Witnesses and Privileged Communications

Author: Harshita Joshi, 3rd Year, B.A. LLB (H), School of Law, Jagran Lakecity University, Bhopal

Witness

A witness is a person who was present during the happening of an event or an incident. This incident can be an accident, or a crime committed by a person. The Indian Evidence Act, has incorporated those statements which can be considered to be a testimony within the meaning of sections from 118-134. It also states how one can be testified and about who can be a witness.

  • Competency of the Witness– A person appearing before the court of law as a witness must have rational thinking to understand the questions proposed to him and must be able to answer such questions.  Under Section 118[1] of Indian evidence Act, it is stated that any person can appear as a witness of the event to testify unless the court of law considers that the person appearing is not able to understand the question posed i.e. the lunatic cannot appear for the same if this prevents him to understand rationally.
  • Whether child can testify– The Indian Evidence Act provides that the child can testify who is of 6 or 7 years of age if the court is satisfied that the particular child is able to think rationally.  In Dhanraj & Ors v. State of Maharashtra[2], a child of class 8th was considered to have enough intelligence so as to testify the event.
  • Number of witnesses to be testified – The Indian Evidence Act does not provide for any minimum and maximum number of witnesses to testify within the meaning of section 134. In the case of Amar Singh v. Balwinder Singh[3] the Hon’ble Supreme Court held that even if two witnesses are present among all the witnesses it will not be perceived to be an incorrect prosecution.[4]

Privilege Communications under Indian Evidence Act, 1872

The privilege of a witness signifies that the witness have certain rights to hold back evidence in certain matters. The privileged communications are given under sections 122 to 132 of the Indian Evidence Act.  It can be defined as a protection given from court proceedings regarding communications to be disclosed in the court. It provide protection against certain communications no to be admitted in a court of law due to the nature of relationship the two person possess.

 Indian Evidence Act provides various privileges under the following heads-

  1. Spousal Communication
  2. Official Communication
  3. Information as to communication of offences
  4. Professional Communication
  5. Confidential Communication with legal Advisors
  • Spousal Communication- 

The communication between husband and wife falls under the category of privileged communication under Section 122[5] of the Indian Evidence Act. The origin of this principle is traced back to the English Common Law which standardizes it in the English Evidence (Amendment) Act, 1853[6]. The ultimate objective behind this principle was observed in the case of Pringle v. Pringle[7] , which states that this concept attains the confidence between the husband and wife considering the marriage between the husband and wife as a sacrosanct and put forth this relationship even above the concerns of justice.

This principle of privileged communications can be traced back to the Indian jurisprudence wherein it is expected to preserve the secrecy between the spouses. It states “The Indian Evidence Act exempts the spouses from this privilege in case of suits between such spouses and in case if one of them is prosecuted for any crime”.

In the case of M.C. Varghese v. T.J. Poonam[8], the exact meaning of communication was discussed and it was stated that nothing which is passed between the spouses can be considered as a communication for instance letter is not deemed to be a communication and hence is not protected under the privileged communication. But communication occurred between the spouses during the marriage is consider to be under this concept. In addition to that, any communication before the marriage or after the dissolution of the marriage also does not fall under this category.

Further, in the case of Ram Bharose v. state of U.P[9]. , it was held that the conduct of either spouse is not protected under this privilege i.e. if the wife has seen his husband committing crime of murder, she can be present as a witness before the court.

Therefore, only communication is deemed to be protected and not conduct of either of the spouse.

  • Official Communications-

Section 124[10] of Indian Evidence Act provides for the privilege of official communication which states that any public officer cannot be compel to disclose any information that is with him in official confidence and he considered the disclosure of the same to harm the public interest.  

In the case of P.P Pochku v. Syed Ismail[11] , it was stated that though the Indian Evidence Act does not provide for the definition of ‘public officer’, but public officer is a person who is entrusted with the confidential document or any information that is communicated to him by another officer and is expected not to disclose. Further, in the case of S. Ajit Singh v. Ashwani Kumar[12], it was held that the privilege under this section can only be claimed by the departmental officer of head by the affidavit, filing a certificate is not enough for the same.

In Re Mantubhai Mehta[13], it was held that it is upon the court to decide that whether the communication of such document or information is made to the public official in the confidential manner or not and if there is no such evidence of the information connected to the state affairs , it will be taken as a evidence.

Section 124 talks about all the documents made in the official capacity, whereas section 123[14] of the Indian Evidence Act only talks about unpublished documents related to state affairs.

  • Information as to commission of offences –

Section 125[15] of the Indian Evidence Act, give protection to the magistrate or police officer regarding any information as to the commission of the offence and also the revenue officer where he got information regarding the public revenue.

