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Definition of Privileged Communications & Protection of Communication Not Available To Whom, Ev.Act Definition of Privileged Communications & Protection of Communication Not Available To Whom, Ev.Act

Bronze medal Reporter RajesLawyer (Gopal Jiii), Advocate, Allahabad HC Posted 6 Oct 2020
Definition of Privileged Communications & Protection of Communication Not Available To Whom, Ev.Act

Hello Friends, Blog below is related to, Definition of Privileged Communications & protection of communication not available to whom, as given in Indian  Evidence Act, 1872 , the form of Questions with Answers, as oftenly asked in Judicial Mains, with intention to assist those Judicial Aspirants who are preparing for such examinations, alongwith its video link in the name of - SatyaRajLaws [email protected]      =  https://youtu.be/ypKz8jv6CN4

Qts.) Exceptions to ‘the general rule is that a witness is bound to tell the whole truth and to produce any document in his possession, relevant in issue.’ Define Privileged Communications & State protection of communication is not available to whom.

Ans.Privileged Communications (Incompetent witness – They becomes competent due to the exception given in the related section itself) – It has not been defined in the Evidence Act.

-Generally speaking, privileged meant special advantage or right and privileged communications meant such statements which are protected by law against disclosure in consideration of public policy.

Principles:-These communication is based upon following 4 principles:- a) Public Policy and Rule of Morality, b)To protect the mutual relationship, c) To maintain the secrecy of legal/social status, d) To maintain Supremacy of public welfare and public feelings (Salus populi suprema lex esto – public interest is the supreme law).

Kinds:-  Privileged Communication are of 2 kinds;

Which are privileged from disclosure as u/s 122, where husband and wife are prevented from the disclosure any communication made between them during their marriage.

Which is prohibited from being disclosed as mentioned in section 121 to 131.

  • Not – Such protection of communication are not available to, i) any Criminal Act apart from communication (Ram Bharose vs. UP, 1954, SC), ii) evidence by 3rd person, iii) on waiver of privilege without the consent of other spouses after dissolution of marriage, iv) in prosecution or suits between married persons.

Section 121 – Judges (r/w S. 19 of IPC & S.2 (8) of CPC) or Magistrates (Arbitrators appointed by the Court) – only on the special order of Superior Court, to which he is subordinate, be compelled to answer any questions as to his conduct in Court or as to anything which come to his knowledge in Court as such Judge or Magistrate.

  • E.g. – 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.
  • X is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Session Judge. B may be exempted as to what occurred.

Section 122 (Intra suit) – Communications during Marriage – No person who is or has been married shall be compelled to disclose any communication made to him/her during marriage by any person to whom he/she neither is or has been married; nor shall be permitted to disclose any such communication, unless consented their spouses, except in suits or prosecution between married persons.

  • This section is based upon 2 principles – a) to maintain the peace, pleasure & conjugal rights between the spouses and to maintain family bonding in the society; b) to maintain feeling of confidence in between husband & wife.
  • Problem:- Jolly informed John in the year 2016 that she had committed Theft of the Ornaments of her neighbour. Thereafter, Jolly and John get married in the year 2017. In the year 2019, prosecution were started against Jolly in respect of the theft of Ornaments. John is called to give evidence in this case. Can John disclose communications made to him by Jolly?
  • Solution:- Sec.122 of the Act prevents disclosure of such statements only as are made during marriage. Therefore no protection exists with regard to communication made between the parties before marriage. Here Jolly confessed to John about theft of ornaments in the year 2016 when they were not married, they got married in the year 2017, therefore bar of Sec.122 will not apply and John can be compelled to disclose the communication made to him by Jolly before their marriage.
  • MC Verghese vs. T J Ponan, 1970, SC – This section applies where communication has been made during marriage and not either prior or after dissolution of marriage.
  • Ram Bharose vs. State of UP, 1954, SC–Any communication made during the wedlock of the husband to wife and vice versa, is prevented from being proved in a court of law, but not any criminal conduct/act of either spouse seen by other.

Indian Law

English law

1) Here privilege to marriage communications remain maintained even after Divorce or Death of either party.

1) Here such privilege communications ceases to exist after Death or Divorce of either party.

2) The express consent of the either parties or their legal representatives are quite essential before disclosure of such communications.

2) Here is no need of consent of party or their legal representatives for disclosure of such communications.

Section 123 – Evidence as to affairs of State – 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 as the head of the department concerned, who shall give or withhold such permission as he thinks fit.

  • This section is based on the maxim:-Salus Populi Suprema Lex esto – Public interest is the supreme law.

Section 124 – Official Communications – 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.

  • M/s Dagi Ram vs. Triloki Chand Jain, 1992, SC. – Privilege under this section cannot be claimed when Court has summoned their production.

Section 125 – Information as to commission of offences – No Magistrates or Police officer shall be compelled to say whence he got any information as to commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to commission of any offence against the public revenue.

  • Revenue officer (all financial official as Bankers, etc,) meant any officer employed in or about the business of any branch of the public revenue.

Section 126 (r/w sec.127, 128 & 129) – Professional Communications – No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client’s express (written) consent, to disclose any communication (either any facts or advice) made to him in the course and for the purpose of his employment. (After Advocate Act 1961 – all barrister, attorney, pleader or vakil has been replaced by Advocate)

  • Exception – This section shall NOT protect from disclosure, i) Where client gave express consent to disclose it, ii) any such communication made in furtherance of any illegal purpose; ii) 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.
  • E.g.- 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) X, a client says to Y, an attorney – ‘I wish you to obtain possession of property by the use of 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) R wrote a letter to his lawyer X that he is going to commit theft and in case he is apprehended, he should be protected. Can X be witness against R in case of charge of theft – Yes; X can be witness as it has been made in furtherance of offence.
  • Legal advisor cannot disclose any such communication, even when their employment ceased or ended or client is Dead. 

Section 127 –Section 126, shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

Section 128 – Privilege not waived by volunteering evidence - if any party to a suit or proceeding gives evidence there at his own instance or otherwise, he shall not be deemed to have consented, thereby to such disclosure as mentioned u/s 126. 

Section 129 – Confidential communications with legal advisors – shall not be compelled to disclosed, unless he/she (clients) offers himself/herself as a witness, only for explaining such communications and not otherwise.

Section 130 – Production of title-deeds of witness not a party – i) shall not be compelled to produce his title-deeds, or ii) any document in virtue of which he holds any property, as pledgee or mortgagee, or iii) any document the production of which might tend to criminate him, iv) unless he has agreed in writing to produce them with the person seeking the production of such deeds.

Section 131 – Production of documents or electronic records which another person, having possession or control, could refuse to produce, unless such latter person consents to produce the same.

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