4-Confession

"confession" has no where been defined in the Evidence Act. A confession is a statement which
either admits the offence, or at any rate, substantially all the facts which constitute the offence.

According to J. Stephen, "A confession is an admission made at any time by a person charged with a
crime, stating or suggesting an inference that he committed the crime." This definition was adopted
by the Courts in India in a number of cases.

The above definition suggested by Stephen was inodified by the Privy Council, in Narayan Swami
Vs. Emperor, A.I.R. 1939 P.C. 47 and held that only a direct acknowledgement of guilt should be
regarded as a confession. A confession must either admit the offence or at least substantially all the
facts which constitute the offence.

According to J. Straight, Only statements which are direct acknowledgement of guilt could be
regarded as confessions and the term cannot be construed to include a mere inculpatory admission
which falls short of being an admission of guilt."

It is to be noted that the meaning of the term "confession' is made clear by the Supreme Court in
Palvinder Vs. State, A.1.R. 1952, S.C.

354. Their Lordships of the Supreme Court, relying upon the pronouncement of the Judicial
Committee in Pakala Narayana Vs. R., 66 1.A. 66, reiterated the view that the word 'confession', as
used in the Evidence Act, cannot be construed as meaning a statement by an accused suggesting an
inference that he committed the crime. A confession must either admit, in terms, the offence, or at
any rate, substantially all the facts, which constitute the offence. An admission not of itself a
confession.

of a gravely inculpatory fact, or even a conclusively inculpatory fact, is

The following observations of the Orissa High Court in

Gadhapurni Vs. The State, 1980 Cr. L.J. 188 as to when an admission amounts to a confession are
relevant:-

"To make admission a confession, it must be addressed to some person. So, if the accused goes
around the village shouting that he had Vs. State of Orissa, 1992, Cri. L.J. 2701.

Killed his wife, this would not amount to a confession. Pandu Khadi Kinds of Confession-
Confessions may be divided into [WO classes--judicial and extra-judicial. A judicial confession is that
which is made before a Magistrate or in a court, in due course of judicial proceedings. Of this kind
are the preliminary examinations, taken in writing by the Magistrate pursuant to statutes and the
plea of guilty made in open court. Extra-judicial confessions are those made by the accused
elsewhere than before a magistrate or in Court. They are admissible in evidence U/S. 21 of the
Evidence Act and are proved by the witnesses who heard the speaker's words constituting the
confession.

Confessions when

Irrelevant?_-A confession becomes

irrelevant and inadmissible in the following three cases-

1. Confession Caused by Inducement Threat or Promise from a Person in Authority -According to S.

24, a confession made by an accused is irrelevant in a criminal proceeding, if the making of the
confession appears to the Court to have been caused by any (i)

Inducement, (ii) Threat, or (ili) Promise

(a) Having reference to the charge aganist the accused,

(b) Proceeding from a person in authority.

(c) Sufficient, in the opinion of the Court, to give the accused person ground which would appear to
him reasonable for supposing that by making it, he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.

It is to be noted that the words "accused person" U/S. 24, also include a person who subsequently
becomes accused. If a person makes a statement when he is a suspect but not an accused person,
and if he subsequently becomes an accused, his statement will be regarded as a confession. When
a person states that he had done certain acts which amount to an offence, he accuses himself of
committing the offence, and the statement is, therefore, a confession by an "accused person"
within the meaning of this section.

The section merely requires that if it "appears" to the Court, i.e., if circumstances create a
probability than proof. The test of proof is that there is such a high degree of probability in the
mind of the Court, that the confession was improperly obtained, it becomes inadmissible in
evidence.

It is to be noted again that the threat, inducement or promise must proceed from a person in
authority. The mere existence of the threat, inducement or promise is not enough; such threat,
inducement or promise must be sufficient to cause a reasonabie belief in the mind of the accused
that, by confessing, he would get an advantage or avoid any evil of a temporal nature in reference
to the proceedings against him. The criterion is the reasonable belief of the accused. Pyare Lal Vs.
State of Rajasthan, A.I.R. 1963 S.C. 1094.

Therefore, positive proof of the fact that there was any inducement, threat or promise is not
necessary. The confession itself, the evidence adduced on behalf of the prosecution, and the
defence, in any, and all the circumstances of the case have to be taken into consideration. If; upon
such consideration, the Court feels that the accused made the confession as a result of any
inducement, threat or promise having reference to the charge, or even if the Court feels that there
is reasonable doubt that there was such inducement, threat or promise, it cannot be satisfied that
the confession is free and voluntary, and hence it has to exclude the confession from consideration.

