Meaning of privileged communication
Privilege communication
There are certain matters where a witness cannot either be compelled to disclose nor even if he is willing to disclose, be allowed to do so.
What is privileged communication of Evidence Act?
Communication of which one cannot give evidence in court is called privileged communication.
These protection given on basis of public policy.
Who may be the witnesses?
In section 118 (IEA) Any person who is capable of understanding the question put to them and giving rational (reason) answer to those question is witness.
But in some circumstances where the person is competent to witness but not allowed to produce in court.
Such communication where the person though he competent but not compel or allowed in the court to witness in court, then these called as privileged communication.
Privilege communication of Judges and Magistrates Section 126 Evidence Act
Judges and Magistrates can’t be compelled, except upon special order of higher court to give evidence about.
- His own conduct related to case tried by him.
- Anything which he came to know in course of trial as Court.
Example: if a person stating that he his statement or deposition by magistrate or judge noted wrongly, such thing can’t be compelled to Judges or Magistrates to give evidence.
Exception of Section 126 IEA Judges and Magistrates
Fact which they came to know as ordinary man or what occurred in his presence while acting as such.
Not as acting as Judges and Magistrates.
Example: if the matter is in proceedings and occurred during the court proceedings such as accused shoot the police man and there the Judges and Magistrates present.
Then here judges and magistrate may asked for witness or evidence.
Case privilege communication of judges and magistrate
Union of India v. Orient engineering and commercial co. (1978)
Supreme Court has extended this category to arbitrator as well as though arbitrator can be summoned as witness, he cannot be compelled to explain how he arrived at the award.
Communications during marriage Section 122 Evidence Act
Protection of matrimonial communication from disclose.
Wife or husband cannot be compelled to disclose the communication which took place between them during continuous of marriage.
Objective of Section 122 of Evidence Act
The objective of the section 122 evidence Act of communication during marriage is to protect domestic peace and conjugal relation between spouse.
It is also available even after dissolution of marriage means after dissolution
They cannot give evidence what they have communicated in marriage they are not permitted to do so.
When privileged communication cannot be claimed?
Exception of privileged communication in marriage
The privilege under section 122 of Evidence act cannot be claimed in the following cases:
- Where there is a civil suit or criminal proceeding between husband and wife.
- Acts apart from communication, parties can testify the conduct of another though not as to what he said.( Party react or behaviour).
- If spouse who made the communication or his representative in interest gives his consent.(spouse itself given it’s consent to disclose).
- If the communication falls in the hand of third person, latter may give Evidence of the same.
Means (4) the communication between spouse were listen by third person some how then third person can give evidence of that communication and he will not subject to bar content under section 122.
Case’s of privilege communication during marriage Evidence Act
Ram Bharose v. State of UP (1954)
The court has held that under section 122, the act or conduct of the spouse apart from communication are not prohibited.
A wife can testify as to what her husband did on certain occasion though she cannot tell what he said to her.(conduct and behaviour not what communication b/w them).
M.C verghese v. T.J pannam (1970)
It was held that section 122 is only applicable on the spouse and not on 3rd person.
Communication taking place between husband and wife in presence of third person or overhead by them can be testified by the third person.
Queen empress v. Daroghue
The question arose whether communication sent by accused to his wife recovered by police during search of the house is admissable or not.
It was held that it can be relied upon as the wife was not being examined not she was compelled or prohibited to disclose the communication.
Indirectly such as in written without compiled or prohibited nor examine.
Privilege communication evidence as to affair’s of state
Prohibits a person to give evidence derived from (unpublished official) record relating to affairs of state.
Except with permission of head of department concerned.
Objective of privilege communication evidence as to affair of state
The objective of this clause in the protection of public interest.
It is based on the maxim that is
Salus populi est suprema lex meaning
meaning of “salud populi est suprema le” is , regard of public welfare is highest law.
Unpublished record meaning
Unpublished record means: undisclosed to general, except the official concerned. Which was not bringing public domain or which not explain to public only confined to its official head.
