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What is privileged communication?
For Example “A” on his trial before the Court of Session says that a deposition taken by a magistrate “B” was improper, No court can compel to answer the question of A, except upon the special order of a Superior court. Sometimes judges or magistrate can speak strictly so that witnesses can speak the truth,
So section 121 is aimed to give privilege to trail court whether he is a judge or magistrate. This section is intended to safeguard the dignity and integrity of the judiciary. Whatever tings comes to knowledge of Such judges or Magistrate, and during the period of trial his conduct are not liable to be questioned by the individuals. If such protection is not given then a large number of cases would be filed against the trial judges or magistrate which leads to the hindrance and destruction of integrity of the judicial proceeding.
However this protection is not extended to an importer judicial action, which may be raised before superior court and on a special order of such a superior court, such judge or magistrate may be questioned for the improper judicial Action
Privilege given to Husband and Wife during marriage under section 122
Section 122 of Indian Evidence Act states that “No person who is or has been married shall be compelled to disclose any communication made him during marriage by any person to whom he is or has been married, nor shall be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consent, except in suit between married person, or proceedings in which one married person is prosecuted for any crime committed against the other”
If we more simplify, Husband or wife cannot be compelled to disclose any such communication in any suit or proceeding against other. Neither wife can compel nor Husband to give statement against each other, not only compel, shall not be permitted also.
One more things in this section to be interpreted, “During marriage“meaning of this word is as continuance of the marriage. Any communication made either prior to marriage or after the termination of marriage is not protected under section 122 of Indian Evidence Act 1872
Under Section 122 of Indian Evidence Act 1872, a married person shall not be
There is distinct between section 120 and section 122, The object and purpose of section 120 and section 122 are quite different. Section 120 enables husband and wife can be a competent witness against each other. It has also laid down that in criminal case, The wife (if the accused is husband) or the husband (if accused is wife) shall be competent witness. 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 spouse and it extends to the interest of a third person whereas section 120 is confined to the interest of spouse only.
For an example, If “Husband” is prosecuted in a case murder, it cannot to be compel to his wife to disclose anything knows her.
But it is important that in Section 120 of Indian Evidence Act 1872 says that husband and wife is competent to witness against each other but section 122 privilege that they cannot be compelled to disclose any communication.
There is some judgment in regards to that
Ram Bharosey vs State of UP AIR 1954 SC 704
In this case, the Supreme Court held that the Statement of the accused to his is inadmissible under Section 122 but where there is required, the statement can be taken in due of proper judgment.
Where the circumstances is such as, statement of spouse is required to deliver proper judgment in this situation statement can be taken also.
Nagaraj vs State of Karnataka 1996 2901
In this case, it was held that where an accused is alleged to have made an extra judicial confession to his wife about raping and killing her sister, the evidence of 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.
M.C verghese vs T.J Pannam, AIR 1970 SC 1876
In this case, it was 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 during the covertures, it was held that in competent to do so
It has been further held that only communication is protected from disclosure but not the acts or conduct. The ban of section 122 is confined to communications only.
A wife can testify to the deeds of her husband of which she was eyewitness. The conduct of spouse is not protected and not privileged by section 122.
For example, The husband came home and hide knife in a box. The wife can depose the same fact before court, taking and entering into house and hiding knife comes under conduct but if husband says to his wife, “I will shoot a gun to my opponent”, the wife cannot depose these words before court.
State privilege or Privilege State Documents under section 123
Section 123 of Indian Evidence Act states that “No one shall be permitted to give any evidence derived from unpublished official records related to any affairs of state, except 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 states that in order to claim privilege there must be certain pre requisite condition namely
For an example, untill the governor signs a G.O entire correspondence and documents related to the G.O are unpublished records.
Case Law
State of U.P vs Raj Narain AIR 1975 SC 865
It has been held that blue-book which was marked as secret document and parts of which had already been disclosed in the Lok Sabha, debates and in writ proceeding before the high court could not be held to be unpublished record within the meaning of section 123.
