PRIVILEGE COMMUNICATION (S.121 to 125) 

What is a privilege communication? 

There are certain cases wherein the witness cannot be compelled to disclose any fact. And even if he wants to disclose he is not allowed to disclose that fact that communication is  privileged communication. Any witness whether husband or wife, and official  communication, related to affairs of state or any communication anything any witness will  not disclose that communicating even if he wants to disclose because law doesn’t permit it.  Privileged communication is given under Section 121-132 of Indian Evidence Act, 1872. 

Privilege communications are of various types: 

1. Judges and Magistrate: 

S.121 talks about the privilege communication of Judges and Magistrates. The bare reading  of this section says that no judge or magistrate can be compelled to answer regarding his own  conduct in Court while he was acting in the capacity of Judge or Magistrate. Also regarding  anything which came in his knowledge while he was performing the role of a judge or  Magistrate. 

There are two exceptions to the given section: 

1. A judge or magistrate can be compelled to answer any question only by special order of  superior court. 

2. A judge or magistrate can be examined reading other matters which occurred in his  presence while he was acting in his official capacity.  

Privileges of Judges and magistrate 

Judges and Magistrate are competent witness i.e. they may if so like testify. But they are not  compellable to answer any questions as to their conduct in Court as such Judges and  Magistrate. Judge means any person who has been officially appointed as a Judge. But it also  includes any person who is empowered to give judgement in civil or criminal case. 

Judge may waive his privilege or be ordered by the Superior Curt to testify. 

S.121 is the privilege of a witness i.e of a judge or magistrate who is to be examined. The  Judge or Magistrate can voluntarily waive off the privilege granted by law. Furthermore a  Judge or magistrate cannot claim any privilege if he has been specifically order by his  superior court. 

2. Communication between husband and wife  

Under Section 122 protects disclosure of communication between husband and wife. The  basic purpose of enacting of this section was that if one of the spouses gives admission of  such testimony there is high tendency that it will likely disturb the peace of the family. It will lead to domestic fights and damage the mutual trust and confidence of both the spouses against each  other. 

The section can be divided in two parts. One part says that if a witness doesn’t want to  disclose a communication and law declare that the witness cannot be compelled to disclose it.  While the second part talks about a situation where the witness wants to disclose the  communication but witness cannot disclose it as it is specifically prohibits by except with the  permission of the spouse. The section also applies to communication happening between  husband and wife during continuance of marriage between them or even after divorce  between them.  

Landmark Case: 

1. Ram Bharosey v. State A, 954 SC 704 

In this case evidence was given by wife that she saw the accused (her husband) on early  hours on 27th May 1952 which is the day of murder. She saw that he came down from  rooftop then went to bousha kothri and then had a bath there and came out wearing a dhoti. 

Whether this communication is privilege U/S 122? The court held that it is merely the acts  and not any communication was made by accused to his wife. 

Exceptions to S.122: 

There are three exceptions to Section 122. These are:-

1. Evidence by third person:

If the communication between the spouses where a third person  was present or which he overheard may be proved by him. The section doesn’t prevent a  communication being proved by third person. 

2. Waive off of privilege 

If the person who is communicating himself waives off privilege. This is so he cannot later claim the  protection under this section because he has previously waived off his privilege which was  given. Privilege can only be waive off by spouse who made that communication or his/her  representative with interest. . 

In the case of Vishal Kaushik v. Family Court, AIR 2015 Raj.146, it was held that tape  recorded communications between husband and wife if they are recorded without the consent  of other spouse it will not be admissible in the court of law and be used as evidence. And it  will also amount to violation of right of privacy under article 21 of Indian Constitution. 

3. Evidence as to affairs of State 

Section 123 mainly talks about two things. (a) document is an unpublished official record  relating to affairs of state. (b) the officer of head of department may give or deny the  permission for giving the evidence derived from it. On the ground of public policy such  evidence cannot be given without the prior permission of head of department.

Also court cannot question his decision. Regarding what amounts to unpublished records it  means any record which is not available in public domain is an unpublished record. 

There are mainly two questions while dealing with this section: 

(a) Whether the document in respect of which privilege is claims is really a document which  is unpublished relating to any affairs of state? 

(b) Whether the disclosure of the contents of the documents will be against public interest Landmark case: 

1. Raghunath v. R, A 1946 L 459 

In this case it was held that the question regarding publication is relevant and will always  remain relevant. Privilege cannot be ascertained unless it has already been ascertained. So  unpublished is essential. 

Official communication  

S.124 is somewhat similar to S.124 which we have discussed above. The main difference  between the two sections is that is that S.123 deals with the privilege that arises in respect of  documents. Whereas in S.124 privilege arises in respect of communication and official  confidence. 

In simple terms no public officer shall be compelled to disclose any communication which is  in public interest. This section mainly focuses on two terms: 

1. Compelled to disclose communication  

It says that no one can compel the public officer, so there is total discretion on the public  officer whether to disclose or not. It totally depends upon the will of the public officer. So the  word there in this section is “shall not be compelled”.  

2. Communication  

Communication can be any communication but it should be made in official confidence. It is so official confidence is necessary but he needs to decide that the communication shouldn’t  affect public interest. 

Landmark case 

1. S. v. Appanna 1962, I And WR 256 

It was held that opinion of the public officer is conclusive. He will decide whether  privilege is to be claimed or not. But he needs to see whether public interest is being suffered  or not. It was also said that a report made by one public officer to another while discharge of  his duties will come under the ambit of both S.123 and S.124. 

The two main questions in the section 124 are:

1. Whether the communication in question was made to public officer in official confidence  or not? 

It is the court which will decide whether it was made in official confidence or not. Court has  power to take documents and other evidences as given U/S162. 

2. Whether public interest will suffer by the injury by disclosure? 

That question will be decided by the public officer. He is the sole judge to decide upon the  same.  

Information as to commission of offence 

As per S.125, Any Magistrate or police officer cannot be compelled to say from where he got  the information relating to commission of offence. In this section the word used is “shall be  compelled” so discretion is upon them. The section further says that No revenue officer shall  be compelled to disclose any information relating to commission of offence which is totally  against public revenue.  

Privilege may be waived 

The privilege which is granted under this section can only be waived by the person who has  got the privileges under this section. The is the sole decider when he wants to waive off his  privilege which is granted to him  

Limitations of S.125 

1. This section only applies to identity of the identity of the informant and not to the content of his statement. In the case of Majju v. Lachman, 46 A 671, it was clearly held by the court  that it only applies till identity of informant and not in the contents of his statement. So  police, magistrate or revenue officer totally can claim privilege regarding disclosing the name  of the informant. If the identity of the informant is already known and there is no reason for  concealment then no such privilege will be available. 

2. It is the official duty and also the responsibility of the officers to protect the identity so that  some evidence must not get tampered or any danger to his life. 

Edited by Megha Jain