The Delhi High Court has ruled that a Revisional Court cannot compel advocates representing a party to file personal affidavits disclosing the “source” of documents placed on the judicial record. The Court held that such information is protected by the attorney-client privilege under Section 126 of the Indian Evidence Act, 1872.
Justice Neena Bansal Krishna allowed the petition filed by McDonald’s India Pvt. Ltd., quashing the order of the Additional Sessions Judge (ASJ) which had directed the company’s lawyers to disclose the source of certain applications filed during the proceedings.
The central legal issue before the High Court was whether a court could compel advocates to file personal affidavits disclosing the source of documents used in legal defence. The Ld. ASJ had passed an order on May 20, 2017, requiring the Petitioner’s advocates to disclose how they obtained copies of two applications originally filed by the complainant in 2011. The High Court set aside this order, ruling that the direction violated the professional privilege between a client and their advocate, and that the exception regarding fraud or crime under Section 126 of the Evidence Act was not applicable in this case.
Background of the Case
The controversy originated from a Criminal Complaint (Deepak Khosla v. Connaught Plaza Restaurants (P) Ltd.) filed by Respondent No. 2, Mr. Deepak Khosla, against McDonald’s India and others. On February 20, 2017, the Additional Chief Metropolitan Magistrate (ACMM) allowed an application under Sections 91 and 94 of the Cr.P.C., directing search and seizure at the Petitioner’s premises.
McDonald’s India challenged this order via a Criminal Revision Petition before the Ld. ASJ. To demonstrate a lack of urgency for the search warrants, the Petitioner filed copies of two applications that had been originally filed by the Complainant in 2011 in a different proceeding. On March 4, 2017, the Ld. ASJ granted an ex-parte stay on the search and seizure directions.
Subsequently, Mr. Khosla filed an application under Section 340 Cr.P.C., alleging that the 2011 applications were not part of the Trial Court record at the time of the hearing. He alleged that these documents were “surreptitiously placed on record or obtained through illegal means,” possibly leaked from police or court records, amounting to fraud and perjury.
Acting on this, the Ld. ASJ passed the impugned order on May 20, 2017, directing the advocates for McDonald’s India to file personal affidavits disclosing the date, time, and “source” of the said applications.
Submissions of the Parties
The Petitioner contended that the direction violated Section 126 of the Indian Evidence Act (IEA), which statutorily bars a legal professional from disclosing communications made during the course of employment. They argued that the privilege belongs to the client and cannot be waived without express consent. Furthermore, they asserted that the documents were legitimately in their possession, having been served upon them in 2013 during proceedings before the Company Law Board (CLB).
The Petitioner also argued that compelling a potential accused to give evidence against himself in a preliminary inquiry under Section 340 Cr.P.C. violated Article 20(3) of the Constitution of India.
Conversely, Respondent No. 2 argued that Section 126 IEA is not an unconditional bar. Referring to Provisos (1) and (2) of Section 126, he submitted that privilege does not protect communications made in furtherance of an illegal purpose or facts showing a crime or fraud. He relied on Donald Weston v. Pearey Mohan Dass, contending that there is “no privilege against the Court” and that advocates, as officers of the Court, must be accountable for the source of documents to maintain the purity of judicial proceedings.
Court’s Analysis
Justice Neena Bansal Krishna examined the scope of Section 126 of the IEA, reiterating the rationale that “a man must be able to consult his lawyer in confidence, and this confidence must be inviolable to ensure the proper administration of justice.”
The Court cited the Supreme Court judgment in Superintendent and Remembrancer of Legal Affairs v. Satyen Bhowmick (1981), which held that where contents of a document are privileged, no action can be taken against counsel for refusing to disclose the same.
The Court observed:
“When a client hands over a document to their Advocate for the purpose of legal defence, the act of handing over and the information regarding the origin of that document, is part of the professional confidentiality. The primary responsibility for the documents filed in Court lies with the Party i.e. the Client. To compel an advocate to disclose that ‘Client X gave me this document’, is to compel the disclosure of the ‘source’ of the documents is protected by Section 126 IEA.”
Addressing the Respondent’s argument regarding the “fraud” exception, the Court noted that for the Proviso to Section 126 to apply, there must be prima facie material to suggest the communication was for an illegal purpose.
The Court found that the Petitioner had provided a plausible explanation that the copies of the 2011 applications were served upon them in 2013 during proceedings before the Company Law Board. This explanation, the Court held, “demolishing the allegation of theft or illegal procurement” made by the Respondent.
Regarding the Respondent’s contention that there is no privilege against the Court, Justice Krishna stated:
“The Respondent No. 2’s contention that there is ‘no privilege against the Court’ is a misapplication of the principle. While the Court can ask for the truth, it cannot compel a lawyer to disclose what the law expressly protects, absent a clear finding that the lawyer is conspiring in a fraud committed during the employment.”
Conclusion
The High Court held that the Ld. ASJ failed to appreciate that the information sought was covered by the privilege between the client and the advocate. The Court concluded that the exception of fraud was not established to warrant piercing this privilege.
Consequently, the High Court quashed the order dated May 20, 2017, and all consequential proceedings, including the notice issued to the advocates for contempt/non-compliance.
Case Details:
- Case Title: McDonalds India Ltd v. State of NCT of Delhi
- Case No.: W.P.(CRL) 2294/2017
- Coram: Justice Neena Bansal Krishna
- Counsel for Petitioner: Mr. Siddharth Aggarwal, Sr. Adv., Ms. Stuti Gujral, Adv., Mr. Vishwajeet Singh Bhati, Adv., Mr. Tasnimul Hassan, Adv., Ms. Priti Verma, Mr. Vipin Kumar, Advocates.
- Counsel for Respondents: Mr. Amol Sinha, ASC for State; Respondent No. 2 in person (Deepak Khosla).