Krishna Nandan Vs. The State, A.I.R. 1958 Pat.

1. Person-in-Authority A person in authority is one who is engaged in the apprehension, detention
or prosecution of the accused, or one who is empowered to examine him. Santokhi Beldar Vs.
Emp.,

A. I.R. 1933 Pat. 149. It would also include a person who is concerned with, or is interested in, the
investigation of a case, Bhagan Vs. State of Pepsu, A.I.R. 1955 Pepsu, 33. Therefore, confessions
produced by inducement, threat or promise proceeding from persons having no authority are
admissible.

2. Confession to Police According to S. 25, no confession made to a police-officer can be proved as

against an accused.

Object of S. 25_ The object of S. 25 is to prevent the practice of oppression or torture by the police
for the purpose of extracting confessions from accused persons. Under this section, no confession
made to a police-officer is admissible against the accused. Any incriminating statement made by an
accused to a police-officer is inadmissible in evidence. Under the next section, a confession made
to a private person in the custody of the police is also inadmissible in evidence. It is to be noted
that S. 25 is very broadly worded, and it absolutely excludes from evidence against the accused a
confession made by him to a police-officer under any circumstances whatsoever.

Whether such person is in police custody or not is irrelevant. The idea is that, by rendering such
confessions inadmissible, the temptation to exort confessions is taken away.

Police Officer- -The term "Police-Officer" should not be read in a strict technical sense, but must be
given its more comprehensive and popular meaning. It applies to every police-officer, and it is not
restricted to officers in a regular police force.

Thus, a chowkidar, a police patel, a village headman under the Burma Police Act, an abkari officer,
and an excise officer according to the Calcutta High Court are all police-officers; but a jailer, or an
excise officer, according to the Rangoon and Patna High Courts, and an Assistant Commissioner not
acting as a Magistrate but merely as an executive officer, are not. The view of the Patna High Court,
has however, been overruled by the Supreme Court in the aforesaid case of Raja Ram Vs. State of
Bihar, A.I.R. 1964 S.C. 828, wherein it was held that the Excise Inspector under the Bihar and Orissa
Excise Act, which authorises him to investigate any offence under the Act, is a police officer, and a
confession recorded by him is inadmissible in evidence.

A confession made to a police-officer in the presence and hearing of a private person is not to be
considered as made to the latter, and is therefore, inadmissible. A letter written by the accused,
not in the presence of police officer, but addressed to such officer, is not a confession made to a
police officer U/S. 25. It is, therefore, admissible in evidence.

3. Confession not made Before a Magistrate According to S.

26, no confession made by any person whilst he is in the custody of a police-officer, can be proved
as against such person, unless such a confession is made in the immediate presence of a
Magistrate.

S. 26 also aims at remedying the same mischief as is contemplated U/S. 25. S.25 makes
inadmissible a confession made by an accused to the police. S.26 goes to a step further to provide
that a confession made by a person while in a police custody to a third person i.e., other than a
police-officer is also not admissible, unless it is made in the immediate presence of a Magistrate.
The presence of a Magistrate is, by a legal fiction, regarded as equivalent to the removal of police
influence, and the statement is, therefore, not rendered inadmissible.

Custody-The mere temporary absence of a police-man from the room in which the confession is
recorded does not terminate the custody of the accused, if he has taken effective steps to prevent
his escape, whether by locking the door of the room or by waiting outside, or by leaving him in the
custody of another person. Where a village policeman, who had arrested the accused, left him in
charge of certain villagers, and went to see the scene of occurrence, and during that interval, the
accused confessed his guilt to those villagers, it was held that, notwithstanding the temporary
absence of the policemen, the accused being still under the, police custody, the extra-judicial
confession made before the villagers was not admissible in evidence.

The word custody does not mean formal custody, but includes such state of affairs in which the
accused can be said to have come into the hands of a police-officer or can be said to have been
under some sort of surveillance or restriction.

