disclosure of matters of permanent importance, which public policy and social order require to be concealed, such as secrets of State, communications made in professional confidence, and others.—Best, 8th Ed., 34, 35.

It is not the Judge, but the public officer concerned, who is to decide whether the evidence referred to in this section or section 124 shall be given or withheld. (Refer to sec. 162 post).

Official communications.

124. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure.

Statement by an Officer before a Military Court of Inquiry.Statements, whether oral or written, made by an officer summoned to attend before a Military Court of Inquiry, are part of the minutes of the proceedings of the Court, which, when reported and delivered to the Commander-in-Chief, are received and held by him on behalf of the Sovereign, and on grounds of public policy, cannot be produced in evidence-Dawkins v. Lord Rokeby, L. R. 8 Q. B. 255.

Information as

to commission of offences.

125. No Magistrate or Police-officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue-officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation.- Revenue-officer' in this section means any officer employed in or about the business of any branch of the public revenue.

It is perfectly right that all opportunities should be afforded to discuss the truth of the evidence given against a prisoner; but there is a rule which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which the detection is made should not be unnecessarily disclosed. Vide remarks of Eyre C. J. in Hardy's case, 24 Howell's State Trials, 808.

Professional

126. No barrister, attorney, pleader or vakil, shall at any time be permitted, unless communications. with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or 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 to disclose any advice given by him to his client in the course and for the purpose of such employment. Provided that nothing in this section shall protect from disclosure

(1) Any such communication made in furtherance of any illegal purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employ

ment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation.-The obligation stated in this sec tion continues after the employment has ceased.

Illustrations.

(a). A, a client, says to B, an attorney-I have committed forgery, and I wish you to defend me. As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.'

(b). A, a client, says to B, an attorney-'I wish to obtain possession of property by the use of a forged deed on which I request you to sue. This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.'

(c). A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

Difference between our Law and the Law of England.-The law relating to professional communications between a solicitor and a client is the same in India as in England, with one exception only. The one exception relates to the substitution of 'illegal purpose ' e' for 'criminal purpose' in the first portion of the proviso to this section. Under the present Act, it is clear that the legal adviser may be asked whether the communication between him and his client was for an illegal purpose or not. (Vide sections 132 and 165 post). In England, it appears that it must be shewn by independent evidence that there was a criminal intention. (Vide Taylor, sec. 912).

Reason of the Rule.-If professional communications were not protected, no man would dare to consult a professional adviser with a view to his defence or to the enforcement of his rights; and no man could safely come into a Court, either to obtain redress or to defend himself. The exclusion of such evidence is for the general interest of the community, and therefore to say that, when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection, which, for public purposes, the law affords him, and utterly to take away a privilege, which can thus only be asserted to his prejudice.* * This privilege owes its origin and maintenance to an obvious public policy. The rule is well established, and is stated at length in Greenough v. Gaskell, 1 M. and K. 98, and R. v. Cox and Railton, L. R. 14 Q. B. D. 153.

Scope of the Section.-(a). The wording of this section seems to include communications made by agents or servants of parties. In

* Vide remarks of Lord Brougham in the case of Bolton v. The Corporation of Liverpool, 1 My, and K. 94.

the case of agents or servants, the English law draws a distinction between reports made in the course and as part of the duty of an agent or servant, and those made confidentially and for the purpose of litigation alone.

(b). "It is to be noted that neither this section nor sec. 131 has the effect of prohibiting a barrister or other professional person from producing a document entrusted to his charge by a client, though sec. 131 justifies his refusal to do so. The production of such a document would, however, be so wholly at variance with the spirit of secs. 126, 130 and 131, that it would, probably, not be allowed by the Court unless with the client's consent."-Cung. Ev., 334.

Nature of the Communication and Extent of the Privilege.— (a). The communication, in order to be privileged, must have been in the course and for the purpose of the legal adviser's employment. It is not, however, necessary that there should have been any regular retainer, or any particular form of application or engagement, or the payment of any fees; it is enough if the legal adviser be in any way consulted in his professional character.* It is quite immaterial whether the communication be made with reference to any pending or contemplated litigation. If it be with reference to the matters which fall within the ordinary scope of professional employment, the legal adviser cannot disclose it. It is not every communication made by a client to an attorney that is privileged from disclosure. The privilege extends only to communications made to him confidentially, and with a view to obtaining professional advice. The use of the word 'disclose' shows that the communication to be privileged must be of a confidential or private nature between solicitor and his client. The proviso (1) prohibits the extending of the protection to communications made in furtherance of any illegal purpose, as it is no part of the professional business of any class of lawyer to further the commission of a fraud. In Follett v. Jefferyes, 1 Sim. Chan. Rep. N. S. 17, Rolfe V. C. observed: "It is not accurate to speak of cases of fraud, contrived by the client and solicitor together, as cases of exception to the rule. They are cases not coming within the rule itself, for the rule does not apply to all which passes between a client and his solicitor, but only to what passes between them in professional confidence; and no Court can permit it to be said that the contriving of a fraud can form part of the professional occupation of an attorney or solicitor." In Russell v. Jackson, 9 Hare's Chan. Rep. 392, Turner V. C. said: "I am very

Vide Taylor, sec. 923.

+ Vide Taylor, sec. 913.

Vide Framji Bhicaji v. Mohan Sing, Dhan Sing, I. L. R. 18 Bom. 263.

much disposed to think that the existence of an illegal purpose would prevent any privilege attaching to the communications. Where a solicitor is party to a fraud, no privilege attaches to the communications with him upon the subject, because the contriving of a fraud is no part of his duty as solicitor; and I think it can as little be said that it is part of the duty of a solicitor to advise his client as to the means of evading the law."

(b). It should be clear that the particular communications sought to be protected were made by the party to the solicitor as his own solicitor. If the party employs an attorney who is also employed on the other side, the privilege is confined to such communications as are clearly made to him in the character of his own attorney. Vide Perry v. Smith, 9 M. and W. 681.

(c). A solicitor is not at liberty, without his client's express consent, to disclose the nature of his professional employment. The section protects from publicity, not merely the details of the business, but also its general purport, unless it be known aliunde that such business falls within proviso (1) or (2) to the section-Framji Bhicaji v. Mohan Sing, Dhan Sing, I. L. R. 18 Bom. 263.

(d). The existence, nature, and scope of a professional communication are absolutely privileged from investigation.-Best, 8th Ed., 540.

(e). Communications between a client and legal adviser acting in his professional capacity are absolutely and perpetually privileged in all suits whatever, whether the client be a party thereto or not.-Greenl. Ev., sec. 236.

(ƒ). Where, in an affidavit of documents, privilege is claimed for a correspondence on the ground that it contains instructions and confidential communications from the client (the plaintiff) to his solicitor, it must appear not merely that the correspondence generally contains instructions, &c., but that each letter contains instructions or confidential communications to the attorney with reference to the conduct of the suit-The Oriental Bank Corporation v. T. F. Brown & Co., I. L. R. 12 Cal. 265.

Communications which have been held to be Privileged.-(a). Statements laid by clients before counsel for the purpose of obtaining legal advice are privileged-Munchershaw Bezonji v. The New Dhurumsey Spinning and Weaving Company, I. L. R. 4 Bom. 576.

(b). The plaintiffs resided in England, and sued the defendant in Bombay, for specific performance of an agreement to purchase certain premises. This agreement had been made on behalf of