Rev. Fr. Bernad v. Ramachandran Pillai

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.

3. 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 had committed pilferage in diesel.

4. 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.

5. 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 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 and 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.

6. 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 his 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. In this case, when the petitioner's lawyer sent a reply notice which contains the communication made to him by the petitioner, the inference is irresistible that the petitioner has expressly consented for the said course.

7. Learned counsel for the petitioner has referred me to the decision of a single Judge of this court in Subbu Chettiar v. Ayyavu Chettiar (1959 KLT 451) in which the following observations have been made: “counsel who issued the notice cannot justify the matter in the face of the prohibition imposed by S. 126 of the Evidence Act against disclosure of such communication. The presumption that the accused gave instructions therefor is not inevitable seeing that counsel's volition has intervened and it is anyhow unsafe to found criminal liability on the accused on such basis”. That is a case where a reply notice was sent by a counsel under instructions from two persons. As the reply notice contained a per se defamatory imputation, a complaint was filed against two accused who were the clients. The first accused contended that he did not give the communication, but his clerk alone gave instructions to the counsel. While dealing with that question, a single Judge of this court pointed out that since it is not clear from the notice as to who gave the instructions to the counsel, whether it was the first accused or the second accused or both of them together, the counsel cannot be called to justify that fact. The question involved in this case is different and hence, the principle laid down in the said decision is inapplicable to the facts of this case.

8. In P. Rajamma v. P. Chintaiah (1973 Crl. L.J 1489) a single Judge of the Andhra Pradesh High Court has adopted the view that “if the communication by the client to the Advocate is put in the form of a notice, and that notice is produced in court in a defemation case, then there is already a disclosure and when such an Advocate is called upon to prove that notice, he is not disclosing any fact for the first time, but he is only substantiating what is already disclosed.” Madhava Reddi, J., in that case, has followed the dictum in Palaniappa Chettiar v. Emperor (1935 Mad. W.N 460). In that case the Madras High Court held that S. 126 is not infringed if an Advocate who asks a defamatory question on the information of his client, deposes to that effect when his client is sued for defamation, or when his reply notice to that effect is allowed to be produced in court. These two decisions support the view which I have taken.

9. Therefore, the complaint filed against the petitioner is not liable to be quashed for the grounds urged in this petition. The case has to proceed further to reach its normal culmination. The Crl. M.C is hence dismissed.

10. Dismissed.