NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

PROJECT

ON

EVIEDNCE - II

CRITICAL ANALYSIS OF

Oriental Bank of Commerce, New Delhi

Vs.

M/s. S.R. Kishore & Co. and others

SUBMITTED TO: SUBMITTED BY:

Dr. Sanjay Yadav Sunaina Sharma

Assistant professor Roll no. 2008 BALLB 25

INTRODUCTION.......................................................................................................................................4
PRIVILEGED COMMUNICATIONS........................................................................................................4
Judges and Magistrates:...........................................................................................................................4
Marital Communications Privilege:.........................................................................................................5
Evidence as to affairs of the State..........................................................................................................10
Official Communication........................................................................................................................11
Information as to commission of offence...............................................................................................11
Privileged Professional Communication................................................................................................12
CONCLUSION.........................................................................................................................................14
BIBLIOGRAPHY:....................................................................................................................................15
INTRODUCTION

Privileged Communication is an exchange of information between two individuals in a confidential relationship. A

privileged communication is a private statement that must be kept in confidence by the recipient for the benefit of

the communicator. Even if it is relevant to a case, a privileged communication cannot be used as evidence in court

barring certain exceptions. Generally, the laws that guide civil and criminal trials are designed to allow the

admission of relevant evidence. Parties generally have access to all information that will help yield a just result in

the case; however privileged communications are an exception to this rule.

In my project I have analyzed the various privileges given under the Indian Evidence Act.

PRIVILEGED COMMUNICATIONS

The privileges of a witness have been laid down from Section 121 to 126.

 Cannot be compelled to answer (ss. 121,122, 124 and 125)

 Cannot be permitted to answer (ss. 123 and 126)

Judges and Magistrates:

The first privilege is given to the judges and magistrates. As per Section 121 no judge or a magistrate will be

compelled to answer any questions, except upon the special order of some Court of which he is subordinate –

1) as to his own conduct in Court as such Judge or Magistrate,

2) or as to anything which came to his knowledge in Court as such Judge or Magistrate but he may be

examined as to other matters which occurred in his presence whilst he was so acting.

A person having to exercise judicial function may give evidence in a case pending before him when such evidence

can and must be submitted to the independent judgment of other persons exercising similar judicial functions sitting
with him at the same time.1 However, the accused is entitled to have nothing stated against him in the judgment

which was not stated on oath in his presence, and which he had no opportunity of testing by cross-examination and

rebutting.2

This privilege extends to arbitrators also. In no case an arbitrator can be summoned to explain how he came at his

award.3

Marital Communications Privilege:

The right given to a husband and wife to refuse to testify in a trial as to confidential statements made to each other

within and during the framework of their spousal relationship is termed as a right of marital communications

privilege. It is a right that only legally married persons has. It protects the privacy of communications between

spouses by allowing them to refuse to testify about a conversation or a letter that they have privately exchanged as

marital partners.

The marital privilege is an exception to the general rule that all relevant evidence is admissible at trial. Privileges

exclude evidence from trial in order to advance some social goal. With the marital privilege, the goal of free and

open communication between spouses, which is believed to strengthen and act in furthering the marital relationship,

is given greater weight than the need for evidence (the information exchanged by the spouses) to resolve a legal

dispute.

Section 122 of Indian Evidence Act 1972 reads as under:

"No person who is or has been married shall be compelled to disclose any communication made to him during

marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such

communication unless the person who made it or his representative-in-interest, consents, except in suits between

married persons, or proceedings in which on married person is prosecuted for any crime committed against the

other."

1
The Queen v. Mookta Singh, (1870) 13 WR (Cr) 60.
2
Girish Chandra Ghose v. the Queen-Empress, (1893) 20 Cal 857
3
Union of India v. Orient Engg. And Commrl. Co. (1978) 1 SLR 632
Here is thus, a prohibition against the disclosure of any communication between spouses made during the

subsistence of marriage unless the person who made it or his representative-in-interest consents to the same. The bar

is not only against a spouse being compelled to disclose the same but also extends to cases where the spouse may be

inclined or willing to disclose the same. In the latter case, the disclosure can be permitted if the other spouse, who

made the same, agrees to the disclosure.

