Report No. 185

70. Substitution of section 122 to 124.-

For sections 122 to 124 of the principal Act, the following sections shall be substituted, namely:-

"122 Communication during marriage.- (1). No person who is or has been married, shall be compelled to disclose any communication made during marriage, between that person and any person to whom that person is or has been married; nor shall that person be permitted to disclose any such communication, unless the person to whom that person is or has been married or that person`s representative in interest, consents, or unless the proceedings are of the nature specified in sub section (3).

(2) Any person other than the person referred to in sub-section (1) who has overheard or has acquired possession of or has intercepted, in accordance with law, any communication as is referred to in subsection (1), may be permitted to disclose any such communication without the consent of the spouses or their representatives in interest.

(3) The proceedings referred to in sub section (1) are-

(a) proceedings between married persons;

(b) proceedings in which one married person is prosecuted for any offence committed against the other;

(c) proceedings in which one married person is the complainant or is the person at whose instance the first information of the offence was recorded, and the other married person is the accused;

(d) proceedings in which one married person is prosecuted for an offence committed against a child of the other person or a child of the first mentioned person or a child to whom either of them stands in the position of a parent.

123 Evidence as to Affairs of State.- (1) Save as otherwise provided in this section, ,-

(a) no person shall give evidence derived from unpublished official records relating to any affairs of State; or

(b) no public officer shall be compelled to disclose any oral, written or electronic communication relating to any affairs of the State made to him in official confidence, unless the officer at the head of the department concerned, has given permission for giving such evidence.

Explanation.- For the purposes of clause (a), the expression 'evidence derived from unpublished official records' includes the oral evidence derived from such records and the record itself.

(2) The officer at the head of the department concerned referred to in sub-section (1), shall not withhold such permission, unless he is satisfied that the giving of such evidence would be injurious to the public interest; and where he withholds such permission, he shall file an affidavit in the Court, raising an objection and such objection shall contain a statement to that effect and his reasons therefor.

(3) Where the objection referred to in sub-section (2) is raised in a Court subordinate to the High Court, whether in a civil or criminal proceeding, the said Court, notwithstanding anything in any other law for the time being in force, shall have power and shall refer the question as to the validity of such objection to the High Court for its decision.

(4) The High Court, on a reference under sub-section (3), shall decide upon the validity of the said objection, in accordance with the provisions of sub sections (5) to (7) and transmit a copy of the judgment to the Court which made the reference to enable the said Court to proceed further in accordance with the Judgment.

(5) Where the High Court, on a reference under sub-section (3) is of the opinion that the affidavit filed under sub section (2) does not state the facts or the reasons fully, the High Court may require such officers or, in appropriate cases, the Minister concerned with the subject, to file a further affidavit on the subject.

(6) The High Court, after considering the affidavit or further affidavit as the case may be, and if it thinks fit, after examining such officer or, in appropriate cases, the Minister, orally, shall

(a) issue summons for the production of the unpublished records in chambers; and

(b) inspect the records in chambers, and

(c) determine the question whether the giving of such evidence would or would not be injurious to the public interest, recording its reasons therefor.

(7) Where the High Court determines under clause (c) of subsection (6) that the giving of such evidence would not be injurious to the public interest and rejects the objection raised under sub-section (2), the provisions of sub section (1) shall not apply to such evidence and such evidence shall be received.

(8) Where the objection referred to in sub section (2) is raised in the High Court or in the Supreme Court, whether in a civil or criminal proceeding, the said Court shall decide the validity of such objection in accordance with the procedure in sub sections (5) to (7), as if the validity of the said objection had been referred to it.

124. Official Communications.- (1) Subject to the provisions of section 123, no public officer shall be compelled to disclose any oral, written or electronic communication made to him in official confidence, when the Court considers that public interest would suffer by such disclosure.

(2) Where a public officer who is a witness is asked a question which might require the disclosure of any such communication, and he objects to answering the question on the ground that public interest would suffer by its disclosure, the Court shall, before rejecting his objection, ascertain from him, in chambers, the nature of his objection and reasons therefor."