(a) A, on his trial before the Court of Sessions, says that a deposition was improperly taken by B, the Magistrate. Â cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b) A is accused before the Court of Sessions of having given false evidence before B, a Magistrate. Â cannot be asked what A said, except upon the special order of the superior Court.
(c) A is accused before the Court of Sessions of attempting to murder a police officer whilst on his trial before Â, a Sessions Judge. Â may be examined as to what occurred.
“Sections 121 to 132 provide exception to the general rule that a witness is bound to tell the whole truth and to produce any document in his possession or power relevant to the matter in issue.” There are cases in which the witness is a “privileged” with respect to certain matters and he cannot be made bound to answer questions while giving evidence.
Under this section a judge or a magistrate is a competent witness. A judge or a magistrate cannot be compelled to answer questions except: (i) upon the special order of the court to which he is subordinate or (ii) as to his conduct in court as such judge or magistrate in relation to a case tried by him.
This section makes it clear that privilege granted to the judge or magistrate cannot be extended to the other kinds of witnesses. So long he or she is acting or has acted as a judge or a magistrate no question is permitted to be asked as to his or her conduct or judicial function. But the superior court by virtue of the section has right to question as to his or her conduct. The Supreme Court has extended the privilege to arbitrators also. According to the Supreme Court in no case an arbitrator can be summoned to explain how he came at his award.
The privilege given by this section is the privilege of the witness, i.e., the judge or magistrate of whom the question is asked. If he waives such privilege or does not object to answer the question, it does not lie in the mouth of any other person to assert the privilege. A session judge while trying a case cannot compel a committing magistrate, except under the special orders of the court to which he is subordinate.