECORDS:


According to the section unpublished official records are not permitted to be disclosed except
with the permission of the head of the department concerned. Naturally, no question in this
regard can be raised in the court of law. But, whether a document falls within unpublished
official records may be decided in accordance with Section 162 of the Evidence Act. When
Section 123 is read with Section 162 “the effect is that the final decision whether the
permission should be granted or not should be with the court. About the power of the court to
inspect the document, there is residual power of the court to decide whether its disclosure
would be injurious to public interest.

In order to claim immunity from disclosure thereof the document must be unpublished state
documents and must relate to affairs of the state and the disclosure thereof must be against
interest of the state or public interest. Under section 162, the rest documents can be inspected
by the court to examine the privilege claimed that the disclosures would injure the public
interest. After inspection, the court is free to disclose either whole or in parts, provided that
will not to give a distorted or misleading impression of the document.

An objection against the disclosure of a public document was raised on the ground that it
would be against the interest of the state or public service and it is such class of documents
which being public interest ought not to be disclosed. In S.P. Gupta v President of India39
overruling its earlier decision the Supreme Court observed that the injury to public interest
38
AIR 1982 SC 149
39
AIR 1982 SC 149
which is likely to result from their disclosure would be far less than the injury which would
arise from suppression of such information. Public interest is the very foundation for
protection against disclosure under section 123 and which was protected by the Supreme
Court. State of Punjab v Sodhi Sukhde Singh 40case has acquired new dimension in S.P.
Gupta case. For the purpose of non-disclosure of documents relating to the affairs of the state,
the immunity claimed by the State under section 123 is not absolute. According to Their
Lordships’ view “it is not the rule of law to be applied mechanically in all cases. In case of
necessity the court can compel the production of such documents for fair administration of
justice because the public interest immunity are not applicable in India.” It is court to decide
what kinds of documents can be handled only by person bound by oath of secrecy. Whether
any document relates to the affairs of the state has to be determined in each case on the basis
of the relevant facts and circumstances adduced before the court. Because public welfare is
the highest law. The Supreme Court seems to be in favour of revitalization of the privilege
when it considers whether the ministerial advice falls within the justifiable area. “Since the
court would be precluded from calling their disclosure but the Article 74(2) of the
Constitution is no bar to the ministerial advice was based”41

40
AIR 1961 SC 493
41
http://www.shareyouressays.com/knowledge/section-123-of-the-indian-evidence-act-1872/120512
SECTION 124

“Official communications.- No public officer shall be compelled to disclose communications


made to him in official confidence, when he considers that the public interest would suffer by
the disclosure.”

SCOPE:
This section is more or less supplementary to Section 123. The difference between the two is
that while Section 123 applies only to evidence derived from unpublished official records
relating to an affairs of the State, Section 124 applies to all communications made in official
confidence , whether such communications are in writing or not and whether the relate to any
affairs of the State or not. Section 123 leaves the discretion of divulging the contents of State
documents to the head of the department to which the document relates, whereas Section 124
leaves the discretion of disclosing communications made in official confidence to the public
officer to whom the communication is made, whether or not he is the head of the department.
He may waive the privilege in respect of his own discretion without any reference to his head
of the department.

Section 124 confers right on the public officers to claim privilege from disclosure of
confidential communications. But before exercising that right, the officers concerned must
come to the conclusion that the disclosure of such documents would not be detrimental to the
public interest. He is the sole judge to decide that fact but the decision should not be arbitrary
or capricious.42

Dilbagh Rai Jarry v. Union of India, 43


The Supreme court ridiculed the action of the State in trying to defend the suit of a railway
employee, “ a small man, by urging merely a technical plea which has been pursued upon
him right upto the summit of the Court here and has been negative. Instances of this type are
legion.” The court advised the State to act as a virtuous litigant and concede just demands
most willingly and not to take the shelter of hyper technicalities like the privilege of refusing
he protection of document.