Principle Underlying This Section

Section 122 of the Indian Evidence Act recognizes the age-old concept of marital confidence that all

communications between spouses during the wedlock are sacrosanct. In England the Commission on Common Law

Procedure in its second report, submitted in 1853 observed as under:

"So much of the happiness of human life may fairly be said to depend on the inviolability of domestic confidence

that the alarm and unhappiness occasioned to society by invading its sanctity and compelling the public disclosure of

confidential communications between husband and wife would be a far greater evil than the disadvantage which

may occasionally arise from the loss light which such revelations might throw on the questions in dispute ...hence all

communications between them should beheld privileged."4

Nature of the Privilege

The privilege is not absolute. Because its effect is to deny evidence at trial, courts generally interpret it narrowly.

And it is not confined to cases where the communication sought to be given out in evidence is of a strictly

confidential character, but the prohibition is extended to all communications of whatever nature which pass between

husband and wife5 Section 122 provides against disclosure of a ' communication ' and not against disclosure of effect

of said communication6.

In M.C. Verghese Vs. T.J. Poonan and Anr. 7, Rathi, daughter of M. C. Verghese, was married to T. J. Poonan.

Poonan wrote from Bombay, letters to Rathi who was then residing with her parents at Trivandrum, which as it was

4
Pringle v. Pringle pg, 281, 288,
5
Nawab Howladar v. Emperor
6
Emperor v. Ramchandra Shankarshet Uravane
7
AIR 1970 SC 1876
claimed contained defamatory imputations concerning Verghese. Verghese then filed a complaint in the Court of the

District Magistrate, Trivandrum, against Poonan charging him with offence of defamation. Poonan submitted an

application raising two preliminary contentions –

(1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred

by law or expressly prohibited by law from disclosure; and (2) that uttering of a libel by husband to his wife was not

"publication" under the law of India and hence cannot support a charge for defamation, and prayed for an order of

discharge, and applied that he may be discharged.

In this case hence, Poonan’s contention that the letters addressed by him to his wife are not admissible in evidence

except with his consent- by virtue of Section 122 of the Indian Evidence Act, and since the only publication pleaded

is publication to his wife, and she is prohibited by law from disclosing those letters, no offence of defamation could

be made out were accepted.

Condition to Avail Privilege

# The most important condition for its use is a legal marriage. Courts will not permit its use by partners who merely

live together or by those who have a common-law marriage or a sham, or false, marriage.

In Nagaraj vs. State of Karnataka 8, it was held that he principle underlying Section122 of the Indian Evidence Act

would make it clear that though section 120 of the evidence act enables a spouse to tender evidence in a case against

the other spouse except in litigation between themselves either arising out of the marital relations or in a criminal

prosecution and in all other cases bars the disclosure of any statements made by one spouse to another during

subsistence of the marriage. The privilege under Section122 of the Indian Evidence Act extends to all

communications made to a spouse during subsistence of marriage by the other spouse. Such communications need

not be confidential and applies to all communications. The privilege is not to the witness, but to the spouse who

made the communication and therefore the witness cannot waive it at his or her will nor can the Court permit

disclosure even if he or she is willing to do.

8
1996 Cri LJ 2901, ILR 1996 KAR 2
# The presence of third persons at the time of the communication usually eliminates confidentiality and thus

destroys the privilege, although courts have granted exceptions for the presence of children.

A communication is not confidential and therefore not privileged, if it is overheard by a third party who is not an

agent of the listener. Agents include any person other than wife or husband. In Queen Empress vs. Donoghue 9 a

letter written by the husband to his wife was seized during the search of the house. The letter was held to be

admissible although it was seized in the presence of wife for there was nothing that she had done to put the letter

into the hands of the authority.

