Chapter 9: Bharatiya Sakshya Adhiniyam, 2023

CHAPTER IX: OF WITNESSES

This chapter details who is competent to give evidence and what is considered privileged information that a person cannot be forced to disclose.

Section 124: Who may testify.

• Legal Text: All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
• Simple English (The Competency Rule): Everyone is presumed competent to be a witness. The only way a court can block someone from testifying is if they are physically or mentally unable to understand the questions or give rational answers (e.g., a very young child who doesn’t grasp truth vs. lie, or someone in an advanced stage of dementia).
• Example: A 95-year-old eye-witness is called to testify. Although elderly, she answers all questions clearly and rationally. She is a competent witness. Her age only affects her credibility (how much weight the judge gives her testimony), not her competency to speak.
• Explanation: A person of unsound mind is not incompetent to testify, unless he is prevented by his unsoundness of mind from understanding the questions put to him and giving rational answers to them.
  • Simple English: Mental illness (unsound mind) does not automatically disqualify someone. They can still testify if they can understand the specific questions and reply logically.

Section 125: Witness unable to communicate verbally.

• Legal Text: A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court and evidence so given shall be deemed to be oral evidence…
• Simple English (The Mute Witness Rule): A person who cannot speak (or has a hearing/speech disability) is still a competent witness. They can give evidence using writing, sign language, or other means, provided they do so openly in court. This evidence is treated the same as spoken (oral) evidence.
• Proviso: …if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.
  • Simple English (Mandatory Safeguards): If a witness cannot speak, the court must use an interpreter (like a sign language expert) or a special educator to help record the statement, and the entire process must be videographed (recorded on video) for fairness and accuracy.
• Example: A key witness to a road accident is a person who uses Indian Sign Language (ISL). The court must arrange for a certified ISL interpreter to translate the questions and answers, and the entire testimony must be recorded on video.

Section 126: Competency of husband and wife as witnesses in certain cases.

• Section 126(1): In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.
  • Simple English (Civil Cases): In any civil matter (like a property dispute or divorce), both spouses (husband and wife) are fully competent to testify.
  • Example: In a property dispute between Mr. A and Mr. B, Mrs. A (Mr. A’s wife) can be called as a witness by either side.
• Section 126(2): In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
  • Simple English (Criminal Cases): In a criminal case, the spouse of the accused is a competent witness and can be called to testify.
  • Example: Mr. A is accused of fraud. Mrs. A can be called to testify against him. (Note: Whether she can be compelled to disclose private communication is covered by the next section, 128).

Section 127: Judges and Magistrates.

• Legal Text: No Judge or Magistrate shall…be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, 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.
• Simple English (Judicial Privilege): Judges and Magistrates cannot be forced to testify about:
  • Their judicial conduct (e.g., why they made a specific ruling).
  • Facts learned while performing their official judicial duties (e.g., what was said in a deposition taken before them).
• Exception: They can be questioned about things that happened in their presence but were not part of their official judicial knowledge (e.g., if a physical fight broke out in the courtroom).
• Crucial Condition: They can be compelled to testify on privileged matters, but only upon a special order of a higher, superior Court.
• Example (Illustration c): A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.
  • Breakdown: The judge (B) can testify about the attempted murder because it was a fact (a crime) that occurred in the courtroom and is separate from the judge’s official judicial function in the trial.

Section 128: Communications during marriage.

• Legal Text: 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 one married person is prosecuted for any crime committed against the other.
• Simple English (Marital Privilege): This is a key privilege. The law protects the private communications made between spouses during the marriage.
  1. A spouse cannot be compelled to reveal what their partner told them privately.
  2. They cannot even be permitted to reveal it without the partner’s consent.
• The Privilege Continues: It applies even if the couple is divorced or the partner is dead.
• The Exceptions: The privilege does not apply in these situations:
  1. Suits between the married persons themselves (e.g., a divorce case).
  2. Criminal proceedings where one spouse is the victim of the crime committed by the other (e.g., a domestic violence case).
• Example: During a divorce case (Exception 1), the wife can reveal an email her husband sent her during the marriage. However, in a fraud case against the husband (not involving the wife as a victim), the wife cannot be forced to testify that her husband confessed the fraud to her in private five years ago.

Section 129: Evidence as to affairs of State.

• Legal Text: 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.
• Simple English (State Privilege): This is a privilege that protects sensitive government information. No one can be forced to present or testify about unpublished official records (like secret policy memos, cabinet notes, or confidential defense documents) if the information relates to “affairs of State” (national security, foreign policy, etc.).
• The Authority: This information can only be produced if the Head of the relevant government Department gives explicit permission. That officer has the final authority to decide whether disclosure would harm public interest.
• Example: A defense contractor sues the government over a rejected bid. The contractor demands sight of the Ministry of Defence’s internal minutes detailing their decision process. The Defence Secretary (Head of the Department) can refuse to permit the disclosure if they believe it would compromise national security.

