The Kerala High Court has ruled that communication between an advocate and their client regarding the attestation of an agreement does not constitute privileged communication. Advocates who act as attesting witnesses may be required to appear in court to confirm the validity of the agreement. This decision was made during the hearing of an Original Petition challenging the order of a Judicial First-Class Magistrate, who had denied the request to summon a witness to a sale agreement. The Magistrate court held that the witness, being an advocate, was protected by the privilege under Section 126 of the Indian Evidence Act.

A Single-Judge Bench of Justice Dr. Kauser Edappagath, emphasized that examination of an attesting witness is necessary to authenticate the agreement. The Court stated, "The communication, if any, made by the client to his advocate with regard to the attestation made by the advocate as a witness to an agreement executed by his client is not privileged communication protected by Section 126."

Advocate K. Sureshbabu represented the Petitioner-Complainant, while Senior Public Prosecutor Seetha S. appeared for the Respondents. Section 126 of the Evidence Act protects communications made to a barrister, attorney, pleader, or vakil during the course of their employment, except with the client’s express consent. The Court observed, "Going by the above provision, it is clear that the bar to disclosure applies only to confidential communication that is purely professional made to the advocate by his client in the course and for the purpose of his employment."

The Court further pointed out that a counsel may possess knowledge of facts unrelated to their professional duties, and disclosing such facts is not prohibited under Section 126 of the Evidence Act. It stated, "Disclosure of such materials is not prohibited by Section 126 of the Evidence Act. To prove such a fact, the intending party has to summon a counsel as a witness to speak about that fact."

The High Court noted that the intention behind summoning the advocate as a witness was to confirm that the advocate had signed the agreement as a witness, not to disclose any confidential professional communications between the advocate and the client. Referencing its previous judgment in Abdhu v. Veeravu (1991), the Court reiterated, "If the court feels that the counsel alone is competent to speak about a material fact relevant to the purpose of the decision, there is no bar in the court summoning him as a witness for the opposite party."

The case arose from a private complaint filed before the Magistrate, in which the Petitioner accused the first Respondent of failing to execute a sale deed despite receiving an advance payment. The Petitioner claimed this failure constituted an offense under Sections 406 and 420 of the Indian Penal Code, 1860. During the inquiry under Section 202 of the Code of Criminal Procedure, the Petitioner sought to summon an advocate as a witness to the sale agreement. The Magistrate, however, rejected this request, citing the privilege under Section 126 of the Indian Evidence Act.

Cause Title: Sumith v. Sebastian And State of Kerala

Citation: 2024:KER:92736

Date: December-09-2024

Bench: Justice Dr. Kauser Edappagath

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