Indian Evidence Act

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About Section 126 of the Indian Evidence Act

The attorney client privilege is a crown jewel of the legal profession. [1] According to Black law dictionary, attorney client relationship refers to the disclosure of potential sensitive information from clients to their attorney and law requires that an attorney does not reveal or disclose such information or communication between them to any third party.

A sound system of administration of justice should contain three ingredients such as, a well-planned body of law based on the concept of social justice, a judicial hierarchy which is learned in law and inspired by the high principles of professional conduct and a suitable generation for ensuring fair trial.

[2] A privileged professional communication refers to the protection awarded between the legal advisor and the client. Legal privilege or attorney client privilege is essentially referring to the rights which are available to the client for the protection of their interest.

It ensures full, frank and complete disclosure of information or communication between the client and lawyers without any fear of disclosure or incrimination. The main intension behind this concept is that people or client must speak candidly or everything to their lawyers so that their interest is completely represented to them.

[3] The principle of attorney client is not a new concept. The origin of this concept can be traced all the way back to the Roman Republic and its use was firmly established in English law as the reign of Elizabeth I in the 16th century.

[4] The doctrine of client confidentiality privilege became the integral part of the UK common law and it is accepted whole around the world. Non-attorneys such as accountants, business consultants and other advisors do not come into the scope of this privilege.


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.

Objectives These are some main objectives- A· To understand the concept of attorney client privilege under Section 126 of the Indian Evidence Act, 1872. B· To study the history or origin of the concept of attorney client relationship. C· To study about the scope and element of Section 126 of the Indian Evidence Act, 1872. D· To discuss about the various criticism or limitations of the attorney client privilege that is provided under Section 126 of the Evidence Act.

Attorney client privilege in India

In India law on attorney client privilege is codified under the Indian Evidence Act, 1872 and it has been developed on the basis of the same lines as that of the UK common law. The Indian Evidence Act, 1872 provides protection to the professional communication and confidential communication of a client with their legal advisors. Sir James Fit- James prepared its draft and it was based on the English law of evidence.

Even after independence in 1947, English judgements remained persuasive authority and the courts in India may look into the English decision in matter concerning to the interpretation of Evidence Act.[7] The law in India relating to the privilege communication is very much familiar to the English law and common law lawyers.

In India, the benefit of the privilege communication is enumerated under Section 126 to Section 129 of the Indian Evidence Act, 1872 and provides relationship between the client and attorney or advocate. The attorney or advocate is legally not permitted to disclose any communication or document related to the client without clients express consent. At the same time, a client is also not permitted to disclose to court any confidential information with his advocate unless he offers himself as the witness.[8]

Section 126 and Section 128 deals with the circumstances under which the legal advisors or attorney can give evidence of such professional communication, however, Section 127 provides that interpreters, clerks or servants of the legal advisors are restrained in the same manner.

Scope of Section 126 of the Evidence Act

Section 126 of the Indian Evidence Act 1872, provides the scope of the privilege attached to the attorney client relationship. It provides restriction on the barrister, attorney, pleader or vakil to disclose communications made by his client or advice given by him in the course of his employment except if there is an illegal purpose or showing a crime or fraud after commencement of his employment.[10]

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.[12]

In India any person who seek advice from the advocate or attorney registered under the Advocate Act, would have the benefit of the attorney client privilege and such communication is protected under Section 126 of the Indian Evidence Act, 1872.[13] The scope of this section also extends to the employees of the advocate or law firm which also includes accountants, paralegals and other such employees.

This code of conduct is also applicable to the advocates or legal advisors which are found in the Bar Council of India Rules Part VI, Chapter II, Section II, Rule 17 provides that advocate shall not directly or indirectly commit a breach of obligation imposed under Section 126 of the Indian Evidence Act, 1872, thus protecting the spirit of attorney client relationship and breach of same would lead to the violation of the Bar Council Rules of India.

In order to determine the scope of attorney client privilege under Section 126 of the act, it is very important to treat an attorneys position separate from that of the client. The level of protection that should be provided to a communication depends on whether the information or document is sought to extracted from an advocate or from his client. Section 126 provides protection against disclosure of any communication by an advocate.

However, there are some exceptions to this rule, such as this Section does not provide protection when any communication is made in furtherance of any illegal purpose or any fact which is observed in the course of employment showing that any crime or fraud has been committed during the commencement of employment.[14] The communication made to an advocate must be made confidentially in order to maintain the attorney client relationship.

