While setting aside a witness summons to a lawyer, the Bombay High Court in a most learned, landmark, laudable and latest judgment titled Anil Vishnu Anturkar v. Chandrakumar Popatlal Baldota and Ors in Writ Petition No. 3359 of 2015 delivered just recently on December 21, 2022 has minced just no words to explicitly hold that communications between lawyer and client are privileged and a lawyer cannot be compelled to confirm such a communication in a trial even if it is already disclosed to the trial court by another party. The Court reiterated that evidence should be received by the court to which it is tendered unless there is a legal reason for rejection.
It was also made abundantly clear by the Court that, “Facts should not be received in evidence unless they are both relevant and admissible. Therefore, the documents which are privileged under Section 126 or 129 of the Act though relevant cannot be produced or received in evidence.” At the very outset, this extremely commendable, cogent and creditworthy judgment authored by the Single Judge Bench of the Bombay High Court comprising of Hon’ble Mr Justice Abhay Ahuja sets the ball in motion by first and foremost putting forth in para 1 that, “By this petition filed under Article 227 of the Constitution of India, the Petitioner who is a designated Senior Advocate of this Court is impugning the issuance of witness summons dated 23rd March, 2015 directing Petitioner to remain present on 27th March, 2015 at 11.00 a.m. before the Civil Judge, Senior Division, Pune for giving evidence in Special Civil Suit No. 1209 of 2004, which date was at the time of filing of this petition fixed for 4th April, 2015.
Petitioner is seeking to quash and set aside the said witness summons by this petition. By an ad-interim order dated 31st March, 2015, continued from time to time, the impugned witness summons has been stayed in terms of prayer clause [B] to the petition.”
As we see, the Bench then discloses in para 2 that, “Mr. Kumbhakoni, learned senior counsel for the Petitioner would submit that the impugned witness summons at Exhibit-D, page 22 to the petition requires Petitioner to remain present before the Civil judge, Senior Division, Pune and produce an office copy of the letter dated 11th January, 2004 written by the petitioner to his client Shri Dara Bharucha, residing at 4. Dr. Coyaji Road, Pune-411 001, a photocopy whereof has been produced by the respondent no.1 in Special Civil Suit No. 1209 of 2004. The said communication has been annexed at Exhibit B to the writ petition.
Learned Senior Counsel states, on instructions, that Mr. Dara Bharucha already dead.” On expected lines, the Bench then points out in para 3 that, “Learned senior counsel would submit that the said communication is a professional communication, an opinion which is protected as a privileged communication under Section 126 of the Indian Evidence Act, 1872 (the “Evidence Act”). He would submit that the application for issuance of witness summons has been made by the respondent no.1 to this petition. Learned Senior Counsel submits that till date no copy of the plaint in the said civil suit has been received by Petitioner.
He would submit that although it appears that respondent no.1 is a plaintiff to the said Special Civil Suit No. 1209 of 2004, however, since Petitioner is not having copy of the plaint of the said Special Suit, Petitioner is not in a position to say for what purpose the said special suit has been filed against Shri Bharucha. That petitioner is also not aware of the other defendants in the said suit. That the names and addresses have been taken from the website.”
Needless to say, the Bench then observes in para 10 that, “A bare perusal of the said provision clearly indicates that no barrister, attorney, pleader or vakil can disclose any professional communication viz. any communication received by him in the course of engagement by a client or any communication or advice rendered by the professional to his client, without the express consent of his client to disclose.
The explanation clearly suggests that the obligation not to disclose without the express permission/ consent of the client continues even after the engagement/employment has ceased. Of Course, there are exceptions as noted in the proviso above, to this privilege in case of communication made in furtherance of any illegal purpose or upon observation of any fact showing any crime or fraud committed in which case, the protection from disclosure shall not be available. There is also no suggestion in the facts, that this case falls under the exceptions to the rule of privileged communication.” Be it noted, the Bench notes in para 11 that, “It may also be worthwhile here to refer to Section 129 of the Evidence Act which relates to privileged communications of another type which are confidential communications between client and his legal adviser, which is quoted as under:- “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.” (emphasis supplied).” Most significantly, the Bench then states in para 12 what constitutes the cornerstone of this notable judgment wherein it is postulated that, “This is a client’s privilege (not a professional’s privilege claimed on the basis of prohibition on the professional as in Section 126) that a client cannot be compelled to disclose any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness.