Section 130: Official communications.

• Legal Text: 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.
• Simple English (Official Confidence Privilege): This is a broader privilege protecting the internal communication of public officers. A public officer cannot be forced to reveal things told to them in official confidence if they believe revealing it would harm the public interest.
• The Authority: The individual public officer makes the decision (unlike Sec 129, where the department head decides).
• Example: A municipal commissioner receives a confidential briefing from an engineer about a potential structural defect in a new public bridge. During a lawsuit over a construction payment, the opposing lawyer asks the commissioner to disclose the briefing notes. The commissioner can refuse, arguing that publicly releasing that specific, sensitive information prematurely would cause public panic and thus “suffer public interests.”

Section 131: Information as to commission of offences.

• Legal Text: No Magistrate or police officer shall be compelled to say when he got any information as to the commission of any offence, and no revenue officer shall be compelled to say when he got any information as to the commission of any offence against the public revenue.
• Simple English (Informant Privilege): This privilege protects the timing and source of information used by key officials. No Police Officer, Magistrate, or Revenue Officer can be forced to reveal:
  • When they first learned about a crime.
  • Who gave them the information (this protects informants and the methods of investigation).
• Example: In a drug trafficking case, the defense attorney tries to ask the investigating officer, “Exactly when did your informant call you with this tip, and what was the informant’s name?” The officer is legally protected by this section from revealing that information.
• Explanation: “revenue officer” means any officer employed in or about the business of any branch of the public revenue.
  • Simple English: A “Revenue Officer” includes anyone working for government departments related to taxes, customs, or official income collection (e.g., an Income Tax Officer or GST Officer). This ensures they don’t have to reveal sources regarding financial crimes.

Section 132: Professional communications.

• Section 132(1): No advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate… or to state the contents or condition of any document…or to disclose any advice given by him to his client…
• Simple English (Lawyer-Client Privilege): This is the core rule for legal confidentiality. A lawyer cannot be permitted to reveal:
  • What their client told them.
  • The contents of documents they saw.
  • The advice they gave.
• Condition: This only applies to communications made in the course and for the purpose of the professional relationship.
• Example (Illustration a): A client tells his lawyer, “I have committed forgery, and I wish you to defend me.” This communication is protected. The lawyer cannot disclose it, as defending a guilty person is a legal and protected service.
• Proviso (a): Provided that nothing in this section shall protect from disclosure of— any such communication made in furtherance of any illegal purpose;
  • Simple English (Future Crime Exception): The privilege does not apply if the client consulted the lawyer to get advice or help in committing a future crime or fraud.
  • Example (Illustration b): A client tells his lawyer, “I wish to obtain possession of property by the use of a forged deed on which I request you to sue.” This is a communication in furtherance of a criminal purpose (using a forged document), so it is not protected and must be disclosed.
• Proviso (b): any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.
  • Simple English (Observing New Crime/Fraud): The privilege does not apply to facts the lawyer physically observed after they were hired, which show a crime or fraud has been committed since their service began.
  • Example (Illustration c): A lawyer is defending a client for embezzlement. During the trial, the lawyer notices a new entry has been made in the client’s account book that was not there when he first inspected the book. The lawyer can disclose this fact, as it shows an attempted fraud (tampering with evidence) committed after the professional relationship began.
• Section 132(2): It is immaterial whether the attention of such advocate…was or was not directed to such fact by or on behalf of his client.
  • Simple English: The lawyer’s duty to disclose a newly observed crime/fraud exists, whether or not the client specifically pointed it out or mentioned it.
• Explanation (Duration): The obligation stated in this section continues after the professional service has ceased.
  • Simple English: Lawyer-client privilege is permanent. A former lawyer cannot reveal confidential information, even if they quit or the client hires a new lawyer.
• Section 132(3): The provisions of this section shall apply to interpreters, and the clerks or employees of advocates.
  • Simple English (Extension): The same privilege rules apply to anyone working for the lawyer (secretaries, paralegals, or interpreters). The client’s communication to them is just as protected.

Section 133: Privilege not waived by volunteering evidence.

• Legal Text: If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 132; and, if any party to a suit or proceeding calls any such advocate, as a witness, he shall be deemed to have consented to such disclosure only if he questions such advocate, on matters which, but for such question, he would not be at liberty to disclose.
• Simple English (Protecting the Privilege): This prevents the accidental loss of lawyer-client privilege.
  1. Client Testifies: If the client decides to testify about the facts of their case, they do not automatically lose the privilege regarding their private talks with their lawyer.
  2. Client Calls Lawyer: If the client calls their lawyer as a witness, they only waive the privilege on the specific matters they ask the lawyer about.
• Example: A plaintiff (client) testifies in court about her injury. The opposing lawyer tries to ask, “Did you tell your lawyer you were actually fine the next day?” The plaintiff’s lawyer can object and the court will protect the privilege, as the client’s testimony about her injury didn’t automatically open up her private communication with her lawyer.