42
Supra 1, p. 340
43
AIR 1974 SC 130
Madras Port Trust v. Hymanshy International, 44

The Supreme Court observed that it does not behove the State government to keep back evan
any such document, the production of which may possibly not be in the interest of the State
and yet it may be necessary for just decision of the case. Acting upon these principles the
Madhya Pradesh high Court laid down that the communication of the State to the Accountant
Genera about new pay scales of teachers could not be regarded as a privileged
communication and the claim of teacher to the new scale could not be resisted by jus refusing
to produce the communication.

L.K. Koolwal v. State of Rajasthan,45

The State has not been permitted to claim privilege as to what sanitary measures have been
taken by it. People have a right to know how their state is functioning and why it is
withholding information on matters which have nothing to do with sovereignty or State
secrets.

44
AIR 1979 SC 1144
45
AIR 1988 Raj 2.
SECTION 125

“Information as to commission of offences.- No Magistrate 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.
Explanation.-"Revenue officer" in this section means an officer employed in or about the
business of any branch of the public revenue.”

SCOPE:

A magistrate or police officer cannot be compelled to give evidence as to his sources of


information. It does not, however, prohibits him from giving such evidence. This rule has
been made in order that hose persons who are the channel by the means of which detection is
made should not be necessarily disclosed.46

SOURCES OF INFORMATION AS TO OFFENCES:

The section is intended to encourage people to give information about offences protecting the
source of information. The section also enables police officers, etc. to maintain secrecy about
the sources of their information. No magistrate or police officers should be compelled ro
disclose how and from whom he got information about the commission of an offence.
Similarly, no revenue officer can be compelled to disclose how and from whom he got
information about the commission of an offence against the public revenue. This is called
public interest immunity from disclosure which is very necessary for promoting detection of
crime. It is therefore established that the police may suppress the identity of the informants in
the interest of combating the crime. Accordingly, where a person was prosecuted for selling
controlled drugs and the police officer were able to nag him by posting its secret agents in the
homes of cooperative private residents, the prosecution was allowed to maintain the secrecy
of such observation posts. It was held by the court in R v. Johnson47

46
Supra 1 , p. 397
47
1 All E.R. 121
SECTION 126

“ Professional communications.- No barrister, attorney, pleader or vakil shall at any time


be permitted, unless with his client's express consent, to disclose any communication made to
him in the course and for the purpose of his employment as such barrister, pleader, attorney
or vakil, by or on behalf of his client, or to 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, or to disclose any advice given by him to his client in the course and for the
purpose of such employment:
Provided that nothing in this section shall protect from disclosure--
(1) Any such communication made in furtherance of any illegal purpose;
(2) Any fact observed by any 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.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was
not directed to such fact by or no behalf of his client.
Explanation.-The obligation staled in this section continues after the employment has ceased.
Illustration
(a) A, a client, says to B, an attorney--"I have committed forgery and I wish you to defend
me".
As the defence of a man known to be guilty is not a criminal purpose, this communication is
protected from disclosure.
(b) A, a client, says to B, an attorney--"I wish to obtain possession of property by the use of
forged deed on which I request you to sue".
This communication, being made in furtherance of a criminal purpose, is not protected from
disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course
of the proceedings, B observes that an entry has been made in A's account book, charging A
with the sum said to have been embezzled, which entry was not in the book at the
commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has
been committed since the commencement of the proceedings, it is not protected disclosure”.
COMMUNICATIONS BETWEEN ADVOCATES AND CLIENT:

Communications made by a client to his vakil for the purposes if his professional
employment are not permitted to be disclosed. The prohibition extends to all communications
made in confidence pertaining to any pending or contemplated case or for the purpose of
soliciting professional advice.

