Indira A.V. v. State of Kerala and Inspector of Police, Kuzhalmannam Police Station

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** # **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 CRL.MC NO. 3129 OF 2020** **CRIME NO.182/2017 OF Kuzhalmannam Police Station, Palakkad SC 325/2019 OF 2ND ADDITIONAL SESSIONS COURT, PALAKKAD** ## **PETITIONER** INDIRA A.V. AGED 46 YEARS D/O. P.V.S. NARAYANAN, FLAT NO.8F, TRINITY HIGH GROVE, THRIKKAKARA P.O., KOCHI-682 021. BY ADVS. C.UNNIKRISHNAN (KOLLAM) SRI.JOHNSON GOMEZ ## **RESPONDENTS** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 THE INSPECTOR OF POLICE KUZHALMANNAM POLICE STATION, PALAKKAD-678 702. BY PP SANGEETHARAJ N.R. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.11.2021, THE COURT ON 01.12.2021 DELIVERED THE FOLLOWING: Crl.MC.3129/2020 2 ## **ORDER** Dated : 1[st] December, 2021 1. This Crl.M.C. has been filed seeking to quash Annexure-I FIR in Crime No.182/2017 of Kuzhalmandam Police Station, and Annexure-II final report in the said crime, which is now pending before the Additional Sessions court, Palakkad, as S.C. No.325/2019. 2. Petitioner is the 6[th] accused in the said crime and she is a practicing lawyer having 22 years practice. The above crime has been registered under Section 21 of the Protection of Children from Sexual Offences Act, 2012. The prosecution allegation against the petitioner is that, the petitioner in spite of knowing that minor victim girl was pregnant, tried for a settlement and advised to remain away and abscond and thereby failed to report the offence to the police and thereby committed the offence Crl.MC.3129/2020 3 punishable under Section 21 of PoCSO Act. 3. According to the learned counsel for the petitioner, petitioner is an Advocate of good reputation in the society. Accused No.3 in Crime No.368/2016 of Kuzhalmannam Police Station, approached her in the last week of May 2016, along with the Panchayath member and close relatives anticipating arrest of Mr.Vasudevan. The petitioner suggested the accused to make arrangements for obtaining copy of FIR but it was informed that the crime was not registered by the police. The petitioner was told by the persons who brought Mr.Vasudevan that the anticipated accused Mr.Vasudevan is totally innocent of the offence alleged and they pointed out that the real culprit who made the victim pregnant which was eventually confirmed later in DNA test also is one Mr.Ramesan Nair and on the immediate next day the victim girl aged 14 years was brought to her office along with her parents and other people including Mr.Vasudevan. The girl disclosed to the petitioner that Crl.MC.3129/2020 4 Mr.Vasudevan is not the real culprit and it was because of the pressures and threats from the real culprit Mr.Ramesan Nair, that she was forced to lodge the complaint against Mr.Vasudevan. She disclosed to the petitioner that Mr. Ramesan Nair is the real culprit and he had plans to send her to an unknown place. The petitioner advised the victim to proceed against the real culprit and not to victimize the innocent persons like Mr.Vasudevan. Agreeing all these, the victim left the office of the petitioner along with her parents and thereafter, the petitioner was unaware of the developments either in connection with the case. From all these developments, the petitioner had no doubt that the police is well aware of the developments related to the case. Hence, there was no question of informing the police from the side of the petitioner, about the facts of the case. 4. Annexure-A3 is the crime in which Vasudevan has been implicated as an accused under Section 376(1) of IPC and Sections 3 and 4 of POCSO Act, which was Crl.MC.3129/2020 5 registered on 25-5-2016. Annexure-A4 is the copy of the FIR in Crime No.490/2016 which is registered against Ramesan Nair and another on 27-6-2016. Final report has been filed in Annexure-A3 and Annexure-A4 crime and which is now pending as S.C No.798/2016 and S.C. No.884/2016. In the year 2017, after one year, Annexure-A1 crime has been registered against the petitioner. Thereafter, Annexure-A2 charge sheet was filed against the seven persons, the petitioner is the 6[th] accused therein. 