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(2) In criminal proceedings against any person, the husband or wife of such person,
respectively, shall be a competent witness.
127.No Judge or Magistrate shall, except upon the special order of some Court to
which he is subordinate, 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.
Illustrations.
(a) A, on his trial before the Court of Session, says that a deposition was improperly
taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except |
upon the special order of a superior Court.
(b) 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.
(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.
128.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.
129.No one shall be permitted to give any evidence derived from unpublished official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. |
130.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.
131.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.
Explanation.—"revenue officer" means any officer employed in or about the business
of any branch of the public revenue.
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, by or on behalf of his client, or to state the contents or
condition of any document with which he has become acquainted in the course and for the
purpose of his professional service, or to disclose any advice given by him to his client in
the course and for the purpose of such service:
Provided that nothing in this section shall protect from disclosure of— |
(a) any such communication made in furtherance of any illegal purpose;
(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.Competency
of husband and |
wife as
witnesses in
certain cases.
Judges and
Magistrates. |
Communications
during
marriage.
Evidence as to
affairs of |
State.
Official
communications.
Information
as to |
commission of
offences.
Professional
communications.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY37_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________(2) It is immaterial whether the attention of such advocate referred to in the proviso to
sub-section (1), was or was not directed to such fact by or on behalf of his client. |
Explanation.—The obligation stated in this section continues after the professional
service has ceased.
Illustrations.
(a) A, a client, says to B, an advocate—"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) A, a client, says to B, an advocate—"I wish to obtain possession of property by
the use of a 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)A, being charged with embezzlement, retains B, an advocate, to defend him. In the |
course of the proceedings, B observes that an entry has been made in A's account book,
charging A with the sum said to have been embezzled, which entry was not in the book at
the commencement of his professional service. This being a fact observed by B in the
course of his service, showing that a fraud has been committed since the commencement of
the proceedings, it is not protected from disclosure. |
(3) The provisions of this section shall apply to interpreters, and the clerks or
employees of advocates.
133.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.
134. 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.
135.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 with the person seeking the production
of such deeds or some person through whom he claims.
136. 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.
137.A witness shall not be excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the
ground that the answer to such question will criminate, or may tend directly or indirectly to
criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such |
witness to a penalty or forfeiture of any kind:
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 forgiving false evidence by such answer.Privilege not
waived by |
volunteering
evidence.
Confidential
communication
with legal |
advisers.
Production of
title-deeds of
witness not a
party. |
Production of
documents or
electronic
records which
another |
person, having
possession,
could refuse to
produce.
Witness not |
excused from
answering on
ground that
answer will
criminate.38THE GAZETTE OF INDIA EXTRAORDINARY[Part II—_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________138.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.
139.No particular number of witnesses shall in any case be required for the proof of
any fact.
CHAPTER X |
OF EXAMINATION OF WITNESSES
140.The order in which witnesses are produced and examined shall be regulated by
the law and practice for the time being relating to civil and criminal procedure respectively,
and, in the absence of any such law, by the discretion of the Court.
141.(1) When either party proposes to give evidence of any fact, the Judge may ask |
the party proposing to give the evidence in what manner the alleged fact, if proved, would
be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved,
would be relevant, and not otherwise.
(2) If the fact proposed to be proved is one of which evidence is admissible only upon
proof of some other fact, such last mentioned fact must be proved before evidence is given |
of the fact first mentioned, unless the party undertakes to give proof of such fact, and the
Court is satisfied with such undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact being first
proved, the Judge may, in his discretion, either permit evidence of the first fact to be given
before the second fact is proved, or require evidence to be given of the second fact before |
evidence is given of the first fact.
Illustrations.
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be
dead, which statement is relevant under section 26. The fact that the person is dead must be
proved by the person proposing to prove the statement, before evidence is given of the |
statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The
fact that the original is lost must be proved by the person proposing to produce the copy,
before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is |
proposed to prove that he denied the possession of the property. The relevancy of the
denial depends on the identity of the property. The Court may, in its discretion, either
require the property to be identified before the denial of the possession is proved, or permit
the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact A which is said to have been the cause or effect of a |
fact in issue. There are several intermediate facts B, C and D which must be shown to exist
before the fact A can be regarded as the cause or effect of the fact in issue. The Court may
either permit A to be proved before B, C or D is proved, or may require proof of B, C and D
before permitting proof of A.
142.(1) The examination of a witness by the party who calls him shall be called his |
examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his
cross-examination.