Section 121 to 132 of Indian Evidence Act deals with Privilege Communication
Privilege means a right, advantage or immunity belonging to a person, class or office. The privilege of witness means the right of witness to withhold evidence to disclose certain matters. The communication that are not be compelled to be disclosed are called “Privilege Communication”
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 certain act. Privilege is an exemption from some duty, burden or attendance to which certain person is entitled
Interpretation of “commutation” is imparting or exchanging of information, sharing of knowledge by one with another, thing communicated, It means to impart, confer or transmit information.
The general rule is that a witness is bound to tell the whole truth and produce any documents in his possession or power to relevant to the matter in issue, but in privilege communication, cannot be compelled to testify
The Indian Evidence Act 1872 has provided certain privileges to certain class of witness.
Privilege given to judges and Magistrate under Section 121
Section 121 of Indian Evidence Act states “No Judge or Magistrate shall, except upon the special order of some court to which he is subordinate, be compel to answer any question as to his own conduct in court as such judge or magistrate or as to anything which he came to knowledge in court as such judge or magistrate, but he may be examined as to other matter which occurred in his presence which he was acting
If we simplify more this section, Section 121 of Indian Evidence Act 1872 gives privilege to Judge or Magistrate that they cannot be compelled to answer any question related to
Privilege means a right, advantage or immunity belonging to a person, class or office. The privilege of witness means the right of witness to withhold evidence to disclose certain matters. The communication that are not be compelled to be disclosed are called “Privilege Communication”
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 certain act. Privilege is an exemption from some duty, burden or attendance to which certain person is entitled
Interpretation of “commutation” is imparting or exchanging of information, sharing of knowledge by one with another, thing communicated, It means to impart, confer or transmit information.
The general rule is that a witness is bound to tell the whole truth and produce any documents in his possession or power to relevant to the matter in issue, but in privilege communication, cannot be compelled to testify
The Indian Evidence Act 1872 has provided certain privileges to certain class of witness.
- Privilege given to judges and Magistrate under Section 121
- Privilege given to Husband and Wife during marriage under section 122
- State privilege or Privilege State Documents under section 123
- Official Communication under section 124
- Privilege to Magistrate, or Police Officer or Revenue Officer regarding information to communication of offence under section 125
- Professional Communication under section 126
- Interpreters under section 127
- Privilege not waived by volunteering evidence under section 128
- Confidential Communication with legal advice under section 129
- Production of title Deeds of witness not a party under section 130
- Production of documents or electronic records which another person, having possession, could refuse to produce under section 131
- Privilege from incriminating question under section 132
Privilege given to judges and Magistrate under Section 121
Section 121 of Indian Evidence Act states “No Judge or Magistrate shall, except upon the special order of some court to which he is subordinate, be compel to answer any question as to his own conduct in court as such judge or magistrate or as to anything which he came to knowledge in court as such judge or magistrate, but he may be examined as to other matter which occurred in his presence which he was acting
If we simplify more this section, Section 121 of Indian Evidence Act 1872 gives privilege to Judge or Magistrate that they cannot be compelled to answer any question related to
- which was conducted in his court or
- any other matter came to his knowledge
For Example “A” on his trial before the Court of Session says that a deposition taken by a magistrate “B” was improper, No court can compel to answer the question of A, except upon the special order of a Superior court. Sometimes judges or magistrate can speak strictly so that witnesses can speak the truth,
So section 121 is aimed to give privilege to trail court whether he is a judge or magistrate. This section is intended to safeguard the dignity and integrity of the judiciary. Whatever tings comes to knowledge of Such judges or Magistrate, and during the period of trial his conduct are not liable to be questioned by the individuals. If such protection is not given then a large number of cases would be filed against the trial judges or magistrate which leads to the hindrance and destruction of integrity of the judicial proceeding.
