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Chandubhai Jethabhai Desai Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. Nos. 256 and 257 of 1961
Judge
Reported inAIR1962Guj290; (1962)0GLR833
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 94(1) and 94(3); Evidence Act, 1872 - Sections 123, 124 and 126
AppellantChandubhai Jethabhai Desai
RespondentThe State and anr.
Appellant Advocate B.K. Amin, Adv.
Respondent Advocate B.B. Desai,; N.C. Trivedi, Advs. and; D.U. Shah, Ass
DispositionRevision allowed
Cases ReferredEmperor v. Bilal Mahomad
Excerpt:
criminal - professional communication - section 94 of criminal procedure code, 1898 - accused charged for offence of defamation - in course of cross-examination advocate of accused asked certain questions after looking into his brief - advocate of complainant made application to magistrate to take possession of brief - whether magistrate justified in making order requiring advocate of accused to produce brief - assumption entirely unfounded on part of advocate of complainant - no inference could possibly be drawn that advocate of accused had original brief - course of action taken by advocate of complainant unjustified - order of magistrate set aside. - - amin must, therefore, fail. this application clearly proceeded upon the assumption that the original letter referred to in the.....orderp.n. bhagwati, j.1. these two revision applications arise out of a peculiar application made by the complainant and a still more peculiar order made by the learned magistrate on such applications. the accused was charged for the offence of defamation to the court of the judicial magistrate, first class, nadiad. it is not necessary to set out the facts leading upto the filing of the complaint against the accused; but it is sufficient to state that the complaint was filed against the accused on the ground that at a meeting which was held by the commissioner, the accused used a word derogatory of the complainant. the case was fixed for hearing on 16th november 1960 and on that date the evidence of the complainant commenced. after the examination-in-chief of the complainant was.....
Judgment:
ORDER

P.N. Bhagwati, J.

1. These two Revision Applications arise out of a peculiar application made by the complainant and a still more peculiar order made by the learned Magistrate on such applications. The accused was charged for the offence of defamation to the Court of the Judicial Magistrate, First Class, Nadiad. It is not necessary to set out the facts leading upto the filing of the complaint against the accused; but it is sufficient to state that the complaint was filed against the accused on the ground that at a meeting which was held by the Commissioner, the accused used a word derogatory of the complainant. The case was fixed for hearing on 16th November 1960 and on that date the evidence of the complainant commenced. After the examination-in-chief of the complainant was concluded, the advocate of the accused who is the petitioner before me in Revision Application no. 256 of 1961 started the cross-examination of the complainant. In the course of the cross-examina-tion, the advocate of the accused asked certain questions to the complainant. The questions and the answers given by the complainant were as follows :

'Question. Did you make an application to the Collector for disqualifying the accused Jashbhai Motibhai Desai?

Answer. I did not make an application to the Collector to disqualify the accused Jashbhai?

Question. You preferred an appeal to the State Government for disqualifying the accused Jashbhai Answer. I did not prefer an appeal to the State Government for disqualifying Jashbhai.' The advocate of the accused then asked the following question:

'Question. You received a reply dated 10-9-1959 from the State Government that the accused herein has not incurred disqualification?'

