EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

INDIAN EVIDENCE ACT

LECTURE – XIV
PRIVILEGED COMMUNICATIONS (COMPELLABILITY OF WITNESSES)
(SECTIONS 121-129)

Privileges

There are certain persons who enjoy privileges and cannot be compelled to testify. Sections
121-132 deal with the privileges from compellability of witness. ‘Privilege’ means a right,
advantage or immunity belonging to a person, class or office. The ‘Privilege of a Witness’
means the right of a witness to withhold evidence to disclose certain matters. The
communications that cannot be compelled to be disclosed are called ‘Privileged
Communications’. The principle of ‘Privilege of a Witness’ is based on the grounds of
convenience and public policy.

In general, a witness who is competent may be compellable. Again, a witness is competent and
also may be compellable yet the law may not force him to answer certain questions. This called
restricted Compellability or Privilege Magistrates, lawyers, spouses etc. have right to be
protected from answering certain questions when they are being examined as witness m some
cases, we find the witness has a privilege, that is, he need not answer the question if he does
not want to. In others, it is a case of prohibition, that is, even if the witness is willing to answer,
the law prohibits.

Privileges may be

a) Professional confidences

b) communications with other than lawyers

c) martial privileges in criminal cases and

d) incriminating questions.

Privileged Communications

Privilege is a legal freedom on the part of one person as against another to do a given act or a
legal freedom not to do a certain act. Privilege is an exemption from some duty, burden or
attendance to which certain persons are entitled.

Communication means imparting or exchange of information; sharing of knowledge by one

with another; the thing communicated. It means to impart, confer or transmit Information.

Privileged communications are exceptions to the general rule of communications I.e. 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. It rests with the party claiming the privilege to show that the cause is
brought within the exception. The exception covers cases where a communication is made bona
fide upon any subject matter in which the party making it has an interest, or in reference to
which he has a duty, legal, moral or social, which he may fairly be presumed to have led to the
communication, when made to a person having a corresponding interest or duty.

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With reference to privileged communications being inadmissible in evidence, it is a settled rule

of common law that if the communication be to one who is at the time professionally employed,
it is privileged and the seal of silence is on it.

A communication made bona fide upon any subject — matter in which the party
communicating has an interest, or in reference to which he has a duty, is privileged, if made to
a person having a corresponding interest or duty, although it contains criminating matter which,
without this privilege, would be slanderous and actionable.

Privileged communications are of two kinds.

i) Absolutely privileged, which are restricted to cases in which it is so much to the

public interest that the defendant should speak out his mind fully and freely that all
actions in respect to the words used are absolutely forbidden, even though it be alleged
that they were used falsely, knowingly, and with express malice. This complete
immunity obtains only where the public service or the due administration of justice
requires if ex. words used in debate in the state legislatures, reports of military or other
officers to their superiors in the line of their duty, everything said by a judge on the
bench, by a witness in the base, and the like. In these cases, the action is absolutely
barred.

ii) Qualified privilege: In less important matters where the public interest does not
require such absolute immunity, the plaintiff will recover in spite of the privileged, if
he can prove that the words were not used bona fide, but that the defendant used the
privilege occasion art fully and knowingly to falsely defame the plaintiff. In this class
of cases an action will lie only where the party is guilty of falsehood and express malice.

Indian Evidence Act has provided certain privileges to certain class of witnesses. They are:

i) Judges and Magistrates;

ii) Communications during marriage;

iii) Evidence as to affairs of State;

iv) official Communications;

v) Privilege to Magistrate, or Police officer or Revenue Officer regarding information

as to commission of offences;

vi) Professional Communications;

vii) interpreters etc.;

viii) Privilege not waived by volunteering evidence;

ix) Confidential Communications with legal advises;

x) Production of title deeds of witness not a party;

xi) Production of documents or electronic records which another person, having

possession, could refuse to produce;

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xii) Privilege from incriminating questions and

xiii) Number of witnesses.

A distinction should be drawn between questions which a witness cannot be compelled to

answer (Sec 121, 124 and 125) and those which he can be permitted to answer (Sects 123 and
126).

(1) Privileges given to Judges and Magistrates

Section 121 of the Evidence Act states that “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 which he was so acting”.

A Judge or Magistrate cannot be compelled to give evidence

A judge or a Magistrate is a competent witness and can testify to the relevant facts if he is
personally acquainted with any material or particular fact – Section 121 of the Evidence Act
however providing a privilege says that a Judge or Magistrate cannot be compelled to answer
any question i) as to his own conduct in the court ii) as such Judge or Magistrate or as to any
other matter which came to his knowledge as such Judge or Magistrate.

Section 121 is aimed to give privilege to the trial court whether he is a Judge or Magistrate.
This section is intended to safeguard the dignity and integrity of the judiciary. Whatever thing
comes to the knowledge of such Judge or Magistrate, and during the period of trial his conduct,
are not liable to be questioned by the individuals. If such a protection is not given, a large
number of cases would be filed against the trial Judge and Magistrates, which leads to the
hindrance and destruction of integrity of the judicial proceedings. However, this protection is
not extended to an improper judicial action, which may be raised before the superior court, and
on a special order of such a superior court, such Judge or Magistrate may be questioned for the
improper judicial action.

Section 121 lays down that a Judge or Magistrate cannot be compelled except upon special
order of a higher court, to give evidence about his conduct in relation to a case tried by him.
Illustration (a) to Section 121 states “A, on his trial before the Court of Session, 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.”

A Judge or Magistrate cannot be made to depose anything which he came to know as a court
in course of trial. Illustration (b) to Section 121 states, “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.”

When a Judge or Magistrate can give evidence

Where certain matters come to the knowledge of any Judge or Magistrate in his personal
capacity as an ordinary person, the Judge or Magistrate is not entitled for the privilege under
Section 121 and can be compelled to testify to those facts. According to illustration (c) to the
Section 121, “A is accused before the Court of Session of attempting to murder a police officer

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whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred”. Here
he appears to depose evidence as an eyewitness but not as a Judge or Magistrate.

The privilege given by Section 121 is the privilege of the witness, if he waives such privilege,
none else can raise an objection. Thus, if a Magistrate is summoned to depose about his conduct
in respect of a case and he is ready to appear, nobody else can raise an objection.

A Judge or Magistrate who is entitled to the privilege under Section 121 cannot be compelled
to answer questions as to his own conduct as such Judge or Magistrate except upon an order of
a superior court to which he is a subordinate. When a superior court to which he is subordinate
orders him to answer a question as to his conduct he is not entitled for the protection given
under Section 121. He may be compelled to answer. However, if his evidence is required, there
must be a special order of the superior court. It is a condition precedent.

