Competency and Privilege of Witnesses under Sections 124 to 139 of the Bharatiya Sakshya Adhiniyam, 2023

Chapter IX answers three questions about the people who give evidence. Who may testify at all — a question the Adhiniyam answers with remarkable breadth. Who may refuse to answer, or may not be permitted to answer, even though competent. And what weight attaches to particular kinds of witness. Sixteen sections cover the ground, and the middle group, on privilege, is where almost all the litigation is.

1. The Chapter

Section	Subject	IEA
124	Who may testify	118
125	Witness unable to communicate verbally	119
126	Competency of husband and wife as witnesses in certain cases	120
127	Judges and Magistrates	121
128	Communications during marriage	122
129	Evidence as to affairs of State	123
130	Official communications	124
131	Information as to commission of offences	125
132	Professional communications	126 and 127
133	Privilege not waived by volunteering evidence	128
134	Confidential communication with legal advisers	129
135	Production of title-deeds of witness not a party	130
136	Production of documents or electronic records which another person, having possession, could refuse to produce	131
137	Witness not excused from answering on ground that answer will criminate	132
138	Accomplice	133
139	Number of witnesses	134

⚠ Two changes in this chapter

Section 127 of the Indian Evidence Act — which applied the professional-communications privilege to interpreters, clerks and servants — has been folded into Section 132, so the chapter runs one number lower from Section 133 onwards. And Section 136 now extends to electronic records, which the earlier provision did not mention. Both are easy to miss, and material written to the old numbering will be out by one in the second half of the chapter.

The chapter divides into three groups. Sections 124 to 126 deal with competency — who may testify. Sections 127 to 137 deal with privilege — who may or must refuse to disclose. Sections 138 and 139 deal with weight — the accomplice, and the number of witnesses required.

2. Section 124 — Who May Testify

Section 124, BSA — Who may testify

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.

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.

The provision is drafted as a presumption of competency. Everybody may testify; the exception must be established, and it is established only on a functional test.

2.1 The test is capacity, not category

The disqualifying causes named — tender years, extreme old age, disease of body or mind — are not disqualifications in themselves. They matter only if they prevent the person from understanding the questions or giving rational answers. A child of six may be competent and an adult of forty may not.

The Explanation puts the point beyond argument for unsoundness of mind: such a person is not incompetent unless his condition prevents understanding and rational answers. Lucid intervals, partial impairment and conditions affecting other faculties leave competency intact.

2.2 Competency and credibility are different questions

Competency asks whether the person may be heard at all. Credibility asks what his evidence is worth. A witness may be perfectly competent and wholly unreliable, and the objection that he is not to be believed is not an objection to competency.

2.3 The child witness

The commonest application of the section, and the practice is settled.

📖 Rameshwar v. State of Rajasthan, AIR 1952 SC 54

Held: Every witness is competent unless the Court considers that he is prevented from understanding the questions put to him or from giving rational answers. The omission of the Court to record its opinion that the child understands the duty of speaking the truth does not affect the admissibility of the evidence, though it is desirable that the court should record such an opinion.

The oath is a matter of form and its omission does not render the evidence inadmissible, the question being one of competency and not of the oath. Corroboration of the evidence of a child witness is a rule of prudence and not of law.

Ratio: A child is competent if he understands and answers rationally; the absence of an oath does not make the evidence inadmissible; corroboration is a matter of prudence.

📖 Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341

Held: A child witness, if found competent to depose to the facts and reliable, such evidence could be the basis of conviction. In other words, even in the absence of an oath the evidence of a child witness can be considered under the provision corresponding to Section 124 provided that such witness is able to understand the questions and able to give rational answers thereof.

The evidence of a child witness and its credibility would depend upon the circumstances of each case. The only precaution which the Court should bear in mind is that the witness must be a reliable one and his demeanour must be like any other competent witness and there is no likelihood of being tutored.

Ratio: A child's evidence may found a conviction, subject to the court satisfying itself of competency and of the absence of tutoring.

The practice that follows is a preliminary examination — sometimes called a voir dire — in which the court puts simple questions to satisfy itself that the child understands and answers rationally, and records its satisfaction. The recording is desirable rather than essential, but its absence invites an attack on appeal and there is no reason to omit it.

The danger the decisions identify is tutoring, and it is met not by a rule of exclusion but by examining the evidence itself — whether the account is the child's own, whether it uses language natural to a child of that age, whether it survives questioning on detail, and what opportunity there was for coaching.

