FACTS OF WHICH EVIDENCE CANNOT BE GIVEN (PRIVILIGED COMMUNICATIONS) :
There are some facts of which evidence cannot be given though they are relevant. Such facts are stated under Sections 122, 123, 126 and 127, where evidence is prohibited under those Sections. They are also referred to as ‘privileged communications’
A witness though compellable to give evidence is privileged in respect of particular matters within the limits of which he is not bound to answer questions while giving evidence. These are based on public policy and are as follows:
(i) Evidence of a Judge or Magistrate in regard to certain matters; (Section 121)
(ii) Communications during marriage; (Section 122)
(iii) Affairs of State; (Section 123)
(iv) Official communications; (Section 124)
(v) Source of information of a Magistrate or Police officer or Revenue officer as to commission of an offence or crime; (Section 125)
(vi) In the case of professional communication between a client and his barrister, attorney or other professional or legal advisor (Sections 126 and 129). But this privilege is not absolute and the client is entitled to waive it.
Under Section 122 of the Act, communication between the husband and the wife during marriage is privileged and its disclosure cannot be enforced. This provision is based on the principle of domestic peace and confidence between the spouses. The Section contains two parts; the first part deals with the privilege of the witness while the second part of the Section deals with the privilege of the husband or wife of the witness.
Evidence as to affairs of State
Section 123 applies only to evidence derived from unpublished official record relating to affairs of State. According to Section 123, no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
Section 126 to 129 deal with the professional communications between a legal adviser and a client, which are protected from disclosure. A client cannot be compelled and a legal adviser cannot be allowed without the express consent of his client to disclose oral or documentary communications passing between them in professional confidence. The rule is founded on the impossibility of conducting legal business without professional assistance and securing full and unreserved communication between the two. Under Sections 126 and 127 neither a legal adviser i.e. a barrister, attorney, pleader or vakil (Section 126) nor his interpreter, clerk or servant (Section 128) can be permitted to disclose any communication made to him in the course and for the purpose of professional employment of such legal adviser or to state the contents or condition of any document with which any such person has become acquainted in the course and for the purpose of such employment.
In general it is not open to a party to test the credit or impeach the “truthfulness of a witness offered by him. But the Court can in its discretion allow a party to cross examine his witness” if the witness unexpectedly turns hostile. (Section 154)