The privilege contained in S.126 of the Indian Evidence Act is conditional, requiring the client's express consent for disclosure.

1. On a private complaint filed against the petitioner, the Chief Judicial Magistrate, Trichur took cognizance of an offence under S.500 of the I. P. C. and issued process to the petitioner. This petition under S.482 of the Code of Criminal Procedure is to quash the said complaint and the subsequent proceedings. The respondent is the complainant.

2. The petitioner is the Vicar of St. Treasa's Church, Arimpoor Village and he is also the Principal of an educational complex in Trichur. The respondent/complainant was employed as a driver of the bus belonging to the said church. It is alleged that the petitioner denied employment to the respondent on and after 16-12-1984 and thereupon, the respondent issued a notice to the petitioner through a lawyer. In reply

thereto, a notice was sent by the petitioner's lawyer in which it is mentioned that the respondent had misappropriated a sum of Rs. 90/- from the amount given to him by the petitioner to purchase diesel. The respondent took serious note of the said reply notice and filed the complaint against the petitioner alleging that the imputation contained in the notice is libellous to him. It is further alleged that the petitioner has spread a scandal in the locality that the respondent bad committed pilferage in diesel.

3. The petitioner's contention is that the Chief Judicial Magistrate ought not have taken cognizance of the offence as the statement contained in the reply notice falls within Exception No. 9 to S.499 of the I. P. C. The imputation in the reply notice is per se defamatory and hence the onus of proof is on the accused to show that the statement falls within the scope of the said exception.

4. It is contended by the learned counsel for the petitioner that the reply notice sent by the petitioner's lawyer cannot be proved to have been sent under instructions from the accused on account of the embargo contained in S.126 of the Indian Evidence Act. The content of the notice is the result of a communication made to the lawyer. S.126 of the Evidence Act prohibits disclosure of any communication made by a client to his lawyer. The said provision says that "no barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client". The interdict embodied in S.126 of the Evidence Act is against disclosure of the communication made to a lawyer in the course of his employment as such. If the communication has already been disclosed, then the inhibition under S.126 loses its effectiveness. To disclose means, to make known or to reveal. That communication which has already been made known to others, or already been revealed to another, does not have the lid of confidentiality over it. In such circumstances, no question of disclosure arises since the communication has already been made known to others. In this case, what is stated in the reply notice by the petitioner's lawyer is evidently what he has disclosed to others, and more particularly, to the respondent's lawyer. Therefore, the said communication cannot continue to have the protection afforded by S.126 of the Evidence Act.

5. From yet another angle also, the petitioner is disentitled to claim protection for the said communication mentioned in the reply notice. The privilege contained in S.126 is not an absolute privilege, but only a conditional one. The lawyer is entitled to, and is obliged also, to speak to the said communication if bis client expressly consents to do so. The words in S.126 "unless with his client's express consent" make it clear that the client has the option to give consent for the disclosure of any communication made by him to his lawyer. The express consent envisaged in the section does not mean that the consent must be in writing. Such consent can be inferred from facts or circumstances