124. No public officer shall be compelled to disclose communications made to him in official con

Official communications.

fidence, when he considers that the public

interests would suffer by the disclosure.

It is not apparent who is to be included within the class "public officer." There is nothing in the way of definition in this Act, nor in the General Clauses' Act I of 1868. 125. No Magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence.

Information as to commission of offences.

It was held in Calcutta by Norman, J., that informers in case of a breach of the revenue laws were similarly protected. But they are not so mentioned in this section.

Professional communi

cations.

126. No barrister, attorney, pleader or vakíl, 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 employment as such barrister, pleader, attorney or vakíl 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 employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure

(1) Any such communication made in furtherance of any criminal purpose;

This proviso falls short of the English law, which does not allow the protection to operate to prevent the disclosure of whatever is unlawful.'-See ante, pp. 161, 162.

(2) any fact observed by any barrister, pleader, attorney or vakíl in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, attorney or vakíl 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 employment has ceased.

Illustrations.

(a.) A, a client, says to B, an attorney,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 attorney,-'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 attorney, 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 employment.

This being a fact observed by B in the course of his employment showing, that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

For the reason of the rule affording protection to professional communications, see ante, pp. 151 and seq.

127. The provisions of section one hundred and twenty-six shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys,

Section 126, to apply to interpreters, &c.

and vakíls.

Sections 126, 127.-It is noticeable that mooktears are not named in these sections.-See ante, p. 158, and note.

Privilege not waived by volunteering evidence.

128. 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 one hundred and twentysix; and if any party to a suit or proceeding calls any such barrister, attorney or vakíl as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakíl on matters which, but for such question, he would not be at liberty to disclose.

But for section 24 of Act II of 1855, which is repealed by this Act, there would be no ground for supposing that the privilege is waived merely by the party giving evidence in the suit at his own instance.-See ante, p. 154.

Confidential communi

129. No one shall be compelled to disclose to the Court any confidential communication which has taken cation with legal advisers. place between him and his legal professional 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.

Act II of 1855 dealt only with the case of the communication being in writing.-See ante, p. 154.

Production of witness' title-deeds.

130. 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.

"Who is not a party to the suit"-As to whether this section would entitle a plaintiff in ejectment to require the production of the defendant's title-deeds, see ante, p. 146. By English law implied agreements or trusts to produce are recognized. See Fisher on Mortgages, s. 587, p. 343; ss. 597-602, pp. 347, 348.

131. No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession, unless such last-mentioned person consents to their

Production of documents which another person, having possession, would be entitled to refuse to produce.

production.

132. A witness

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

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 :

Proviso.

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.

This adopts the law already prevailing in India. -See ante, pp. 143-148; and see ss. 146 and seq.

133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon

Accomplice.

the uncorroborated testimony of an accomplice.

See ante, s. 114, illustration (b); and see post, illustration to s. 156. "A competent witness"-See note to ss. 118-120, ante.

Number of witnesses.

134. No particular number of witnesses shall in any case be required for the proof of any fact.

This does away with the exceptions in Act II of 1855, and differs from the English law. See ante, p. 307.

See generally on the effect of a number of witnesses.-Ante, pp. 83 and seq.

Order of production and

CHAPTER X.-OF THE EXAMINATION OF WITNESSES. 135. 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.

examination of witnesses.

136. When either party proposes to give evidence of any fact, the Judge may ask the party propos

Judge to decide as to admissibility of evidence.

ing 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.

See post, s. 167.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such lastmentioned 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.

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 thirty-two. The fact that the person is dead must be proved by the person proposing prove the statement before evidence is given of the statement.

to

(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.

137. The examination of a witness by the party who calls him shall be called his examination-inchief.

Examination-in-chief.

Cross-examination.

The examination of a witness by the adverse party shall be called his crossexamination.

The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

Re-examination.

138. Witnesses shall be first examined-in-chief, then (if the

Order of examinations. Direction of re-examination.

adverse party so desires) cross-examined,

then (if the party calling him so desires) re-examined.

The examination 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.

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. 139. 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.

of

Cross-examination person called to produce a document.