The reason for this prohibition on disclosure is to encourage litigants to communicate fully
and frankly with their lawyers without any fear that the information given by them can be
passed on to the opponent or to the court. In the absence of this prohibition it would have
been difficult for anybody to get the best professional advice.48

CONDITIONS TO AVAIL THIS PRIVILEGE:


➢ The communication should have been made to a barrister, attorney, pleader or vakil.
This will include any person who is duly licensed by the State to practice law. The
expression “practice of law” includes, for this purpose, all kinds of legal work and not
merely appearance in court.
➢ Communication is made by a person who is related to the vakil as a client. Thus
where a plaintiff’s vakil rang to the defendant to give him friendly advice and the
defendant made damaging admissions it was held that the vakil could give evidence
of what the defendant said because he was not the defendant’s vakil.
➢ It is not necessary for enjoying this protection that any fee should have been paid to
the vakil or that he should have accepted the brief. Even if the vakil rejects the case,
the communications made to him remain protected. But a communication made to
him after he refused to accept the assignment is not protected.

SCOPE:
The scope of the protection is that it will apply only to such communications as have been
made for the purpose of professional employment and also to the advice given by the
vaki. It also applies to the contents or condition of any document which came to his
knowledge in the course of such employment.

48
Supra 4, p. 532
EXCEPTIONS:

➢ COMMUNICATIONS MADE IN FURTHERANCE OF ILLEGAL PURPOSE:


Communications made in furtherance of an illegal purpose are not protected. For
instance – a client consulted a lawyer for the purpose of drawing up of a bill of
sale which was alleged to be fraudulent. The communication is not privileged, for
the consultation was for an illegal purpose. Illustration (b) appended to section
126 is on this point.
➢ CRIME OR FRAUD SINCE EMPLOYMENT BEGAN : If a lawyer finds in the
course of his employment that any crime or fraud has been committed since the
employment began, he can disclose such information. The third illustration is
relevant to this point.
➢ DISCLOSURE WITH EXPRESS CONSENT OF CLIENT: Such
communications can be disclosed with the express consent of the client. The
prohibition is for the benefit of the client and he may waive it, if he deems it
advisable. The waiver should be express. The death of the client dose not amount
to waiver and since the client alone could have waived, his death puts the matter
beyond the waiver and it must forever remin protected. Once a client has revealed
in court a part of the communication between himself and his solicitor regarding a
transaction in issue, he thereby waives his privilege with respect to all
communications connected with the same transactions.
➢ INFORMATION FALLING INTO THE HANDS OF THIRD PERSON: If the
communication is over heard by a third person, he may be compelled to disclose
it. The prohibition works against the lawyer, but not against any other person.
Legal professional privilege confers immunity from the compulsory process of
obtaining evidence. When a privileged document is no longer in the hands of
those entitled to claim immunity, there is nothing to prevent its use in evidence.
But if a person has a right to confidence in a document , such person can protect
his right by injunction. There is , however, no automatic right to such an order.
Indeed, it is a matter of first principle that injunctions are not granted as a matter
of right but only in the exercise of discretion on the merits.49

49
Supra 4, p. 535
The way in which the discretion should be exercised was outlined in Guinness
Peat Properties Ltd. v. Fitzroy Robinson Partnership50 . The court said that once
a privileged document has been inadvertently disclosed in discovery proceedings,
it generally too late to clain injunctive relief. The court indicated that the courts
would normally give such relief if disclosure was obtained by fraud or trick. But if
the document came into the possession of the other side not through trick or fraud
but due to mistake or carelessness on the part of the party entitled to the document
or by his advisers, the balance of convenience will be very different from the
balance in fraud case.
➢ LAWYERS’S SUIT AGAINST CLIENT : If the lawyer himself sues the client
for his professional services, he may disclose such information as is relevant to the
issue.51

SECTION 127
“Section 126 to apply to interpreters, etc.- The provision of section 126 shall apply to
interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils”.

POSITION OF INTERPRETERS ETC.:

The section makes it clear that the prohibition contained in Section 126 applies also to the
interpreters and the clerks and servants of the lawyer.
They are also likely to come to know of the confidential information relating to litigation. A
paid or salaried employee who advises his employer on all questions of law and relating to
litigation must get the same protection of law.
P.R.Ramakrishnan v. Subramma 52
The court said that the clerk of a lawyer, in the professional sphere, has to maintain
confidence regarding the matters conveyed to him. If a notice or a letter or even a pleading is
dictated to a lawyer’s clerk, it does not go beyond the lawyer’s professional range. The fact
that the clerk as a different human being, comes to know of the contents of the notice cannot
make it a publication to a third person.

