Privileged Communication Under Indian Evidence Act 1872

Narendra Kumar

03 Apr, 2023

Privileged Communication

The privileged Communication of a witness implies the right of a witness to hold back evidence in certain matters. The Indian Evidence Act provides certain circumstances wherein certain persons cannot be compelled to testify i.e. to provide evidence. The right has been provided on the basis of public policy and convenience.

Indian Evidence Act, 1872 in Section 122 to Section 132 provide for Privileged Communications. For further information visit our website:- https://enterslice.com/

What provisions does the Indian Evidence Act 1872 provide for the Privileges of Witnesses?

1. Judges and Magistrate
   Section 121 of the Indian Evidence Act 1872 provides that no Magistrate or Judge shall be compelled to provide information as to his own conduct in the Court or as to anything which came to his knowledge in Court when acting as per his powers of Judge or Magistrate, unless there is a special order of any Court to which he is subordinate.
   Though, he may be examined as to other matters which happened in his presence whilst he was so acting.
   Examples:
   1. A person while on trial states that the cross-examination not properly conducted while in presence of the Presiding Office. The Presiding Officer cannot be compelled to answer any question in this regard, except upon special order of a Superior Court.
   2. A man is accused of attempting to murder a court officer while attending his trial before a Session Judge. The Session judge may be examined as a witness in the above regard.
2. Communications during marriage
   As per Section 122 of the Indian Evidence Act, 1872 person who is or has been married in no circumstance shall be compelled to disclose any communication that has been made to him during the course of the marriage. The person is not even permitted to disclose any such communication. This is the case unless the person, who gave away such information, i.e. made such communication provides consents.
   Exceptions herein are
   1. suits between married persons or
   2. Proceedings where a married person is being prosecuted for any criminal act committed against the other.
3. Evidence as to affairs of State
   As per Section 123 of the Indian Evidence Act 1872, a person is not permitted to give any evidence which has been derived from any unpublished official records which relate to any affairs of State, unless there is the permission of the head of the concerned department concerned.
4. Official Communications 
   Section 124 of Indian Evidence Act, 1872 provides that a public officer cannot be compelled to disclose any Privileged communication that have been made to him in official confidence and which he considers shall cause the public interests to suffer upon disclosure.
5. Information as to the commission of offenses
   1. Section 125 of the Indian Evidence Act, 1872 provides that any Police officer or Magistrate shall not be compelled to disclose the sources of the information about the commission of any offense.
   2. It also provides that a Revenue Officer shall not be compelled to disclose the source of the information related to the commission of any public revenue offense.
6. Professional communications
   Section 126 of the Indian Evidence Act 1872 provide an important provision of privileged communication.
   1. It states that no advocate or vakil is permitted to disclose any communication made to him in the course and for the purpose of his employment, unless with the express consent of the client.
   2. The advocate or vakil is not permitted or can be compelled to state the contents or condition of any document to which he came across during the course and for the purpose of his employment.
   3. The advocate or vakil is not permitted or can be compelled to disclose the advice provided by him to his client in the course and for the purpose of his employment
   4. Though the content os this section do not apply to the disclosure of the following:
      1. any communication made in furtherance of an illegal purpose, or
      2. any fact which is observed by the advocate during the course of his employment, which shows a crime or a fraudulent act has been committed after his appointment or after the commencement of his employment. Here, it stands immaterial if the attention was or was not directed to such fact by or on behalf of the client.
   5. The restrictions and the obligation provided in this section continues even after the employment ceases
   6. Section 127 provides that the above shall also apply to interpreters, clerks or servants of the advocate and/ or vakils.

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