Confession when relevant:

1. Confession made After Removal of Threat, Inducement or Promise--According to S. 28, such a

confession as is referred to US, 24 is made after the impression caused by any such inducement,
threar or promise has, in the opinion of the Court, been fully removed, it is relevant. This is an
exception to the rule contained U/S. 24. It lays down the conditions under which a confession,
which is rendered irrelevant by S. 24, may become relevant. If it is proved, to the complete
satisfaction of the Court, that the impression produced by the threat or promise has been totally
removed, e.g., by lapse of time or by any intervening caution given by a person of superior
authority, a confession subsequently made will be admissible. Such a confession is placed on the
same footing as a voluntary confession. In all cases, it is for the Judge to properly weigh all the facts
and circumstances of the case to come to a definite conclusion that the impression caused by the
inducement, threat or promise has been completely removed.

• 2. Confession made under Promise, Deception,

etc.-

According to S. 29, if a confession is otherwise relevant, it does not become irrelevant, merely
because it was made

(a) Under a promise of secrecy; Or

(b) In consequences of a deception practiced on the accused person for the purpose of obtaining it;
Or

(c) When the accused was drunk; Or

(d) In answer to questions he need not have answered; Or

(e) When the accused was not warned that:-(i He was not bound to make such confession, and
that:-(ii) Evidence of it might be given against him.

S. 29 is based on the well-established rule of law that any breach of confidence or of good faith or
the practice of any artifice does not invalidate a confession. The five circumstances mentioned in
this. section are not exhaustive. Although the mere use of an artifice to obtain a confession does
not make such confession inadmissible, such confession would not.carry much weight. Thus, in an
American case, a confession was obtained by untruly telling the accused that he was seen by some
one when he did the act, and the Court held that such a confession was inadmissible. For Examples-

(i) Rex. Vs. Shaw--A was in the custody on a charge of murder.

B, a fellow prisoner, said to him, "I wish you would tell me how you murdered the boy pray speak".
A replied. Will you be upon your oath not to mention what I tell you?" B promised on oath that he
would not tell. A then made a statement. It was held that this was not such an inducement to
confess as would render the statement inadmissible.

(ii) Rex. Vs. Derrington--The accused asked the tumkey of the goal in which he was locked to put a
letter into the post for him and after his promising to do so, the accused gave him a letter
addressed to his father, and the tumkey, instead of putting it into the post, transmitted it to the
prosecutor. It was held that the letter was admissible in evidence against the accused,
notwithstanding the manner in which it was obtained.

3. Confession Leading to Discovery of Fact--According to S.

27, when any fact is deposed to as discovered in consequence of information received from an
accused person in the custody of a police-officer, so much of such information (whether it amounts
to a confession or not), as relates distinctly to the fact thereby discovered, may be proved.

S. 27 is founded on the principle that if the confession of the accused is supported by the discovery
of a fact, it may be presumed to be true and not to have been extracted. It comes into operation
only-

(i) If and when certain facts are deposed to as discovered in consequence of information received
from an accused person in police

custody; and

(il) If the information relates distinctly to the fact discovered.

The broad ground for not admitting confessions made under the inducement, threat, or promise to
a police-officer is the danger of admitting false confessions, but the necessity for this exclusion
disappears in a case provided for by this section, when the truth of the confession is guaranteed by
the discovery of facts in consequence of the information given.

S. 27.is an exception to the rules enacted U/Ss. 25 and 26 of the Act, which provide that no
confession made to a police-officer can be proved as against a person accused of an offence, and
that no confession made by any person whilst he is in the custody of the police-officer, unless it is
made in the immediate presence of a Magistrate, can be proved as against that person :
Ramkrishan Vs.

State, 1955 S.C. 104, re-stating the opinion of the Privy Council in Pullukury Kottaya Vs. Emperor,
1947 P.C. 67.

In the above case, it was observed that it is fallicious to treat the

"fact discovered' as equivalent to the object produced; the fact discovered embraced the place
from which the object is produced, and the knowledge of the accused as to this, and the
information given must relate distinctly to this fact. Information supplied by a person in custody
that "I will produce a knife; knives were discovered many years ago. It leads to the discovery of the
fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is
proved to have been used in the commission of the offence, the fact discovered is very relevant.

How much of the Information is to be Proved?-

There has

been some difference of opinion regarding the extent of information that can be proved against
the accused in view of the phrase "whether it amounts to a confession or not." The most liberal
interpretation given is that of the Madras High Court in Re-Atthappa Goundan,

1937 Mad. 695 B. where the whole statement, including confession of guilt and other incriminating
statement, was held to be admissible.

However, the Privy Council held, in Pullukury Kottaya Vs.

Emperor, (1947) P.C. 67, that a stricter interpretation was to be put on

S. 27. It appears that this decision of the Privy Council swung the pendulum to the other extreme,
and there was a tendency among some High Courts to give a very narrow interpretation to this
section.