It appears that the question was asked by the advocate of the accused, after referring to his brief. At this stage, before the complainant could answer the question, the advocate of the complainant stood up and asked the learned Magistrate to immediately take possession of the letter of the State Government referred to to the question from the brief of the Advocate of the accused on the ground that it was rather strange that the said letter which should be either in the Municipal records or with the complainant was in the brief of the advocate of the accused. The learned Magistrate asked the advocate of the complainant to make a regular application. The advocate of the complainant thereupon made an application, Exhibit 8, praying that the learned Magistrate should take possession of the said letter from the brief of the advocate of the accused. It was stated in the application that the advocate of the accused had put the question to the complainant by referring to the said letter in his brief and that since the said letter should ordinarily be either with the Municipality or with the complainant, it was a matter of importance as to how the said letter came into the hands of the advocate of the accused. The advocate of the ac-cused in his reply to the application stated that the facts mentioned in the application were absolutely false and that the papers io his brief contained merely instructions between himself and his client and were, therefore, privileged communications which the Court was not entitled to call upon him to produce and hand over to the Court. The advocate of the accused also pointed out in his reply that he had not shown any letter to the complainant in the course of cross-examination and that he had merely asked the question by mention-ing the date of the said letter which according to the accused was received by the complainant from the State Government. A grievance was also made by the advocate of the accused that the advocate of the complainant had stood up and made the application even before the complainant could answer the question put to him by the advocate of the accused. It appears that arguments thereafter took place on the application and at some stage of the arguments, the learned Magistrate asked the advocate of the complainant as to what was the provision of law under which the application was made .The learned advocate of the complainant there-upon made another application. Exhibit 9, before the Court. By this application he requested the learned Magistrate to take possession of the said letter by searching the brief of the advocate of the accused under Sections 96 and 105 of the Code of Criminal procedure on the ground that the advocate of the accused had put the question to the complainant on the basis of the said letter and that the said letter was an important piece of evidence in the matter. The advocate of the accused reiterated his objections and once again categorically, stated that the papers in his brief were instructions of his client and that no one was entitled to call upon him to produce the same. The advocate of the accused also stated that he had referred to the papers in his brief only for the purpose of finding out the date before putting the question and that merely because he put the question to the complainant by referring to the papers in his brief according to the instructions of his client, the com-plainant was not entitled to demand the said papers. The learned Magistrate, however, by his order dated 16th November 1960 negatived the objections urged by the advocate of the accused and made an order requiring the advocate of the accused to produce the said tetter. The advocate of the accused thereupon handed over his brief to the learned Magistrate and after searching through the brief the learned Magistrate found that the said letter was not there in the brief and that there was only typed copy of letter which according to the learned Magistrate did not have any impor-tance. The learned Magistrate accordingly retura-ed the brief together, with the copy of the letter to the advocate of the accused. What transpired in the case thereafter is a matter of no consequence so Far as the present Revision Applications are con-cerned and I need not, therefore, set out the same. The advocate of the accused feeling aggrieved by the order made by the learned Magistrate against him, filed a Revision Application against the order in the Court of the Sessions Judge, Kaira. The accused also filed another Revision Application against the same order in the Court of the Sessions Judge, Kaira. Both the Revision Applications were heard together by the learned Sessions Judge and the learned Sessions Judge, for reasons recorded in his judgment dated 27th February 1961, dismissed the Revision Applications. The advocate or the accused thereupon filed Criminal Revision Application No. 256 of 1961 in this Court and the accused also filed Criminal Revision Application No. 257 ot 1961. Both the Revision Applications were heard together as they were directed against the same order and are being disposed of by a common judgment.

