Person Is Not Prohibited From Being Summoned As Witness Merely Because He Is An Advocate: Kerala High Court

Justice Kauser Edappagath held that prohibition under Section 126 of Indian Evidence Act will apply only to confidential communication made to the advocate by his client.

For context, Section 126 of the Indian Evidence Act imposes certain restrictions on an advocate regarding the disclosure of information provided by their client and the legal advice given to the client.

The Court interpreting the provision said that this privilege extends only to communications between his client and advocate in the course and purpose for his employment.

In the instant case, as per the complainant, a sale agreement was executed between him and the respondent. He had agreed to buy 4.05 cents of property from the respondent and paid an advance towards the same. He said that the respondent by failing to execute the sale deed committed offence of cheating and criminal breach of trust.

One of the witnesses to the sale agreement was an advocate. The Magistrate rejected the request to summon the advocate saying that he is entitled to privilege under Section 126 of the Indian Evidence Act.

The Court observed that examination of an attesting witness to the agreement is necessary to prove the agreement. The Court held that he is to be summoned to prove the fact that he has signed in the agreement as a witness and not to bring on record any personal communication made by the respondent to the witness. The Court further observed that any communication between the advocate and his client over the attestation of the agreement is not privileged communication protected by Section 126.

Counsel for the Petitioners: Adv. K. Sureshbabu (Kochin)

Counsel for the Respondents: Adv. Seetha S. (Sr. PP)

Case No: OP (Crl.) 117 of 2022

Case Title: Sumith v Sebastian and Another

Citation: 2024 LiveLaw (Ker) 797