Arbitrator

The arbitrator would not be within the rule of Section 121 to claim privilege as Section 3 of
Evidence Act defines Court, it excludes arbitrators. Normally, the arbitrator would not be
summoned to give evidence to show how he arrived at the conclusions in a matter. But when
mala fides are attributed and if it is found that there is some prima facie case, the court may
summon the arbitrator. An arbitrator who is selected by the parties would come within the
general-obligation of being bound to give evidence.

According to Section 125 of the Evidence Act, no Magistrate shall be compelled to say when
he got any information as to the commission of any offence.

(2) Privilege Given to Communication during Marriage

Section 122 of the Evidence Act states that “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, consent, except in suits between
married persons, or proceedings in which one married person is prosecuted for any crime
committed against the other”.

Under Section 122 of the Evidence Act, a married person shall not be:

1) compelled to disclose any communication made to him during marriage by any

person to whom he is married; and

2) permitted to disclose any such communication, except:

a) when the person who made it or his representative in interest consents or

b) in suits between married persons, or

c) in proceedings in which one married person is prosecuted for any crime

committed against the other.

There is distinction between Section 120 and Section 122. The object and purpose of Section
120 and Section 122 are quite different. Section 120 enables either spouse to be a competent
witness for or against the other spouse. It has also laid down that in a criminal case against any

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person, the wife (if the accused is husband) or the husband (if the accused is wife) of such
person shall be competent witnesses. Thus, according to Section 120 the wife or husband of a
party to a proceeding is a competent witness and capable to testify. Whereas Section 122 gives
protection to the communication during marriage on account of public policy and provides
domestic peace and conjugal confidence between the spouses. Section 122 is privilege section
given to the spouses, and it extends to the interest of a third person whereas Section 120 is
confined to the interests of the spouses only.

The matrimonial communications between husband and wife are strictly protected from
disclosure under Section 122. But, the provisions of Section 122 do not apply to
communications to a mistress.

The first part of Section 122 deals with the privilege of the married persons who cannot be
compelled to give evidence. The second part of Section 122 deals with the privilege of the other
married person who gave the information and without the permission of such spouse evidence
of it cannot be given. For the purpose of invoking the privilege under Section 122, the following
conditions have to be satisfied:

1) The communication must have been made during the continuance of the marriage:
Any communication made either prior to the marriage or after the termination of
marriage is not protected from disclosure. The privilege continues even after the
marriage has been dissolved by death or divorce.

In Nagaraj v. State of Karnataka, [1996 Cr.LJ. 2901 (Kar.)], where an accused is

alleged to have made an extra judicial confession to his wife about his raping and killing
of her sister, the evidence of his wife was held to be inadmissible. A wife was not
allowed to tell what her husband told her about a murder with which he was charged.

In M.C. Verghese v. T.J. Pannan, [AIR 1970 SC 1876], it has been held that in
interpreting the rule in Section 122, it is not material that the relation of husband and
wife should be subsisting at the time when the evidence is required to be given so where
a woman has been divorced and had married another husband was offered as a witness
against her former husband to prove a communication made during the coverture, it
was held that she was incompetent to do so. It has been further held that the word
‘communication’ does not extend to correspondence, which passed between them,
because when a letter is produced in court and its contents proved, it is the letter that
disclosed and not a spouse.

2) Only communications are protected from disclosure but not the acts or conduct:
The ban of the Section 122 is confined to communications only. A wife can testify to
the deeds of her husband of which she was the eyewitness. The conduct of a spouse is
not protected and not privileged by Section 122. For example, the husband took the
knife from his house and went to his opponent’s house. The wife can depose the same
fact before the court. The taking of a knife and entering into the opponent’s house comes
under ‘conduct’. It is not a communication. Such a conduct relating to criminality is not
protected under Section 122. If the husband said to his wife “I will kill my opponent”.
The wife shall not depose these words before the court. Because this is a communication
made by the husband to his wife and is protected under Section 122.

In Ram Bharosey vs. state of UP, [AIR 1954 SC 704], the Supreme Court observed
“The statement of the accused to his wife that he would give her jewels and he had gone

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to the house of the deceased to get them are inadmissible under Section 122. But the
wife’s statement that the accused was seen in the early hours, while it was dark, coming
down the roof of his house and that he went to the Bhusa Kothri and came out again
and had a bath and put on the dhoti again is not inadmissible under Section 122 as it
has reference to acts and conducts of the accused and not to any communication by him
to his wife”.

3) The privilege operates only against the husband or wife but not against third person:
Neither the husband nor the wife can be compelled to give evidence in regard to
matrimonial communications between them, nor can any one of them be permitted to
disclose them. But nothing prevents a third person or a stranger from giving evidence
of such communications between the husband and wife matrimonial communications
can be proved by evidence of the over — hearers. Confession to wife in the presence
of others were allowed to be proved by others.

In Rumping v. Director of Public Prosecutions, [1962 (3) All ER 256], the accused of
a murder, wrote a letter to his wife after killing a person, confessing that he murdered
his colleague under certain circumstances. He gave that letter to his friend, and
requested him to hand over the letter to his wife. The friend gave that letter to the police;
the trial court admitted that letter. The Privy Council upheld the decision of the trial
court and also held that the letter written by the accused addressing to his wife would
not be protected under the ‘privileged communications’ during the marriage.

4) The privilege does not end after the termination of marriage: The privilege
continues even after the termination of marriage. S.J.Choudhary v. State, [1985 Cr. LJ.
622 (Del)], when a communication was between the accused and his wife after the wife
obtained a divorce decree, it was held that the mamage cannot be treated as subsisting
after the divorce decree and hence the communication was not made during marriage
so as to come within the protection under Section 122.

A communication made to a woman before marriage would not be protected. But when
a communication is made by one of the spouses to the other during the communication
of marriage, the privilege continues even after the marriage has been dissolved by death
or divorce.

When Disclosure is Permissible

The disclosure of matrimonial communications may be made in the following cases:

i) With the express consent of the person who made the communication or his/her
representative.

If the spouse, who made the communication to the other party, gives his consent, the
other spouse may be permitted to depose about the communication made during the
marriage.

In Nawab Howladar v. Emperor, [ILR 1913 40 Cal. 891], where there is no

‘representative in interest’ who can consent under the Section 122, to the disclosive of
communications made by a deceased husband to his wife during marriage, the wife
should not be permitted even if willing, to disclose such communications. The widow

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of a deceased husband is not his ‘representative in interest’ for the purpose of giving
such consent.

ii) Crime committed against another:

Matrimonial Communications cease to be privileged and not protected in suits between

the husband and wife or in criminal prosecutions in which one spouse is prosecuted for
a crime committed against the other spouse.

