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Privilege Conversation

(Project Report)

Submitted to

Mr. Vikesh Ram Tripathi

Faculty Member in Evidence Law

By

Yash Tiwari

B.A. LL.B (Hons.) Student

Semester - VII, Section - A, Roll No. 190

21.08.2017

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur - 493661 (C.G.)


Acknowledgments

I, Yash Tiwari, feel myself highly elated, as it gives me tremendous pleasure to come out with
work on the topic, Privilege Conversation.

I am thankful to my teacher, Mr. Vikesh Ram Tripathi, who gave me this topic. I am highly
obliged for his guidance in doing all sorts of researches, suggestions and discussions regarding
my project topic by devoting his precious time.

I thank to the HNLU for providing Computer, library facility. And last but not the least I thank
my friends and all those persons who have helped me in the completion of this project.

Yash Tiwari

Semester VII

Sec. A (Roll No. 190)

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Declaration

I hereby declare that the project work entitled Privilege Conversation submitted to the
Hidayatullah National Law University, is a record of an original work done by me under the
guidance of Mr. Vikesh Ram Tripathi, Faculty Member, Hidayatullah National Law University,
and this project work has not performed the basis for the award of any Degree or diploma/
associate ship/fellowship and similar project if any.

Yash Tiwari

Semester VII

Sec. A (Roll No. 190)

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Contents

Acknowledgments

Declaration
Introduction......................................................................................................................................5
Objectives of the Study....................................................................................................................6
Scope of the Study...........................................................................................................................6
Methodology of Study.....................................................................................................................6
I. Privileges of Witnesses under the Indian Evidence Act...............................................................7
II. Privileged Legal Communication.............................................................................................10
Concluding Observations...............................................................................................................13
References......................................................................................................................................14

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Introduction

It has been observed that a sound system of the administration of justice should possess three
ingredients, namely a well planned body of law based on wise concepts of social justice, a
judicial hierarchy comprised of the Bench and the Bar, learned in the law and inspired by high
principles of professional conduct and existence of suitable generation to ensure fair trial. 1 A
"privileged professional communication" is a protection awarded to a communication between
the legal adviser and the client. It is out of regards to the interest of justice, which cannot go on
without the aid of men skilled in jurisprudence in the practice of Courts, and in those matters
affecting rights and obligations, which form the subject matter of all judicial proceedings. If the
privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived
all professional assistance, a man would not venture to consult any skilled person, or would only
dare to tell his counsel half his case.2 The following discussion compares the laws dealing with
privileged communications in India and England.

1
C.L. Anand, General Principles of Legal Ethics, pg. 39
2
Greenough v. Gaskell (1833)1 Myl. & K. 98 as per Brougham L.C

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Objectives of the Study

Set in the above perspectives, the broad objective of the study is to understand the concept of
privilege conversation.

The specific objectives of the study are as follows:

a.) Privileges of Witnesses under the Indian Evidence Act,1872


b.) Privileged Legal Communication.

Scope of the Study

The research paper would first provide the general introduction of the topic i.e. Privilege
Conversation. It will study the concept into 2 parts.

In part one, the topic will be assessed with reference to its Basic term and the definition .

The second part of this paper would discuss as what basically is privellege conversation
according to the Indian Evidence Act, 1872 and the Legal communication.

In its third part, it deals with the conclusion.

Methodology of Study

This project work is descriptive & analytical in approach. It is largely based on secondary &
electronic sources of data. Books & other references are primarily helpful for the completion of
this project.

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I. Privileges of Witnesses under the Indian Evidence Act

i) Judges and Magistrates:

According to Section 121 of Indian Evidence Act 1872, No Judge or Magistrate shall, except
upon the special order of some Court of which he is subordinate, be compelled to answer any
questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which
came to his knowledge in Court as such Judge or Magistrate but he may be examined as to other
matters which occurred in his presence whilst he was so acting.

Examples:

(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by B,
the Magistrate. B cannot be compelled to answer question as to this, except upon thee special
order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B, a
Magistrate. B, cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his
trail before B, a Session Judge. B may be examined as to what occurred.

ii) Communications during marriage:

According to Section 122 of the said Act, 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.

iii) Evidence as to affairs of State:

Section 123 of Indian Evidence Act says that "No one shall be permitted to give any evidence
derived from unpublished official records relating to any affairs of State, except with the

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permission of the officer at the head of the department concerned, who shall give or withhold
such permission as he thinks fit".

iv) Official Communications:

According to Section 124 of the said Act, "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.

v) Information as to commission of offences:

Section 125 of Indian Evidence Act says 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. Explanation Revenue officer in this section means an
officer employed in or about the business of any branch of the public revenue".

vi) Professional communications:

According to Section 126 of Indian Evidence Act 1872, No barrister, attorney, pleader or vakil
shall at any time be permitted, unless with his clients 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.