2. Mr. B. K. Amin, learned advocate appearing on behalf of the accused and the advocate of the accused, contended that it was not competent to the learned Magistrate to make the order requiring the advocate of the accused to produce the said letter since the production of the said letter could not be compelled by reason of the provisions of Section 126 of the Indian Evidence Act. Mr. B. K. Amin contended that the provisions of Sec-tion 94 of the Code of Criminal Procedure should be read along with the provisions of Section 126 of the Indian Evidence Act and that the learned Magistrate could not avoid the prohibition contained in Section 126 of the Indian Evidence Act by having resort to the provisions of Section 94 of the Code of Criminal Procedure nOW Sub-section (1) of Section 94 of the Code of Criminal Procedure provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any inquiry, trial or other proceeding under the Code of Criminal Procedure, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons. The discretion conferred on the Court is thus an absolute discretion, the only condition for the exercise of the discretion being that in tne opinion of the Court the production of the document should be necessary or desirable for the pur-poses of the inquiry, trial or other proceeding before the Court. Certain limitations are, however, placed on the exercise of the discretion of the Court by Sub-section (3) of Section 94 which provides that nothing in Section 94 shall be deemed to affect Sections 123 and 124 of the Indian Evidence Act or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities. It is, therefore, clear that the Court cannot, by making an order under Sub-section (i) of Section 94, set at naught the provisions of Sections 123 and 124 of the Indian Evidence Act. The argument of Mr. P. B. Desai, learned advocate appearing on behalf of the complainant was that Sections 123 and 124 of the Indian Evidence Act are specifically mentioned in Sub-section (3) of Section 94 so that no order can be made under Sub-section (1) of Section 94 in derogation of the right conferred by Sections 123 and 124 of the Indian Evidence Act; but Section 126 of the Indian Evidence Act is not so mentioned and the provisions of that Section can-not, therefore, be relied upon to negative the existence of the power of the Court to make an order under Sub-section (1) of Section 94. I think Mr. P. B. Desai is right in this contention. Where the Legislature wanted that the provisions of Sections 123 and 124 of the Indian Evidence Act should pre-vail against the provisions of Sub-section (1) of Section 94 of the Code of Criminal Procedure the Legislature has made specific provision to that effect in Sub-section (3) of Section 94 but no such provision has been made in regard to Section 126 of the Indian Evidence Act. The intention of the Legislature is, therefore, plain that in an appropriate case an order can be made under Sub-section (1) of Section 94 which would override the provi-sions of Section 126 of the Indian Evidence Act. It cannot be urged that an order under Sub-section (1) of Section 94 is illegal merely because it violates the privilege conferred by Section 126 of the Indian Evidence Act. It must of course be remembered that in making an order under Sub-section (1) of Section 94, the Court has to exercise a judicial discretion and the Court ordinarily would not, in the exercise of its discretion, make an order which violates the privilege conferred by Section 126 of the Indian Evidence Act. But it cannot be urged as a matter of construction that no order can be made under Sub-section (1) of Section 94 which infringes the privilege of professional communications embodied in Section 126 of the Indian Evidence Act. Mr. B. K. Amin drew my attention to a decision of the High Court of Bombay reported in Emperor v. Bilal Mahomad, AIR 1940 Bom 361. I respectfully agree with all that is stated by Beau-mont C. J., in that decision. That decision, however, establishes no more than this, namely, that the discretion under Sub-section (1) of Section 94 must be exercised judicially and it should be ordinarily exercised in such a way as not to conflict with the policy of the Legislature as disclosed in Section 162 of the Code of Criminal Procedure and Sections 123 to 125 of the Indian Evidence Act. To these Sections may be added On a parity of reasoning Section 126 of the Indian Evidence Act. Beaumont C. J., has, however, emphasized in clear and unmistakable terms that the discretion under Sub-section (1) of Section 94 is an absolute discretion. The true principle, therefore, seems to be that the power of the Court to make an order under Sub-section (1) of Section 94 is not limited by the provisions of Section 126 of the Indian Evidence Act but that the discretion under Sub-section (1) of Section 94 is a judicial discretion and it should not ordinarily be exercised in such a way as to conflict with the privilege against disclosure conferred by Section 126 of Indian Evidence Act. The present contention of Mr. B. K. Amin must, therefore, fail.