Cases of evidence as to affair of state privilege communication
State of Punjab v. Sodhi Sukhdev 1961
Supreme Court took a very narrow approach and held that where an objection is raised regarding the document being a privileged one under section 123.
The court has no jurisdiction to inspect the document first and then determine the question whether the document is privileged one or not
SP gupta v. Union of India 1982
This view in Sodhi Sukhdev case was over ruled in this case.
Supreme Court held that if there is any doubt whether the document relates to the affair of the state.
The court can inspect the document for the purpose of determining whether the disclose of the document would be injurious to public or not.
Validity of such objection shall be decided by the court (jurisdiction)
The court will tell whether the public interest is suffering or not.
Yashvant sinha v. CBI 2019
it was held that if any Publication has been done then the section 123 will not apply.
means unpublished record and its will not applied to documents that have already been published even if the document work obtained illegal by the newspaper.
Privilege section 124 in official communication Evidence Act
This section 124 allows a public officer not to disclose communication made him in official confidence when he consider that the public interest would suffered by the disclose.
He can waive this privilege and no objection can be made on such disclose.
Whether the communication is made in official confidence is a question of fact to be decided by Court.
Privilege communication in information as to Commission of offence Evidence Act section 125
Section 125 provides that when a Police officer or Magistrate start a case he cannot be compelled to say as to who gave him the information that the offence was being committed.
Similarly Revenue officer cannot be asked as to wear he got the information.
Privilege communication in professional communication Section 126-129 Evidence Act
Section 126 Evidence Act professional communication
Section 126 states that attorney, Vakil, pleader, legal advisor is Forbidden from disclosing without consent of client. (means which may who engaged in legal profession).
They cannot asked to give evidence of the communication between client and professional.
Communication made in course of his employment.
Consents or condition of any document which came to his knowledge.
Any advice given by him to his client.
Objective of the section 126 professional communication Evidence Act
Objective of section 126 Evidence Act to encourage litigants to communicate freely with lawyers.
Except with the consent of client means client himself give the consent to disclose so.
Example: if a man visit to lawyer or advocate and communicate that he has done forgery or murdered someone and he wishes to defend by him then these communication not be disclosed in court.
When privilege cannot be claimed in professional communication Evidence Act
Proviso to Section 126 lays down following instances when the privilege cannot be claimed under Section 126.
When such communication are for unlawful purpose having for their object the commission of crime.
Illustration (b) section 126: 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”.
Illustration (c) section 126
A, being charged with embezzlement(fraud), retain 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.
Exception of this section 126
When after the employment of the lawyer he observe that some crime has been committed.
1)When the client gives consent himself then the lawyer advocate can give evidence
2)When the information false into the hand of a third party.
3)When lawyer sue the client for professional purpose.
Section 127 Section 126 to applied to interpreters etc.
Sec-127 of Evidence Act state that section 126 applies to interpreters, clerks or servant of barristers , pleader , attorney, Vakils.
Section 128 privilege not waived by volunteering evidence
Sect-128 provides that if any party to a suit gives evidence at his own instance, he shall not be deemed to have consented to such disclose as mentioned in section 126.
(It not means that it given the consent to lawyer, Vakil, pleader etc. legal professional).
If party to the proceeding calls any such barrister, pleader, attorney or Vakil as a witness.
He shall be deemed to have consented to such disclose only if the party question such, lawyer on such matter (it not mean that it given the consent to disclose the communication between them ).
Except when he asked the question of that which have communicated between them, then it considered as the consent have granted to disclose.
Section 129 confidential communications with legal advisers Evidence Act
S-129 state that no party to the suit or proceeding Shall be compelled to disclose any confidential communication taken place between him and his professional legal advisor.
Unless the offers himself as a witness. (Section 126 on advocate or legal professional and the section 129 on client ).
If he offers himself as witness he may be compelled to disclose such communication as may appear to the court in order to explain any evidence which he has given.