However this protection is not extended to an importer judicial action, which may be raised before superior court and on a special order of such a superior court, such judge or magistrate may be questioned for the improper judicial Action
Privilege given to Husband and Wife during marriage under section 122
Section 122 of Indian Evidence Act states that “No person who is or has been married shall be compelled to disclose any communication made him during marriage by any person to whom he is or has been married, nor shall be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consent, except in suit between married person, or proceedings in which one married person is prosecuted for any crime committed against the other”
If we more simplify, Husband or wife cannot be compelled to disclose any such communication in any suit or proceeding against other. Neither wife can compel nor Husband to give statement against each other, not only compel, shall not be permitted also.
One more things in this section to be interpreted, “During marriage“meaning of this word is as continuance of the marriage. Any communication made either prior to marriage or after the termination of marriage is not protected under section 122 of Indian Evidence Act 1872
Under Section 122 of Indian Evidence Act 1872, a married person shall not be
- Compelled to disclose any communication made to him during marriage by any person to whom he is married
- Permitted to disclose any such communication, except
- When the person who made it or his representative in interest consent
Meaning of this part is that Even if one of the spouses is willing to disclose a communication, he or she will not be allowed to disclose it unless the person who made it or his representative in interest consents, except in suits or prosecutions between married persons. The consent cannot be implied. It is incumbent upon the court to ask the party against whom the evidence is to be given.
- In suit between husband and wife
- In criminal proceeding in which either husband or wife is prosecuted for any crime committed to other.
There is distinct between section 120 and section 122, The object and purpose of section 120 and section 122 are quite different. Section 120 enables husband and wife can be a competent witness against each other. It has also laid down that in criminal case, The wife (if the accused is husband) or the husband (if accused is wife) shall be competent witness. 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 spouse and it extends to the interest of a third person whereas section 120 is confined to the interest of spouse only.
For an example, If “Husband” is prosecuted in a case murder, it cannot to be compel to his wife to disclose anything knows her.
But it is important that in Section 120 of Indian Evidence Act 1872 says that husband and wife is competent to witness against each other but section 122 privilege that they cannot be compelled to disclose any communication.
There is some judgment in regards to that
Ram Bharosey vs State of UP AIR 1954 SC 704
In this case, the Supreme Court held that the Statement of the accused to his is inadmissible under Section 122 but where there is required, the statement can be taken in due of proper judgment.
Where the circumstances is such as, statement of spouse is required to deliver proper judgment in this situation statement can be taken also.
Nagaraj vs State of Karnataka 1996 2901
In this case, it was held that where an accused is alleged to have made an extra judicial confession to his wife about raping and killing her sister, the evidence of 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.
M.C verghese vs T.J Pannam, AIR 1970 SC 1876
In this case, it was 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 during the covertures, it was held that in competent to do so
It has been further held that only communication is protected from disclosure but not the acts or conduct. The ban of section 122 is confined to communications only.
A wife can testify to the deeds of her husband of which she was eyewitness. The conduct of spouse is not protected and not privileged by section 122.
For example, The husband came home and hide knife in a box. The wife can depose the same fact before court, taking and entering into house and hiding knife comes under conduct but if husband says to his wife, “I will shoot a gun to my opponent”, the wife cannot depose these words before court.
State privilege or Privilege State Documents under section 123
Section 123 of Indian Evidence Act states that “No one shall be permitted to give any evidence derived from unpublished official records related to any affairs of state, except 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 states that in order to claim privilege there must be certain pre requisite condition namely
- The document must be unpublished official record
- It should related to the affairs of state
- It can be admitted in evidence with the permission of the head of department concerned, who shall give or withhold such a permission
For an example, untill the governor signs a G.O entire correspondence and documents related to the G.O are unpublished records.
Case Law
State of U.P vs Raj Narain AIR 1975 SC 865
It has been held that blue-book which was marked as secret document and parts of which had already been disclosed in the Lok Sabha, debates and in writ proceeding before the high court could not be held to be unpublished record within the meaning of section 123.
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