The words “proceeding in which one married person is prosecuted for crime committed
against the other” in Section 122 refers to such crimes as assault or bodily injuries,
wrongful confinement etc. by one of the spouses against the other; there may be also
other forms of crime but the gist of this exception is that it must be crime committed by
one married person against the other; the question whether unlicensed pistol was in the
possession of the husband or the wife cannot be said to involve any crime committed
by one against the other; but the wife cannot be compelled to disclose what she was
told by her husband (accused) in her conversation with him.

In Fatima v. Emperor, [1950 15 Cr. LJ. 613], it has been held that an offence against a
son is not an offence against the husband and a confession by a woman to her husband
that she murdered the son IS not admissible.

It must be borne in mind that under Section 122, the privilege is for the communication
and not to be the witness. The Section says that a husband or wife shall not be compelled
to disclose such communication and that they shall not be even permitted to disclose
even if he or she volunteers to do so.

(3) State Privilege or Privileged State Documents

Section 123 of the Evidence Act states that “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”. Section 123 of the Evidence Act states that in order to claim
privilege there must be certain pre-requisite conditions, namely i) the document must be an
unpublished official record; ii) it should relate to the affairs of the state, and iii) it can be
admitted in evidence with the permission of the head of the department concerned, who shall
give or withhold such a permission.

The object of the Section 123 is “salus populi est suprema lex” i.e. public welfare is the highest
law. This privilege is granted to the state to protect the public interest. Under Sections 123 and
124, the state was empowered to suppress any information from disclosing. Besides these two
sections, the then British Government enacted the Official Secrets Act, 1923. These provisions
are for the suppression of the people’s voice and rights and to put them in darkness. The
constitution provided freedom of speech including freedom of information in Article 19(1) (a).
After a long struggle the Indian Parliament has enacted The Freedom of Information Act, 2002.
However, Sections 123 and 124 are not yet repealed nor amended so far.

Unpublished Official Records

Section 123 applies to the unpublished official records only. If the contents of a document have
been published there is no question of claiming privilege in respect of their documents.

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The word ‘published’ in Section 123 does not mean only those documents or papers which are
printed for general publication. Even if a secret document or a part of .it is revealed, the
document will lose the sanctity as an unpublished records because there cannot be any
guarantee as to whom and in what contingency the other parts may also be made known.

For example, until the Governor signs a G.O. entire correspondence and documents relating to
the G.O. are unpublished official records. When that G.O. is signed by the Governor, it
becomes published and also becomes public. In State of UP v. Raj Narain, [AIR 1975 SC
865], it has been held that the blue-book which was marked as secret document and parts of
which had already been disclosed in the Lok Sabha debates and in writ proceedings before the
High Court could not be held to be an unpublished record within the meaning of Section 123.

Relating to any affairs of State

The privilege under Section 123 extends only to unpublished or undisclosed official records or
documents relating to the affairs of the State. The term ‘Affairs of State’ has not been defined
in the Evidence Act. The term ‘Affairs of State’ is of very wide amplitude and it will cover
every business activity of the State in day-to-day routine administrative transactions. They also
include the highly confidential matters pertaining to defence, foreign affairs etc. The State
activities now covered many other fields of trade, commerce, etc. All such state activities came
within the purview of ‘Affairs of State’. The term State includes the Central and State
Governments, Governmental organizations etc. within the meaning of Article 12 of the
Constitution of India.

Affairs of State is a very Wide expression. Every communication which proceeds from one
officer of the State to another is not necessarily relating to the affairs of State. The expression
‘Affairs of State’ may be defined as matters of public nature in which the State is concerned
and the disclosure of which will be prejudicial to the public interest or injurious to national
defence or detrimental to good diplomatic relations.

In Iqbal Ahmed v. State of Bhopal, [AIR 1954 Bhopal 9], it has been held that the unpublished
records of the affairs of State may include:

i) Documents that pass between two States;

ii) Documents between the State and its non-subjects;

iii) Documents between the State and subjects of another State;

iv) Documents between subjects of more than one State;

v) Documents that pass between Head of Departments or between Minister of States.

In State of Punjab v. Sodhi Sukhdeo Singh, [AIR 1961 SC 493], it has been held that the
following provide working rules of guidance for the court in a matter of deciding the question
of privilege in regard to unpublished documents pertaining to matters of State:

a) records relating to affairs of state mean documents of State whose production would
endanger the public interest;

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b) documents pertaining to public security, defence and foreign relations are documents
relating to affairs of State;

c) unpublished documents relating to trading commercial or contractual activities of the

State or not, ordinarily, to be considered as documents relating to affairs of State, but
in special circumstances they may partake of that character;

d) in case of documents mentioned in (C) it is a question of fact in case whether they

relate to affairs of State or not in the sense that if they are disclosed, public interest
would suffer.

The following documents are some of the examples showing the unpublished documents as to
affairs of state:

i) the decision of cabinet;

ii) character and confidential reports of the Government employees;

iii) communication between the officers and departments for granting the mining lease

iv) security rules, etc. giving protection to the highest dignitaries, such as the President,
the Prime Minister, the Governors, the Ministers etc.

v) communications between the officers, heads of the departments, ministers pertaining

to foreign policies, defence, etc.

vi) the advice given by the Council of Ministers to the President or to the Governor, as
the case may be;

vii) the reports made by one public officer to another in the discharge of his official
duties and notes and ministers made by respective officers of the Government on
relevant files;

viii) all confidential files of the departments;

ix) question papers of all public examinations (from preparing, typing, printing,
despatch to the examination centres etc. until the time and date of the examination of
each of such subject.)

x) the statements of concerned parties and/or witnesses in a secret and confidential

investigation by the CID.

Not Affairs of State

i) The statements recorded in an open enquiry

ii) The speeches delivered by the Government and public officers

iii) The letters and correspondence between a Head of the Department and a civil person

iv) All published documents

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v) The statements of witnesses recorded by an investigating police officer

vi) The previous question papers

vii) The service records of the Government employees

viii) Statements made and recorded by a forest range officer in the course of an
investigation

ix) Departmental enquiry papers

x) Conciliators report in an industrial dispute

xi) Audit reports of Government Departments or bodies audited by the Accountant

General Office.

In S.P. Gupta & Others v. President of India and Others, [AIR 1982 SC 149], where non-
appointment of an Additional Judge for a further term or transfer of a High Court Judge is
challenged the disclosure of the correspondence exchanged between the Law Minister, the
Chief Justice of the High Court, the State Government and the Chief Justice of India and the
relevant noting made by them, could not be said injurious to public interest and held that the
Government cannot claim privilege in respect of such documents under Section 123 of the
Evidence Act.

