Unit III - Privileged Communications .pptx

Law of Evidence

1. Privileged Communication: Section 122 to 129 Indian Evidence Act Certain matters which a person cannot be compelled to disclose or even if the witness is willing to disclose, he will not be permitted to do so as a matter of public policy or because interest of the state is supreme and overrides that of an individual. 122. Communications during marriage.–– No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. Exceptions: 1. Acts apart from communication : Ram Bharose V State of UP 1954 2. Waiver of privileges 3. Suit Or criminal proceedings between the two spouses 4. Communication made before marriage or after it's dissolution 5. Proof of communication by third person: Appu V State 1971, Queen Empress V Danoghue 1899

2. MC Verghese V TJ Ponnan 1970 : Facts: T.J. Ponnan (Respondent) married Rathi, M.C. Verghese's daughter. From Bombay, Ponnan had addressed letters to Rathi, who was then staying with her parents in Trivandrum. These letters were claimed to include defamatory imputations against Verghese (Petitioner). The father in law brought a suit on the evidence of these letters. The letters were passed on by the wife to her father. When the case went to Kerala High Court, then it rejected the evidence on the grounds of Section 122. Appeal was made in Supreme Court: Supreme Court propounded that: Even though a spouse is debarred from deposing to the contents of such communication but the same can be proved by a third person (wife's father, in the present case) In Rumping v Dir. Of Public Prosecutions 1862 the letter by the appellant to his wife (containing a confession about the murder committed by him) was given by the appellant to a colleague for posting it. After his arrest, the colleague handed over the letter to captain of the ship, who gave it to the police. The letter was held admissible in evidence; the crew members and captain gave evidence, but the wife was not called as witness. Held: In the present case, the court thus held that the letters are admissible in evidence. The letters could not claim the benefit of Sec. 122.]

3. 123. Evidence as to affairs of State.–– No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. 124. Official communications .––No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. 125. Information as to commission of offences . –– 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. Explanation .–– “Revenue-officer” in this section means any officer employed in or about the business of any branch of the public revenue.

4. 126. Professional communications. –– No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, 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 and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure –– (1) any such communication made in furtherance of any illegal purpose, (2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation. –– The obligation stated in this section continues after the employment has ceased.

5. Illustrations (a) A, a client, says to B, an attorney –– “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, an attorney –– “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, an attorney, to defend him. In the course of the 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 employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

6. Aim(s) : The aim of this project titled Attorney client privilege under Indian Evidence Act 1872, is to understand the concept of attorney client privilege in India. At the same time its main aim is to study how this rule preserves the confidentiality of communication between lawyer and the client. In R vs. McClure case, the Canadian Supreme Court has briefly explained about the importance of legal privilege. The Court provided that, this privilege is considered as fundamental to any justice system. The law consists of complex web of interest, relationship and rules. The integrity of the administration of justice depends completely upon the unique role of the solicitor or attorney who provides legal advice to their clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented in Nishith Desai Associates case October 10 th 2019 , Client Confidentiality Privilege Therefore legal privilege refers to an essential right for the sole benefit of the client. Every developed legal system provides the protection to the communication between an attorney and the client.

7. Objectives These are some main objectives- To understand the concept of attorney client privilege under Section 126 of the Indian Evidence Act, 1872. To study the history or origin of the concept of attorney client relationship. To study about the scope and element of Section 126 of the Indian Evidence Act, 1872. To discuss about the various criticism or limitations of the attorney client privilege that is provided under Section 126 of the Evidence Act. In Memon Hajee Haroon Mohomed v. Abdul Karim case, it was provided that in order to claim privilege under Section 126 of the Indian Evidence Act, 1872 a communication made by the party to their advocate must be confidential in nature. Also, no privilege will be given to such communication which is made before the creation of attorney client relationship.

8. 127. Section 126 to apply to interpreters, etc. –– The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils. 128. Privilege not waived by volunteering evidence. –– If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and, if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose. 129. Confidential communications with legal advisers. –– No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.