The whole law has now been put on an even keel by the Supreme Court in Ramkishan Vs. State,
1955 S.C. 104. where their Lordships observed as follows: "On a bare reading of the terms of the
section, it appears that what it allowed to be proved is the information or such part thereof as
relates distinctly to the fact thereby discovered .. If the police-officer wants to prove the
information or a part thereof, the Court would have to consider whether it relates distinctly to the
fact thereof, the Court would have to consider whether it relates distinctly to the fact thereby
discovered, and allow proof thereof only if that condition was satisfied."

It may also be noted that if the information given by the accused to the police-officer contains parts
leading to the discovery, the Court must admit only such portions which distinctly lead to the
discovery of facts, whether such portions amount to confessions or not.
The term 'burden of proof has no where been defined under, Indian Evidence Act, 1872.

According to Phipson, as applied to judicial proceedings, the phrase "burden of proof" has two
distinct and frequently confused meanings-

(i) The Burden of Proof as a Matter of Law and Pleading

The burden, as it has been called, of establishing a case. This burden rests upon the party, whether
plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed, at the
beginning of the trial, by the statements of pleadings, and it is settled as a question of law,
remaining unchanged under any circumstances whatever. This rule is embodied

U/S. 101. According to S. 101, whoever desires any

Court to give judgement as to any legal right or liability dependent on the existence of facts which
he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on
that person. For Examples:-

(a) A desires a Court to give judgement that B shall be punished for a crime which A says B has
committed.

A must prove that B has committed the crime.

(b) A desires a Court to give judgement that he is entitled to certain land in the possession of B, by
reason of facts which he asserts, and which B denies, to be true.

A must prove the existence of those facts.

(ii) The Burden of Proof as Matter of Adducing Evidence-The burden of proof in this sense is always
unstable, and may shift constantly throughout the trial. The burden of proof in the second sense is
contained U/S. 102. It lies at first on the party who would be unsuccessfu! if no evidence at all was
given on either side. This being as soon as he produces evidence which prima facie gives rise to a
presumption in his favour. It may again shift back on him, if the rebutting evidence produced by his
opponent preponderates. This being the position, the question as to the onus of the proof is only a
rule for deciding on whom the obligation rests of going further if he wishes to win.

As observed by the Guhati High Cout, in a criminal trial, the burden of proving the prosecution's
case lies squarely on the prosecution, and this general burden never shifts. The defence version,
may even be false; nevertheless, the prosecution cannot derive any advantage from the falsity or
other infirmities of the defence version; so long as it does not discharge its initial burden of proving
the case beyond all reasonable doubt. Vide: Md. Alimuddin Vs. State of Assam, 1992, Cri. L.J. 3287.

According to S. 102, the burden of proof in a suit or proceeding lies on that person who would fail if
no evidence at all were given on either side. For Examples

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of
C, B's father. If no evidence were given on either side, B would be entitled to retain his possession

Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was
obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as
the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B.

Burden of Proof as to Particular Fact According to 5. 103, the burden of proof as to any particular
fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any
law that the proof of that fact shall lie on any particular person. For

Example;

(a) A prosecutes B for theft, and wishes the Court to

believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe
that, at the time in question, he was elsewhere, He must prove it.

Burden of Proving Fact to be Proved to Make Evidence Admissible-According to S. 104, the burden
of proving any fact necessary to be proved in order to enable any person to give evidence of any
other fact is on the person who wishes to give such evidence.

For Examples;

(a) A wishes to prove a dying declaration by B. A must prove B's death.

(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that
the document has been lost.

Conclusion It is to be noted that the facts which have to be proved in a case can, from the point of
view of burden of proof, be put in two categories, namely, those which positively affirm a fact and
those which deny it. The first general principle is that a party who asserts the affirmative of an
issue, the burden of proof lies on him to prove, that fact. The reason for the rule is that it is easy, to
prove the affirmative than to prove the negative. If, For Example; the question between the parties
is whether a contract was made, the party who affirms that it was made should prove that fact.
Privileged Communication

There are Unique certain matters which a witness cannot either be compelled to disclose or even if
the witness is willing to disclose, he will not be permitted to do so. Such matters are known as
privileged communications. For Example, a wife cannot be permitted to disclose what her husband
told her about the matter under inquiry.

Thus, in relation to evidence, privilege means a right or duty to refuse to disclose a fact. A privilege
may permit or require a witness to refuse to answer a question or to produce a document at the
hearing before trial.