3. Section 125 — Witness Unable to Communicate Verbally

Section 125, BSA — Witness unable to communicate verbally

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.

Provided that 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.

Three features deserve attention.

The evidence is deemed to be oral evidence. It is therefore governed by Sections 54 and 55 and by the requirement of directness, and it is not documentary evidence merely because it was written.

It must be given in open court. The writing must be written, and the signs made, in open court — so that the process is visible and subject to the ordinary safeguards.

The proviso is mandatory and is a 2013 addition carried forward. Where the witness cannot communicate verbally, the court shall take the assistance of an interpreter or special educator, and the statement shall be videographed. The videographing requirement is a real protection: it allows the manner in which the statement was elicited to be examined afterwards, and its absence is a matter that may properly be raised.

4. Section 126 — Husband and Wife

Section 126, BSA — Competency of husband and wife as witnesses in certain cases

In civil proceedings, the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.

In criminal proceedings against any person, the husband or wife of such person shall be a competent witness.

The section is one of competency and says nothing about compellability or about privilege. Three propositions follow, and keeping them apart is essential.

A spouse is a competent witness in a criminal proceeding against the other spouse, and in a civil proceeding to which the other is a party. Section 126 says so.
The privilege in Section 128 nevertheless applies to communications made during the marriage. Competency to testify does not permit disclosure of what that section protects.
The two operate together. A spouse may be called and may give evidence about everything except the protected communications — and may not disclose those even if willing, unless the maker consents or the case falls within the exceptions.

⚠ Competency, compellability and privilege are three different questions

A witness may be competent (may be heard), compellable (may be required to attend and answer), and yet privileged as to particular matters (may or must refuse to disclose them). The chapter deals with all three and does not always say which it means. Section 124 and Section 126 are about competency; Sections 128 to 134 are about privilege; and compellability is largely governed by the procedural codes.

5. Sections 127 to 137 — The Privileges in Outline

Eleven sections create privileges, and they fall into recognisable groups. Each is examined in detail separately; what follows is the map.

Section	Privilege	Whose privilege
127	Judges and Magistrates — not compellable to answer as to their own conduct in court, or as to anything that came to their knowledge as such, except on the special order of a superior court	The office; protected in the public interest
128	Communications during marriage — not compellable, and not permitted, to disclose	The spouse who made the communication
129	Affairs of State — unpublished official records; permission of the head of the department	The State
130	Official communications — a public officer may not be compelled to disclose communications made to him in official confidence where public interests would suffer	The public officer, in the public interest
131	Information as to commission of offences — a Magistrate, police officer or revenue officer is not compelled to say whence he got it	The informer, protected through the officer
132	Professional communications — advocate, and his interpreters, clerks and servants	The client
133	Privilege not waived by volunteering evidence	Preserves the client's privilege
134	Confidential communication with legal advisers — the party's own side of the same privilege	The party
135	Title-deeds of a witness not a party	The witness
136	Documents or electronic records which another person, having possession, could refuse to produce	The third person
137	Self-incrimination — the witness is not excused, but the answer may not be used against him	A use immunity, not a privilege to refuse

6. Section 137 — The Provision That Is Not a Privilege

Section 137 is the most important of the group and is constantly misdescribed, so it is worth stating here even though the privileges are examined separately.

Section 137, BSA — Witness not excused from answering on ground that answer will criminate

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 for giving false evidence by such answer.

The section does two things and the second is what matters.

It removes any privilege to refuse. A witness must answer, and may not decline on the ground that the answer will incriminate him.

It supplies a use immunity instead. The compelled answer cannot subject him to arrest or prosecution, and cannot be proved against him in any criminal proceeding — except a prosecution for giving false evidence by that very answer.

⚠ Why this does not offend Article 20(3)

Article 20(3) protects a person accused of an offence from being compelled to be a witness against himself. A witness in another's trial is not an accused, so the protection is not engaged — and the proviso to Section 137 supplies, by statute, an immunity equivalent in effect. The two work together: the Constitution protects the accused, and the statute protects the witness who is compelled to answer. An accused person, by contrast, is not a compellable witness at all, and nothing in Section 137 makes him one.

7. Section 138 — The Accomplice

Section 138, BSA — Accomplice

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

The section states the rule of law. Illustration (b) to Section 119 states a rule of prudence: the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.

