The Kerala High Court has held that communication between an Advocate and their client about attestation of an agreement does not amount to privileged communication and Advocates who chose to be attesting witnesses can be summoned by Court to confirm the agreement's validity.

The Court was hearing an Original Petition against an Order of Judicial First-Class Magistrate that had rejected the request to summon a witness to a sale agreement on the ground that the witness, who is an Advocate, was entitled to privilege under Section 126 of the Indian Evidence Act.

Noting that the examination of an attesting witness is necessary to prove the agreement, a Single-Judge Bench of Justice Dr. Kauser Edappagath held, "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 appeared for the Petitioner-Complainant and Senior Public Prosecutor Seetha S. appeared for the Respondents.

Section 126 of the Evidence Act provides that no barrister, attorney, pleader or vakil shall be permitted to disclose any communication made to them, state the contents of any document with which they have become acquainted or disclose any advice given by them during the course and for the purpose of employment, except with the client's express consent.

"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 noted.

The Court noted the possibility that a counsel may be in possession of facts which had come to their knowledge otherwise than in the course of and for the purpose of their professional employment. "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." it held.

Based on the facts, the High Court observed, "The purpose of summoning the witness is to prove the fact that he has signed in the agreement as a witness and not to bring on record any professional communication made by the 1st respondent to the witness."

Citing its previous Judgment in Abdhu v. Veeravu (1991), the Court said, "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 stems from a private complaint made before the Magistrate against the first Respondent after an agreement was made between him and the Petitioner for the sale of land. The allegation was that though the Petitioner had paid some advance amount, the Respondent failed to execute the sale deed as agreed, thereby committing an offence punishable under Sections 406 and 420 of Indian Penal Code, 1860.

The Magistrate conducted an enquiry under Section 202 of the Code of Criminal Procedure, during the course of which the Petitioner asked to summon a witness to the agreement, who is an Advocate by profession. The Magistrate rejected the request of the Petitioner to summon the witness on the ground that the witness is entitled to privilege under Section 126 of the Indian Evidence Act.

Cause Title: Sumith v. Sebastian And State of Kerala [2024:KER:92736]

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Justice Kauser Edappagath

Tushar Kohli