Privileged communications are of the following two kinds

1. Communications Privileged from Disclosure According to

S. 121, no Judge or Magistrate shall, except upon the special order of some Court to which he is
subordinate, be compelled to answer any questions 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. For Examples

A, on his trial before the Court of Sessions, 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.
A is accused before the Court of Sessions 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.
A is accused before the Court of Sessions of attempting to murder a police officer whilst on the trial
before B, a Sessions Judge. B may be examined as to what occurred.
Exceptions- There are following three exceptions to the judicial privilege mentioned U/S. 121-

(i) A Judge can be questioned even as to judicial matters with the order of the court to which he is
subordinate.

(ii) He can be questioned as to matters which occurred in his presence while he was acting in his
judicial capacity.

(iii) He can waive his privilege and voluntarily offer to explain his conduct as such judge or
magistrate.

2. Communication Protected from being Disclosed--There are certain communications which it is

the policy of law that they should not be disclosed. The law, therefore, does not permit them to be
disclosed even if the party possessing that information wishes to disclose it. This protection from
disclosure is to be found in the following provisions of the Act-

1. Communications During Marriage According to S. 122, no person who is or has been married
shall be compelled to disclose any person to whom he is or has been married; nor shall he be
permitted to

75

jisclose 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.

S. 122, prevents communications between a man and his wife from being disclosed. Marriage
inspires confidence and confidence inspires openness of heart and feeling. This enables a married
person to make a clean breast or everything to his or her spouse. Naturally, therefore, such matters
should be free from the risk of being disclosed.

Exceptions--The privileges available U/S. 122 is not available under the following four
circumstances-

(i Acts Apart from Communications- A wife can testify as to what her husband did on a certain
occasion, though not as to what he said to her. The best authority is the decision of the Supreme
Court in Ram Bharose Vs. State of U.P. A. I.R. 1954 SC. 704.

The accused was on his trial for murdering a neighbour for the purpose of robbing some ornaments
and then to present them to his wife. While presenting them to his wife he said that he had gone to
the middle house, (where the deceased lived) to get them. His wife told the Court that she saw one
early morning her husband coming down the roof. He then went inside the Bhusa kothari, (fodder
store) and had a bath. He pug back the same clothes and come to her to present the things.

Venkatarama Ayyer, J., held that what the husband said to his wife was not admissible, but she
could testify as to his conduct.

The conduct of a spouse is not necessarily marital matter. If evidence of non-marital conduct can
be given by the wife, so should be true of non-marital communications.

(if Evidence by Third Persons Communications or conversations between husband and wife taking
place in the presence of a third person, or when overheard by a third person, can be testified to by
the third person, the privilege is that of the parties to marriage, and not of others.

(iii) Waiver of Privilege Evidence of a privileged communication can be given by a spouse with the
consent of the party who made the communication or with the consent of his representative in
interest.

This is known as waiver of the privilege.

(iv) Crimes or Suits between Married Persons- -The last words of S. 122 clearly recognise this
exception by providing that such communications may be disclosed in suits between married
persons or proceedings in which one married person is prosecuted for any crime committed against
the other.
2. Evidences as to Affairs of State derived From 775, no one shall BeEperinited to give any evidence
derived. From unpublished shacial records relating to any affairs of States except with the
permission of the officer at the head as he think osed. bus, S. 123 protects unpublished State
records from being disclosed. Unpublishe:

State records are not permitted to be disclosed. The only exception tha they may be disclosed with
the permission of the head of the department concerned.

3. Official Communications According to S. 124, no public officer shall be compelled to disclose

communications, made to him in official confidence, when he considers that the public interest
would suffer by the disclosure.

S. 124 gives a privilege to Public officers to refuse to disclose matters which are brought to their
knowledge in official confidence.

The requisites of this privilege are that there should be a public officer, a communication has been
made to him in official confidence and that he has the discretion to refuse its disclosure on the
ground that public interest would suffer by the disclosures.

4. Information as to the Commission of Offences According to S. 125, no Magistrate or Police

Officer shall be compelled to say whence he got any information as to the commission of any
offence, and no Revenue Officer shall be compelled to say whence he got any information as to the
commission of any offence against the public

revenue.

Explanation-"Revenue Officer" in this section means any officer employed in or about the business
of any branch of the public

revenue.