Privilege relating to State Documents

When the State is required by the Court to produce certain documents the Government claims
a privilege and refuses to place those documents before the court on the ground that these
documents since they relate to the affairs of the State, the disclosure of the contents of such
documents in the court may endanger public interest. This privilege has been provided
obviously on the grounds of public interest.

Exception to the privilege relating to the State Documents

Second half of the Section itself gives the exception that the officer as the head of the
department concerned may give the permission for the production of the document, if he thinks
fit. The privilege should be claimed generally by the Minister-in-charge who is the political
head of the department concerned, if not, the secretary of the department should claim the
privilege. In State v. Jagannath Jena, [ILR 1973 Cut 427], it has been held that the Inspector
General of Police cannot be an officer at the Head of the Department for the purpose of Section
123 of the Evidence Act.

Who is to decide State Privilege (Power of the Court to Decide the Privilege State
Document)

Section 123 deals with a prohibition and the prohibition extends to everyone, provided the
evidence sought to be given relates to affairs of State derived from unpublished official records.
Such matters can only be disclosed with the permission of the head of the department and the
officer has absolute discretion in either giving or with holding such permission. But that is not
so. Section 162 of the Evidence Act read with the Section 123 makes it clear that the court is
the final authority.

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In State of Punjab v. Sodhi Sukhdev Singh, [AIR 1961 SC 493], it has been held that “Reading
Sections 123 and 162 together the court cannot hold an enquiry into the possible injury to public
interest which may result from the disclosure of the document in question. That is a matter for
the authority concerned to decide but the court is competent and indeed is bound to hold a
preliminary enquiry and determine the validity of the objections to its production and the
necessarily involves an enquiry into the question as to whether the evidence relates to an affairs
of State under Section 123 or not. In this country the court has to determine the character or
class of the documents. If it comes to the conclusion that the document does not relate to affairs
of State, then it should reject the claim for privilege and direct its production. If it comes to the
conclusion that the document relates to the affairs of State, it should leave it to the head of the
department to decide whether he should permit its production or not.”

In S.P. Gupta v. Union of India, [AIR 1982 SC 149], the Supreme Court has overruled the
decision in State of Punjab v. Sodhi Sukhdev Singh, [AIR 1961 SC 493], and recognised the
power of the court to inspect the documents although they are considered to be a classified
document, otherwise the very purpose of holding preliminary inquiry to know whether the
document relates to the affairs of the State or not, becomes a force. For this purpose it is
necessary to inspect the document.

In State of U.P v. Raj Narain, [AIR 1975 SC 875], the court has held that there is residual
power in court to decide whether the disclosure of a document is in the interest of public and
for the purpose, if necessary to inspect the document and that the statement of head of the
department that the disclosure would injure public interest is not final. The court further held:
“It is now the well settled practice in our country that an objection is raised by an affidavit
affirmed by the head of the department. The court may also require a Minister to affirm an
affidavit. If the court is satisfied with the affidavit evidence that the document should be
protected in public interest from production, the matter ends there.”

In R.K. Jain v. Union of India, [AIR 1993 SC 1769], the Supreme Court has held that the oath
of office of secrecy adumbrated in Art. 75(4) and Schedule Ill of the Constitution does not
absolve the minister either to state the reasons in support of the public interest immunity to
produce the state documents or as to how the matter was dealt with or for their production when
the discovery order nisi or rule nisi was issued. The Minister has to act in aid of the Court.

Further, the court laid down the following principles relating to the privileged state documents
under Sections 123, 124 and 162.

(i) Immunity from disclosure of unpublished state documents cannot be claimed by way
of mere administrative routine.

(ii) The documents must relate to affairs of State and disclosure thereof must be against
interest of the state of public service or public interest.

(iii) The public interest must be so strong as to out weight the private or any other
interest.

(iv) Affidavit should generally be filed by the Minister concerned precisely stating the
reasons or grounds for claiming the immunity.

(v) Court would normally be slow to question the opinion of Minister given in the
affidavit

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(vi) If necessary the court may seek additional affidavit or summon the minister
concerned for cross-examination.

(vii) Court may also examine the documents in camera.

(viii) Court should weight the competing claims of public interest immunity from
disclosure of the documents and public interest of doing justice to the litigating parties
in the light of those documents and decide accordingly.

Official Communications

Section 124 of the Evidence Act states that “No public officer shall be compelled to disclose
communications made to him in official confidence, when he considers that the public interests
would suffer by the disclosure”

Section 124 is based on the same principle as Section 123, the object being the same for the
two sections, and they are based on public policy. Though Sections 123 and 124 are
supplementary to each other, they differ with each other as given below:

(i) Section 123 covers all persons who receive evidence derived from unpublished
official records whereas Section 124 covers only public officer to whom
communications are made in official confidence.

(ii) Under Section 123 the unpublished record must relate to affairs of the State whereas
under Section 124 the communications need not necessarily relate to affairs of State but
must have been made in official confidence.

(iii) under Section 123 it must be a document which is in the form of a record. But under
Section 124 the communication may be oral or documentary.

(iv) Under Section 123, it is only the head of the department concerned who can permit
or withhold the permission to disclose the unpublished official record. While under
Section 124 the official who receives the communication is the person concerned and
not necessarily the head of department, who is competent to permit or withhold the
disclosure of the communications.

No public officer shall be compelled to disclose communications

Under Section 124, a public officer cannot be compelled to disclose communications made to
him in confidence if he considers that public interests would suffer by the disclosure. The right
to claim privilege under Section 124 is available only to public servants.

The term ‘Public Officers’ means an officer with public as opposed to private duties who
receives communications made to him in official confidence of such a nature that disclosure in
certain cases would injure the public interest.

The word ‘disclose’ means the first disclosure or communications made in official confidence
and does not apply to a disclosure in a court of law of what has already been disclosed outside
it.

Section 124 is designed to prevent the knowledge of official papers that is to say papers in
official custody, beyond that circle which would obtain knowledge of them in confidence

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

whether the confidence was expressed or implied. It would normally include all officers
including clerks of superior officers and might also apply to non-officials to whom such papers
were disclosed on the understanding express or implied that the knowledge should go no
further. If the officer who received the communication, in his turn forwards it to another officer
for further action the latter officer can claim the privilege under Section 124 by filing an
affidavit to the effect that the public interest would suffer by the disclosure of the
communication, and it would be sufficient to support the claim. In University of the Punjab,
Lahore v. Jaswant Rai, [ILR 1946 27 Lah 561] it has been held that the Vice-Chancellor of
the Punjab University is a ‘Public Officer’ within the meaning of Section 124. In Sub-division
Officer v. Raja Srinivas Prasad Singh, [AIR 1966 SC 1164], Compensation Officer under the
U.P. Zamindari Abolition and Land Reforms Act was held to be a public officer.