# The communication must have been made during the continuance of the marriage

The bar to the admissibility in evidence of the communications made during marriage attaches at the time when the

communication was made) and its admissibility will be adjudged in the light of the status at that date and not the

status at the date when evidence is sought to be given in court 10.

# Only communication are protected from disclosure but not the act or conduct

In Bhalchandra Namdeo Shinde Vs. The State of Maharashtra 11, the statement of witness Jaishree, who happens to

be the wife of appellant accused, revealed in the investigation that deceased Mahesh visited the house of accused on

5.6.1996 in the noon time and after having taken tea, left the house and proceeded towards S.T. bus stand. That time,

appellant was present in the house. It was further transpired in the investigation that the appellant was searching for

weapon and on being questioned by his wife Jaishree; he disclosed that he wanted to kill Mahesh Jadhav as he

suspected the character of his wife. The part of dialogue between the appellant accused and his wife Jaishree on the

point of preparation of crime was held to be inadmissible in evidence. However, what Jaishree actually witnessed

can very well be taken into consideration because what is witnessed by Jaishree is not a communication 12.

# The Privilege Does Not End After The Termination Of Marriage.

9
1899 ILR 22 Mag.1.
10
M.C. Verghese v. T J. Ponnam AIR 1970 SC 1876
11
2003(2) MhLJ 580
12
Ram Bharosey v. State of Uttar Pradesh AIR 1954 SC 704
In M.C. Verghese v. T J. Ponnam13 it was said that if the marriage was subsisting at the time when the

communications were made, the bar prescribed by Section 122 will operate. In Moss v. Moss 14 it was held that in

criminal cases, subject to certain common law and statutory exceptions, a spouse is incompetent to give evidence

against the other, and that incompetence continues after a decree absolute for divorce or a decree of nullity (where

the marriage was annulled was merely voidable) in respect of matters arising during cover time.

# The privilege cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes

committed against the other or against the children of the couple.

The exception to section 122 clearly states that the privilege cannot be claimed in certain situations, such as where

one spouse is subject to prosecution for crimes committed against the other or against the children of the couple.

This was in furtherance of upholding the principle of public interest and maintaining the sanctity of social

institutions in the society. The idea behind such a concept is that state would intervene in the bedrooms of its

citizens if it believes that privacy is being replaced by abuse and exploitation.

In Fatima v. Emperor15 Mrs. Fatima was convicted of murder of her stepson. The session court had admitted the

evidence of her confession to her husband on the ground that the alleged murder was Abdullah’s (her husband) son

and therefore an offence was committed against him.

A similar objective led to the enactment of the Protection of Women Against Domestic Violence Act, 2005 which

aims to provide quick relief to all those women who endure physical abuse. Legally also it would give them their

due and rights. To some extent it will put an end to the atrocities the woman/wife/live-in partner suffers at the hands

of a violent man. It will safeguard and benefit marriages and relationships from violent domestic abuse. 16

The new act contains five chapters and 37 sections with an objective to expand the definition of domestic violence,

wide enough to encompass every possibility as it covers all forms of physical, sexual, verbal, emotional and

13
AIR 1970 SC 1876
14
(1963) 2 QBD 829
15
AIR1914 Lah.380
16
According to the United Nations Development Programme, nearly 70 per cent married women in the age group of
15 to 49 years in India face "rape, beating and verbal abuse". Under the new Act, the men booked under the law
would face a minimum one-year jail term or a fine of Rs 20,000 (ch – V section 31). However, he could be booked
under different sections of CrPC for different acts of violence
economic abuse that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or

physical of the aggrieved person. 17 And finally bring it within the purview of a hardcore offence. Primarily meant to

provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in

partner or his relatives, chapter - V S. 32 (2) goes even further and says that “under the sole testimony of the

aggrieved person, the court may conclude that an offence has been committed by the accused.”