(3) The examination of a witness, subsequent to the cross-examination, by the party
who called him, shall be called his re-examination.Accomplice. |
Number of
witnesses.
Order of
production
and |
examination
of witnesses.
Judge to decide
as to
admissibility |
of evidence.
Examination
of witnesses.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY39_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________143.(1) Witnesses shall be first examined-in-chief, then (if the adverse party so
desires) cross-examined, then (if the party calling him so desires) re-examined.
(2) The examination-in-chief and cross-examination must relate to relevant facts, but |
the cross-examination need not be confined to the facts to which the witness testified on
his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in
cross-examination; and, if new matter is, by permission of the Court, introduced in
re-examination, the adverse party may further cross-examine upon that matter. |
144.A person summoned to produce a document does not become a witness by the
mere fact that he produces it, and cannot be cross-examined unless and until he is called as
a witness.
145.Witnesses to character may be cross-examined and re-examined.
146.(1) Any question suggesting the answer which the person putting it wishes or |
expects to receive, is called a leading question.
(2) Leading questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in a re-examination, except with the permission of the Court.
(3) The Court shall permit leading questions as to matters which are introductory or
undisputed, or which have, in its opinion, been already sufficiently proved. |
(4) Leading questions may be asked in cross-examination.
147.Any witness may be asked, while under examination, whether any contract,
grant or other disposition of property, as to which he is giving evidence, was not contained
in a document, and if he says that it was, or if he is about to make any statement as to the
contents of any document, which, in the opinion of the Court, ought to be produced, the |
adverse party may object to such evidence being given until such document is produced,
or until facts have been proved which entitle the party who called the witness to give
secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons
about the contents of documents if such statements are in themselves relevant facts. |
Illustration.
The question is, whether A assaulted B. C deposes that he heard A say to D—"B
wrote a letter accusing me of theft, and I will be revenged on him". This statement is
relevant, as showing A's motive for the assault, and evidence may be given of it, though no
other evidence is given about the letter. |
148.A witness may be cross-examined as to previous statements made by him in
writing or reduced into writing, and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it is intended to contradict him by the writing,
his attention must, before the writing can be proved, be called to those parts of it which are
to be used for the purpose of contradicting him. |
149.When a witness is cross-examined, he may, in addition to the questions
hereinbefore referred to, be asked any questions which tend—
(a) to test his veracity; or
(b) to discover who he is and what is his position in life; or
(c) to shake his credit, by injuring his character, although the answer to such |
questions might tend directly or indirectly to criminate him, or might expose or tend
directly or indirectly to expose him to a penalty or forfeiture:Order of
examinations.
Cross-
examination |
of person
called to
produce a
document.
Witnesses to |
character.
Leading
questions.
Evidence as to
matters in |
writing.
Cross-
examination
as to previous
statements in |
writing.
Questions
lawful in
cross-
examination.40THE GAZETTE OF INDIA EXTRAORDINARY[Part II—_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Provided that in a prosecution for an offence under section 64, section 65, section 66, |
section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita,
2023 or for attempt to commit any such offence, where the question of consent is an issue,
it shall not be permissible to adduce evidence or to put questions in the cross-examination
of the victim as to the general immoral character, or previous sexual experience, of such
victim with any person for proving such consent or the quality of consent. |
150.If any such question relates to a matter relevant to the suit or proceeding, the
provisions of section 137 shall apply thereto.
151.(1) If any such question relates to a matter not relevant to the suit or proceeding,
except in so far as it affects the credit of the witness by injuring his character, the Court shall
decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, |
warn the witness that he is not obliged to answer it.
(2) In exercising its discretion, the Court shall have regard to the following
considerations, namely:—
(a) such questions are proper if they are of such a nature that the truth of the
imputation conveyed by them would seriously affect the opinion of the Court as to |
the credibility of the witness on the matter to which he testifies;
(b) such questions are improper if the imputation which they convey relates to
matters so remote in time, or of such a character, that the truth of the imputation would
not affect, or would affect in a slight degree, the opinion of the Court as to the
credibility of the witness on the matter to which he testifies; |
(c) such questions are improper if there is a great disproportion between the
importance of the imputation made against the witness's character and the importance
of his evidence;
(d) the Court may, if it sees fit, draw, from the witness's refusal to answer, the
inference that the answer if given would be unfavourable. |
152.No such question as is referred to in section 151 ought to be asked, unless the
person asking it has reasonable grounds for thinking that the imputation which it conveys
is well-founded.