Communication made in official confidence

In R. Ramana v. State, [AIR 1971 AP 196], it has been observed that a communication In
official confidence requiring protection under Section 124 must be such as to necessarily
involved the wilful confiding of secrets with a view to avoid publicity by reason of the official
position of the person in whom trust is reposed, under express or implied promise of secrecy.
Foundation of the claim of the privilege rests on consequences of disclosure of a
communication made in official confidence whose publication, the officer to whom it is made
considers contrary to the public interest.

In State of A.P. v. Appanna, [1962 2 Cr.LJ 649], it was held that the words ‘Official
Confidence’ in Section 124 indicate that the Section applies to communications from one
public officer to another public officer in discharge of their official duties and not to
communications to such officer by outsiders.

Section 124 refers to all official communications and the privilege which the officer can claim
is also absolute. If the official communication is made in official confidence and where the
affairs of the State are not involved and if public interest would otherwise suffer by disclosure,
Section 124 shall apply. If a case falls under Section 124, the Court can inspect the document
in question and determine the claim of privilege.

Examples of Communications made in Official Confidence

(i) A statement made in a confidence departmental enquiry for gathering information

by the department to guide them in future action.

(ii) A communication made by one Secretary to another Secretary of Government.

(iii) The correspondence between superior authorities with regard to the confirmation
or non-confirmation of a Government servant in a particular post.

(iv) A report from a Deputy Tahsildar to the Collector.

(v) Statement made to a Collector by the proprietors applying for taking over their
estates by the Court of wards, showing their financial position and their liabilities.

(vi) Observations made by the High Court on a report of an enquiry officer against the
conduct of a Judicial Officer, forwarded to the Governor.

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

The following are not considered as communications made in official confidence:

(i) Communications by one officer to another in matters which arise out of commercial
relations which subsist between the state on one side and a private citizen on the other.

(ii) Communications between officers empowered to impose penalty and the higher
authorities with regard to assessment or penalty proceedings under the Income Tax Act.

(iii) A valuation statement given by a Revenue Inspector on the basis of which the
award was passed.

(iv) Statements recorded during investigation by a police officer.

(v) A ‘handing over note’ prepared by the Chief Engineer of a project in official
discharge of his duties containing relevant facts and information regarding the questions
involved in deciding a certain case.

(vi) The Government or the head of the department has no right to claim any privilege
in respect of such a document as it was not made in official confidence.

Who is to decide?

Under Section 124 whether the communication in question was made in official confidence is
a matter for the court to decide. In State of Punjab v. Sodhi Sukhdev Singh, [AIR 1961 SC
493], it has been held that “In dealing with an objection under Section 124 the court would
have first to determine whether the communication in question has been made in official
confidence. If the answer is in the negative then the document has to be produced; if the answer
is in the affirmative then it is for the officer concerned to decide whether the document should
be disclosed or not.”

In Vythilinga Pandarasannidhi v. Secretary of State, [1953 Mad. 342], it was held that there
are two matters involved in Section 124. Firstly, whether a particular document for which the
privilege is claimed falls within it, i.e. whether the document is a communication made to a
public officer in official confidence. On a proper construction of the Section, it is for the court
to decide that question. Secondly if the court decides that the document is of the nature
contemplated by the section, then the public officer himself is the sole judge as to whether by
its disclosure public interest would suffer (that along being the ground of privilege).

In S.P. Gupta v. Union of India, [AIR 1982 SC 149], the Supreme Court held that the court
has the inherent power to look into the document and decide and the head of the department is
not the sole judge to decide that question.

Mere rejection of the head of the department or public officer in producing a document or
communication is not sufficient. The court must satisfy with the convincing reasons stated by
the head of the department. A mere mechanical repetition of the words that the production and
disclosure of the documents would injure public interest or would be prejudicial to the public
interest are not sufficient. The court should satisfy that there is a real danger of some injury
being caused to the larger public or national interest by the production or disclosure of the
documents in question.

Right to know vs. State privileged documents

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

In L.K. Koolwal v. State of Rajasthan, [AIR 1988 Raj. 2], it has been stated that a citizen has
right to know about the activities of the State. The privilege of the secrecy is which existed in
old time that the State is not bound to disclose the facts to citizen does not survive to a great
extent. A state can impose restrictions in the matter like fundamental rights, where it affects
national security. This restriction cannot be applied to matters like sanitation and other allied
matters. Every citizen has the right to know how the Government is functioning.

The Right to Information Act, 2005

Basing upon the concepts of right to know under Article 19(1) of the Constitution, Indian
Parliament enacted the Right to Information Act, 2005. The object of the Right to Information
Act, 2005 is to provide for setting out the practical regime of right to information for citizens
to secure access to information under the control of public authorities in order to promote
transparency and accountability in the working of every public authority, the constitution of a
Central Information Commission and State Information Commissions and for matters
connected therewith or incidental thereto. This Act received the assent of the President on June
15, 2005 and came into force on the same day.

This Act, subject to the provisions of the Act, provides all citizens right to information (sec 3).
As per Section 2 (J) of the Act, ‘right to information’ means the right to information accessible
under this Act which is held by or under the control of any public authority and includes the
right to

i) inspection of work, documents, records;

ii) taking notes, extracts or certified copies of documents or records;

iii) taking certified samples of materials;

iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in
any other electronic mode or through printouts where such information is stored in a
computer or in any other device.

According to Section 4(1) (a) of the Act, every public authority shall maintain all its records
duly catalogued and indexed in a manner and the form which facilitates the right to information
under this Act and assure that all records that are appropriate to be computerised are, within a
reasonable time and subject to availability of resources, computerised and connected through
a network all over the country on different systems so that access to such records is facilitated.
As per Section 4(1) (b) of the Act, every public authority shall publish within one hundred and
twenty days from the enactment of this Act all the details pertaining to their organization,
procedures and norms set for the organization, its employees, rules, regulations or manuals
used by its employees, budget allocations, the procedure according to which, public would be
able to participate in its decision making process, the details of documents available with it,
(also in electronic form) the names and other particulars of public information officers and all
relevant facts while formulating important policies or announcing the decisions that affect the
public.

Section 4(2) of the Act provides that the public authority shall take steps to provide as much
information suo motu to the public at regular intervals through various means of
communications, including internet, so that the public have minimum resort to the use of this
Act to obtain information.

