IMPORTANT POINT
The privilege under Section 126 of the Indian Evidence Act does not prevent an advocate from disclosing facts known outside of professional communication, allowing for the summoning of witnesses to prove agreements.

JUDGMENT :

Kauser Edappagath, J.

Ext.P3 order passed by the Judicial First-Class Magistrate Court-II, Kanjirappally is under challenge in this Original Petition.

2. The petitioner herein filed a private complaint before the learned Magistrate as CMP No.6685 of 2018 against the 1st respondent. The allegations in the complaint are that Ext.P1 sale agreement has been executed between the petitioner and respondent No.1 whereby the latter agreed to sell, and the former agreed to purchase 04.05 cents of the property comprised in Re-Survey No. 42/2 of Erumeli (N) Village belonging to the latter for a total consideration agreed at the rate of Rs.35,000/- per cent, that the petitioner paid a total advance amount of Rs.2,50,000/-to the 1st respondent, but he failed to execute the sale deed as agreed and thereby committed the offences punishable under Sections 406 and 420 of IPC.

3. On receipt of the complaint, the learned Magistrate proceeded to conduct an enquiry under Section 202 of Cr.P.C. As part of the enquiry, the petitioner was examined as CW1 and an independent witness was examined as CW2. The petitioner filed a witness list to summon the witness to the agreement, as a witness, as part of enquiry under Section 202 of Cr.P.C. The witness is an Advocate by profession. The learned Magistrate rejected the request of the petitioner to summon the witness as per the impugned order on the ground that the witness is entitled to privilege under Section 126 of the Indian Evidence Act.

4. I have heard Sri.K.Sureshbabu (Kochin), the learned counsel appearing for the petitioner and Smt.S.Seetha, the learned Senior Government Pleader.

5. The petitioner wants to summon the witness to the sale agreement in question to substantiate his case that there was a valid sale agreement. True, the witness to the agreement, who is sought to be summoned, is an Advocate by profession. But the mere fact that the witness happened to be an Advocate, the prohibition under Section 126 of the Indian Evidence Act will not get attracted. Section 126 reads as follows:

“126. Professional communications. –– 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, 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, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure ––

(1) any such communication made in furtherance of any 2 [illegal] purpose,

(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, 3 [pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation. –– The obligation stated in this section continues after the employment has ceased.”

6. Going by the above provision, it is clear that the bar to disclosure applies only to confidential communication that is purely professional made to the advocate by his client in the course and for the purpose of his employment. An advocate cannot be asked 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. But this privilege extends only to all communications between the client and his advocate in the course of and for the purpose of his professional employment. The counsel may be in possession of other facts which had come to his knowledge otherwise than in the course of and for the purpose of his professional employment. Disclosure of such ma