The privilege under Section 126 of the Act also extends even after the attorneys or advocate engagement has comes to an end however, it does not provide protection to the communication or advice received after the end of the employment. This rule is also extends to the interpreters or agents of the attorneys who are under the same prohibition and they are also entitled to the same immunity as the advocate engaged in the matter.[15] However, such privileged communication or documents can be disclosed by the advocate only when an express consent is provided by the client.

Also, client can disclose such document or information when he voluntary give evidence as a witness to Court, which according to the Courts opinion is necessary to explain the evidence that the client has already given to an attorney but for no other purposes.

Critical analysis of attorney client privilege under Indian Evidence Act

Attorney client relationship is established as legal doctrine which protects the confidential communication between the client and their advocate, although its application is not absolute. There are some grey areas in Section 126 of the Evidence Act.

The Scope of Section 126 is limited only to the barristers or attorney; it does not confer privileges to the in house lawyers.[17] In house lawyers may not practise as advocates or attorney during the period of their employment and they clearly fall outside the ambit of the Section 126 of the Act.

The Supreme Court in Satish Kumar Sharma v. Bar Council of Himachal case provided that if a full time employee is not pleading on behalf of his employer, or the term of the employment is such that he can do other functions or is not required to plead then such employee is mere a employee of the government or body corporate. The judgement also referred to the Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules, and sated that an advocate cannot be a full time salaried employee of any person, government, firm or corporate body as long as long as he practices.

Conclusion It is very evident that attorney client relationship is considered as a privilege document is very vital for the effective disposal of the dispute. A lawyer or attorney is under a moral well as the statutory obligation to respect the confidence reposed in him and not to disclose his clients personal information, communication or documents to anyone in the course or purpose of the employment. If such communication would not be protected, then no one will consult an advocate or attorney for his defence or to the enforcement of his rights and hence no man would come to court either to redress or to defend himself.

The rule relating to the attorney client relationship in India is almost more than a century old rule but still it is very inadequate to provide a level of protection that is ordinarily be expected in this modern relationship with the attorney. There are many limitations and drawbacks of this rule such as the wordings related to the in-house lawyers should be made clear and they should be covered under the ambit of this rule. Also, there is complete absence of protection to the communication made to any third party. This rule is considered as very rigid in nature and it may occasionally operate to the exclusion of the Truth.

Section 127 in Indian Evidence Act 1872 Title: Section 126 to apply to interpreters, etc Description: The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils Case Laws : Case Law 1

State of Madhya Pradesh ... Appellant(s)


Jiyalal ... Respondent(s)

                                O R D E R

1. Leave granted.

2. Application for exemption from filing O.T. is allowed.

3. The State of Madhya Pradesh had filed a petition seeking special leave to appeal against a judgment given by a single judge at the Jabalpur Bench of the High Court of Madhya Pradesh (in Criminal Appeal No. 1539 of 1995). Prior to the impugned judgment of the High Court, a Special Judge at Balaghat, Madhya Pradesh had convicted the Respondent for offences under Section 7 and Section 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as `the Act']. In pursuance of the

findings of the Special Judge, the Respondent had been sentenced to undergo imprisonment for a period of one year and a fine of Rs. 200-/- had also been imposed on him. Aggrieved by this result, the Respondent had filed an appeal before the High Court.

4. The learned single judge of the High Court set aside the conviction and the sentence mainly on the ground that the requisite sanction order had not been obtained properly. Under the scheme of the Act, a sanction order from an appropriate authority is required before proceeding with a prosecution under the same Act. The rationale for requiring such a sanction order is to discourage frivolous prosecutions under the Act. In the present case, the learned single judge of the High Court had opined that the District Magistrate (the appropriate authority in this case) who had granted the sanction order in question had not applied his mind. It was held that since the sanction order did not enumerate reasons, it had been given mechanically and was hence illegal. It was further stated that the said sanction order (Exhibit - P/6 in the proceedings before the Special Judge) had not been proved because the District Magistrate who passed the order had not been subsequently examined as a witness by the prosecution in order to prove the same.

5. In our opinion, both of the above-mentioned findings of the learned single judge of the High Court are not correct. Therefore, the High Court was not justified in interfering with the `finding, sentence or order passed by a Special Judge' under the Act. As per Section

19(3)(a) of the Act `no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned.'

6. The relevant portion of the Act reads as follows :-

"Section 19. Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the code of Criminal Procedure, 1973,-

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.-For the purposes of this section,-

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

7. In the case before us, even if it were to be accepted that there has been an `error, omission or irregularity' in the passing of the sanction order, the learned single judge of the High Court has not made a finding which shows that a serious failure of justice had been caused to the

Respondent. In the absence of such a finding it was not correct for the High Court to set aside the conviction and sentence given by the Special Judge.