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

As per Section 5(1) of the Act, every public authority shall within one hundred days of the
enactment of this Act, designate as many officers as the Central Public Information Officers or
State Public Information Officers as the case may be, in all administrative units or officers
under it as may be necessary to provide information to persons requesting for the information
under this Act. According to Section 5(2) of the Act, the Public Information Officers are bound
to render assistance to the applicants.

Section 7 of the Act provides that the requests for information should normally be disposed of
within 30 days. But if the information sought concerns the life or liberty of a person, the same
must be provided within 48 hours and if a decision is taken not to provide information, the
same must be communicated to the appellant along with the grounds for such rejection,
including the particulars of the appellant authority.

A reasonable fee may be charged for providing information, but no fee can be charged from
the persons below poverty line [Sec 7(5)].

Third party information can be disclosed after considering the view of the third party (Sec 11).

There shall be no obligation to give any information if the disclosure will be prejudicial to the
national interests or to public interest. Information may also be withheld if its disclosure is
forbidden by any Court or amounts to violation of any trade or commercial secret or copyright,
or privacy of any person. Information, the disclosure of which may impede the investigation or
prosecution of offenders, or if it is contained in cabinet papers or deliberations of the council
of ministers can also be withheld [Sec 8(1)].

Information may be provided if it relates to any matter which has occurred twenty years before
the date on which the request is made [Sec 8(3)]. This Act has overriding effect over any other
law and a public authority shall allow access to information if public interest is disclosure
outweighs the harm to the protected interests. [Sec 8(2) and Sec 22]. When a request for
information also seeks some information that is exempted, the same may be served and the
remaining information may be supplied. [Sec. 10]. The Act does not apply to certain
intelligence and security organizations. But if the information sought relates to the allegations
of corruption and human rights violations, the same must be provided [Sec 8(3)]. When access
to information is denied on the ground that it is exempt from disclosure, then access may be
provided to that part of the record which does not contain any information that is exempt [Sec
10].

The Act further provides for the constitution of Central and State Information Commissions
(Chapter III). The Central Information Commission consists of a Central Chief Information
Commissioner and their Information Commissioners as may be necessary, not exceeding 10 in
number to be appointed by the president on the recommendation of a committee comprising
the Prime Minister of India, the opposition party leader and any other Cabinet Minister to be
nominated by the Prime Minister [Sec. 12]. Similarly, the State Information Commissioner is
appointed by the Governor of the State [Sec. 15].

The Information Commission [State or Central as the case may be] may receive and inquire
into complaints from any person relating to access to information [Sec. 18]. The Act provides
for an appellate mechanism. A person who is aggrieved by the decision of the Public
Information Officer -in relation to making available any information may appeal to any such
officer who is superior in rank to the Public Information Officer, as may be designated. A
second appeal lies to the Information Commission, State or Central [Sec. 19]. The State or

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

Central Information Commission is expected to monitor the application or enforcement of this

Act and public period reports [Sec. 25]. The Government (State or Central) has the obligation
to educate the public on how to exercise the rights under the Act, and the name, address and
other details of the authorities established under the Act [Sec. 26].

Sections 123 and 124 stand as hindrance to the right to know. In S.P Gupta v. Union of India,
[AIR 1982 SC 149], it has been held that any revolutionary decisions so as to expose high
confidential matters to public gaze by following a policy of liberal disclosure of documents
ignoring the provisions of Sections 123 and 124 of the Evidence Act would not only be
detrimental to our progress but may cause serious obstruction in the practical running of day-
to-day affairs of the Government or for that matter the governance of the country itself.

The courts shall, hereafter, consider the Right to Information Act, 2005 while interpreting the
Sections 123,124 and 162 of the Evidence Act. The concept of an open Government is the
direct emanation from the right to know under Art.19(1)(a) of the Constitution. Therefore,
disclosure of information In regard to the functioning of Government must be the rule and
secrecy an exception justified only where the strict requirements of public interest so demands.
The approach of the court shall be to attenuate the area of secrecy as much as possible
consistently with the requirement of public interest, bearing in mind all the time that disclosure
also serves an important aspect of public interest.

(4) Privilege to Magistrates, Police Officers and Revenue Officers relating to information
as to commission of offences

Section 125 of the Evidence Act states that “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 public revenue.”

Section 125 places a prohibition on compelling the Magistrate, Police Officer or Revenue
Officer to say from which source he had the information referred to in the section i.e. the
commission of any offence and any offence against the public revenue. Section 125 gives the
privilege to the above authorities against the source of information, but not to the custody of
the documents. Section 125 applies to public and private prosecutions. Section 125 is not
extended to the witnesses and parties.

The privilege under Section 125 is not given to the court, police officer or revenue officer, but
to the informant, and that too particularly to the information.

Section 125 is based on public policy. It is importance to the public for the detection of crimes
that those persons who are the channel by means of which the detection is made should not be
unnecessarily disclosed. According to Taylor, “It is perfectly right that all opportunities should
be afforded 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 police for the detection of
crimes, that those persons who are the channel by means of which the detection is made, should
not be unnecessarily disclosed.”

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

In many of the occasions, the complainant or victim gives the information about the offence.
When an informant becomes the complainant, later he becomes the witness. However, there is
no rule that in every occasion the informant must become as a complainant.

The law recognizes the duty of every citizen to communicate to the Government and its officers
the information that offences are being committed. Several police stations maintain a group of
informants by paying money for their services. For the safety of the informers it is necessary
that their names should be kept secret. If their names are disclosed the offenders would certainly
cause them injury and nobody would like to inform a public officer that an offence is being
committed in his neighbourhood.

It is absolutely essential to the welfare of the State that the names of spies, decoys or informers
should not be divulged; for otherwise, be it from fear, or shame, or the dislike or being mixed
up in enquiries of the nature, few men would choose to assume the disagreeable part of giving
or receiving information respecting offences, and the consequence would be that a great many
crimes would pass unpunished.

There is a clear difference between an informant and a witness. A witness is a person who
comes to the police station and court to give his evidence. An informant is a person, who gives
only an information. He does not like to come to the police station and courts and does not
want to waste his time due to busy and fear. He does not want to be implicated in the criminal
cases. An informant always need not be an eye-witness of an offence. He may be a bystander
or passing in that way after the incident occurred and might have seen after the consequences
of the offences; etc. He may just give information to the police or court or revenue officer
regarding the commission of offence.

What is prohibited under Section 125 is the disclosure of only the source of information as to
the commission of offence ‘information’ must necessarily include not only names of persons
but also the nature and source of information. It includes all questions relating to the channel
through which the detection is made. If information is confined to names only, the rule would
be infructuous. But the privilege does not apply to the contents of the statement, for the contents
of the communication must necessarily be disclosed while prosecuting the offender.