The two are read together, and the combined position is settled: a conviction on the uncorroborated testimony of an accomplice is legal but is not ordinarily safe. The court must first be satisfied that the accomplice is a reliable witness, and must then look for corroboration in material particulars connecting the accused with the offence.

What corroboration requires is that it come from an independent source, that it implicate the accused in a material particular, and that it not itself come from another accomplice — one accomplice does not corroborate another.

An approver — an accomplice granted a pardon on condition of making a full and true disclosure — is a species of accomplice, and the same approach applies with the addition of the statutory conditions governing the pardon under the criminal procedure legislation.

8. Section 139 — Number of Witnesses

Section 139, BSA — Number of witnesses

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

The provision rejects the counting of witnesses in favour of weighing them. Evidence is assessed by quality and not by quantity, and a single witness whose testimony inspires confidence may found a conviction on a capital charge.

📖 Vadivelu Thevar v. State of Madras, AIR 1957 SC 614

Held: The provision corresponding to Section 139 lays down that no particular number of witnesses shall be required for the proof of any fact. The Legislature determined, as a matter of policy, that it is not the number, the quantity, but the quality that is material.

Witnesses may be classified as (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. In the first category there is no difficulty; the Court may act upon the testimony of a single witness, though sworn testimony is not corroborated. In the second, the Court is equally free to discard the evidence. It is only in the third category that the Court has to be circumspect and look for corroboration.

Ratio: Quality governs, not number. A conviction may rest on a single wholly reliable witness, and corroboration is required only for the intermediate category.

The three-fold classification is the framework in which the section is applied, and it is invoked constantly. It also explains why the demand for corroboration is not a general rule: it is confined to the category of witness whose evidence the court can neither wholly accept nor wholly reject.

Certain classes of witness attract a rule of prudence requiring corroboration notwithstanding Section 139 — an accomplice, under illustration (b) to Section 119; a child witness, as a matter of prudence under Rameshwar; and, in appropriate cases, a witness with an interest or an enmity. None of these is a rule of law, and the section governs in every case where prudence does not require more.

9. The Chapter in Summary

Group	Sections	The question answered
Competency	124 to 126	Who may be heard at all. The presumption is competency, and the test is functional — understanding and rational answers
Privilege of office and relationship	127, 128	Judges and Magistrates; communications between spouses during the marriage
Privilege of the State	129, 130, 131	Affairs of State, official communications, and the identity of informers
Legal professional privilege	132, 133, 134	Communications with an advocate, from both sides, and the limits of waiver
Privilege as to documents	135, 136	A non-party's title-deeds, and documents or electronic records a third person could refuse to produce
Self-incrimination	137	Not a privilege to refuse, but a use immunity for the compelled answer
Weight	138, 139	The accomplice, and that no particular number of witnesses is required

10. The Position Stated Shortly

Section 124 presumes competency, and the test is functional — whether the person can understand the questions and give rational answers.
Unsoundness of mind is not a disqualification unless it prevents understanding and rational answers.
A child is competent if he understands and answers rationally, the oath is a matter of form, and corroboration is a rule of prudence — Rameshwar and Dattu Ramrao Sakhare.
Section 125 deems evidence by writing or signs to be oral evidence, and requires an interpreter or special educator and videographing where the witness cannot communicate verbally.
A spouse is a competent witness under Section 126, but the privilege in Section 128 still governs communications during the marriage.
Section 137 is not a privilege. The witness must answer, and receives a use immunity instead.
An accomplice is competent and a conviction on his uncorroborated testimony is legal — Section 138 — but illustration (b) to Section 119 makes corroboration a rule of prudence.
No particular number of witnesses is required — Section 139 — and quality governs, not quantity — Vadivelu Thevar.

11. Related Topics and Provisions

Topic or provision	Connection
Privileged Communications under the BSA	Sections 127 to 137 examined in detail
Examination of Witnesses — Sections 140 to 168	How a competent witness is examined
Oral Evidence — Sections 54 and 55	The requirement of directness, applying to evidence under Section 125
Confession and Article 20(3)	Why Section 137 does not offend the constitutional protection
General Presumptions — Section 119	Illustration (b) on the accomplice, read with Section 138
Hostile Witness — Section 157	Where a party's own witness turns against him
Section 119, Illustration (b), BSA	Corroboration of an accomplice as a rule of prudence
Bharatiya Nagarik Suraksha Sanhita, 2023	Compellability, summonses to witnesses, and the tender of pardon to an approver