8. It was also not justified for the learned single judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the Respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution.

9. It is apparent that the High Court has not considered the appeal on merits to decide whether a failure of justice had been occasioned in the present case. Therefore, we set aside the judgment of the learned single judge of the High Court and direct that the appeal filed by the Respondent before the High Court be considered on merits and disposed of accordingly.

10. The appeal is disposed of accordingly.

...................................CJI (K.G. BALAKRISHNAN) .................................... J.

(P. SATHASIVAM) New Delhi July 31, 2009. Case Law 2 Harbans Kaur V. Iqbal Singh and ANR 2019

The Apex Court on 29.01.2019, in HARBANS KAUR v IQBAL SINGH & ANR[1].,allowed the appeals that had been made against the Rajasthan High Court’s judgment which allowed the tenant’s writ petition while setting aside the eviction order that had been passed by Rent Tribunal and Appellate Rent Tribunal. The Special Appeal (Writ) filed by the landlord had faced a dismissal while being held as unmaintainable by the Division Bench of the Rajasthan High Court.

FACTS: The appellant being the landlord of the shop had it out to the respondent­ tenant at Rs.8,500/­ per month. As per the rent deed, there was a clause that mentioned about an increase in the rent by 10% on a yearly basis. A notice had been the landlord due to the non -payment and non tendering of the rent. Further, the respondent was asked to deposit arrears into the account of the tenant. The notice specified that upon the failure of depositing money, legal proceedings pertaining to eviction shall be proceeded against the respondent.

The tenant deposited the aforesaid amount in the account of the landlord after the prior. However an application under Section 9 of the Rajasthan Rent Control Act, 2001, was filed by the tenant for eviction upon the ground of arrears of rent, The tenant contended that as per the provisions of Act, 2001, that was affected in 01.04.2003, the rate percent was 7.5% p.a.

The Rent Tribunal gave directions for the eviction of the tenant due to failure in paying the rent. An appeal before the Rent Appellate Tribunal was filed by the tenant which was eventually dismissed while upholding the Rent Tribunal’s order. Being grieved, a writ petition was filed in the High Court that was permitted by the learned Single Judge judgment and order.

An appeal was filed against the judgment of the learned Single Judge Special Appeal that was dismissed by Division Bench by its judgment where it held the appeal being unmaintainable. Being grieved, the appeals were filed in the Apex Court.


The Apex Court while allowing the appeals and restoring the order passed by the Rent Tribunal, held that as per the provision in Section 6 contains provision the landlord is entitled in seeking the revision of rent irrespective of anything mentioned in the agreement between the landlord and the tenant and thus the landlord not adding 10% increase in the rent did not lead to any breach of Section 6 while an error had been committed from the part of the High Court while permitting the petition filed by the tenant.

Case Law 3

State Of Punjab Vs Atma Singh and ORS 2009

Atma Singh has sought pre-arrest bail in a case registered by way of FIR No. 145 dated 3.12.2011 at Police Station Dehlon, District Ludhiana for an offence punishable under sections 420 read with section 120-B of Indian Penal Code.

The complainant Gurmukh Singh has one uncle, named, Parminder Singh, who is settled in Canada. Sukhdeep Kaur is the wife of said Parminder Singh. Sukhdeep Kaur has two sisters, named, Kuljeet Kaur and Harjeet Kaur while Niranjan Singh and Balwinder Kaur are their parents. Niranjan Singh and his family members persuaded the complainant to request Parminder Singh to sponsor their immigration to Canada. With a view to persuade the complainant to do so, they offered Harjeet Kaur in marriage to him. The ring ceremony was even held. The complainant was then made to arrange for their migration to Canada and had spent heavily thereon. Reaching Canada, Harjeet Kaur refused to marry him. However, Niranjan Singh and his family members hatched another conspiracy to cheat the complainant. They offered Kuljeet Kaur instead of Harjeet Kaur in marriage to him. The complainant agreed to the proposal. Kuljeet Kaur returned to India on 27.1.2009 and stayed at the house of the petitioner, Atma Singh. At the instance of Atma Singh and others, the complainant spent lot of money on clothing, ornaments and hospitality during the marriage. He even spent a sum of Rs. 53,000/- on the photography of the functions. For 30 days after the marriage, Kuljeet Kaur stayed in India but during this period, she did not permit the petitioner to consummate the marriage. Though, she filed papers of the complainant for immigration to Canada and the complainant as well as Kuljeet Kaur appeared in the Embassy separately on 29.9.2009, but visa was denied to the complainant. Promising to file an appeal against the order of Canadian Embassy, Kuljeet Kaur returned to Canada. The complainant has come to know that Kuljeet Kaur was in love with one Lakhu Gill and on the one hand, Kuljeet Kaur filed an appeal and on the other hand, she got a complaint filed from Lakhu Gill to the effect that the marriage between the complainant and Kuljeet Kaur was fake and made with the only object of immigration of the complainant. The complainant, therefore, could not go to Canada. Thereafter, he requested his uncle to send Kuljeet Kaur back to India so as to cohabit with him, but he was made an object of scorn by all.