Illustrations.
(a) An advocate is instructed by another advocate that an important witness is a |
dacoit. This is a reasonable ground for asking the witness whether he is a dacoit.
(b)An advocate is informed by a person in Court that an important witness is a dacoit.
The informant, on being questioned by the advocate, gives satisfactory reasons for his
statement. This is a reasonable ground for asking the witness whether he is a dacoit.
(c) A witness, of whom nothing whatever is known, is asked at random whether he is |
a dacoit. There are here no reasonable grounds for the question.
(d) A witness, of whom nothing whatever is known, being questioned as to his mode
of life and means of living, gives unsatisfactory answers. This may be a reasonable ground
for asking him if he is a dacoit.
153.If the Court is of opinion that any such question was asked without reasonable |
grounds, it may, if it was asked by any advocate, report the circumstances of the case to the
High Court or other authority to which such advocate is subject in the exercise of his
profession.When witness
to be
compelled to |
answer.
Court to
decide when
question shall
be asked and |
when witness
compelled to
answer.
Question not
to be asked |
without
reasonable
grounds.
Procedure of
Court in case |
of question
being asked
without
reasonable
grounds.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY41_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________154.The Court may forbid any questions or inquiries which it regards as indecent or |
scandalous, although such questions or inquiries may have some bearing on the questions
before the Court, unless they relate to facts in issue, or to matters necessary to be known in
order to determine whether or not the facts in issue existed.
155.The Court shall forbid any question which appears to it to be intended to insult
or annoy, or which, though proper in itself, appears to the Court needlessly offensive in |
form.
156. When a witness has been asked and has answered any question which is relevant
to the inquiry only in so far as it tends to shake his credit by injuring his character, no
evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be
charged with giving false evidence. |
Exception1.—If a witness is asked whether he has been previously convicted of any
crime and denies it, evidence may be given of his previous conviction.
Exception2.—If a witness is asked any question tending to impeach his impartiality,
and answers it by denying the facts suggested, he may be contradicted.
Illustrations. |
(a) A claim against an underwriter is resisted on the ground of fraud. The claimant is
asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim. The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty.
He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence |
is not admissible.
(c) A affirms that on a certain day he saw B at Goa. A is asked whether he himself was
not on that day at Varanasi. He denies it. Evidence is offered to show that A was on that day
at Varanasi. The evidence is admissible, not as contradicting A on a fact which affects his
credit, but as contradicting the alleged fact that B was seen on the day in question in Goa. |
In each of these cases, the witness might, if his denial was false, be charged with giving
false evidence.
(d)A is asked whether his family has not had a blood feud with the family of B against
whom he gives evidence. He denies it. He may be contradicted on the ground that the
question tends to impeach his impartiality. |
157. (1) The Court may, in its discretion, permit the person who calls a witness to put
any question to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under
sub-section (1), to rely on any part of the evidence of such witness.
158.The credit of a witness may be impeached in the following ways by the adverse |
party, or, with the consent of the Court, by the party who calls him—
(a) by the evidence of persons who testify that they, from their knowledge of
the witness, believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a
bribe, or has received any other corrupt inducement to give his evidence; |
(c) by proof of former statements inconsistent with any part of his evidence
which is liable to be contradicted.
Explanation.—A witness declaring another witness to be unworthy of credit may
not, upon his examination-in-chief, give reasons for his belief, but he may be asked his
reasons in cross-examination, and the answers which he gives cannot be contradicted, |
though, if they are false, he may afterwards be charged with giving false evidence.Indecent and
scandalous
questions.
Questions
intended to |
insult or
annoy.
Exclusion of
evidence to
contradict |
answers to
questions
testing
veracity.
Question by |
party to his
own witness.
Impeaching
credit of
witness.42THE GAZETTE OF INDIA EXTRAORDINARY[Part II—_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Illustrations. |
(a) A sues B for the price of goods sold and delivered to B. C says that he delivered
the goods to B. Evidence is offered to show that, on a previous occasion, he said that he
had not delivered goods to B. The evidence is admissible.
(b) A is accused of the murder of B. C says that B, when dying, declared that A had
given B the wound of which he died. Evidence is offered to show that, on a previous |
occasion, C said that B, when dying, did not declare that A had given B the wound of which
he died. The evidence is admissible.
