Lawyer Cannot Be Compelled To Disclose Communication With Client As It Is Privileged: Bombay HC Quashes Witness Summons To Senior Advocate

“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…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”

Justice Abhay Ahuja was dealing with Senior Advocate Anil Anturkar’s plea challenging a witness summons directing him to appear before the Civil Judge, Senior Division, Pune in a Civil Suit.

Senior Advocate Ashutosh Kumbakoni for Anturkar submitted that the summons requires the petitioner to produce a copy of a letter he wrote to his client. The letter is a privileged communication under section 126 of the Indian Evidence Act and produced by the plaintiff in that suit. Section 126 prohibits disclosure of a communication made by a professional to his client as well as communication made by the client to the professional unless client has explicitly consented to disclose it. This continues even after the employment has ended. The petitioner did not receive consent from his client. Now that the client is dead, he cannot be examined and any such consent cannot be obtained, Kumbhakoni said.

Advocate SN Chandrachood for Chandrakumar Baldota (plaintiff in the civil suit) submitted that the petitioner has only been requested to appear before the trial court and confirm his signature on the letter. There is no prohibition in doing so as the communication is already out in the open and is no longer privileged communication.

The court noted that while the section 126 provides exceptions to the privilege between lawyer and a client, there is no suggestion in the facts that the present case falls under the exceptions.

The court further noted that under section 129 of the Act it is a client’s privilege that he cannot be compelled to disclose any confidential communication between him and his legal professional advisor unless he offers himself as a witness.

The court noted that neither the witness summons, nor Advocate Chandrachood suggested that the letter is confidential or that the client offered himself as a witness in any case including the concerned civil suit.

The court reiterated that evidence should be received by the court to which it is tendered unless there is a legal reason for rejection. Facts should not be received in evidence unless they are both relevant and admissible, the court said. Therefore, the documents which are privileged under section 126 or 129 of the Act though relevant cannot be produced or received in evidence, the court said.

Since the petitioner does not have any consent from his client to disclose the communication, the communication is a privileged document and petitioner is prohibited from disclosing a producing such privilege communication, the court held.

Therefore, the petitioner cannot be compelled to attend trial for confirming the communication or identifying this signature on it, the court concluded.

Case no. – Writ Petition No. 3359 of 2015

Case Title – Anil Vishnu Anturkar v. Chandrakumar Popatlal Baldota and Ors.

Citation: 2023 LiveLaw (Bom) 5

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