S. 125 is aimed to encourage people to give information about offences by protecting the source of
information, for otherwise, no one would like to give such information. The section also enables
police officers, etc. to maintain secrecy about the sources of their information.

No magistrate or police officer can be compelled to disclose how and from whom he got
information about the commission of an offence against the public revenue. This is called public
interest immunity from disclosure which is very much necessary for promoting detection of crime.

5. Professional Communications According to S. 126, no barrister, attorney, pleader or vakil 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 vakil, 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 77

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-

Any such communication made in furtherance of any illegal purpose,

Any fact observed by any barrister, pleader, attorney or vakil, 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, pleader, attorney or vakil 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. For
Examples:-

(a) A, a client, says to B, an attorney "I have committed forgery and I wish you to defend me".

As the defence of 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
proceeding, 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.

Communications made by a client to his vakil for the purposes of his professional employment are
not permitted to be disclosed. The prohibition extends to all communications made in confidence
pertaining to any pending or contemplated case or for the purpose of soliciting professional advice.

The reason for this prohibition on disclosure is to encourage litigants to communicate fully and
frankly with their lawyers without any fear that the information given by them can be passed on to
the oppo-ment or to the court. In the absence of this prohibition it would have been difficult for
any body to get the best professional advice.

Exceptions- The professional communications is subject to the

following five exceptions

(1) Communications made in Furtherance of Illegal Purpose

Firstly, communications made in furtherance of an illegal purpose are not protected. A client
consulted a lawyer for the purpose of drawing up a bill of sale which was alleged to be fraudulent.
The communication was held to be not privileged, for the consultation was for an illegal purpose.

(ii) Crime or Fraud Since Employment Began- If a lawyer finds in the course of his employment that
any crime or fraud has been committed since the employment began, he can disclose such informa-
tion. The third illustration is relevant to this point.

(iii) Disclosure with Express Consent of the Client Such communications can be disclosed with the
express consent of the client.

The prohibition is for the benefit of the client, and he may waive it, if he deems it advisable. The
waiver should be express.

(iv) Information falling into hands of third person-If the communication is over-heard by a third
person, he may be compelled to disclose it. The prohibition works against the lawyer, but not
against any other person.

(v) Lawyer's Suit Against Client_-If the lawyer himself sues the client for his professional services,
he may disclose so much of the information as is relevant to the issue. The privilege is not available
in respect of documents which have already been put on record.

S. 126 to Apply to Interpreters etc.- According to S. 127, The provisions of S. 126, shall apply to
interpreters and the clerks or servants of barristers, pleaders, attorneys and vakils.
Confidential Communications with Legal Advisers-According to S. 129, no one shall be compelled to
disclose to the Court any confidential communication which has taken 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.
S. 126 prohibits a lawyer from disclosing matters which have come to his knowledge from his client
for the professional purpose. S.

129, on the other hand, places the client beyond the range of compulsion as to matters which have
passed between him and his professional legal adviser. The effect of the section is that a person
cannot be compelled to disclose any confidential communication which has taken place between
him and his legal professional adviser.

But if he offers himself as a witness, he may be compelled by the court to disclose such matters to
the extent to which the Court thinks it necessary for the purpose of explaining the evidence which
he has given, but not more than that.

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Doctrine of Estoppel- "There is said to be an estoppel where a party is not allowed to say that a
certain statement of facts is untrue, whether in reality it is true or not, Estoppel, or "con-clusion" as
it is frequently called by the elder authorities, may, therefore, be defined as a disability whereby a
party is precluded from alleging or proving legal proceeding that a fact is otherwise than it has
been made to appear by the matter giving rise to that disability." For Examples

(i A trustee mortgaged the trust properties alleging that he was the owner of the properties. The
mortgagee, in good faith and without notice that the properties belonged to the trust took the
mortgage. He (the mortgagee) obtained a decree and the properties were sold. The trustee
subsequently filed a suit to recover the property from the auction purchases on the ground that
the properties were the trust properties and he had no power to mortgage them. It was held that
the trustee was estopped from saying that he was not the owner of the property though it might
be true.

(in) Where a tenant, having only non-transferable interest in a holding, sells it alleging that he has a
transferable right in it, he cannot be allowed, afterwards to say that he had no transferable interest
in the property.

(iii) A owned a plot measuring 3 Biswas. He mortgaged 1 Biswas of it to B. Subsequently, in

execution of a money decree 2 Biswas of the land was put to auction and it was purchased by C.
The mortgagee B accepted a part of sale consideration towards his mortgage money.

