Who Can Not Be A Witness?

As we discussed in the previous blog, all persons can be witnesses unless they are unable to understand the questions put to them and give rational answers as per section 118 of the Indian Evidence Act 1872.

However, there are exceptions to this provision.

It means, Some people even if they have relevancy with the case as well as they can understand the questions put to them and are able to give rational answers then also they can not become witnesses.

1. Judges & Magistrates

As per Section-121 of the Indian Evidence Act,

Judges and Magistrates can not be called to depose in a case in which he/she acted as a judge or magistrate except upon the special order from the Higher courts.

2. A Spouse in Communications During Marriage

If the spouse had communicated the particular incident for which one of them is held liable, then the other spouse can not be a competent witness.

In a valid marriage, one of the spouses can not be a competent witness, if the other spouse had communicated/spoken/confessed about the criminal act which he/she has committed. It is explained u/s 122 of the Indian Evidence Act.

Example: ‘A’ (the husband) committed theft in a jewelry shop, came home, and disclosed this to his wife ‘B’. When A is prosecuted in this case, his wife B can not become a witness.

3. Officer in State Affairs

An officer in state affairs can not be a witness to depose on affairs of a state from unpublished official records as per section-123 of the Indian Evidence Act.

4. Official Communications

According to section-124 of the Indian Evidence Act, Public officers can not become witnesses in a case where they have to disclose any official communications.

5. Information as to Commission of an Offence

As we have studied in the Criminal Procedure Code, A magistrate can initiate a case by filing a complaint when an offense comes to his own knowledge.

Similarly, a police officer can initiate a case by filing an FIR when any offense comes to his knowledge provided there must be at least one cognizable offense present.

Furthermore, under section 125 of the Indian Evidence Code, 1872, A magistrate or a police officer can not be compelled to disclose that from where they received the information relating to the commission of an offense.

A Revenue Officer also shall not become a witness relating to the sources of information as to offense against public revenue.

6. Professional Communications

An Advocate or Vakil or Attorney can not become a witness by using the professional communications between him and his client. It is dealt u/s 126 of the Indian Evidence Act.

Such professional communication between a legal practitioner and his client is protected.

A legal practitioner can not become a witness by sharing his client’s confidential information as evidence.

BUT,

  • if such professional communication involves furtherance of any illegal purpose, then it is not protected under law.

Example 1: The client said to his advocate that he wants to obtain the possession of a property using forged deeds, in which the advocate is going to help.

Here, the professional communication between the client and his advocate is relating to the furtherance of an illegal act. Thus, it is not protected under law u/s 126 of the said act.

  • If any Barrister or Advocate or Pleader or Attorney observes commission of any crime/fraud since commencement of his/her employment, he/she can depose.

Example 2: An attorney observes that the embezzlement amount has been charged from his client’s account book. That entry was not there initially during the commencement of his employment.

Note: The rule is going to be the same for the interpreters, clerks, and servants of such legal practitioners.

7. Legal Advisors

A legal advisor can not become a witness using his client’s confidential information that the client had shared with him.

The idea of this topic credit goes to my Mentor. When he read my previous blog advised me to write on this topic “Who can not be a witness?” Of course its all his teachings. Thank You.

image credit: belongs to the owner

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