Section 134: Confidential communication with legal advisers.

• Legal Text: No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
• Simple English (Compelling the Client): This is the flip side of the lawyer’s privilege (Sec 132).
  1. The client cannot be compelled to reveal confidential talks with their lawyer.
  2. BUT, if the client chooses to testify about the case, they might be forced to reveal those talks if the court finds it absolutely necessary to properly understand or explain the evidence the client just gave.
• Example: The client testifies that they didn’t understand the contract they signed. On cross-examination, the court may compel the client to reveal the advice their lawyer gave them about the contract only if that advice is necessary to explain whether the client actually understood it or is pretending not to.

Section 135: Production of title-deeds of witness not a party.

• Legal Text: No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them…
• Simple English (Protecting Third Parties): This protects people who are not involved in the lawsuit (third-party witnesses) from being forced to produce private, sensitive documents like:
  1. Title deeds (proof of their own property ownership).
  2. Mortgage papers (proof they loaned money using property as security).
  3. Documents that might incriminate them (lead to a crime or penalty).
• The Exception: This protection is lost if the third-party witness has already agreed in writing with the person requesting the document to produce it.
• Example: A lawsuit is over who owns a specific fence. The neighbor is called as a witness. The opposing lawyer demands the neighbor produce the title deed to their own house to check the property line. The neighbor is protected by this section and does not have to produce their personal title deed, as they are not a party to the suit.

Section 136: Production of documents or electronic records which another person, having possession, could refuse to produce.

• Legal Text: No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.
• Simple English (Agent/Custodian Privilege): This prevents someone from getting around a privilege by demanding the document from the person who is simply holding it.
• If a document is privileged (e.g., a letter from a husband to his wife, protected under Sec 128), and the husband keeps it in his secretary’s office, the court cannot compel the secretary to produce it, because the husband (the person who owns the privilege) could refuse to produce it. The secretary can only produce it if the husband consents.
• Example: A law firm (A) stores its client’s confidential case file (privileged) in a digital vault managed by a third-party IT company (B). The opposing side sues B to get the file. Company B can refuse to produce the file because A (the law firm/client) could refuse to produce it. B can only produce it if A consents.

Section 137: Witness not excused from answering on ground that answer will criminate.

• Legal Text: A witness shall not be excused from answering any question as to any matter relevant to the matter in issue…upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness…
• Simple English (No Right to Silence in the Stand): This is a critical rule in Evidence Law. Once a witness takes the stand, they cannot refuse to answer a question simply because the truthful answer might make them look guilty of a crime, or expose them to a penalty or forfeiture. They must answer relevant questions.
• Proviso (Immunity from Prosecution): …Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
  • Simple English (The Protection): This is the trade-off. While the witness must answer, the law grants them immunity for that specific answer. The answer itself:
    1. Cannot be used to arrest or prosecute them for the underlying crime.
    2. Can only be used against them if they lied in their answer (perjury).
• Example: A witness is asked if they were driving the car involved in the accident. They must answer, even if they were driving drunk (which is a crime). They answer, “Yes.” That answer cannot be used to prosecute them for drunk driving, but it can be used in the current accident lawsuit.

Section 138: Accomplice.

• Legal Text: An accomplice shall be a competent witness against an accused person; and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.
• Simple English (Accomplices Can Testify): An accomplice (someone who was involved in the crime but has turned witness for the prosecution) is a competent witness.
• Key Requirement: A conviction is not illegal if it is based on the accomplice’s testimony, provided it is corroborated (backed up by other independent evidence).
• Example: In a bank robbery case, one of the robbers (the accomplice) agrees to testify against the other two. His testimony is legally valid. However, the judge will look for evidence that backs up his story—like CCTV footage or phone records—because he is an unreliable witness. If the judge finds the accomplice’s story is backed up by other evidence, a conviction is legal.

Section 139: Number of witnesses.

• Legal Text: No particular number of witnesses shall in any case be required for the proof of any fact.
• Simple English (The Single Witness Rule): The law does not require a specific number of witnesses to prove any fact.
• Key Implication: A fact can be legally proven by the testimony of a single, credible witness (even one witness is enough). Conversely, ten witnesses who are all found to be unreliable or untruthful are not enough.
• Example: In a civil dispute over a verbal agreement, only one person (the plaintiff) claims the agreement happened, and the other side (the defendant) denies it. The court can still rule in favor of the plaintiff if the judge finds the plaintiff’s testimony to be completely trustworthy and reliable, even without a second witness.