The Indian Evidence Act which applies to both civil and criminal law, finds its application to the Domestic Violence

Act also and since it discusses about a matrimonial offence, the protection of privilege under section 122 would not

be applicable in such cases of matrimonial offences against the husband.

Evidence as to affairs of the State

Section 123 of the Act involves two things:

(1) that the document is an unpublished official record relating to the affairs of the State, and

(2) that the officer at the head of the department concerned may give or withhold the permission for giving the

evidence derived therefrom.

Thus, the evidence derived from unpublished official records of the State cannot be given, except with the

permission of the officer at the head of the department concerned. The Court is bound to accept without question the

decision of the public officer. The only ground suffiecient to justify non-production of an official document marked

confidential is that production would not be in public interest, for example where disclosures would be injurious to

national defence or to good diplomatic relations or where the practice of keeping a class of documents secret is

necessary for the proper functioning of the public service. 18

Official Communication
This exception is embodied in Section 124 of the Evidence Act. It is designed to prevent the knowledge of official

papers, that is to say papers in official custody, beyond the people which would obtain the knowledge of that paper

in confidence whether express or implied. It would normally include all officers and also clerks of superior officers

17
Chapter – 2 section 3 of Protection of Women Against Domestic Violence Act, 2005

18
Tukaram v. King-Emperor, (1946) Nag 385
and might also apply to non-officials to whom such papers were disclosed on the understanding express or implied. 19

This is because public interest is of paramount importance as compared with the individual interests of a party in a

Court of Law. It is obviously essential to the welfare of the State that the names of parties who interpose in

situations of this kind should not be divulged, for, otherwise, - be it from fear or shame, or the dislike of being

publicly mixed up in inquiries of this nature, - few men would choose to assume the disagreeable part of giving or

receiving information respecting offences, and the consequences would be that many great crimes would pass

unpunished.20

The principle behind this section is that a public officer cannot be compelled to disclose communications made to

him in confidence if he considers that public interest would suffer by this disclosure. This section is confined to

public officers; section 123 embraces everyone. Section 123 deals with unpublished records; this section deals with

communication made in public confidence.

Information as to commission of offence

received by him as to the commission of an offence. 21 Similarly, a revenue officer cannot be compelled to say from

what source he got information as to any offence against the public revenue. Such officer may, if he likes, disclose

the name of the informant. It is of importance to the public for the detection of crimes that those persons who are the

channel by means of which the detection is made should not be unnecessarily disclosed.

Privileged Professional Communication

well planned body of law based on wise concepts of social justice, a judicial hierarchy comprised of the Bench and

the Bar, learned in the law and inspired by high principles of professional conduct and existence of suitable

generation to ensure fair trial. 22 A "privileged professional communication" is a protection awarded to a

communication between the legal adviser and the client. It is out of regards to the interest of justice, which cannot

go on without the aid of men skilled in jurisprudence in the practice of Courts, and in those matters affecting rights

and obligations, which form the subject matter of all judicial proceedings. If the privilege did not exist at all,
19
Pandit Chandra Dhar Tewari v. The Deputy Commissioner, Lucknow, (1938) 14 Luck 351.
20
TAYLOR, 12th Edn., s.941, p. 597
21
Asst. Collector of Central Exxcise v. T.K. Prasad. 1989 CrLJ (NOC) 28 Mad
22
C.L. Anand, General Principles of Legal Ethics, pg. 39
everyone would be thrown upon his own legal resources. Deprived all professional assistance, a man would not

venture to consult any skilled person, or would only dare to tell his counsel half his case. 

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached to professional

communication between a legal adviser and the client. Section 126 and 128 mention circumstances under which the

legal adviser can give evidence of such professional communication. Section 127 provides that interpreters, clerks or

servants of legal adviser are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose

the confidential communication which has taken place between him and his client.

Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to

1.      disclose 

§         any communication made to him by or on behalf of his client or

§         any advice given by him to his client in the course and for the purpose of his employment;

2.      to state the contents or conditions of any document with which he has become acquainted in the course and for

the purpose of his employment.