In Public Prosecutor v. M.N. Govindaraju Mulaliar, [AIR 1954 Mad. 102], it has been held
that Section 125 contemplates only the prohibition of the source from whom the Magistrate or
the police officer got the information as to the commission of the offence and not as to the
custody of any documents or other material objects, that might have been seized and that might
be tendered In evidence in support of the commission of the offence.

In Sitaram Mahato v. State, [ILR (1957) 2 Cal. 57] it has been held that a police officer cannot
be questioned as to the source from which he got information. He cannot say that from a source
he learnt that certain persons were going to commit dacoity in a certain locality, because it
would be hearsay evidence, and is inadmissible.

Section 125 has no application to an informer who lays sworn Information and thereby initiates
criminal proceedings.

The FIR is not a privileged document to get any protection under Section 125 where a police
officer arrests a person basing upon the information given by X, such a police officer need not
disclose the identity of X. However, such a police officer should reveal the arrestee the ground

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

of arrest. Therefore, it is the duty of the Police Officer to procure the evidence and grounds of
arrest.

(5) Privilege to professional communications

Privilege to communication between advocate and his client] Sections 126 to 129 are related
to the privilege to professional communications between the legal adviser and the client.
Section 126 provides the privilege of legal advisers. Section 127 extends this privilege to
interpreters etc. Section 129 explains about the privilege given to ‘Confidential
Communications with legal advisers. Section 128 explains that the privilege provided in
Sections 126, 127 and 129 cannot be waived by volunteering evidence of the client.

Professional Communications

Section 126 of the Evidence Act says:

“No barrister, attorney, pleader or Vakil, shall at any time be permitted, unless with his
clients 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 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-(l) 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 on behalf of his client.

Explanation: The obligation stated in this Section (i.e. Sec. 126) continues after the
employment has ceased.

Illustrations:

(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 a forged deed on which I request you to sue”.

This communication, being made in furtherance of a criminal purpose, is not protected

from disclosure.

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

(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
from disclosure.”

At the time of enactment of the Evidence Act, 1872, there were different classes of legal
practitioners as mentioned in Section 126 namely barristers, attorneys, pleaders, vakils. Besides
them there were Mukhtars, salaried legal advisers, law officers and these professionals were
also come under the purview of Section 126. After enactment of the Advocates Act, 1961, now
there is only one class of the legal practitioners i.e. the Advocates.

Under Section 126, a Barrister, Attorney, Pleader, Vakil (and other legal practitioners such as
Mukhtars etc) shall not be permitted, except with his clients express consent to disclose:

(a) any communication made to him in the course and for the purpose of his
employment; (illustration (a))

(b) 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.

(c) to disclose any advice given by him to his client in the course and for the purpose
of such employment.

According to proviso to Section 126, Section 126 does not protect from disclosure--

(1) Any communication made in furtherance of any illegal purpose; [illustration (b)]

(2) Any fact observed in the course of employment showing that any crime or fraud has
been committed since the commencement. [illustration

Section 126 is based upon the principle that if communications to a legal adviser were not
privileged, a man would be deterred from fully disclosing his case, so as to obtain proper
professional aid in a matter in which he is likely to be thrown into litigation.

Section 126 has been enacted for the protection of the clients, but not for the legal practitioners.
The basis for the protection is founded on the impossibility of conducting the legal business
without the professional assistance and on the necessity in order to render that assistance
effectual, of securing full and unreserved intercourse between the legal practitioners and their
clients. A client would be inclined to make free and frank disclosure of every information to
his advocate only when there is a guarantee to him that what all he passes on to the advocate
would not be divulged, Section 126 is designed to lend that kind of guarantee by prohibiting
all such communications from being given in evidence.

Confidential communications between a lawyer and client which come into existence Qr the
purpose of giving or getting legal advice are privileged at all times. All communications
connected with the case of the client whether he expressly mentions them as confidential or not
privileged and the professional legal advisor is prohibited from disclosing such

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

communications in Kameswara Rao v. Satyanarayana, [1984(2) An.W.R. 138], it was held

that Section 126 of the Evidence Act is designed to abort the attempt to intrude into privacy of
the close preserve of the fund of information conveyed by the client closetted in confidence.

The privilege applies to all communications oral or documentary made in course of and for the
purpose of employment as legal adviser. The letters written by the client to the advocate or by
the advocate to the client are protected under Section 126. However, a letter written by
accused/party to another accused/party do not come within the purview of the Section 126, and
therefore are not protected.

Not only the communications made by the client to the legal practitioner, even things observed
by an advocate are protected.

In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick,

[AIR 1981 SC 917], it has been held that there was absolutely no impropriety on the part of the
Magistrate in not taking action against the defence lawyer for his refusal to show his register
because the lawyer had rightly claimed privilege under Section 126 of the Evidence Act as the
register contained instructions given by the client which being privileged could not be disclosed
to the Court.

Further, a professional legal advisor is also prohibited from disclosing the nature of legal advice
which he has given to his client in the course of his employment.

The rule relating the privilege of professional communication made in Section 126 is
established for the protection of the client, not the lawyer. It follows from this that the privilege
can be waived by the client but not the lawyer. The lawyer is under a professional obligation
to assert the privilege until it is waived by the client. An advocate shall not disclose any
communication given to him by his client. An advocate may disclose any communication given
to him by his client, if his client consents for such disclosure. If there are more than one party,
the consent of all the parties is necessary.

The words ‘at any time’ in Section 126 indicate that the legal adviser is not to disclose the
communication even when the relation is ended over even after the client’s death. According
to explanation appended to Section 126, the privilege given under Section 126 continues even
after cessation of the employment. It means if a communication document is once privileged it
is always privileged. The fact that it was inquired about in another case will not destroy the
privilege.

The word ‘disclose’ in Section 126 shows that the privileged communication must be of a
confidential or private nature. The word ‘disclosure’ implies that which was not already made
to others.

The words ‘any communication’ in Section 126 does not mean every communication made by
a person to his legal adviser that is privileged from disclosure. The privilege extends only to
communications made to him confidentially, and with a view to obtain professional advice.

The phrase “in the course of his employment and for the purpose of his employment” indicates
that the privilege given to a legal adviser under Section 126 is of a very limited character. Such
a protection can be afforded only, if such communications are made to the advocate (i) in the
course of his employment and (ii) for the purpose of his employment. The privilege applies to
all communications oral or documentary in the course of or for the purpose of the employment

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

as legal advisor. Consultation as a friend is not sufficient. The privilege attaches only if the
opinion was given professionally. Even if the services were rendered without fee, still the
communications would be privileged. Whether an opinion was given professionally or in a
friendly capacity or otherwise is a matter of fact to be inferred from the circumstances, such as
the legal habits of life and other cognate matters. The privilege does not apply to
communications made before the existence of the relationship or after it has ceased.

