Professional Communication with Advocate | A a client says to B, an Advocate that he (A) has committed rape and wishes to be defended by him (B)…Give reasons and also refer to relevant provisions, if any, under the Evidence Act.
Question: Professional Communication with Advocate | A, a client says to B, an Advocate that he (A) has committed rape and wishes to be defended by him (B). B says that you have committed the most serious crime under I.P.C. and in his (B’s) view capital punishment should be awarded to a rapist and that he would give… Read More »
Question: Professional Communication with Advocate | A, a client says to B, an Advocate that he (A) has committed rape and wishes to be defended by him (B). B says that you have committed the most serious crime under I.P.C. and in his (B’s) view capital punishment should be awarded to a rapist and that he would give evidence against him. During the trial, B appears as a witness to give evidence against A regarding the commission of rape. Should the court record B’s evidence? Give...
Question: Professional Communication with Advocate | A, a client says to B, an Advocate that he (A) has committed rape and wishes to be defended by him (B). B says that you have committed the most serious crime under I.P.C. and in his (B’s) view capital punishment should be awarded to a rapist and that he would give evidence against him.
During the trial, B appears as a witness to give evidence against A regarding the commission of rape. Should the court record B’s evidence? Give reasons and also refer to relevant provisions, if any, under the Evidence Act. [U.P.C.J. 1986, D.J.S. 1996, Bihar J.S. 1979]
Find the answer to the mains question only on Legal Bites. Professional Communication with Advocate | [A a client says to B, an Advocate that he (A) has committed rape and wishes to be defended by him (B). B says that you have committed the most serious crime under I.P.C. and in his (B’s) view capital punishment should be awarded to a rapist and that he would give evidence against him.
During the trial, B appears as a witness to give evidence against A regarding the commission of rape. Should the court record B’s evidence? Give reasons and also refer to relevant provisions, if any, under the Evidence Act.
Answer
Section 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.
One of the essential ingredients of section 126 of the act says that a man of legal profession is forbidden from disclosing without his client’s consent any communication made to him in course of and for the purpose of his employment,
The scope of the protection is that it will apply only to such communications as having been made for the purpose of professional employment and also to the advice given by the vakil. It is not necessary for enjoying this protection that any fee should have been paid to the vakil or that he should have accepted the brief. Even if the vakil rejects the case, the communications made to him must remain protected.
Illustration (a) appended to section 126: 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.
The explanation to this section says that this section will continue to apply even when the employment has ceased.
The illustration (a) to this section makes it very clear. A man committed the crime of forgery he goes to a lawyer and says to him that, “I have committed the crime of forgery and I wish you to defend me”.
Since the defence of a criminal is not an offence this communication will come under the purview of this section. Even after the case is over and the lawyer is no anymore working under the person, he is not allowed to disclose the information unless the client consents as said in the explanation to this section.
Communications protected by the section must be confidential. The word “disclose” shows that the privileged communication must be of a confidential or private nature. It is not every communication made by a person to his legal adviser that is privileged from disclosure. The privilege extends only to communications made to him confidentially and with a view to obtaining professional advice [Emperor v. Bala, (1902) 4 Bom LR 460]. Illustration (a) exemplifies this.
Therefore, in the present case at hand, when A, a client says to B, an Advocate that he (A) has committed rape and wishes to be defended by him (B). B later during the trial of A shall not be allowed to appear as a witness to give evidence against A regarding the commission of rape.
The court record should not record B’s evidence, the reason being that A approached B with the view to obtain his legal assistance in defending him. Thus, such communication made by A to B is privileged from disclosure.
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