Learned counsel for the petitioner has submitted that the facts appearing in the FIR do not make out a case of cheating. According to her, the appeal against the order of Canadian Embassy was dismissed and Kuljeet Kaur was not at fault in this regard. According to her, Atma Singh has moreover no role in the entire occurrence and, therefore, he is entitled to pre-arrest bail. In support of her submissions, she has relied upon Jagvir Kaur v. State of Punjab 2011 (3) RCR (Criminal) 192, Nirmala v. State of Haryana, 1991 (1) RCR (Crl.) 208, Beant Singh v. Jaskaranjit Kaur Sandhu 2010 (5) RCR (Civil) 63, State of Maharashtra v. Sayed Mohammed Masood 2010 (1) RCR (Criminal) 177, and Dalip Kaur v. Jagnar Singh 2009 (9) JT 184.

Learned State counsel has submitted, on the other hand, that before registration of this case, the police had conducted a detailed enquiry and only after finding substance in the complaint, the case was registered. He has submitted that the complaint appears to be genuine because Kuljeet Kaur during her stay of one month after the marriage, did not permit the complainant to consummate the marriage. He has further submitted that he has got documentary evidence to prove that the appeal filed by Kuljeet Kaur against rejection of visa of the complainant was not dismissed but was withdrawn by her.

Learned counsel for the complainant has submitted, on the other hand, that the house of Atma Singh was the centre of all the conspiracy. According to him, Atma Singh is the brain behind the cheating and it is at his instance that the complainant had spent all the money on his marriage.

It is a different type of case where the husband has been made to spend on all the ceremonies of the marriage including the food, ornaments, clothing, photography etc. The circumstance that singles out this case and takes it out from the category of civil dispute is that Kuljeet Kaur did not permit the complainant to consummate the marriage during a period of one month, she stayed in India after the marriage. She is said to have withdrawn the appeal which was allegedly filed by her against the order of rejection of visa of the complainant. When the complainant tried to make out grievance in this regard before Atma Singh and others, he was laughed at by those persons. These very facts distinguish this case from the facts of the reported cases. Taking them one by one, I find that there was just breaking of engagement in Jasvir Kaur's case (supra). There was no circumstance to show that the engagement ceremony was also not intended to be a genuine ceremony. For this reason, it was held that offence under sections 420 and 406 was not made out.

In Nirmala's case (supra), husband gave gold and silver ornaments to his wife on marriage. It was held that on her failure to return these ornaments which amounted to istridhan, no case under sections 406 and 420 IPC is made out.

The facts in Beant Singh's case (supra) are little bit similar. There the wife was settled in Canada and husband wanted to go to Canada and paid Rs. 4.00 lacs to uncle of the wife and their marriage was settled and performed. The husband was interviewed for grant of visa but the same was denied and he blamed his wife for that. It was held that it cannot be held to be cheating on the part of the wife. Here, I would like to mention that the very fact that the wife withdrew the appeal filed against the order rejecting the visa and her not allowing the complainant to consummate the marriage would clearly show that she was not taking her marriage with the complainant seriously and that she never intended to carry on with this relationship.

In Dalip Kaur's case (supra), the ingredients of section 420 IPC have been highlighted and it cannot be said that in the case in hand those ingredients are not fuilfilled. IBold textt is a clear case where the complainant was first engaged with Harjit Kaur and after reaching Canada on the money spent by the complainant, she refused to go for the marriage. He was then offered marriage with Kuljeet Kaur and she behaved in the aforesaid manner. Atma Singh is the person at whose house, Kuljeet Kaur and her relations were staying and it is at his instance that the complainant was spending money.

In view of the aforesaid circumstances, I do not find the petitioner to deserve the concession of anticipatory bail. The petition is, consequently, dismissed.