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Explanation: The obligation stated in this section continues after the employment has ceased.

Examples:

(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 As 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.

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II. Privileged Legal Communication

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached
to professional communication between a legal adviser and the client. Section 126 and 128
mention circumstances under which the legal adviser can give evidence of such professional
communication. Section 127 provides that interpreters, clerks or servants of legal adviser are
restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the
confidential communication which has taken place between him and his client.
Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to:

1. Disclose any communication made to him by or on behalf of his client or any advice given by
him to his client in the course and for the purpose of his employment;

2. to state the contents or conditions of any document with which he has become acquainted in the
course and for the purpose of his employment.

There are certain exceptions to this rule. This Section does not protect from disclosure:

1. any communication made in furtherance of any illegal purpose;

2. any fact observed in the course of employment showing that any crime or fraud has been
committed since the commencement of the employment.

The protection afforded under this Section cannot be availed of against an order to produce
documents under Section 91 of the Code of Criminal Procedure.

Section 91 of the Code of Criminal Procedure states, "Summons to produce document or other
thing:

1. When any Court or any officer in charge of a police station considers that the
production of any document or other thing is necessary or desirable for the
purpose of any investigation, inquiry, trial or other proceeding under this Code
by or before such Court or office , such Court may issue a summons, or such
officer a written order, to the person in whose possession or power such

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document or thing is believed to be, requiring him to attend and produce it, or to
produce it at the time and place stated in the summons or order.
2. Any person required under this Section merely to produce a document or other
thing shall be deemed to have complied with the requisition, if he causes such
document or thing to be produced instead of attending personally to produce the
same.
3. Nothing in this section shall be deemed a) to affect Sections 123 and 124 of the
Indian Evidence Act or the Bankers Book Evidence Act or b) to apply to a letter,
postcard, telegram or other documents or any parcel or thing in the custody of
the Postal or telegraph authority.

The document must be produced, and then, under Section 162 ("A witness summoned to produce a
document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection
which there may be to its production or to its admissibility. The validity of any such objection
shall be decided by the Court. The Court, if it sees fit, may inspect the document, unless it refers to
matters of State, or take other evidence to enable it to determine on its admissibility. If for such
purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct
translator to keep the contents secret, unless the document is to be given in evidence: and, if the
interpreter disobeys such direction, he shall be held to have committed an offence under Section
166 of the Indian Penal Code.") of this Act, it will be for the Court, after inspection of the
documents, if it deems fit, to consider and decide any objection regarding their production or
admissibility.3

Under Section 126, it is not that every communication made by a person to his legal adviser is
protected from disclosure but only those communications made confidentially with a view to
obtain professional advice are privileged. It should also be remembered that the privileged extends
only after the creation of pleader-client relationship and not prior to that. 4 Also, communication
must be made with the lawyer in his capacity as a professional adviser5 and not as a friend6.

3
Ganga Ram v. Habib Ullah (1935)58 All 364
4
Kalikumar Pal v. Rajkumar Pal (1931)58 Cal 1379
5
Wallace v. Jefferson 2B 452
6
Smith v. Duniell 44LJCh 189

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Considering the exception to this rule, existence of an illegal purpose will prevent any privilege
attaching to any communication. Thus, communications made with a view to carry out a fraud are
not privileged.7

The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections
prevent a legal adviser from disclosing professional communication. Section 129 applies where a
client is interrogated, whether he is a party to a suit or not. Section 129 states that no person shall
be compelled to disclose in the Court any communication between him and his legal adviser
unless he offers himself as witness. Thus, Section 129 makes a person immune from compulsory
process. This immunity may extend to third parties, such as consultant who are recruited to help
with the preparation of the case for trial. However, once the material has got out, it should not be
kept out of Court on account of its confidential nature any more than would any other confidential
matter.8 Also, if a party becomes a witness of his own accord he shall, if the Court requires, be
made to disclose everything necessary to the true comprehension of his testimony. 9

In a recent case, an unsigned and undated letter which was allegedly written by the advocate-
accused to his client-terrorist to remain absconding was held to be professional communication
and not abetment and thus could not be used against the advocate. 10 But in another case, the
Gujarat High Court held that disclosure was allowed where the client desired to obtain decree for
money on basis of forged promissory note.11

The rule is established for the protection of the client, not of the lawyer, and is founded on the
impossibility of conducting legal business without professional assistance, and on the necessity, in
order to render that assistance effectuated, of serving full and unreserved intercourse between the
two12.

7
ORourke v. Darbishire (1920) AC 581
8
Calcraft v. Guest (1898)1 QB 759
9
Munchershav Bezanji v. The new Dhurumsey S. & W. Company (188004 Bom 576
10
D. Veeraseharan v. State of Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
11
Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994 Guj 31
12
Jones v. Great Central Railway 1910 AC 4

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Concluding Observations

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References

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