Giving out by this conduct of his that the area mortgaged to him was also sold. Afterwards B sued C
for the sale of 1 Biswa under his mortgage. It was, held that he was estopped by his own conduct.

Definition of Estoppel--According to S. 115, when one person has by his declaration, act or
omission, intentionally caused or permitted another person to believe a thing to be true and to act
upon such belief neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that thing. For
Example; A intentionally and falsely leads B to believe that certain land belongs to A, and thereby
induces B to buy and pay for it.

The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that
at the time of the sale, he had no title.

He must not be allowed to prove his want of title.

Essentials of Estoppel--The main ingredients of estoppel as defined U/S. 115 i.e., estoppel in pais
are as under-

1. There must be some Representation--The representation in order to form the basis Of an

estoppel may be made either by ( Statement or by (i Conduct and conduct includes negligence.
Certain general propositions are, however, applicable whatever manner the representation may be
made.

2. It must be Made with the intention of being Acted Upon-It is not necessary that the
representation should be false to the knowledge of the party making it provided that (i) it is
intended to be acted upon in the manner in which it was acted upon, or (il) the person who makes
it so conducts himself that a reasonable man would take the representation to be true, and believe
that it was meant that he should act upon it in that manner.
In B. Colema & Co. Vs. P. Dass Gupta, AIR 1970, it was held that the doctrine of estoppel by
representation ought not to be, in most cases applied unless the representation is such as to
amount to the contract or the license of the party making it.

3. The Representation must have Acted Upon- To invoke the benefit of estoppel it has to be proved
that the representation has been acted upon. The representation must have been acted upon
taking it to be true by the party to whom it was made. Estoppel can arise only if a party to a
proceeding has altered his position on the faith of a representation or promise made by another. A
representation made to one person cannot be taken advantage of by another person to whom it
was not made. It is not sufficient that the party complaining acted in a manner consistent with the
truth of the representation if it appears that he was not influenced by it. On the other hand if he
really has relied upon the truth of the representation, it is no answer to say that if he had thought
about it he must have known that it was untrue.

Nature of Estoppel- Estoppel is often described as a rule of evidonce but the whole concept is more
correctly viewed as a substantive rule of law.

Kinds of Estoppel--Estoppel is of three kinds-

1. Estoppel of Record or Quasi-Order- Estoppel of record or quasi of record arises (i) where an issue
of fact has been judicially determined, in a final manner between the parties by a tribunal having
jurisdiction concurrent or exclusive in the matter, and same issue comes directly in question in
subsequent proceedings between the same parties; (ii) Where the first determination was by a
court having exclusive jurisdiction, and the same issue comes incidently a question in subsequent
proceedings between the same parties; (ill) In some cases where an issue of fact affecting the
status of a person or thing has been necessarily determined in final manner as a substantive part of
a judgment in rem of a tribunal having jurisdiction to determine that status of a person or thing has
been necessarily determined in final manner as a substantive part of a judgment in rem of a
tribunal having jurisdiction to determine that status, and the same issue comes directly in question
in subsequent civil proceeding between any party whatever.

Where the earlier decision is that of a court of record, the resulting estoppel is said to be "of
record"; where it is of any other tribunal, whether constituted by agreement of parties or
otherwise, the estoppel is said to be quasi of record.

Estoppel by record in the name of res-judicata has been dealt with in Civil Procedure Code. S. 40 to
43 of the Evidence Act provide for the admissibilities of previous judgments.

2. Estoppel by Deed--Where, in a deed made between party and verified by their seals, there is a
statement of fact, an estoppel results, and is called "estoppel by deed", if upon the true
construction of the deed the statement is that of both or all the parties, the estoppel is binding on
each party; if otherwise, it is only binding on the party making it. It seems that an estoppel also
arises upon the true construction of the deed the statement is that of both or all the parties, the
estoppel is binding on each party; if otherwise, it is only binding on the party making it. It seems
that an estoppel also arises upon a deed, all the mode of its execution being equally solemn with
that of deed made inter parties.

Estoppel by deed is based on the principle that when a person has entered into a solemn
engagement by deed under his hand, he shall not be permitted to deny any matter which he has so
asserted. It is a rule of evidence according to which certain evidence is taken to be of so high and
conclusive a nature as to admit of no contradictory proof.

