Section 131 of BSA- Deliberate Legislative Exercise Or Draftsman's Error?

Every citizen who has knowledge of the commission of any cognizable offence has a duty to lay information before the police and co-operate with the investigating officer who is enjoined to collect the evidence.¹ It is the duty of every citizen to give information to the police regarding the commission of any offence of which he has got knowledge. Does the law protect a person, who is a stranger to a crime, who gives secret information of it to the police?

Section 125 of the Evidence Act

Section 125 of the Indian Evidence Act states that, 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.

The object of Section 125 of the Indian Evidence Act is lucidly stated by Grey, C.J and his words are quoted in most of the commentaries on the Indian Evidence Act. The words of the learned Chief Justice are quoted in an old decision of the High Court of Kerala.² They read as follows:

"It is the duty of every citizen to communicate to his Government any information which he has of the commission of an offence against the laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among secrets of State. ….. Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informant himself, or by any other person, without the permission of the Government."

In fact, Section 33(1) of the Bharatiya Nagarik Suraksha Sanhita (corresponding to Section 39(1) of the Code of Criminal Procedure, 1973) mandates that, every person, aware of the commission of, or of the intention of any other person to commit, certain specified offences, shall, in the absence of any reasonable excuse, forthwith give information to the nearest Magistrate or police officer of such commission or intention. Despite this duty imposed on a person by law, fear of reprisal from the culprits may deter the public from giving information to the police as to the commission of offences.³ Further, the police may have informers. If the name of the person, who gives information regarding the commission of an offence, is revealed, he may become the target of revenge by the offenders and his life would be in jeopardy. Once the name of the informer is disclosed, his usefulness may also come to an end.⁴ The purpose of the provision contained in Section 125 of the Evidence Act is to prevent such contingencies and to encourage the public to give information regarding commission of offences to the police or other authorities concerned.

Some special statutes also contain similar provision. For example, Section 68 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides that, no officer acting in exercise of powers vested in him under any provision of the Act or any rule or order made thereunder shall be compelled to say whence he got any information as to the commission of any offence.

Nature and extent of the privilege

The protection under Section 125 of the Evidence Act is given only against disclosure of the source of information as to the commission of any offence and not in respect of the information itself. What is prohibited is the disclosure of the source from whom the Magistrate or the Officer got information as to the commission of the offence.⁵ The privilege does not extend to the contents of the communication made regarding the commission of any offence. The identity of the informer is only protected and not the contents of the communication made by him. The privilege contemplated under the provision is merely in respect of the source of the information, and not to the content of the information.⁶

Further, Section 125 of the Evidence Act refers to compelling a Magistrate or police officer or revenue officer “to say” whence he got any information as to the commission of any offence. In other words, the provision comes into play when the Magistrate or police officer or revenue officer gives oral evidence in the court.⁷

Section 131 of the Bharatiya Sakshya Adhiniyam

Section 125 of the Indian Evidence Act now stands replaced by Section 131 of the Bharatiya Sakshya Adhiniyam (for short 'the BSA'). Section 131 of the BSA reads as follows:

“No Magistrate or police officer shall be compelled to say when he got any information as to the commission of any offence, and no revenue officer shall be compelled to say when he got any information as to the commission of any offence against the public revenue”.

It can be seen that, compared to Section 125 of the Indian Evidence Act, there is a subtle but significant change in the phraseology of Section 131 of the BSA. The word “whence” occurring in Section 125 of the Indian Evidence Act is now substituted with the word “when” in Section 131 of the BSA.

Effect of the change

Most of the reputed dictionaries give the meaning of the expression “whence” as “from what source, origin, or cause”. Therefore, it is evident that the expression “whence” is used in Section 125 of the Indian Evidence Act to convey the idea that no Magistrate or police officer or revenue officer shall be compelled to disclose the source of the information received by him as to the commission of any offence.

Now, by the substitution of the expression “whence” used in Section 125 of the Indian Evidence Act with the word “when” in Section 131 of the BSA, what is the principle or idea conveyed by the new provision? It is difficult to conceive that the word “when” is employed in Section 131 of the BSA to mean “from where”. The word “when” used in Section 131 of the BSA, in its plain and literal sense, indicates or refers to the time or stage at which the officer concerned got information as to the commission of any offence. If the provision is read in such manner, it would lead to absurd results. Certainly, the Legislature would not have intended to impose a prohibition on disclosing the time or stage at which information regarding the commission of an offence was received by a police officer. Further, a literal interpretation of Section 131 of the BSA would mean that the protection from disclosure so far given to the source of information is withdrawn, thereby making the provision meaningless and otiose.

Purposive interpretation

One of the general rules of interpretation of statutes is this: Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. There is however an exception to this general rule. Where the plain and normal meaning of the words of a statutory provision and their grammatical construction would lead to absurdity or irrationality or defeating of the very object of the provision, the courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the statute. When faced with an apparently defective provision in a statute, the courts prefer to assume that the draftsman had committed a mistake rather than concluding that the Legislature has deliberately introduced an absurd or irrational statutory provision.

If one construction of the words of a provision will lead to an absurdity, while another will give effect to what common sense would show was obviously intended, the construction which would defeat the ends of the statute must be rejected. The law goes so far as to require the courts sometimes even to modify the grammatical and ordinary sense of the words, if by doing so, absurdity and inconsistency can be avoided. Maxwell on Interpretation of Statutes states that, where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify.⁸

Therefore, till the Legislature corrects the error or mistake in the provision, the remedy is, purposive interpretation of Section 131 of the BSA by the constitutional courts, by reading the word “when” as “whence” or by understanding the meaning of the word “when”, in the context of the provision, as “from where”. Such interpretation would make the provision rational and meaningful and serve to achieve its purpose.

Author is Former Judge, High Court of Kerala. Views Are Personal.

1. State of Gujarat v. Anirudhsing: AIR 1997 SC 2780.
2. State of Kerala v. Chacko: ILR 1967 (2) Ker. 687: 1967 KLT 1151.
3. State of U.P. v. Randhir Sri Chand: AIR 1959 All 727: 1959 Cri.L.J 1274.
4. State v. Dhanpat Chamara: AIR 1960 Pat 582: 1960 Cri.L.J 1650.
5. Public Prosecutor v. Govindaraja Mudaliar: AIR 1954 Mad 1023: 1954 Cri LJ 1624.
6. Munna Singh Tomar v. State of M.P: 1989 Cri.L.J 580.
7. Emperor v. Bilal Mahomed: ILR 1940 Bom 768: 787: AIR 1940 Bom 361: 1941 Cri LJ 58.
8. Afcons Infrastructure Limited v. Cherian Varkey Construction Company: (2010) 8 SCC 24.