Report No. 185
Section 126, 127, 128, 129 together
There will be no difficulty if the words barrister, pleader, attorney and vakil in section 126, 127, 128 are substituted by the word 'legal practitioner', as suggested in Ch. 68 of the 69th Report. Explanation 2 has been proposed; defining 'legal practitioner'. Section 129 used the word 'legal professional adviser' and it is left as it is in the 69th Report. It can be left as it is.
The word 'employed' used in section 126, in the main section and in the proviso and in illustration (c) can be replaced as stated in 69th Report. The 69th Report suggested a new exception to be incorporated in the proviso to section 126 to say that the privilege will not apply in an action between the client and the legal practitioner, be it a civil or criminal action. There can be no objection to this recommendation also.
Therefore, the provision of section 126 need not be modified so as to include a provison like the one we recommended in section 123 enabling the court to have the final section on the question of injury to public interest.
We agree with the limited changes suggested in para 68.37 of the 69th Report. The section will be revised as follows:
"126. Professional communications.- No legal practitioner shall, at any time, be permitted, except with his client's express consent, to disclose any communication made to him in the course of and for the purpose of his professional engagement, 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 of and for the purpose of such engagement, or to disclose any advice given by him to his client in the course of and for the purpose of such engagement:
Provided that nothing in this section shall protect from disclosur.-
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any legal practitioner in the course of his engagement as such, showing that any crime or fraud has been committed since the commencement of his engagement.
(c) any such communication when required to be disclosed in a suit between the legal practitioner and the client arising out of the professional engagement or in any proceeding in which the client is prosecuted for an offence against the legal practitioner or the legal practitioner is prosecuted for an offence against the client, arising out of the professional engagement.
Explanation 1.- The obligation stated in the section continues after the engagement has ceased.
Explanation 2.- In this section and in sections 127 to 129, the expression 'legal practitioner' or 'legal professional adviser' includes any person who, by law, is empowered to appear on behalf of any other person before any judicial or administrative authority; and the expression 'client' shall be construed accordingly.
Explanation 3.- For the purpose of clause (b) of the proviso to this section, it is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client.
(a) A, a client, says to B, a legal practitione.- "I have committed forgery, and I wish you to defend me."
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, a legal practitione.- "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, a legal practitioner to defend him. In the course of proceedings, 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 professional engagement.
This being a fact observed by B in the course of his engagement, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure."