PROFFESSIONAL COMMUNICATION

Anju Bala
1512
B.A. LL.B. (Hons.)

Submitted to: Dr. P.K.V. Sita Rama Rao

Law Of Evidence

A Final draft made in partial fulfilment of the course Law Of

Evidence during the academic year 2017-18, semester IV

April 2018

Chanakya National law University, Meethapur, Patna, 800002

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 Declaration By The Candidate

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled
“Proffesional Communication” submitted at Chanakya National Law University, Patna
is an authentic record of my work carried out under the supervision of
Dr. P.K.V. Sita Rama Rao I have not submitted this work elsewhere for any other degree or
diploma. I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

ANJU BALA
1512
Chanakya National Law University, Patna
16/04/2018

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 ACKNOWLEDGEMENT

“Democracy is whenthe indigent,

And not the men of propery, are the rulers.”
By- Aristotle

A project is a joint endeavour which is to be accomplished with utmost compassion, diligence

and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and greatfullness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered
Property Law-I faculty Dr. P.K.V. Sita Rama Rao whose support and guidance was the
driving force to successfully complete this project. I express my heartfelt gratitude to him.
Thanks are also due to my parents, family, siblings, my dear friends and all those who helped
me in this project in any way. Last but not the least; I would like to express my sincere
gratitude to our Criminal law-I faculy for providing us with such a golden opportunity to
showcase our talents. It was truly an endeavour which enabled me to embark on a journey
which redefined my intelligentsia, induced my mind to discover the various events and
provisions which led to the development of law in India.
Moreover, thanks to all those who helped me in any way be it words, presence?
Encouragement or blessings...

- Anju Bala
-1512
- 3rd Semester
- BA LL.B

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 TABLE OF CONTENTS
Acknowledgement……………………………………………………………………………

3Table of

Contents……………………………………………………………………….........4

Introduction…………………………………………...……………………………….…..…5

Aims andObjectives……………..……………………………………………………………5

Hypothesis…………………………………………………………………………………….5

ResearchMethodology…………………………………………………………………….…6

Sources of data collection……………………………………………………………………6

Limitations and scope of the study…..……………………………………………………..6

Chapterisation…………………………………………………………………………………

1. Introduction : Proffessional Communication: ……………………………………

2. Indian law relating to the provision…….…………………………………………

3. English law relating to the provision………..……………………….……………

4. S. 126 OF THE IEA, 1872 AND ITS RELATION WITH S. 91 OF THE CRPC,

1973……………………………………………………………………………………

5. Conclusion…………………………………………………………………………

Bibliography………………………………………………………………………………

-Websites…………………………………………………………………………………….

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 Chapter I Introduction : Professional Communication
Sections 126 to 1292 deal with the privilege that is attached to professional communication
between the legal advisors and the client under the Indian Law. On the other hand privilege
under common law is incorporated under two broad heads, Legal advice privilege which
protects any communication between a lawyer and the client which have the purpose of
seeking or giving legal advice and Litigation Privilege which protects any communication
between a lawyer and third parties or between the client and third parties which are made for
the purpose of existing or contemplated legal proceedings. The rational of the privileges are
grounded in the principle of natural justice.

The term „privilege‟ has a range of meanings. Sometimes it is used loosely to cover
exclusionary rules like the one generally barring admissibility of compromise negotiations. A
narrower use of the term, covering rules preserving a right to keep certain relevant
information from one‟s adversaries, would include the work product doctrine and the right
against self incrimination. Privileges give special treatment, i.e. a cloak of secrecy to a variety
of confidential communications such as those made in the relationships of lawyer-client,
husband-wife, or priest-penitent. One of the most important grounds on which access to
evidence can be refused is that the evidence in question is protected by legal professional
privilege.

This doctrine gives legal recognition to a person‟s interest in maintaining the secrecy of
confidential communication in connection with his legal affairs. The doctrine originated at
common law and for most purposes its scope and limits are still determined by the common
law. Information which is conveyed in a privileged communication cannot be brought into
trial and cannot be a subject for discovery even though the statement may be relevant to a
disputed issue. In a lawyer-client context, for example, a client can refuse to answer a
question like „what did you tell your lawyer?‟ The client is also entitled to prevent the lawyer
from revealing what the client said. Similarly, a letter written by a client to the lawyer will
not be admissible. However, only the actual statement made in confidential relationships are
kept secret by privileges. Suppose that a client has said to his lawyer, „I knocked down a
telephone pole while I was driving my red car.‟1

The client could not in this case be asked in the trial, „What did you tell your lawyer about
the telephone pole and your car?‟ However, the lawyer-client privilege would not block
questions like, „Did you knock down the telephone pole?‟ or „What color is your car?‟ The
privilege protects against revealing the statements that a person makes privately to his lawyer
but it does not protect against revealing the information a client knows whether or not the
client may have communicated that information in privileged conversation. The privilege
prohibits questions that would call for answers like, „My client told me his car is red‟ or „I
told my lawyer that my car is red‟. If information can be developed in ways that do not
involve reliance on a communication made in a confidential relationship, privilege doctrines
have no effect. They keep the fact that the information was discussed, but they do not make

1
The Indian Evidence Act, 1872

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the information itself a secret. Like the special relevance rules for character or subsequent
remedial measures, privileges represent a social choice that particular goals should overcome
the general premise that relevant evidence is admissible. The most widely accepted rationale
for evidentiary privileges is a utilitarian analysis, that the communication are socially
desirable , and that people would be less likely to make them if they were not privileged. In a
lawyer-client case, the utilitarian argument would be that the society as a whole benefits
when the frequency of people‟s consultation with lawyers increase. Also, people who need
advice about complicated transactions or other events might decline to seek it if they thought
that the words they spoke to lawyers could be used against them sometime later at trials.
Besides the utilitarian point of view, two other explanations are sometimes given. One is that
privileges reflect a recognition that the state should not intrude in certain personal
relationships.

In contrast, another theory argues that rather than showing government‟s sensitivity to
privacy, privileges show government‟s interest in corrupting the search for the truth to
benefit powerful social groups such as lawyers. Although there are many different privileges,
they all involve certain basic issues. Did the communication take place within the relationship
required for the privilege? Was it confidential? 3 Who is entitled to claim the privilege? Has
the proponent of the privilege waived its benefit by acting in ways that has destroyed the
confidentiality it is meant to provide? Does the communication involve a topic for which the
protection of the privilege is removed to serve other social interests?

Aims and Objectives:- The researcher has found the following during the course of research:

 During professional communication does client may voluntarily consent either orally
or in writing to the disclosure of he information.
 Can parent give consent to disclosure of information concerning a child, but if an
attorney has been appointed for the child, that attorney represents the child interest
and may withhold consent for disclosure even if the parents seeks the disclosure.
 Is disclosure without consent is permitted? If permitted then what are the
circumstances under which the disclosure of information permitted without consent?
 Can husband on behalf of wife give consent for disclosure of information to the
barrister, attorney or vakil?

Hypothesis:- The researcher has presumed the following, the validity of which has been
tested in the course of research:

 Right to a client to obtain legal advice in confidence.

 To encourage full and frank communication between attorney and their client.
 An advocate can breach section 126 of Indian Evidence act?
 Is communication between clients and foreign advisers are not clearly protected.

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Research Methedology

The researcher will rely on basically doctrinal and method of research. The study of research
is based on both primary and secondary sources of data collection. The major sources of data
collection of researcher will be different law books on IPC and criminal law. The researcher
will also consult some academician & expert in criminal law (especially in IPC).

Sources of data collection

 Primary sources- Judgments of apex court, provisions of Indian Penal Code,

Statute, Precedent & other official document.
 Secondary sources- statement of judges, websites, articles, news paper, books,
journals etc.

Limitation and scope of the study

Due to lack of time, finance and lack of resources my research work is wholly based on
doctrinal method of research, my research work doesn’t rely on non-doctrinal research or
empirical research.

For further research this can be a means of doctrinal research.

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 Chapter II Indian Law Relating To The Provision
In the Halsbury Laws of Evidence8 it is observed that „Confidential communications passing
between a client and his legal adviser and made for the purpose of obtaining or giving legal
advice are in general, privileged from disclosure. The privilege is available in respect of the
oral testimony of witnesses, and the principles which determine whether a communication is
or is not privileged are the same for both oral and written communications. The privilege is
that of the client and may be waived by him.

As already posited Sections 1262 and 127 apply when the legal advisers or his clerk, etc are
interrogated as a witness. The professional advisor of a third party or a stranger is privileged;
or rather his client is, as well as the professional adviser of a party to the suit. Section 129
applies when the client himself is interrogated and whether such client be a party to the case
or not;3 and by the terms of this latter section, it is only communications which have passed
between a person and his legal professional adviser that that are privileged. The rule is
established for the protection not of the legal advisers but of the client and the privilege,
therefore, may only be waived by the latter, it is founded on the impossibility of conducting
legal business without professional assistance, and on the necessity, in order to render that
assistance effectual, of securing the fullest and most unreserved communication between the
client and his legal adviser.

Further, a compulsory disclosure of confidential communications is so opposed to the popular

conscience that it would lead to frequent falsehoods as to what had really taken place. The
rule of law‟ as pointed out by Lord Sankey “…is the condition of liberty. Amid the cross-
currents and shifting sands of public life, the law is like a great rock upon which a man may
set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in
a country where every citizen knows that in the law courts, at any rate, he can get justice.”
However, the provisos to S. 126 prevent the privilege conferred from becoming the shield of
crime or illegality. 4

The rule does not apply to all that which passed between a client and his legal advisor, but
only to what passes between them in professional confidence, and the 8 4 th ed., Vol 17, para
237, p. 166. 7 contriving of crime or illegality is no part of the professional occupation of a
2
Indian Evidence Act
3
Raj Narain v. Indira Gandhi, AIR 1974 All 324
4
. Munchershaw Bezonji v. New Dhurumsey Spinning and Weaving Company, ILR 4 Bom. 576 at p. 582.

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legal adviser; and it can as little be said that it is part of his duty to advise his client as to the
means of evading the law. This section does not forbid the disclosure of a fact disclosed.

The immunity from disclosure which can be claimed by a client in respect of a

communication made to his lawyer is not absolute but limited in its scope. Section 126
prescribes the limits of the two provisos. The use of the word „shall‟ in S. 126 indicates that
the prohibition is of mandatory character. Also the privilege embodied in S. 126 is not liable
to melt down on the principle of waiver of acquiescence.12 Section 126 is intended for the
protection of the client and not of the lawyer. Unless the client waives the privilege, the
counsel cannot be compelled to give evidence against him so long as the case does not fall
within the exception clause.

However, it was stated in a case that the privilege contained in S. 126 of the Indian Evidence
Act, 1872 is not an absolute privilege but only a conditional one. The lawyer is entitled to and
is obliged also, to speak to the said communication if his client expressly consents to do so.
The words in S. 126 „unless with his client‟s express consent for the disclosure of any
communication made by him to his lawyer. Also, where the counsel for an accused recorded
the statement of the witnesses recorded by the court in extenso to prepare himself for an
effective cross-examination of the witness, and those notes contained instructions given by
the client, the instructions given by the client being privileged under S. 126, the counsel for
the accused could not be compelled to show notes to the court.15 Now, with respect to S.
129, the case of Bustros v. White is regarded as the leading case upon the subject of
discovery under the new practice and has been followed in India in the case 9 Re An
Attorney AIR 1925 Bom 1. 10 KC Sonrexa v. State of Uttar Pradesh AIR 1963 All 33. 11
Deviprasad v. Kailashchand 1980 Jab LJ 599, 601 (MP). 12 Mandesan v. State of Kerala
1985 CrLJ 61 (Ker). 13 Mohd Afzal Mir v. Haji Mahda Bhat 1983 SLJ 218 (J & K). 14 Rev
FR Bernard v. Ramchandran Pillai, 1986 KLT 1240-41. 15 Superintendent and
Remembrancer of Legal Affairs, West Bengal v. S Bhowmik, AIR 1981 SC 917. 16 L.R. 1
Q.B. Div 423. 8 of Wallace v. Jefferson.17 In this case it was observed, „In Bustros v.
White18 it was decided a court of appeal consisting of eight judges that a judge has no
discretion as to refusing to allow the production of documents in possession of a party to the
suit relating to the matter in question, provided the documents are not privileged. 5

5
6 th ed., Secs 846, 847.

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Section 130 of the Civil Procedure Code would appear to have been copied from the above
rule, and therefore it is advisable to adopt the English ruling as to its construction. As the
defendant‟s affidavit admitted that the documents in question related to the matter in dispute,
the only question which had to be determined was whether they were privileged. They
consisted of two or three telegrams or letters, all of which passed between the plaintiff in
London and his agent in Bombay. It was said that they were confidential communication
between principals and their agents.6 But the mere circumstances that communications are
confidential does not render them privileged as laid down in the case of Anderson v. Bank of
British Columbia. Also in the case of Umbica Churn Sen v. Bengal Spinning and Weaving
Co.19 , it was held that where a party refers to a document in the pleadings as the source of
his own information and knowledge of facts relevant to the suit and then sets up those facts
by way of answer to plaintiff‟s claim, he cannot afterwards attempt to make the case that the
document are confidential and intended merely for his legal advisers or for the purpose only
of evidence in the case.

Case:- Veera sekharan case

The petitioner is a practicing advocate of this Court with a standing of 11 years at the Bar. He
has been appearing for a group called Liberation Tigers of Tamil Ealam of Sri Lanka (in short
known as 'L.T.T.E.') defending its members in various Courts in Tamil Nadu since 1983. He
has been appearing even in the Designated Court which rejected his bail application. One
Padmanabha was the leader of the Ealam People Revolutionary Front (in short 'E.P.R.L.F.')
which is a group against L.T.T.E. L.T.T.E. has been planning to annihilate the said
Padmanabha. The said Padmanabha and others came to Indian leaving Sri Lanka and stayed
at Zackriah Colony, Kodambakkam, Madras-24. According to the First Information Report
filed by the Investigation Officer on the file of the XI Metropolitan Magistrate, Saidapet,
Madras on 19-6-1990 a killer squad consisting of Sivarasan (since deceased), David, Daniel,
Chilipan alias Dhilp, Ravi and Gundu Santhan (since deceased) armed with deadly weapon
such as AK-47 rifles and hand grenades, trespassed into the house of the said Padmanabha
and 14 others by opening fire with AK-47 rifles and exploding hand grenades made with
RDX explosive substance and terrorised the general public of the locality. After the
occurrence, the main accused fled away to Sri Lanka via. Trichy and Tanjore. One Sundar
who is a resident of Zackriah Colony, Kodambakkam, Madras, Went to Kodambakkam

6
Greenough v. Gaskell (1833) 1 Myl & K. 98; Lawrence v. Campbell (1859) Drew 485; Minett v. Morgan
(1873) Ch. App. 361; Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644.

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Police Station and gave a report on the same day about the occurrence based on which a case
in Crime No. 1205 of 1990 was registered by R. 2 Kodambakkam Police Station u/Ss. 147,
148, 448, 324, 326, 427, 307, 302 and 120B of the IPC and S. 25 of Indian Arms Act and S. 5
of the Explosives Act. The said case was originally investigated by the Madras City Crime
Branch Police. In the month of May 1991, the former Prime Minister Rajiv Gandhi was
assassinated and the identity of the accused concerned in this case came to light by the
confessional statement given by one Santhan alias Suthenthiraraja u/S. 15 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'T.A.D.A.') and the
said Santhan was arrayed as an accused in this case as well as in the assassination case of the
former Prime Minister Rajiv Gandhi. The said case was transferred to 'Q' Branch, C.I.D.,
Madras for further investigation. Since the abovementioned killer squad not only murdered
Padmanabha and 14 others but also terrorised the general public of Zackriah colony,
Kodambakkam, by firing indiscriminately with AK-47 rifles and exploding hand grenades,
the Deputy Superintendent of Police, 'Q' Branch C.I.D. Madras, who was investigating the
case in Cr. No. 1205 of 1990 has sent an intimation to XI Metropolitan Magistrate's Court,
Saidapet, Madras, on 16-8-1991 about the inclusion of an offence u/S. 3 of TADA Act.
Thereafter the said First information Report in Crime No. 1205 of 1990 and other connected
records were transferred to the Designated Court constituted under TADA Act in Madras for
further proceedings and the said case is pending investigation.

3. The petitioner herein was arrested on 25-11-1991 at his residence on a non-bailable

warrant issued by the Designated Court and he was produced before the Designated Court
with remand filed under Section 167, Cr.P.C. read with Session 20(4)(b) of TADA Act, 1987.
It is stated in the said report that one Gundu Santhan alias Santhan was involved in the
Padmanabha murder case and he has been proclaimed as an offender by the Designated Court
under TADA Act. On 1-11-1991, accused A. 18 one Vasanthan was arrested in the said
Padmanabha murder case and an unsigned letter has been seized from his possession on and
in para 3 of the letter, it is stated as follows :

He has stated that the said letter was written by the petitioner herein. On 10-11-1991, a xerox
copy of the letter, alleged to have been written by the petitioner was received through post by
the Superintendent of Police 'Q' Branch, C.I.D., Madras and both the letters were sent to the
document expert. The document expert opined that both letters were written by the one and
the same person and as such it is stated in the remand report that it is evident that the
petitioner herein had abetted accused Gundu Santhan alias Santhan to escape from the

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cultches of law. It is also stated therein that investigation has revealed that the petitioner
herein, who has been arrayed as Accused A-27, was involved in the murder case of
Padmanabha and others. A request was made the the petitioner may be ordered to be
remanded to judicial custody for a period of 30 days. The petitioner preferred Crl. M.P. No.
193 of 1991 in Cr. No. 1205 of 1990 before the Designated Court, under Section 20(8) of the
TADA Act and Section 437 of Cr.P.C. It is stated in that petition that he has been falsely
implicated in the above Crime No. 1205 of 1990 with ulterior motive of threatening the
advocates who appear for any of the accused in the abovementioned Padmanabha murder
case as well as in the murder case of Rajiv Gandhi. It is also stated in the said petition that the
petitioner herein has appeared as counsel for some of the accused in both cases mentioned
above and that there is no material to connect him with the crime in Crime no. 1205 of 1990.
It is further stated in the said petition, that the petitioner is an advocate by profession, that he
is a permanent resident of the city of Madras and that there is no likelihood of for committing
any offence while he is on bail. This was opposed by the learned Special Public Prosecutor,
who is appearing for cases under TADA Act.

4. On behalf of the petitioner, it was contended before the Designated Court under TADA
Act that there is no justification to invoke the provisions of the TADA Act.

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 Chapter III English Law Relating To Provision
Under the common law one of the most important grounds on which access to evidence can
be refused is that the evidence in question is protected is protected by legal professional
privilege. This doctrine gives legal recognition to a person‟s interest in maintaining the
secrecy of confidential communications in connection with his legal affairs. The doctrine for
most purposes, its scope and limits are determined by the common law, however the
Parliament had given the privilege statutory expression for certain purposes.7

Under S. 10(1) of the Police and Criminal Evidence Act, 1984 (PACE) states that “items
subject to legal privilege means, a. Communications between a professional legal advisor and
his client or any person representing his client made in connection with the giving of legal
advice to the client; b. Communications between a professional legal advisor and his client or
any person representing his client or between such an advisor or his client or any such
representative and any other person made in connection with or in contemplation of legal
proceedings and for the purpose of such proceedings; and c. Items enclosed with or referred
to in communications and madei. In connection with the giving of legal advice, or ii.

In connection with or in contemplation of legal proceedings and for the purposes of such
proceedings, when they are in the possession of a person who is entitled to possession of
them” This section gives effect to two forms of privilege under common law. One form
protects communication between a client and a lawyer made in connection with a purpose of
the client obtaining or receiving legal advice from the lawyer. This is sometimes referred to
as lawyerclient privilege, or legal advice privilege to distinguish it from the other form of
legal professional privilege known as litigation privilege.

Litigation privilege protects communications between a client or the client‟s lawyer, and a
third party made for the dominant purpose of the 10 client obtaining or receiving advice or
information in connection with litigation that is in existence or is contemplated as a definitive
prospect. Under both forms the privileges is that of the client, not the lawyer or the third
party. The privilege gives the client a right to refuse to disclose a privileged communication,
a right to refuse to give evidence about it and a right that a lawyer (or the third party) shall
not be compelled to disclose or give evidence about it without the client‟s consent.21 The

7
4 th ed., Vol 17, para 237, p. 166.

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lawyer owes a corresponding duty to the client not to disclose a privileged communication
without the client‟s consent.

Such consent can be freely given or withheld. If the client does disclose or give evidence
about a privileged communication, or consents to the lawyer (or a third party) doing so,
would waive the privilege.

LEGAL ADVICE PRIVILEGE

With respect to the first type of privilege under common law, this type of privilege has been
recognized for centuries. According to Wigmore,22 the earliest reference appear in the late
sixteenth century when cases were reported holding that solicitors and counsel were exempt
from examination touching the matter on which they were acting for the client. However, in
this early period the court regarded the privilege as that of the lawyer and not the client. The
modern form of the privilege was settled in the nineteenth century as the courts of equity
refined their process of pre-trial discovery. 8

A series of leading cases23 established two propositions that are crucial for an accurate
identification of the modern rationales for the privilege. The first one being that the privilege
is that of the client rather than lawyer, while the second one being that privilege attaches to
confidential communication in connection with a purpose of legal advice irrespective of
whether litigation is in existence or contemplated. 9 However, there are a number of situations
in which a claim of lawyer-client privilege will or may fail, despite the fact that the claim
relates to a communication between a lawyer and client.

The first situation is where the communication is in furtherance of a crime or fraud on the
part of the client. In this case it is more accurate to say not that the privilege is lost, but that it
never arises in the first place. In the second situation privilege does not does not arise but the
client subsequently waives the privilege. 10 In the third situation the client has not waived the
privilege but the third party has nonetheless acquired possession of the original or a copy of a
privileged document, or is otherwise in a position to give evidence of a privileged
communication. Finally, it is considered to what extent, if at all, a court may order disclosure

8
Re An Attorney AIR 1925 Bom
9
KC Sonrexa v. State of Uttar Pradesh AIR 1963 All 33.
10
Deviprasad v. Kailashchand 1980 Jab LJ 599, 601 (MP)

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of privileged communication in order to protect an interest that the court regards as having a
higher priority.

LITIGATION PRIVILEGE

With respect to the type of privilege, litigation privilege protects material coming into
existence for the purpose of litigation to which the client is a party.