 There are certain exceptions to this rule. This Section does not protect from disclosure:

1.      any communication made in furtherance of any illegal purpose;

2.      any fact observed in the course of employment showing that any crime or fraud has been committed since the

commencement of the employment.

 The protection afforded under this Section cannot be availed of against an order to produce documents under

Section 91 of the Code of Criminal Procedure. The document must be produced, and then, under Section 162 of this

Act, it will be for the Court, after inspection of the documents, if it deems fit, to consider and decide any objection
23
regarding their production or admissibility.

Under Section 126, it is not that every communication made by a person to his legal adviser is protected from

disclosure but only those communications made confidentially with a view to obtain professional advice are

privileged. It should also be remembered that the privileged extends only after the creation of pleader-client

23
Ganga Ram v. Habib Ullah  (1935)58 All 364
relationship and not prior to that. 24 Also, communication must be made with the lawyer in his capacity as a

professional adviser25 and not as a friend.26 

Considering the exception to this rule, existence of an illegal purpose will prevent any privilege attaching to any

communication. Thus, communications made with a view to carry out a fraud are not privileged. 27

The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections prevent a legal

adviser from disclosing professional communication. Section 129 applies where a client is interrogated, whether he

is a party to a suit or not. Section 129 states that no person shall be compelled to disclose in the Court any

communication between him and his legal adviser unless he offers himself as witness. Thus, Section 129 makes a

person immune from compulsory process. This immunity may extend to third parties, such as consultant who are

recruited to help with the preparation of the case for trial. However, once the material has got out, it should not be

kept out of Court on account of its confidential nature any more than would any other confidential matter. 28 Also, if

a party becomes a witness of his own accord he shall, if the Court requires, be made to disclose everything necessary

to the true comprehension of his testimony.29

In a recent case, an unsigned and undated letter which was allegedly written by the advocate-accused to his client-

terrorist to remain absconding was held to be professional communication and not ‘ abetment’ and thus could not be

used against the advocate.30 But in another case, the Gujarat High Court held that disclosure was allowed where the

client desired to obtain decree for money on basis of forged promissory note.31 The rule is established for the

protection of the client, not of the lawyer, and is founded on the impossibility of conducting legal business without

professional assistance, and on the necessity, in order to render that assistance effectuated, of serving full and

unreserved intercourse between the two.32

24
Kalikumar Pal v. Rajkumar Pal  (1931)58 Cal 1379
25
Wallace v. Jefferson  2B 452
26
Smith v. Duniell  44LJCh 189
27
O’Rourke v. Darbishire  (1920) AC 581
28
Calcraft v. Guest  (1898)1 QB 759
29
Munchershav Bezanji v. The new Dhurumsey S. & W. Company   (188004 Bom 576
30
D. Veeraseharan v.  State of Tamil Nadu  1992 Cr. L.J. 2168 (Mad)
31
Gurunanak Provisions Stores v. Dalhonumal Savanmal   AIR 1994 Guj 31
32
Jones v. Great Central Railway  1910 AC 4
CONCLUSION

Privileged communications exist because society values the privacy or purpose of certain relationships. The

established privileged communications are those between wife and husband, clergy and communicant,

psychotherapist and patient, physician and patient, and attorney and client. The reason for which these relationships

are protected is to protect the general sanctity of marriage and religion. If the privilege did not exist at all, everyone

would be thrown upon his own legal resources. Deprived all professional assistance, a man would not venture to

consult any skilled person, or would only dare to tell his counsel half his case.  Certain communication also needs

to be made privileged in the public interest, for example where disclosures would be injurious to national defence or

to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper

functioning of the public service.

Books:

 Dr. Avatar Singh THE LAW OF EVIDENCE 15TH edition

 Ratanlal & DhirajLal THE LAW OF EVIDENCE 21st edition reprint 2008

Websites:

www.legalservice.com

www.manupatra.com