159.When a witness whom it is intended to corroborate gives evidence of any
relevant fact, he may be questioned as to any other circumstances which he observed at or
near to the time or place at which such relevant fact occurred, if the Court is of opinion that |
such circumstances, if proved, would corroborate the testimony of the witness as to the
relevant fact which he testifies.
Illustration.
A, an accomplice, gives an account of a robbery in which he took part. He describes
various incidents unconnected with the robbery which occurred on his way to and from the |
place where it was committed. Independent evidence of these facts may be given in order to
corroborate his evidence as to the robbery itself.
160.In order to corroborate the testimony of a witness, any former statement made by
such witness relating to the same fact, at or about the time when the fact took place, or
before any authority legally competent to investigate the fact, may be proved. |
161.Whenever any statement, relevant under section 26 or 27, is proved, all matters
may be proved either in order to contradict or to corroborate it, or in order to impeach or
confirm the credit of the person by whom it was made, which might have been proved if that
person had been called as a witness and had denied upon cross-examination the truth of the
matter suggested. |
162. (1) A witness may, while under examination, refresh his memory by referring to
any writing made by himself at the time of the transaction concerning which he is questioned,
or so soon afterwards that the Court considers it likely that the transaction was at that time
fresh in his memory:
Provided that the witness may also refer to any such writing made by any other |
person, and read by the witness within the time aforesaid, if when he read it, he knew it to be
correct.
(2) Whenever a witness may refresh his memory by reference to any document, he
may, with the permission of the Court, refer to a copy of such document:
Provided that the Court be satisfied that there is sufficient reason for the |
non-production of the original:
Provided further that an expert may refresh his memory by reference to professional
treatises.
163.A witness may also testify to facts mentioned in any such document as is
mentioned in section 162, although he has no specific recollection of the facts themselves, |
if he is sure that the facts were correctly recorded in the document.Questions
tending to
corroborate
evidence of
relevant fact, |
admissible.
Former
statements of
witness may
be proved to |
corroborate
later
testimony as
to same fact.
What matters |
may be proved
in connection
with proved
statement
relevant under |
section 26 or
27.
Refreshing
memory.
Testimony to |
facts stated in
document
mentioned in
section 162.Sec. 1]THE GAZETTE OF INDIA EXTRAORDINARY43_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Illustration.
A book-keeper may testify to facts recorded by him in books regularly kept in the |
course of business, if he knows that the books were correctly kept, although he has forgotten
the particular transactions entered.
164.Any writing referred to under the provisions of the two last preceding sections
shall be produced and shown to the adverse party if he requires it; such party may, if he
pleases, cross-examine the witness thereupon. |
165. (1) A witness summoned to produce a document shall, if it is in his possession or
power, bring it to Court, notwithstanding any objection which there may be to its production
or to its admissibility:
Provided that the validity of any such objection shall be decided on by the Court.
(2) The Court, if it sees fit, may inspect the document, unless it refers to matters of |
State, or take other evidence to enable it to determine on its admissibility.
(3) If for such a purpose it is necessary to cause any document to be translated, the
Court may, if it thinks fit, direct the translator to keep the contents secret, unless the
document is to be given in evidence and, if the interpreter disobeys such direction, he shall
be held to have committed an offence under section 198 of the Bharatiya Nyaya |
Sanhita, 2023:
Provided that no Court shall require any communication between the Ministers and
the President of India to be produced before it.
166.When a party calls for a document which he has given the other party notice to
produce, and such document is produced and inspected by the party calling for its |
production, he is bound to give it as evidence if the party producing it requires him to do so.
167. When a party refuses to produce a document which he has had notice to produce,
he cannot afterwards use the document as evidence without the consent of the other party
or the order of the Court.
Illustration. |
A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the
document and B refuses to produce it. A gives secondary evidence of its contents. B seeks
to produce the document itself to contradict the secondary evidence given byA, or in order
to show that the agreement is not stamped. He cannot do so.
168.The Judge may, in order to discover or obtain proof of relevant facts, ask any |
question he considers necessary, in any form, at any time, of any witness, or of the parties
about any fact; and may order the production of any document or thing; and neither the
parties nor their representatives shall be entitled to make any objection to any such question
or order, nor, without the leave of the Court, to cross-examine any witness upon any answer
given in reply to any such question: |
Provided that the judgment must be based upon facts declared by this Adhiniyam to
be relevant, and duly proved:
Provided further that this section shall not authorise any Judge to compel any witness
to answer any question, or to produce any document which such witness would be entitled
to refuse to answer or produce under sections 127 to 136, both inclusive, if the question |