3. Apart from this answer to the contention of Mr. B. K. Amin based on the provisions of Section 126 of the Indian Evidence Act, there is another equally fatal answer. And it is this. The learned Magistrate by the order dated 16th November, 1960, required the advocate of the accused to produce the original letter addressed to the complainant by the State Government which was alleged to be in his brief. I do not see now this letter could possibly be said to be privileged under Section 126 of the Indian Evidence Act. Section 126 of the Indian Evidence Act is enacted to prevent disclosure by an advocate of any communication made to him for the purpose of Ms employment as such advocate, by or on behalf of his client, or any advice given by him to his client in the course of such employment. An advocate is also not permitted 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. The protection against production or disclosure, however, does not extend to any original document which might have come into the possession of the advocate from his client. The advocate is but the agent of the client to hold the document and if the client is compellable to produce the document, there is no reason either on principle or authority on which the advocate can refuse to produce the document. The document handed over to the advocate by the client cannot be said to be privileged under Section 120 of the Indian Evidence Act unless the document contains any communication made to the advocate by the client in the course and for the purpose of his employment as such advocate. The letter of which production was sought in the present case from the advocate of the accused was obviously not a letter in respect of which any privilege could be claimed by the advocate of the accused under Section 126 of the Indian Evidence Act. Therefore, even if I had taken the view that an order under Sub-section (1) of Section 94 cannot be made so as to violate the provisions of Section 126 of the Indian Evidence Act, I would have still rejected the present contention of Mr. B. K. Amin.

4. The question which I must, therefore, consider is whether on the facts and circumstances of the present case, the learned Magistrate was justified in making the order requiring the advocate of the accused to produce the letter from his brief. When I turn to consider this question I find that the course adopted in this case by the advocate of the complainant was strange and I think it would be difficult to find any precedent or parallel for it. The advocate of the accused was cross-examining the complainant who was in the witness box and he asked the question which I have set out above after looking into his brief. On this, without anything more and without even waiting for an answer to the question from the complainant, the advocate of the complainant got up and made an application for taking possession of the letter referred to in the question from the brief of the advocate of the accused. When the learned Magistrate pointed out that the application should be in writing, the advocate of the complainant made the application, Exhibit 8, stating in categorical terms that be advocate of the accused had put the question by looking at the letter in his brief and that the letter, should be taken possession of by the Court from the brief of the advocate of the accused because it was a matter of importance namely, how the letter came into the hands of the advocate of the accused. This application clearly proceeded upon the assumption that the original letter referred to in the question was in the brief of the advocate of the accused. I fail to see how such an assumption could be made by the advocate of the complainant. I do not think that the advocate of the complainant had any divine powers of seeing through the brief of the advocate of the accused and finding out without looking into the brief that the original letter was in the brief of the advocate of the accused. In my opinion the assumption was entirely unfounded and betrayed nothing but a lack of responsibility on the part of the advocate of the complainant. Merely from the fact that the question was asked by the advocate of the accused after looking into his brief, no inference could possibly be drawn that the advocate of the accused had the original letter in his brief. It is quite possible that the advocate of the accused might have had a carbon copy of the letter sent to the accused by the State Government or an ordinary copy of the letter taken out by the accused after taking inspection from the records of the Municipality or mere notes of the letter from which he might have asked the question to the complainant. I do not see how the advocate of the complainant could jump to the conclusion that the original letter was in the brief of the advocate of the accused. The course adopted by the advocate of the complainant was thus totally unjustified and in my opinion one which no advocate who wants the dignity of the Bar to be respected should have pursued. The Advocate, it must be remembered, is not the mouthpiece of his client. His office is a higher one. To consider him in that light would be to degrade him. He gives to his client the benefit of his learning, his knowledge and his talents, but all through he must not forget what he owes to himself and to the Court. He must not knowingly mis-state the law--he must not wilfully mis-state the facts, though it be to gain the cause of his client He must bear in mind that if he is the advocate of an individual, retained and remuneral-ed for his valuable services, he has a prior and perpetual retainer on behalf of truth and justice and there is no power which in any case or for any party or purpose can discharge him from that primary and paramount retainer. He must remember that the Court is a temple of justice and the advocate at the bar as well, as the Judge upon the bench are equally ministers in that temple. The object of both should be the attainment of justice. Now justice is to be reached only through the ascertainment of truth and it must not be for-gotten that the advocate as well as the Judge are both together concerned in this search for truth. The pursuit is indeed a noble one and honoured are those who are the instruments engaged in it. The advocate must realise that his task is a high and noble one--to assist the Judge in finding out the truth--and unless he performs this task in no half and uncertain measure with full consciousness of the sacred responsibility which rests upon him,- the wonderful edifice of justice which exists to-day cannot be sustained. The advocate must never forget that the advancement of justice and the ascertainment of truth are higher objects and nobler results than any which he can achieve in the field of his profession. I would say to the advocate :

