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In Re: Matter of great public importance touching upon the independence of Judiciary

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION, 

SMW (C) No(s). 1 OF 2019

BENCH:  JUSTICE ARUN MISHRA
JUSTICE DEEPAK GUPTA
JUSTICE ROHINTON FALI NARIMAN
DELIEVERED DATE: 25 APRIL 2019

FACTS

The Supreme Court took a suo moto petition to ascertain the claim made by Advocate Utsav Basin who has filed an affidavit is recorded and kept in a sealed order to preserve high confidentiality of the sensitive information against the allegation of conspiracy and grouped together after dismissal from their services against Chief Justice of false sexual harassment. It stated to have met with certain persons in certain places with particular names of Tapan Kumar Chakraborty and Manav Sharma and others. The affidavit mentions certain persons who could allege to fix the bench of Judges and claim that certain information is privileged. The court requested the assistance of Adv. Utsav Basin, learned Attorney General and President of Supreme Court Bar Association as to how much privilege can be claimed and to what extent. The Adv. Utsav basin in the process of filing another affidavit with additional information by 10:30 AM tomorrow i.e. 25/04/2019 containing all relevant information.

ISSUE INVOLVED

Whether the allegation of sexual harassment against Chief Justice of India are fabricated.

JUDGMENT

The Supreme Court considered section 126 of Indian evidence Act with respect to the privileged claimed under the affidavit which provides following conditions as follows:

126. Professional communications.—No barrister, attorney, pleader or vakil shall at any time be permitted, unless 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 employment.
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 section continues after the employment has ceased.

Illustration:
(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.

The court contended that with reference to the illustration (c), such information cannot be claimed as privileged in respect of such communication.

In the case of People Union for Civil Liberties and Another v. Union of India (2004) 9 SCC 580, it was contended that there is no right of lawyer, journalist to withhold the information regarding crime under conduct of professional ethics and cannot claim right beyond section 126 of evidence act. The investigation officers must be required to disclose the information and if right is violated then he must restore to other legal remedies.
But in the case, suggests the validity of the documentation except refers to matter of the state or take other evidence to determine its admissibility even there is objection to its production or admissibility and court may directed the translator to translate the content an kept in secrecy unless document is given in evidence. The Mukhtar could not object order passed by the court to present the document. It doesn’t matter that if it is unavailable to produce the information, it would not deprive the inspection of the document. The adv. Utsav Singh is bound to disclose the information with the assistance of Director of CBI, IB and Commission of Police, Delhi to provide relevant information about the support of affidavit.

CONCLUSION

The court clarified that affidavit filed in the court and the order should not affect inquiry on administrative side in any manner so whatsoever and cannot be undone without appropriate investigation. The court claims the responsibility of sincerity and obligation to maintain the reputation of the judiciary by investigating the allegation of the matter stated. The court authorized retired Judge A.K. Patnaik for inspecting the allegation in the affidavit with respect to authenticity of the content of affidavit and not to discover the alleged misbehavior of the Hon’ble Chief Justice of India. It is required that Justice A.K.Patnaik to submit the report on the basis of the inquiry upon the affidavit. The affidavits and the document (in original and one set of photocopy) have been sealed and handed over to Sh. Sanjeev S.Kalgaonkar, learned Secretary General and shall remain in custody until further orders.

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