The privilege of a witness means the right of a witness to withhold evidence to disclose certain matters. There are certain circumstances in which certain persons are not compelled to testify (to give evidence). The right is based on the convenience and public policy. Section 122 to Section 132 of Indian Evidence Act 1872 provide for privileged Communications.
Various Privileges of Witnesses under the Indian Evidence Act:
i) Judges and Magistrates :
According to Section 121 of Indian Evidence Act 1872, No Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing 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.
(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer question as to this, except upon thee special order of a superior Court.
(b) 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.
(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his trail before B, a Session Judge. B may be examined as to what occurred.
Note: Witnesses and Documents are the main sources of Evidence. A witness is a person who gives testimony or evidence before any Court. As a matter of fact every person is competent to give evidence but they cannot be compelled to give Evidence. There are certain persons who enjoy certain privilege and they cannot be compelled to testify. E.g Judges, Magistrates etc.
ii) Communications during marriage :
According to Section 122 of the said Act, 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.
Whether a wife can be compelled to give evidence against her husband in civil or criminal cases?
Section 120 of the Evidence act provides that 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.
Suppose, the husband makes confession to his wife that he has committed a theft or murder of a person. The wife to whom the confession is made made cannot be called to the Court and compelled to give evidence against her husband.
Section 123 of Indian Evidence Act says 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”.
iv) Official Communications
According to Section 124 of the said Act., “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.
v) Information as to commission of offences
Section 125 of Indian Evidence Act says 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 means an officer employed in or about the business of any branch of the public revenue”.
According to Section 126 of Indian Evidence Act 1872, 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 on behalf of his client.
The obligation stated in this section continues after the employment has ceased.
(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.
(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.