Report No. 185

Section 121

This Section refers to privilege for Judges and Magistrates from being compelled to give evidence. It reads as follows:

"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."

There are three illustrations (a), (b) and (c) below Section 121. The first one says if there is any allegation that a deposition was improperly taken by a Magistrate, he cannot be compelled to answer question on that allegation, except upon an order of a superior Court. Illustration (b) says that where it is alleged that an accused spoke falsehood before a Magistrate, the Magistrate cannot be examined on the issue, except upon an order of a superior Court. Illustration (c) refers to the exception and says that if a person attempted to murder a person during the course of the Sessions trial in the Court, the Sessions Judge may be examined without permission of a superior Court.

In Banke v. Mahadeo: AIR 1953 All 97, it was held that for the purpose of granting a special order to examine a subordinate judicial officer, the Superior Court may call for a report from the said officer.

This is based on public policy and expediency.

The 69th Report, after some discussion, did not recommend any amendment to Section 121. But we find that in England, the privilege is extended to arbitrators but the protection offered to them is narrower. According to Phipson (15th Ed., 1999, para 24.30)

"Arbitrators may give evidence as to what transpired in an arbitration, and to state what matters were included in the submission, but they must not be asked questions about the reason for their award".

[Buccleugh v. MB Works, (1872) L.R. 5 H.L. 418; Ward v. Shell Mex B.P 1951(2) All ER 904; Falkingham v. Victoria Rly. Commissioner: 1900 A.C. 452; Reccher v. North British Co. 1915(3) KB 277; Leiserach v. Schalit: 1934(2) KB 353].

Section 3 of the Indian Evidence Act, 1872 which describes Court does not include arbitrators. In Amir Begam v. Badruddin: ILR 36 All 336 (PC), Lord Parmor stated:

"An arbitrator, selected by the parties, comes within the general obligation of being bound to give evidence, and where a charge of dishonesty or partiality is made, any relevant evidence, which he can give, is without doubt properly admissible. It is, however, necessary to take care that evidence admitted as relevant on a charge of dishonesty or of partiality, is not used for a different purpose; namely, to scrutinize the decision of the arbitrator on matters within his jurisdiction, and on which his decision is final".

When a matter was referred to an umpire upon difference between arbitrators, the arbitrator could be called to give evidence to explain the differences (Bourgeois v. Weddell & Co. 1924.1.KB 539). An arbitrator could be examined in connection with clerical or accidental omission (Narayanan v. Devaki: AIR 1945 MAD 230).

In Union of India v. Orient Eng. Works: AIR 1977 SC 2445, it was held that the arbitrator cannot be summoned merely to show how he arrived at the conclusion. If a party has a case of malafides and makes out a prima facie case that the charge is not frivolous or has other reasonably relevant matters to be brought out, the Court may summon the arbitrator. The Court approved Khublal v. Bishambar: AIR 1925 All. 103.

From the above, it will be seen that the extent of privilege so far as arbitrators are concerned, is not the same as in the case of judicial officers, particularly if malafides or misconduct or bias is alleged. The Commission is of the view that having regard to the various aspects covered by case law, it is not possible nor desirable to frame a straight jacket formula in the form of a Section so far privilege of arbitrators is concerned. We, therefore, do not propose any special provision.

In a recent decision of the Court of Appeal in England in Warren v. Warren: 1996(4) All ER 664 (CA), it was held that although there is a clear constitutional distinction between High Court and other Judge.- it does not 304 follow that the distinction provides a reason for distinguishing between judges of superior and other Courts as to the compellability to give evidence. It was held that Judges of superior Courts too are not compellable. Lord Woolf M.R. expressed the opinion that although not compellable, judges could be relied upon to give evidence in any situation where it was vital for them to do so.

We agree with the view of Lord Woolf M.R. and therefore, do not think it necessary to make any provision in Section 121 as to compellability of High Court and Supreme Court Judges to give evidence.

A Sessions Judge while trying a case, cannot compel a Magistrate to answer questions as to his own conduct in Court as such magistrate, except under the special order of the Court to which he is subject (R v. Chidda Khan: ILR 3 All 573); (D.J. Vaghela v. Kantibhai Jethabhai: 1985 Crl. LJ 974 (Guj).

The 69th Report (para 63.7, 63.8) as well as Sarkar (15th Ed., 1999 pp 1979-80) refer to some more cases of Magistrate deciding a case on merits where he has given evidence himself. No recommendation was made regarding such cases.

On an overall consideration of various aspects arising under Section 121, we do not think any amendment is necessary. What is not covered by the Section is covered by case law and there is not much of serious conflict which requires to be resolved by legislative amendments.

We leave Section 121 as it is.

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