'Let your zeal be as warm as your heart's blood, but let it be tempered with discretion and with self-respect; let your independence be firm, uncompromising, but let it be chastened with per-sonal humility; let your love of liberty amount to a passion, but let it not appear to be a cloak for maliciousness'.

I regret to find that the advocate of the complainant completely disregarded this primary and paramount duty which he owed to himself and to the Court and identifying himself with his client, the complainant, he made the present application for seizing the original letter from the brief of the advocate of the accused even though there was not the slightest basis for jumping to the conclusion that the original letter was in the brief of the advocate of the accused, it is obvious that the application was made by the advocate of the complainant not with a view to assisting the Court to arrive at the truth but with a view to humiliating the advocate of the accused and screening his client, the complainant, from apprehended perjury.

5. Apart from the fact that there was absolutely no material on the basis of which it could be alleged that the letter was in the brief of the advocate of the accused, the question whether the letter was or was not in 'the brief' of the advocate of the accused was entirely an irrelevant question so far as the criminal case was concerned and I do not see how the production of the letter even if it was in the brief of the advocate of the accused was necessary or desirable for the purpose of the trial before the learned Magistrate. The argument which was advanced on behalf of the complainant and which found favour with the learned Magistrate was that the letter if produced by the advocate of the accused would have shown whether the complainant was telling the truth or falsehood. This is indeed a strage argument. The complainant stated in cross-examination that he had not made any application to the State Government for disqualifying the accused. The advocate of the accused then asked the complainant whether the had received a reply from the State Government that the accused nad not incurred disqualification. The advocate of the complainant, however, did not allow an answer to be given to this question by the complainant but made the application for seizing the letter from the brief of the advocate of the accused before any answer could be given by the complainant. A little reflection would show that this action on the part of the advocate of the complainant was, to say the least, far from honest or straightforward. The answer of the complainant to this question could be either that he had received the letter or that he had not received the letter. If the answer of the com-plainant was that he had not received the letter, there could possibly be no basis for the application made by the advocate for the complainant, for in that event according to the complainant, no such letter could be in the brief of the advocate of the accused. If that answer of the complainant was false and if there was any such letter received by the complainant and it was in the brief of the advocate of the accused, the advocate of the accused could have, if he so desired, confronted the complainant with such letter and falsified him. But in such a case I do not see how any application could have lain at the instance of the advocate of the complainant for seizing from the letter of the advocate of the accused a letter which according to the complainant was not received by him. It was only if the answer of the complainant was that he had received the letter, that an application could have been possibly made by the advocate of the, complainant for seizing the letter from the brief of the advocate of the accused. Whether such an application would have been justified or not is another matter, but the application could conceivably have been made because the letter being admitted by the complain-ant, it could have been alleged -- howsoever tenuous might be the basis of such an allegation --that the letter was in the brief of the advocate of the accused. Put if the complainant denied receipt of the letter, I fail to understand how any application could possibly be made by the advocate of the complainant for seizing from the brief of the advocate of the accused a letter winch according to the complainant did not exist. It is, therefore, obvious that no application for seizing the letter from the brief of the advocate of the accused could be made before the complainant answered the question whether or not he had received the letter from the State Government. The question of testing by the production of the letter whether the complainant was telling the truth or falsehood could arise only after the complainant answered the question whether he had received the letter or not; for if he admitted that he had received the letter, there could be no question of testing the veracity of his statement by the production of the letter and it was only if he stated that he had not received the letter that the ques-tion could arise of testing the veracity of his state-ment by the production of the letter. The advocate of the complainant, however, stood up and did not allow the question to be answered by the complainant obviously because the question was very embarrassing to the complainant. Having regard to the previous answers given by the complainant, the complainant could not have possibly said that he had received, the letter from the State Govt. for if he admitted receipt of the letter from the State Govt., that would have contradicted the previous answers given by him. The com-plainant could have, therefore, said only one thing, namely, that he had not received the letter from the State Government, but in that event if the letter was in the brief of the advocate of the accused, the complainant could have been proved to be a liar by being confronted with the letter. The advocate of the complainant, therefore, rose to the rescue of the complainant and before the question could be answered by the complainant, he made the application so that if the letter was there in the brief of the advocate of the accused the complainant might be able to mould his answer accordingly. I cannot see any other reason why the advocate of tbe complainant should have made the application before allowing the question to be answered by the complainant. I am sure that the advocate of the complainant was not actuated by any zeal for pursuit of truth as made out by him and as glibly believed by the learned Magistrate. Before the question was answered by the complainant, it is difficult to see how it could be determined whether the production of the letter, even if it was in the brief of the advocate of the accused, was necessary or desirable for the purpose of the trial before the learned Magistrate. I am of the opinion that the application made by the advocate of the complainant was entirely unjustified and that the action of the advo-cate of the complainant in making the application was, to say the least, reprehensible.

