Explain the 'Privileged Communication'. 'A' client confides in 'B'.......Critically examine the statement.

Question: Explain the 'Privileged Communication". 'A' client confides in 'B', his lawyer that he has a forged deed in his possession on the basis of which he wants to file a case against 'C' to get possession of land." Is this communication protected under the law from disclosure? Critically examine the statement. [JJS 2018]

Find the answer to the mains question of the Law of Evidence only on Legal Bites. [Explain the 'Privileged Communication". 'A' client confides in 'B', his lawyer that he has a forged deed in his possession on the basis of which he wants to file a case against 'C' to get possession of land." Is this communication protected under the law from disclosure? Critically examine the statement.]

Answer

According to the Collins Dictionary, privileged communication is defined as “A communication that one cannot legally be compelled to divulge, as that to a lawyer from a client or a communication made under certain circumstances, as in a legislative proceeding, such that it is not actionable as slander or libel.”

The privileged communication, though relevant, is not admissible in a Court of Law because statutory privilege is conferred to certain relationships to create an environment of trust and confidentiality. The objective behind the same is to encourage litigants to seek advice from their counsels without any fear of their private information being disclosed to the public and particularly being used against them in a legal proceeding.

Sections 122 to 132 of the Indian Evidence Act, 1872 enshrine the provisions related to privileged communications. These provisions are briefly discussed below:

Section 122 deals with the privilege relating to communications between spouses during the marriage.

In the case of M.C. Verghese v. T.J. Poonan, (1970) it was held that the communications made during the marriage, regardless of the subsequent events like separation or divorce, retain the protection under Section 122 of Indian Evidence Act.

Reliance is also placed on Ram Bharosey v. State of UP, (1954) wherein the Hon’ble Supreme Court made a distinction between conversations between spouses and acts and deeds to determine admissibility under Section 122 of the Indian Evidence Act. The statements related to the accused’s actions, such as being seen at a certain place or engaging in specific activities, will not be considered privileged communications under Section 122.

Sections 123 and 124 deal with the privileges of official communication.

Section 126 of the Act runs down as under:

"no barrister, attorney, pleader or vakil shall at any time be permitted to disclose any communication made to him in the course and for the purposes 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, to disclose any advice given by him to his client, unless he has his client’s express consent to disclose."

However, there are certain exceptions to the aforesaid general rule of privilege laid down under Section 126. These are:-

• communication or document made in furtherance of any illegal purpose and;
• fact observed by the lawyer, in the course of his engagement which would show that a crime or fraud has been committed since the commencement of his engagement.

Applying the aforesaid legal provisions to the case at hand, it is clear that the communication between 'A' and 'B' about the forged deed is not protected from disclosure as it falls under the exception outlined above. The communications made to commit a crime or fraud by a litigant are not protected by lawyer-client privilege under Section 126. Since the intention of 'A' is to use a forged deed (which constitutes fraud) to file a case against 'C', the communication is made in furtherance of an illegal purpose. Therefore, it is not protected under the privileged communication under Section 126 from disclosure.