The question in the context of this case that would therefore arise would be whether the communication dated 11th January, 2004 can be considered as confidential communication and as it is only in respect of some confidential information that a client cannot be compelled to disclose unless he offers himself as a witness. In the facts of this case, it would have been Mr. Dara Bharucha’s privilege unless he had offered himself as a witness. It has been neither been stated in the impugned witness summons nor counsel for the respondent no.1 has at any time suggested that the said communication is confidential or that Shri Dara Bharucha offered himself as a witness in any case including special civil suit no. 1209 of 2004 pending before the Civil Judge, Senior Division, Pune. Therefore, disclosure with respect to Section 129 is best left as it is as the same is not in question here and also does not have any bearing on the issue before me, which relates to professional communications under Section 126 and not to confidential information under Section 129 of the Evidence Act, though both fall under the same class, viz. privileged communications.”
Most remarkably, the Bench then leaves no stone unturned to make it absolutely clear stating in para 14 that, “Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Facts should not be received in evidence unless they are both relevant and admissible. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. In view of the above, elucidation, it is clear that documents, which are privileged in view of Sections 126 or 129 of the Evidence Act, though relevant cannot be produced or received in evidence. Therefore, a witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue.”
Most forthrightly, the Bench then hastens to add in para 15 holding that, “It is not in dispute that the communication dated 11th January, 2004 is a professional communication in the nature of a legal opinion/advice from Petitioner to Shri Dara Bharucha in respect of First Appeal No. 92 of 2001 between Shri Dara Bharucha and others v/s Mr. Mehra Hommiji and Anr. It has been submitted on behalf of Petitioner that Petitioner neither had nor has any consent, let alone an expression to disclose this communication. Therefore, the said communication is a privileged communication and Petitioner is prohibited from disclosing or producing such privileged communication. Therefore, in view of the clear language of Section 126 of the Evidence Act that no barrister, attorney, pleader or vakil shall at any time be permitted to disclose any advice given by him to his client, unless he has his client’s express consent to disclose, in the absence of any such consent, the communication dated 11th January, 2004 is a privileged communication, its disclosure being prohibited under Section 126 of the Act, in view of the above elucidation, cannot be allowed to be produced in Special Civil Suit No. 1209 of 2004. That being the case, the impugned witness summons dated 23rd March, 2015 deserves to be quashed and set aside.”
It would be worthwhile to note that the Bench mandates in para 16 holding that, “Therefore, even though the communication dated 11th January, 2004 between Petitioner and his client Shri Dara Bharucha, now deceased, is already disclosed to the trial court and also annexed to the petition at Exhibit-B, however, in view of the clear bar in Section 126 of the Evidence Act, and the said communication being privileged, cannot be produced nor admissible in evidence in Special Civil Suit No. 1209 of 2004.
Therefore, Petitioner cannot be compelled to attend the trial court for the purposes of confirming the communication dated 11th January, 2004 or for identifying his signatures to the said communication. And in view of the Explanation to Section 126 of the Evidence Act, which explains that the obligations not to disclose in the said section continue even after the employment of the professional has ceased, the said prohibition would continue even though Shri Dara Bharucha is no more.”
As a corollary, the Bench states in para 17 that, “In this view of the matter, the impugned witness summons dated 16th February, 2015 is hereby quashed and set aside.”
Finally, the Bench then concludes by holding in para 18 that, “Petition is allowed in the above terms. No order as to costs.” All told, we thus see that the Bombay High Court has made it indubitably clear that the lawyer cannot be compelled to disclose the communication with client as it is privileged.
We thus see that the Bombay High Court quashes the witness summons to the senior advocate Anil Anturkar. Very rightly so!
