Full Judgment
G. Yethirajulu, J.
1. This is a revision case filed by the accused in Sessions Case No. 170 of 2007 on the file of the I Additional Sessions Judge, Kurnool.
2. During the pendency of the Sessions Case, the petitioners filed Criminal M.P. No. 74 of 2008 under Section 126 of the Indian Evidence Act seeking an order restraining the prosecution from examining a prosecution witness by name J.Jeevan Kumar and not to mark the alleged disclosure statement of A1 recorded by him on 14-06-2005.
3. The brief facts of the case are as follows:
The deceased was an Executive Engineer. He retired from the service. He used to reside with his wife in his own house in Balaji Nagar, Kurnool. After the retirement, the deceased engaged A1 as his car driver. The deceased and his wife sold their lands and realized huge amounts, which were kept by them in a bank in the fixed deposits. A1 on coming to know about the huge amounts deposited in the bank, conspired with the other accused to abduct the deceased for a ransom. As per their plan, they hired an Ambassador Car at about 6.00 AM on 31-03-2005. A1 along with other accused drove to the rastha at Balaji Nagar through which the deceased used to go to the Officers' Club daily. They found the deceased coming. A1 to A4 drove the car by the side of the deceased. A4 enquired about the route to 'B' camp bus stop. The deceased agreed to show the 'B' camp bus stop. Accordingly, he entered the car. Soon after the deceased boarding the car, A1 to A3 dragged him to backside of the car, caught hold of his neck, gagged cloths in his mouth and tied a cloth around his mouth and eyes. When the deceased was struggling, A1 beat him with iron rod on his head and as a result of which, the deceased fell unconscious. Immediately, A1 administered an injunction. A1 to A4 drove the car to Silpa estate to keep the deceased in their captivity. They opened the gunny bag in which they kept the deceased and found the deceased in an unconscious state and later they found the deceased no more. They decided to dispose of the dead body of the deceased. Accordingly, they lead the dead body on the L.Banda railway- crossing road, after taking his gold rings, wristwatch and money purse. They also poured petrol and burnt the dead body with an intention to screen the evidence. As the deceased did not return back to the house and after searching for him, the wife of the deceased gave a complaint to the Police and a crime was registered as a man missing case. On conducting postmortem, it came to light that it was a homicidal death, therefore the Section of law was altered into Section 320 of the Indian Penal Code. While the investigation is in progress, on 14-06-2005 at about 9 AM, A1 approached J.Jeevan Kumar, an Advocate, and disclosed to him how he committed the offence along with other accused. The said Advocate took A1 to the Sub-Inspector of Police and submitted a report.
4. The accused contended that Sri J. Jeevan Kumar is a practicing Advocate at Kurnool and the confession made by A1 before him is a professional communication between the client and an Advocate and confidential in nature, so it should not be disclosed by the Advocate to anybody, unless the accused himself gives an express consent for such disclosure. The evidence of Sri Jeevan Kumar is inadmissible under law and the same is against the principle laid down under Section 126 of the Evidence Act. The petitioners, therefore, sought for the relief of restraining the prosecution from examining the said Advocate. The lower Court, after hearing both parties, passed an order dismissing the said application.
5. The accused came with an application after examination of P.Ws.1 and 2, who are the wife and daughter of the deceased. It is an undisputed fact that J.Jeevan Kumar is an Advocate. The accused was contending that A1 being the client disclosed many things to J.Jeevan Kumar and under Section 126 of the Indian Evidence Act, the information given to the Advocate is confidential and it is not admissible in evidence.
6. Section 126 of the Indian Evidence Act reads as follows:
126. Professions 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 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, 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.
7. From the above section it is clear that Advocate is not supposed to disclose to any body the communication, if any, given by his client to him during his professional employment, and it is protected from disclosure.
8. The prosecution contended that A1 made an extra-judicial confession before J.Jeevan Kumar. On 14-06-2005 at 9.00 AM while J.Jeevan Kumar was in his office, A1 came to him and made a confessional statement as to how he killed the deceased. J.Jeevan Kumar was never engaged by A1, either in this case or any other case previously to defend him. He did not approach the Advocate seeking any legal advice. He went to the Advocate to help him to surrender before the concerned Police by making an extra-judicial confession to him. The protection is extended so long as the existence of the relationship of client and Advocate. It is not the case of A1 that he used to approach the said Advocate.
9. The learned Counsel for the petitioners relied on a judgment of the Kerala High Court reported in Nandanan v. State of Kerala 1994 (2) ALT (Crl.) 106 (D.B.) (Ker.) wherein the Supreme Court held as follows:
The foremost among the circumstances which prosecution arrayed to establish the guilt was that the appellant went to the police station on the morning of the date of occurrence and told the police that the murders were committed by him. He handed over the chopper to the police which was found to be stained with human blood. But first part of the said evidence is clearly inadmissible in view of the unequivocal interdict contained in Section 25 of the Evidence Act. The statement which appellant has given to the police is entirely inculpatory in character and there is no scope of culling out any exculpatory portion therefrom. Legal position is well settled that the inculpative statement made by an accused even though it forms part of the First Information Statement in the case is inadmissible in evidence.
The above Judgment is not relevant to the facts of the present case.
10. Surrendering the client to the Police is not the duty of the Advocate. It cannot be said that the information given to him was during the course of his employment. The petitioners' counsel did not say that A1 engaged J. Jeevan Kumar for the purpose of legal advice. The lower Court held that the ingredients of the Section 126 of the Indian Evidence Act are not attracted. The relevancy or admissibility of the statement said to be given to the Advocate J. Jeevan Kumar will have to be considered at the time of examining the said witness, besides considering Whether the evidence disclosed any relationship between the client and Advocate; Whether the statement said to be given by the accused under the present circumstances to the Advocate can be treated as a privileged statement; and Whether the evidence of the Advocate has to be rejected on the ground that the statement made by the client is not supposed to be disclosed etc. Since the accused sought for the help of the Advocate to surrender before the Police, there is no need for any advice.
11. In the light of the above circumstances, the petitioners are not entitled for the relief as prayed for. The lower Court came to a conclusion that the information given by A1 to the Advocate cannot be treated as a privileged information, but Whether the said statement is a privileged statement or not will be decided only after the trial. When the trial commences, the trial Court would appreciate Whether the statement made by A1 before the Advocate J.Jeevan Kumar can be relied on or not.
12. The Criminal Revision Case is accordingly dismissed.