Advocate Utsav Bains Bound To Disclose Information When Required, Can't Claim Privilege Under Section 126 Evidence Act
IN RE : MATTER OF GREAT PUBLIC IMPORTANCE TOUCHING UPON THE INDEPENDENCE OF JUDICIARY - MENTIONED BY SHRI TUSHAR MEHTA, SOLICITOR GENERAL OF INDIA
SMW (C) No(s). 1 OF 2019
About/from the judgment:
"The ground raised by Mr. Utsav Singh Bains as to privilege is wholly unsustainable."
The Supreme Court bench headed by Justice Arun Mishra has held that Advocate Utsav Singh Bains is bound to disclose the information as may be required, and cannot claim privilege under Section 126 of the Indian Evidence Act.
The bench, also comprising of Justice Rohinton Fali Nariman and Justice Deepak Gupta made this observation in its order appointing Former SC Judge Justice A. K. Patnaik, to hold an inquiry into the allegations made by Advocate Bains in the affidavits.
In his affidavit, the lawyer has claimed that the disgruntled employees have ganged together in order to frame the Chief Justice of India in the false charge of sexual harassment after their dismissal from their services. He has also given certain names and has also alleged that they have asserted that they could fix the Bench of the Judges. With respect to some information in the affidavit, he claimed that certain information is privileged. One of the issues discussed by the bench in its hearing today was regarding this claim of privilege.
To hold that he cannot claim any privilege, the bench mainly referred to proviso to Section 126 and also Illustration (c) given thereunder.
Section 126 provides thus:
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:
Its proviso reads as follows:
Provided that nothing in this section shall protect from disclosure—
- Any such communication made in furtherance of any illegal purpose;
- 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, 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.
Illustration (c) reads thus
A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
The bench also referred to two judgments 1) Ganga Ram Vs. Habib-Ullah & Anr and 2) People's Union for Civil Liberties and Another Vs. Union of India
In Ganga Ram, it was held by the Allahabad High Court that the court has discretion in the matter, if it deems fit, to inspect such a document, even though there is an objection to its production or to its admissibility, provided that it does not refer to matters of State.
It was held in People's Union for Civil Liberties case that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. A lawyer cannot claim a right over professional communication beyond what is permitted under Section 126 of the Evidence Act, it was held in the said case.
Referring to these decisions, the bench observed:
"It is apparent from the above decision that without production of the information, the Court cannot be deprived of inspecting the document. The ground raised by Mr. Utsav Singh Bains as to privilege is wholly unsustainable. He is bound to disclose the information as may be required."
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