  • Professional Communication

Section 126[16] of the Indian Evidence Act, provides the privilege to the communication between the attorney and the client and therefore no such communication can be disclose by the attorney without the consent of his client, provided that this section does not provide any protection of communication which is in furtherance of any illegal purpose or any fact observed by the pleader, barrister or attorney in relation to any crime that is being committed since the commencement of his employment. The important point to be noted that this section is continue to apply even when the employment is ceased.

In Maneka Gandhi v. Rani Jethmalani[17], the court observed that in order to seek fair trail it is essential to consult an attorney and therefore it is essential to provide privilege to the confidentiality of the communication between them. The fair trial is a concept which secures principle of natural justice and in this the accused have certain rights one of such is a right to consult attorney. Further, in the case of Venkatachalam v. Govindan Chettiaar[18], it was section 126 of the Indian evidence Act which is related to the protection of information cannot be ruled out by RTI (Right to Information), Act 2005.

  • Confidential Communication with legal advisors

In section 128[19] we have seen that the privilege is given to legal advisors or advocates whereas in section 129[20] the privilege regarding the communication is given to the client himself form disclosure of any information between the legal advisor or the client himself in front of the court unless if it is necessary to be disclosed in order to support the evidence given by him.

 In the case of  Munchershaw Bezonji v. New Dhurumsey S& W Co[21]., it was held that if the party is a witness to his own accord , in that case he must disclose necessary information if the court demands so .

Conclusion-

The Indian Evidence Act therefore protects the communication between the parties based upon the nature of relationship they possess. However this privilege is not absolute as the section 122 of the Indian Evidence Act exempts the spouses from this privilege in case of suits between such spouses and in case if one of them is prosecuted for any crime. Similarly, section 126 does not provide any protection of communication which is in furtherance of any illegal purpose or any fact observed by the pleader, barrister or attorney in relation to any crime that is being committed since the commencement of his employment being committed since the commencement of his employment.  Therefore it has given privilege but that is not absolute so that to maintain proper balance between the privilege provided and concealment of any offence.

In the absence of this Act any vital information could have easily leaked and can be a threat to the security of India as well. Therefore it is prove to b a boon but at the same time there has to be a continuous check on these privileges provided by the Act. 


[1] Section 118, Who may testify, the Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.

[2] Dhanraj & Ors v. State of Maharashtra, Crim. App. No. 663 of 2001.                                                                                                                                         

[3] Amar Singh v. Balwinder Singh, (2003) 2 SCC 518.

[4] Sushant Biswakarma, “Witness under the Indian Evidence Act, 1872”, Ipleaders (6th June, 2020, 6:46 a.m. ) , https://blog.ipleaders.in/witness-under-the-evidence-act-1872/.

[5] Section 122, Communications during marriage, the Indian Evidence Act, 1872, No. 1, Acts of the Parliament, 1872.

[6] Anushka, “Privileged Communication”, LAW TIMES JOURNAL, March 31, 2019, http://lawtimesjournal.in/privileged-communication/.

[7] Pringle v. Pringle, 55 Wash. 93,104 Pac. 135(1909).

[8] M.C. Varghese v. T.J. Poonam, (1969) 1 SCC 37.

[9] Ram Bharose v. State of U.P. , AIR 1954, SC 704.

[10]Section 124, Official Communications, the Indian Evidence Act, 1872, No. 1, Acts of the Parliament, 1872. 

[11] P.P. Pochku v. Syed Ismail, CRLJ 931(A.P.) (1973).

[12] S. Ajit Kumar v. Ashwani Kumar, ILR (1954) Punj., 359.

[13] Mantu bhai Mehta v. Unknown, AIR 1945 Bom. 122.

[14] Section 123, Evidence as to the affairs of the State, the Indian Evidence Act, 1872, No. 1, Acts of the Parliament, 1872. 

[15] Section 125, Information as to commission of offences, the Indian Evidence Act, 1872, No. 1, Acts of the Parliament, 1872.

[16] Section 126, Professional communications, the Indian Evidence Act, 1872, No. 1, Acts of the Parliament, 1872.

[17] Maneka Gandhi v. Rani Jethmalani, 1979 SCR 2 (378).

[18] Venkatachalam v. Govindan Chettiar, Sec. App. No. 246 of 1996.

[19] Section 128, Privilege not waived by volunteering evidence, the Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.

[20] Section 129, Confidential communications with legal advisers, the Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.

[21] Munchershaw Bezonji v. New Dhurumsey S & W Co., ILR 1880 (4) Bom. 576.


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