Clearly, this may include material that would in any event be covered by legal advice
privilege, such as the client‟s correspondence with his solicitor about the conduct of
litigation.11 Litigation privilege like legal advice privilege also covers confidential work done
by the client‟s legal advisors on behalf of the client, such as legal research, counsel‟s notes,
and draft opinions and so on. However, litigation privilege is wider than legal advice
privilege in one major respect. It extends privilege to confidential communications by the
client or the lawyer with third parties for the dominant purpose of acquiring advice or
information in connection with the litigation. Such communications typically include witness
statements, proofs of evidence, expert reports and so. Further, the rules relating to
communications in furtherance of crime or fraud, waiver and secondary evidence are the
same as for legal advice privilege.12

11
Greenough v. Gaskell (1833) 1 Myl & K 98
12
McNaughton Rev., 1961 v. VIII, para 2290.

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Chapter IV S. 126 OF THE IEA, 1872 AND ITS RELATION WITH S. 91
OF THE CRPC, 1973

Section 91 (1) of the CrPc 1973 provides that whenever any court considers that the
production of any document is necessary or desirable for the purpose of any inquiry, trial or
other proceeding under the CrPc such court may summon the person in whose possession or
power such documents is believed to be, and require him to attend and produce it. The
discretion conferred by the section on the court is an absolute one, the only condition for its
exercise being that, in the opinion of the court, the production of the document is necessary or
desirable for the purposes of the inquiry, trial or other proceedings before the court.

Nothing in that section affects ss. 123 and 124 of Evidence Act. The provisions of this section
cannot, however, be relied upon to negative the existence of the power of the court to make
an order under S. 91(1) of the CrPc. The Court in an appropriate case can order under S. 91,
which would override the provisions of S. 126. It cannot be urged that an order under S. 91(1)
is illegal merely because it violates the privilege conferred by this section. It is true that, in
making an order under S. 91(1), the court exercises a judicial discretion, and ordinarily it
would not, in the exercise of its discretion, make an order which violates the privilege
conferred by S. 126. But it cannot be urged that no order can be made under S. 91(1), which
infringes the privilege of professional communication embodied in S. 126.13

It seems that the power of the court to make an order under S. 91(1) is not limited by the
provisions of S. 126, but the discretion under S. 91(1) is a judicial discretion and it should not
ordinarily be exercised in such a way as to conflict with the privilege against disclosure
conferred by S. 126. However, it is laid down that S. 91(3) of the CrPc exempts the
documents which are protected under S. 123 and 124 but not under S. 126. Therefore in
criminal cases the protection under S. 126 afforded to communications by client to lawyer
cannot be availed of against an order to produce the document; the document must be
produced, and the under section 162, it will be for the court after inspection of the documents
if it deems fit, to consider and decide any objections regarding its production and
admissibility.

Chapter V Conclusion
13
Chandubhai v. State, AIR 1962 Guj 290.

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Hence, to conclude, as already laid down that in general S. 126-129 deal with the law relating
to professional communications between clients and legal advisors or their clerks. A lawyer
in under a moral obligation to respect the confidence reposed in him and not disclose
communications which have been made to him in professional confidence i.e. in the course
and for the purpose of his employment, by or on behalf of his clients, or to state the course of
conditions of documents with which he has become acquainted in the course of his
professional employment, without the consent of his client. This section gives legal sanction
to this obligation. The question of privilege arises only when either the advocate or his client
are asked to disclose the professional communication made between them. When the
communication is in the form of writing and is made known to others, there is no
„confidentiality‟ for either the client or the advocate claiming privilege. The foundation of
this rule, as posited is not difficult to discover. It is not on account of any particular
importance which the law attributes to the business of legal professors, or any particular
disposition to afford them protection. But it is out of regard to the interest of justice which
cannot be upheld, and to the administration of justice, which cannot go on, without the aid of
men skilled in jurisprudence, in the practice of the courts, and in those matters affecting
rights and obligations, which form the subject of all judicial proceedings. If the privilege did
not exist at all, everyone would be thrown upon his own legal resources. If deprived of all
professional assistance, a man would not venture to consult a skillful person, or would only
dare to tell his counselor half his case truthfully.

Bibliography

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