3. Estoppel in Pais i.e.,

, Estoppel by Conduct--Where one has

either by words or conduct made to another a representation of fact, either with knowledge of its
falsehood or with the intention that it should be acted upon, or has so conducted himself that
another would, as a reasonable man, understand that a certain representation of fact was intended
to be acted on, and that other has acted on the representation and thereby altered his position to
his prejudice, an estoppel arises against the party who made the representation, and he is not
allowed to cover that the fact is otherwise than he represented it to be.

Estoppel of Tenant and of Licensee of Person in Possession-According to S. 116, no tenant of

immovable property or person claiming through such tenant, shall during the continuance of the
tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the
tenancy, a title to such immovable property; and no person who came upon any immovable
property by the licence of the person in possession thereof, shall be permitted to deny that such
person had a title to such possession at time when such license was given.

S. 116 deals with estoppel between

A tenant and his landlord, and,

Licensee and licensor.
Tenant cannot Deny the Title of Landlord "A tenant may not dispute the right of his landlord by
saying that he had nothing in the property." The ground of the doctrine is that inasmuch as the
parties have approved that they should stand in the relation of landlord and tenant, and the one
accordingly receives possession from the other and enters premises, so long as he continue in
possession, he cannot be heard to deny the state of facts which he had agreed shall be taken as the
basis of the arrangement; in other words he cannot set up that the landlord had no legal title.
Licensee There is no distinction between the law of estoppel of a licensee and that of a tenant. A
licensee who has obtained possession through the licence, before he can show that his licensor had
no title when he granted the licence, he must first surrender possession of the premises. When the
occupation of the defendant is proved to be permissive, he is estopped from denying the title of
the plaintiff. This section clearly states that licensee ought not to deny the title of the licensor.
A asked B's leave to take some vegetable from his (B's) garden.

Having received the key fraudulently he took possession of the garden and then refused to vacate.
In a suit for ejectment by B, he (A) cannot be allowed to say that B had no title to the garden when
he granted the permission.

Estoppel of Acceptor of Bill of Exchange, Bailee or Licensee According to S. 117, no acceptor of a bill
of exchange shall be permitted to deny that the drawer had authority to draw such bill or to
endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at
the time when the bailment or licence commenced, authority to make such bailment or grant such
licence.

Explanation 1. The acceptor of a bill of exchange may deny that the bill was really drawn by the
person by whom it purports to have been drawn.
Explanation 2.-If a bailee delivers the goods bailed to a person other than the bailor, he may prove
that such person had a right to them as against the bailor.

83

S. 117, deals with further instances of estoppel by agreement.

Under this section an acceptor of a bill-of-exchange cannot deny that the drawer had authority to
draw such bill or to endorse it. But he may deny that the bill was really drawn by the person by
whom it purports to have been drawn. A bailee or licensee cannot deny that his bailor or licensor
had, at the commencement of the bailment or licence, authority to make the bailment or grant the
licence. But a bailee, if he delivers the goods bailed to a third person, may prove that such person
had a right to them as against the bailor.

Q. 21. What is a leading question? When can it be asked?

When can it not be asked?

Ans. Meaning of Leading Question--According to S. 141, any question suggesting the answer which
the person putting it wishes or expects to receive, is called a leading question.

Thus, a question is leading one when it indicates to the witness the real or supposed fact which the
examiner expects and desires to be confirmed by the answer. Is not your name Shyam? Do you
reside at Allahabad? Are you not in service of Shyam? Have you not lived for ten years with Shyam?
are the examples of leading questions. In leading questions while the examiner pretends ignorance
and is asking for information is in reality giving the answer instead or receiving it.

The leading questions are by no means limited to, those which may be answered by yes or no.

When can a Leading Question not be Asked? According to S.

142, leading questions must not, if objected by the adverse party, be asked in an examination-in-
chief, or in re-examination, except with the permission of the court.

Leading questions cannot ordinarily be asked in examination-in-chief or re-examination. The

witness is presumed to be biased in favour of the party examining him, and might thus be
prompted. The reason for excluding leading questions is quite obvious; it would enable a party to
prepare his story and evolve it in his very words from the mouth of his witness in Court. It would
tend to diminish chances of detection of a concocted story. If a witness is allowed to give his
narrative in his own words, he is likely if the story is made up, to leave some loop-holes, to which
the cross-examiner will scarcely fail to direct his attack.

It may be noted that Leading question can only be asked when they refer to matters which are (i)
Introductory; (il) Undisputed; or (iii) Sufficiently proved. For, if such questions were not allowed,
the examination would be most incorveniently protracted.