Section 126 protects communications only between the professional legal advisor and his
client, but has no application to communications made to other professionals like a priest,
doctor, banker etc. although the communications are made under great trust and strict
confidence.

The phrase “to state the contents or condition of any document” in Section 126 indicate that an
advocate is not permitted 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. The
protection against production or disclosure does not extend to any original document which
might have come into the possession of the advocate from his client e.g. a letter addressed to
the client which was alleged to be in the brief of the counsel.

The protection of the Section 126 will not extend to any communications made in furtherance
of illegal purpose in view of proviso 1, or to any fact showing that a crime or fraud has been
committed since the commencement of the employment, in view of proviso 2. If a client and
his lawyer cooperate in effecting a crime the lawyer ceases to be a counsellor and becomes a
criminal along with his client and there would be no privilege. The existence of an illegal
purpose would prevent any privilege attaching to any communication. Illustration (b)
exemplifies this.

Section 126 to apply to interpreters etc. (Application of the privilege to Professional

Communications to interpreters etc.)

As per Section 127 of the Evidence Act, “The provisions of Section 126 shall apply to
interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils”.

In P.R. Ramakrishnan v. Subbaramma Sastrigal, [AIR 1988 Ker. 1 8], it has been held that
“The making of imputation involves the translation of the imputation into some form. If the
libel is in writing, the making of the libel is incomplete without writing it down. The author
himself can be its scribe or it can be a different person. Dictation by a lawyer to his clerk is
part of his professional exercises and merely because the clerk in the course of his professional
work heard it, cannot amount to factual publication. The privilege attached to the professional
communications between a lawyer and his client is further fortified by providing Section 127
of the Evidence Act as per which the ban against disclosure is extended to clerks and servants
of the lawyer. The clerk of a lawyer, in the professional sphere, has to maintain confidence
regarding matters conveyed to him, if it relates to communication between the counsel and the
client. If a notice, or a letter or even a pleading is dictated to the clerk by a lawyer, it does not,
in practical sense 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 publication
to a third person.”

In Sukhdeo Vithal v. Prabhakar Sukhdeo, [1974 Cri.LJ 1435], it has been accepted the
contention that the advocate dictating to his clerk or typist any matter which the typist or clerk
transcribes in the discharge of his duties does not make publication of that matter.

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

As Section 127 is an extension or corollary to Section 126, the dictation given by a lawyer to
his clerk and transcription made by him of a per se libellous matter cannot amount to
publication confidential secretary of a lawyer is included in the privilege.

Confidential communications with legal advisers

Section 129 of the Evidence Act states that “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.”

Sections 126, 127 and 129 are aimed for the protection of the client and not of lawyer. These
Sections make all communications between the legal advisers and their clients, in the course
of their employment and for the purpose of his employment. However, Section 129 extents this
privilege even to the briefing stage. Briefing stage is that in which the client explains his case
to his advocate, including all confidential information. Even after briefing, the client may or
may not engage that advocate. He may change his mind and may appoint another advocate.
Section 129 extends to such confidential communications at the briefing stage. According to
Section 129, no one shall be compelled to disclose to the court any confidential communication,
which has taken place between him and his legal professional adviser.

Section 129 contains the exception i.e. where a client offers himself as a witness in which case
he may be compelled to disclose any such communication as may appear to the court necessary
to be known in order to explain any evidence which he has given.

Section 129, unlike Section 126 where the word ‘permitted’ is used, uses the word ‘compelled’.
Whereas the legal adviser is not at liberty to disclose any professional communication without
his clients consent, the client may, if he so wishes disclose the communication, but if he refuses
to do so, he cannot be forced to make the disclosure. Therefore, where evidence concerning a
privileged communication is given by the client without any pressure being put upon him, the
evidence would be admissible.

The word ‘compelled’ does not mean subpoenaed. The Section 129 uses the word ‘compelled
to disclose’ with reference to the case when a man has offered himself as a witness, and must
refer to some force put upon the witness after he is in the witness box.

Whereas all that passes between a lawyer and his lay client is privileged, if it does so in the
course of a professional relationship, where either the lawyer or the client has communicated
with a third party about a matter relevant to the litigation in hand, that communication will be
privileged only if it has been made in contemplation of the litigation.

The evidence is shut out at the option of the client only and if he elects at any time to remove
the seal from the lips of the witness the evidence may be received. The client cannot say that
he may refer to a part pf the communication and yet his advisory cannot refer to the other. The
objection having been defeated voluntarily by the party for whose benefit it was enacted there
can be no reason for its enforcement in such a case.

Privilege not waived by volunteering evidence

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EVIDENCE ACT LECTURE – XIV (SECTIONS 121-129)

Section 128 of the Evidence Act states that “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”.

Section 128 of the Evidence Act deals with the privilege not waived by volunteering evidence.
The object of Section 128 is to protect the client and to save the integrity of the legal profession.

The privilege given to an advocate from giving his evidence relating to the professional
communications cannot be waived even though the client gives his evidence voluntarily.

If a client deposes voluntarily before the court about the confidential matters, it does not mean
that the client waived his privilege. Even then, the advocate is not entitled to adduce his
evidence and state the court about the confidential communication.

The privilege mentioned in Section 126 is designed to secure the clients interest. Therefore the
privilege is not violated by the disclosure of the communication, if the client himself does not
wish it to be kept secret and wants to make it public.

In respect of the privilege given in Section 126, it has always been recognised that a waiver
may be made. Waiver of this privilege given in Section 126 may be by express consent under
Section 126 or it may be by conduct under Section 128.

Section 128 states that, if a party to the suit gives evidence, he shall not be deemed to have
consented to any disclosure as mentioned in Section 126. Section 128 also says that the
privilege would not be lost even if the legal adviser is called as a witness, unless the party
questions him on a particular point. The privilege belongs to the client and therefore he alone
can waive it. The privilege is not lost by calling the legal adviser as a witness, unless the party
having the privilege questions him relating to confidential matters when the party questions the
lawyer on the very matter of the communication which he made to the lawyer it will amount to
consent and the lawyer is free to disclose the communication.

According to Wigmore, the client offers of his own or his attorney’s testimony as to a part of
any communication to the attorney is a waiver as to the whole of that communication on the
analogy of the principle of completeness.

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THE INDIAN EVIDENCE ACT | 24