Report No. 69

VII. Section 126-Some Points of Detail

68.34. Section 126-Confidential communications.-

Section 126 does not speak of "confidential communications", while section 129 is so limited expressly. It has, however, been held1 that section 126 is also confined to private and confidential communications. Thus, a communication made in the presence of a third person, or a communication with a view to its being communicated to the other party, is not privileged,2 not being confidential.

1. Pranji v. Mohan Singh, ILR 18 Born 263 (271); Kali Kumar v. Raja Kumar, AIR 1932 Cal 148: ILR 58 Cal 1379.

2. Kali Kumar v. Raja Kumar, AIR 1932 Cal 148: ILR 58 Cal 1379.

68.35. Word "employment" to be replaced by "engagement".-

We shall now deal with a question of phraseology. In, protecting against the disclosure of communications made in professional confidence to a legal practitioner by or on behalf of a client, section 126 uses the word "employment" at several places. It seems to us that the word "employment" is not quite appropriate to denote the relationship between a client and his legal adviser. We would prefer the word "engagement', and recommend that it should be substituted.

68.36. Section 126-"Barrister" etc. to be replaced by legal practitioner.-

Another verbal point may be mentioned. In dealing with the privilege regarding communications between a client and his legal adviser, section 126 speaks of "barrister, attorney, pleader or vakil". For brevity, it may be desirable now to use the word "legal practitioner"-an expression used in the Constitution. It may also be desirable to extend the provisions of this section to persons who, though they cannot be regarded as legal practitioners, tender professional advice in legal or semi-legal matters. Important illustrations of these are chartered accountants who can practise as income-tax practitioners and sales-tax practitioners, and also advise companies. It may be convenient to frame a definition of legal practitioner so as to include such persons. We recommend that the section should be suitably amended for the purpose.

VIII. Recommendation

68.37. Recommendation.-

In the light of the above discussion we recommend that section 126 should be revised as follows:-

"126. No legal practitioner1 shall, at any time, be permitted, except with his client's express consent, to disclose any communication made to him in the course and for the purpose of his professional engagements 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 such engagement, or to disclose any advice given by him to his client in the course and for the purpose of such engagement:

Provided that nothing in this section shall protect from disclosure-

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any, legal practitioner in the course of his engagement as such, showing that any crime or fraud has been committed since the commencement of his engagement;

(c) any such communication when required to be disclosed in a suit between the legal practitioner and the client arising out of the professional engagement or in any proceeding in which the client is prosecuted for an offence against the legal practitioner or the legal practitioner is prosecuted for an offence against the client arising out of the professional engagement.

Explanation 1.-The obligation stated in this section continues after the engagement has ceased.

Explanation 2.-In this section and in sections 127 to 129, the expression 'legal practitioner' or 'legal professional adviser' includes any person who is, by law, empowered to appear on behalf of any other person before any administrative authority; and the expression 'client' shall be construed accordingly.

Explanation 3.-For the purpose of clause (b) of the proviso to this section, it is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client".

[Illustrations as at present, with substitution of "engagement" for employment in illustration (c) and with substitution of legal practitioner for attorney in all illustrations].

1. See proposed definition, infra.

IX. Sections 127 to 129

68.38. Recommendation as to section 127.- This takes us to section 127, which reads-

"127. The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils."

The words "barristers, pleaders, attorneys and vakils" should be replaced by "legal practitioners",1 and we recommend accordingly.

1. Cf. Recommendation as to section 126.

68.39. Recommendation as to section 128.- Section 128 reads-

"128. 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."

The words "barrister, pleader, attorney or vakil" should be replaced by the words "legal practitioner", and we recommend accordingly.

Section 129 reads-

"129. 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."

It needs no change.

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