50
(1987) 2 All E.R. 716
51
Supra 4, p. 537
52
AIR 1988 Ker 18
SECTION 128

“ Privilege not waived by volunteering evidence.- If any party to a suit gives evidence
therein at his own instance or otherwise, he shall not be deemed to have consented thereby to
such disclosure as is mentioned in section 126; and 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, but for such question, he would not be at liberty to disclose.”

WAIVER OF PRIVILEGE:

The privilege as regards protection of professional communications from disclosure is the


privilege of the client who can waive it. If he waives it, the legal adviser can be permitted to
disclose the communication in question. Such waiver may be: (1) express, where he expressly
consents to the communication being disclosed by the legal adviser, or (2) implied, as by
calling his lawyer as a witness and questioning him on those matters. But mere appearances
as a witness does not imply waiver though the court then has the right to have so much
disclosure as is necessary to explain his evidence.
The privilege does not cease with the death of client or with the termination of law business,
nor by change of solicitor. A communication once privileged is always privileged.53

53
Supra 1, p. 401
SECTION 129:

“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, unless he offers himself as a witness, in which case 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.”

The privilege is only confined to legal advisers and the privilege is only if he is told anything
in his capacity of legal advisers as such and not as a friend. It is not necessary that the
communication must be made for any pending or contemplated litigation but the facts must
be confidential communications in the scope of professional employment.
Section 126 prohibits a lawyers from disclosing matters which have come to his knowledge
from his client for the professional purpose. Section 129, on the other hand, places the client
beyond the range of compulsion as to matters which have passed between him and his
professional legal adviser. The effect of the section is that a person cannot be compelled to
disclose any confidential communication which has taken place between him and the legal
professional adviser.
But if he offers himself as a witness, he may be compelled by the court to disclose such
matters to the extent to which the court thinks it is necessary for the purpose of explaining the
evidence which he has given, but not more than that.54

54
Supra 4,p. 539
SECTION 130

“Production of title-deeds of witness not a party.- No witness who is not a party to a suit
shall be compelled to produce his title-deeds to any property, or any document by virtue of
which he holds a property as pledgee or mortgagee or any document the production of which
might tend to criminate him, unless he has agreed in writing to produce them with the person
seeking the production of such deeds or some person through whom he claims.”

TITLE DEED OF WITNESS

The section covers three matters. An ordinary witness, namely a witness who is not a party,
cannot be compelled to produce-
1. His title deeds to any property
2. Any document by which he became the pledge or mortgage of any property and
3. Any document which might tend to criminate him.
But he can be so compelled if he has agreed to produce any such documents with the person
seeking its production.
Lastly, Section 130 provides that a person who has the possession of a document shall not be
compelled to produce it, which if the document were in the possession of another person he
would be entitled to refuse to produce it.55

55
Supra 4, p.540
SECTION 131

“ Production of documents or electronic records which another person, having possession,


could refuse to produce.—No one shall be compelled to produce documents in his possession
or electronic records under his control, which any other person would be entitled to refuse to
produce if they were in his possession, or control, unless such last-mentioned person
consents to their production”

This section extends protection to an agent , trustee, mortgagee , solicitor, etc. who can refuse
to produce the documents in all cases where the principal could have refused to do so.
Section 131 was substituted by the Information Technology Act, 2000 for the purpose of
accommodating electronic records alongwith documents. The new section says that no one
shall be compelled to produce documents in his possession or electronic records under his
control which any other person would be entitled to refuse to produce if they were in his
possession or control unless he consents to their production.
The effect of this provision is that if any person is entitled to refuse the production of a
document, the privilege or protection of the document should not suffer simply because it is
in the possession of another. Thus any such person who is in possession is not compellable to
produce it.56

56
Supra 4, p.541
SECTION 132

“Witness not excused from answering on ground that answer will criminate.—A witness
shall not be excused from answering any question as to any matter relevant to the matter in
issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to
such question will criminate, or may tend directly or indirectly to criminate, such witness, or
that it will expose, or tend directly or indirectly to expose, such witness to a penalty or
forfeiture of any kind:
(Proviso) —Provided that no such answer, which a witness shall be compelled to give, shall
subject him to any arrest or prosecution, or be proved against him in any criminal
proceeding, except a prosecution for giving false evidence by such answer.”

