1. This is a reference by the District Magistrate of Pilibhit recommending that an order of a Bench of Honorary Magistrates calling upon the complainant's mukhtiar in a case pending before them to produce in Court a particular document should be quashed, or, in the alternative, steps be taken against the mukhtiar under the Legal Practitioners Act.
2. It appears that the complainant had previously filed an application in the Court of the District Magistrate against the accused, which was returned to him with the direction to file a regular complaint. Upon this the complaint in this case was filed. The complainant and his witnesses had apparently denied that the witnesses also had signed the previous application. After the complainant and one witness had been examined and the second witness was being cross-examined, the counsel for the accused filed an application before the Court that the application in the possession of the complainant's mukhtiar should be allowed to be inspected by the accused and that it should be caused to be filed, as there was an apprehension that it might be destroyed. The complainant's mukhtiar stated that the papers with him were receipts in connexion with this case, and then he was put the question by the Court:
Have you got in your hand the petition which was made by the complainant in the Court of the Collector?
3. He answered: 'I have not got it.' After that the case continued. The cross-examination of the witness was completed,, and then two more witnesses were examined and the statement of the accused's was then taken down. Finally a charge-was framed and read out. After the charge had been framed, the accused's mukhtiar filed another application in the Court that for the sake of further cross-examination the application, which had been returned to the complainant, and which was in the hand of the mukhtiar for the complainant, should be caused to be filed. In reply to this application the; mukhtiar filed a written application stating that his client had given him some papers in connexion with the case, that, the disclosure of such papers would have an adverse effect on the case, that as a legal adviser he did think it necessary to disclose the same and that he did not want to file the papers; but that if the Court considered it necessary that the papers should be filed, and thought nothing, would go against his client if the papers-were filed, then he would file the same. After this the Court heard arguments of' both the mukhtiars on the point and concluded that it was necessary that the paper in dispute should be filed, and accordingly passed an order for the filing of the same. Upon this the complainant's-mukhtiar filed the document, but prayed that it should be kept in a sealed cover.
4. The first question for consideration is whether the application was a privileged document which the complainant's mukhtiar could refuse to produce. Protection was claimed under Section 126, Evidence Act; but the provisions of that section obviously do not apply to this case. Under that section a legal practitioner is not permitted, without his client's express consent, (1) to disclose any communication made to him in the course and for the purpose of his employment as such Barrister, or (2) 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 (3) to disclose any advice given by him to his client in the course and for the purpose of such employment. That section deals therefore with disclosures of communications made in the course, and also for the purpose, of his employment as legal adviser. He was not called upon to disclose any such communication. Again, the section apparently does not refer to the production of documents which are in the possession of a legal adviser but to stating the contents or conditions of any of the documents with which he has become acquainted in the course and for the purpose of his employment. Nor was he called upon to disclose any advice which he had given to his client. It follows that the proviso to that section was equally inapplicable, as he was not called upon to disclose any communication made in furtherance of any illegal purpose or to disclose any fact which had been observed by him in the course of his employment showing that any crime or fraud had been committed. The protection in this section does not refer to the production of documents, as against which the client himself is not protected. The section dealing with the production of evidence is Section 162, Evidence Act, under which a person summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. It is for the Court to decide the validity of any objection to its production or admissibility. Para. 2 of the section lays down that the Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. This paragraph certainly lays down that the Court has a 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. Except in the case of matters of State, the Court may inspect the document, though there is an objection as to its production. Indeed, under the last paragraph, the Court may even get the document translated by a translator, who may be enjoined to keep the contents secret, unless the document is to be given in evidence. It would, therefore, follow that the Mukhtiar could not validly object to the order of the Court to produce the document, at least for the inspection of the Court, before the Court decided whether the objection to its production was or was not valid.
5. These provisions should apply even to civil cases. Under Order 16, Rule 7, Civil P.C., any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. In the present case, the Mukhtiar had much less justification for refusing to produce the document, as it was a criminal case in which the procedure was governed by Section 94, Criminal P.C. Under that section a Court has power, if it considers that the production of any document is necessary, to issue a summons or a written order to the person in whose possession or power such document is, to produce it at the time and place stated. In terms the section would apply to a person who is absent at the time and who is called upon to attend the Court and produce the document in his possession. It is significant that Sub-section 3, which contains an exception only, exempts documents which are protected under Sections 123 and 124, Evidence Act, i.e. documents relating to affairs of State and official communications, and not Section 126, which applies to professional communications made to legal advisers. Thus, in a criminal case, even the protection under Section 126 cannot be availed of.
6. The learned District Magistrate has, however, come to the conclusion that, inasmuch as Section 94, Criminal P.C., empowers the Court to issue a summons, and as no written summons was issued in the present case, there was no authority to call upon the Mukhtiar to produce the document. It seems to us that the omission to comply with the formality of getting a summons issued, when the person was actually present in the Court room, was a trivial irregularity. Obviously the Court has inherent jurisdiction to call upon a person present in the Court room to produce a document which is in his possession at the time. When he is not present in the Court room, a summons has to be issued; but even that is not absolutely necessary, for if the Court is of the opinion that the document may not be produced, a search warrant may fee issued instead of a summons. We are, therefore, of the opinion that the Court was entitled to order the complainant's Mukhtiar to produce any document which he had in his possession at the time while in the Court room. It was the duty of the Mukhtiar to produce the document, and then request the Court to consider his objection as to its production or admissibility.
7. Were it clear that the complainant's Mukhtiar had that particular application [actually in his hands when he was asked whether he had got it in his hands and he replied that he had not got it, his denial would be a gross professional misconduct, because it was a deliberate attempt to mislead and deceive the Court. The denial would not be in the nature of claiming a privileged protection, but a deliberately false statement with a view to mislead the Court. If this point were clear, we would have taken a very serious view of the conduct of the Mukhtiar; but as stated above, it appears that a considerable time elapsed between the denial and the actual production of the document in Court, with the result that it might well have been that at the particular time when he was questioned whether this particular application was in Ms hands, the Mukhtiar did not have that document in his hands. As regards the delay in producing it, the conduct of the Mukhtiar was certainly reprehensible, but the question was one of law, land was not free from some difficulty, [and the Mukhtiar concerned was an inexperienced junior practitioner. When specifically ordered by the Court that he should produce the document, he did produce it, though under protest. We would, therefore, direct that no action be taken on account of his failure to produce the document at the first opportunity. We, however, decline to quash the order directing him to produce the document. Let the case be returned.