Scope of privilege in respect of professional communication.

Appellant S. Antony retired from the Army as a Captain. In the course of his giving evidence in a defamation case against him and others he was cross-examined by P.W.4, Sri V.N. Narasinga Rao, Advocate for accused in this case, and two defamatory questions were put to him, namely, that he ran from the operation field in 1943 and came to India, on foot and that as the President of Ex-Servicemen Club, Vellore, he misappropriated the radio, blanket and cot belonging to the Club. The learned District Magistrate rightly found that these suggestions made to the appellant were defamatory and that the accused was not entitled to either Exception (1) or Exception (9) to section 499, Indian Penal Code, claimed by him. The first suggestion really means that the appellant was a deserter. There can be no doubt that the two suggestions are clearly defamatory.

Learned Advocate for the accused made a feeble attempt to show that the defamatory statements were true. But I see no reason to differ from the finding of the learned District Magistrate that there is no basis for the accusations made against the appellant and that the justification by truth could hardly be invoked on the facts in this case.

The main question argued in this appeal is whether the conviction could be sustained on the evidence of P.W. 4 in view of the privilege conferred under section 126 of the Evidence Act in respect of communications made by a client to his Advocate. The records do not show that any such privilege was claimed when P.W. 4 came to give evidence. It should be noted that the privilege under section 126 of the Evidence Act could be waived by the express consent of the client. But as there is no proof of any express consent in this case, I shall deal with the decisions relied on in this case.

The decision in Palaniappa Chettiar v. Emperor1, has been relied on by the District Magistrate in his judgment. The accused in that case was charged with defamation because his vakil put a defamatory question to the complainant and the vakil gave evidence that he did so on the instructions of his client and the accused was convicted. The conviction was set aside in revision on the ground that the instructions of the client to the vakil were inadmissible and the charge could not be sustained. This decision has been dissented from in Ayeesha Bi v. Peerkhan Sahib2, I entirely agree with the views expressed in the latter decision. As stated in Odgers’ Law of Libel and Slander, 6th Edition, page 197 the law presumes that an Advocate acts in discharge of his duty and in pursuance of his instructions. This principle has been referred to in In re Devaraja3, though it was held therein that the mere presumption is not at all conclusive and for convicting a person for a criminal offence, far stronger evidence will be required than such presumption alone. But the additional evidence required is afforded by P.W. 4, Sri V.N. Narasinga Rao, Advocate, for and the reply sent by him to the notice sent by the appellant’s Advocate prior to the filing of the complaint.

Further, it is clear from section 126 of the Indian Evidence Act that the privilege in respect of professional communications is intended only to protect the interests of a client in respect of any action or prosecution for any prior act or offence. The privilege is not intended for committing any offence.

In K.C, Sonrexa v. State of U.P.4, it was held that the right given to a client under section 126 of the Evidence Act is restricted in its operation to the purpose of defending him or presenting his case and the protection extends no further and that it is restricted in its scope by the two provisos contained in the section itself. It was held in that decision that the defamatory imputation in the instructions to the Advocate would not be a privileged communication as the case would fall Under proviso (1) to section 126 of the Evidence Act. Taking the facts of the present case, if the accused wanted to commit the offen