Where a question put to a witness is relevant to the matter in issue, the witness can be
compelled to answer it and he cannot be excused from answering it simply because the
answer would tend to criminate him or expose him to civil or criminal liability or to a penalty
or forfeiture.
The proviso, however, protects the witness in an important way. It provides that if a witness
has been compelled to give an answer , his answer should not be used to subject him to arrest
or prosecution; nor the answer can be proved against him in any criminal proceeding. The
object of the law is to afford to a party, called upon to give evidence protection against being
brought by means of his own evidence within the penalties of law. The answers which the
witness is compelled to give should not constitute any evidence against him. But if the
answer is false, the witness may be prosecuted for giving false evidence.

The protection arises only against answers which a witness is compelled to give and not as
against those which he voluntarily answers without any compulsion.57

R. Dinesh Kumar v. State 58


The court held that no prosecution can be launched against the against maker of the statement
falling within Section 132 on the basis of answers which he is compelled to give while
deposing as a witness before the court.

57
Supra 4, p. 540
58
AIR 2015 SC 1816
MEANING OF COMPULSION:

There is a divergence of opinion among some High courts as to the meaning of


“compulsion”. In the view of the Allahabad High Court the compulsion of the oath is a
sufficient compulsion and therefore, no distinction should be made between the voluntary and
compelled answers in the case of Emperor v. Banarsi 59. But the Calcutta and Bombay High
Courts have held that there is no protection in reference to the answers which he voluntarily
makes without any compulsion. The witness should object to the question and then if the
court compels him to answer it he is entitled to the protection of proviso but he cannot refuse
to answer if except at the cost of adverse presumption.60

DIFFERENCE BETWEEN ARTICLE 20 (3) OF CONSTITUTION OF


INDIA AND SECTION 132 OF INDIAN EVIDENCE ACT

Article 20 (3) of the Constitution says: ”No person accused of any offence shall be compelled
to be a witness against himself.” The object of Article 20 (3) is to give protection to the
accused from being compelled to give evidence against him. Therefore, it is the fundamental
right of an accused that he shall not be compelled to be a witness and shall not be compelled
to give evidence against himself. The words of Article 20 (3) themselves show that the
protection afforded is intended in criminal cases, that too particularly to an accused only. This
Article does not extend to any witness. This Article also does not extend to civil proceedings.

The object and purpose of Section 132, Evidence Act, are quite different from Article 20 (3).
Section 132 is not a privilege given to a witness, but an encumbrance upon him. Any witness,
whether in civil or in criminal proceedings, should give answers and evidence in an
appropriate manner suitable to maintain the dignity of the Court, Court officers, advocates,
and parties. He shall not give answer to any criminate question. Moreover, he cannot refuse
to answer a question which is relevant to the matter under enquiry in which he is called as a
witness even on the plea of self-incrimination. It does not mean that he must give answers to
all criminatory questions, but he should give answers to the matters relevant to the matter-in-
issue. It means a witness is privileged and need not give answer to irrelevant questions.61

59
(1923) 46 All. 234
60
Supra 4. p. 542
61
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evidence-act/116870
BIBLIOGRAPHY

1. Dr. Avtar Singh, The Principles of law of evidence, Central Law publications, 23rd
edition.
2. M.P.Tandon, Indian Evidence Act, New Era Law Publications,12th edition.
3. Batuk Lal, The Law of Evidence, Central Law Agency, 12th edition.
4. Sarkar and Manohar, Sarkar on Evidence (1999), Wadhwa and Co. Nagpur Indian
Evidence Act, (Amendment up to date)
5. Rattan Lal, Dhiraj Lal: Law of Evidence (1994) Wadhwa, Nagpur
6. www.shareyouressay.com
7. www.indiankanoon.com