6. It will be clear from what is stated above that there, was absolutely no material on the basis of which the learned Magistrate could make the order requiring the advocate of the accused to produce the letter referred to in the question put by him to the complainant. There was absolutely no basis for coming to the conclusion that the letter was in the brief of the advocate of the accused. If from the mere fact that the advocate of the accused asked the question to the complainant by looking into his brief an inference could be raised that the letter was in the brief of the advocate of the accused, no advocate would be safe and the dignity pf the bar would be imperilled and the Court on the slightest pretext and on mere conjectures and speculation would be entitled to seize the brief of the advocate and to look into his papers, seriously affecting the dignity and respect of the Bar. The members of the Bar should not be treated in this cavalier fashion and it is absolutely imperative that before a Court makes an order requiring a member of the Bar to produce a document which is alleged to be in his possession, the Court must be fully satisfied on pro-per material that the document is in the possession of the member of the Bar and that it is really necessary or desirable for the purposes of the inquiry, trial or other proceeding that the document should be produced. I find that in the present case the advocate of the complainant invited the learned Magistrate to take Several jumps for the purpose of reaching the conclusion that the letter was in the brief of the advocate of the accused and the learned Magistrate surprisingly enough accepted the invitation. Apart from the fact that there was absolutely no material on the basis of which it could be said that the letter was in the brief of the advocate of the accused, I do not see how it can be said that the letter was necessary or desirable for the purpose of the trial before the learned Magistrate. I have already dealt with this aspect of the matter in the preceding paragraph of this judgment and I need not say anything more about it except that, in my Opinion, the necessity or desirability of production of the letter could not possibly be determined unless the question put to the complainant was answered one way or the other and even thereafter I do not see how the production of the letter could be said to be necessary or desirable for the purpose of the trial before the learned Magistrate. If the complainant was not telling the truth and if he could be proved to be a liar by confronting him with the letter and if the letter was in the brief of the advocate of the accused, it was for the advocate of the accused to confront him with the letter and to show that he was lying. It was not for the learned Magistrate in the exercise of his power under Sub-section (1) of Section 94 to require, the advocate of the accused to produce the letter--on the entirely erroneous assumption unfounded on any material that such letter wag in the possession of the advocate of the accused --for the purpose of contradicting the complainant and that too before the complainant had answered the question put to him by the advocate of the accused. The order made by the learned Magistrate was, therefore, obviously illegal and must be set aside.

7. I, therefore, allow these Revision Applications and set aside the order made by the learned Magistrate on 16th November 1960.


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