Legal advice by lawyer to client is privileged, cannot be disclosed in court: Bombay High Court

The Bombay High Court recently held that provisions of the Indian Evidence Act which makes a communication between an advocate and his client 'privileged communication' would operate even after the advocate ceases to represent the litigant [Anil Vishnu Anturkar vs Chandrakumar Popatlal Baldota]..Single-Judge Justice Abhay Ahuja, therefore, quashed the 'witness summons' issued to Senior Advocate Anil Anturkar by a civil court in Pune to identify his signatures on a communication (legal advice) he gave to his client in January 2004 while representing him in a civil suit."Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Facts should not be received in evidence unless they are both relevant and admissible. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. It is clear that documents, which are privileged in view of Sections 126 or 129 of the Evidence Act, though relevant cannot be produced or received in evidence," the judge said in the order passed on December 21.Therefore, the judge said, a witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue..The bench was seized of a plea by Anturkar challenging the witness summons issued to him seeking his presence in a court in Pune to identify his signatures. In his plea, Anturkar argued that his communication was a professional one and thus protected under the Evidence Act. He further pointed out that the litigant himself was dead and that he (litigant) never consented to make the communication in question as an evidence in his suit before the court."Therefore, in view of the clear language of Section 126 of the Evidence Act that no barrister, attorney, pleader or vakil shall at any time be permitted to disclose any advice given by him to his client, unless he has his client’s express consent to disclose, in the absence of any such consent, the communication of January, 2004 is a privileged communication, its disclosure being prohibited under Section 126 of the Act, in view of the above elucidation, cannot be allowed to be produced in Special Civil Suit," the Court held.The Court, therefore, said that the petitioner cannot be compelled to attend the trial court for the purposes of confirming the communication of January, 2004 for identifying his signatures to the said communication. "And in view of the Explanation to Section 126 of the Evidence Act, which explains, that the obligations not to disclose in the said section continue even after the employment of the professional has ceased, the said prohibition would continue even though the litigant is no more," the judge added..Senior Advocate Ashutosh Kumbhakoni along with advocates Sandeep Phatak and Sugandh Deshmukh appeared for the petitioner. Advocate SN Chandrachood represented the respondent..[Read Order]