5. According to the learned counsel for the petitioner, the petitioner is innocent and well protected as per Section 126 of the Indian Evidence Act. 6. It is also the contention of the learned counsel for the petitioner that even before the victim and Vasudevan and others came to her office and consulted, Annexure-A3 crime has been registered against Vasudevan and hence question of giving intimation to the police also does not arise, since crime has already been registered against the accused Crl.MC.3129/2020 6 persons. The learned counsel also drew my attention to page Nos.38, 39, 42, 44 of Annexure-A2 Final report which contains the statement of the father and mother of the victim. Statement of the mother of the victim enclosed with page 38 would show that she has given a statement that as informed by the accused Vasudevan they went to the office of the petitioner along with others. Thereafter, they went to the house of one Unni and then they went to Coimbatore. Page No.42 contains further statement of the mother of the victim, wherein she has disclosed the name of Ramesan Nair, who approached her and told them to not disclose the name. According to the leaned counsel above statements given by the witnesses, prima facie shows that the victim along with the accused went to the office of the petitioner and she had given instruction as an Advocate. It is also her contention that victim informed her that Ramesan Nair is the real culprit and not Vasudevan. 7. The learned Public Prosecutor on the other hand would 7 Crl.MC.3129/2020 contend that the victim will not come under the category of client of the petitioner and hence benefit under Section 126 cannot be claimed by the petitioner as far as the victim is concerned. 8. It is relevant in this context to quote Section 126 of the Indian Evidence Act which reads 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: 9. On going through the above provision, it is clear that no barrister or attorney, pleader or vakil can be permitted unless with his clients express consent to disclose any communication made to him in the course and for the purpose of his employment as such Crl.MC.3129/2020 8 barrister, pleader attorney vakil etc. 10. The contention of the Prosecutor is that the victim will not come under the category of client of the petitioner/advocate and hence benefit under Section 126 cannot be claimed. 11. The word “client” is not defined under the Evidence Act. It is also not defined under the General Clause Act. On going through the meaning of the word “client” in Oxford Advanced Learners Dictionary of current English by Hornby, it states as follows :- “client – Person who gets help or advice from a lawyer or any professional man. So any person who gets help from the Advocate will come under the definition of client in common parlance.” 12. In Concise Law Dictionary, the word “client” is defined as “one who applies to a lawyer or counsellor for advice and direction on a question of law, or commits his cause to his management, in prosecuting a claim or Crl.MC.3129/2020 9 defending a suit, in a Court of Justice. A person who seeks advice of a lawyer or commits his cause to the management of one, in prosecuting or defending an action in a Court of Justice.” ## 13. In the Law Lexicon, the Encyclopedic Law Dictionary, the word “client” means : “One who applies to a lawyer or counsellor for advice and directions on a question of law, or commits his cause to his management in prosecuting a claim or defending a suit, in a Court of Justice. Client includes any person who, as a principal or on behalf of another person, retains or employs, or is about to retain or employ, a solicitor, and any person who is or may be liable to pay the solicitors Bill of costs, for any services, fees, costs, charges, or disbursements. A person who seeks advice of a lawyer or commits his cause to the management of one, in prosecuting or defending an action in a Court of justice.” ## 14. In **Om Prakash v. Suresh Kumar (2020 (13) SCC** **188)** , the question whether the appellant/client should be bound by the statement made by this counsel before the High Court that a tenant will be reinduced in equal area in newly constructed building Crl.MC.3129/2020 10 within one month from the date of completion of construction of work. In that context it has been held that it is an unequivocal statements made by the counsel engaged by the appellant to espouse the appellant goes before the High Court and it is not the case of the appellant that he had expressly instructed his counsel not to make such a statement. Further the statement was in respect of the commitment of the appellant qua the subject matter of the proceedings in which the counsel was engaged and instructed to appear. 15. In the present case, the allegation against the petitioner is that he has not intimated the authorities provided under Section 21 of the Act about the commission of the offence by the accused in that case. The statement of the victim or her mother given to the investigating officer would not reveal that they have given any instruction to the counsel to intimate about the disclosure made by them to the authorities. So in the absence of any material to Crl.MC.3129/2020 11 show that either the victim or her parents have given any express consent to discuss the communication made to her to the authorities, the appellant is well protected by the privilege under Section 126 of the Indian Evidence Act. 16. Hence when the victim approached the advocate seeking advice, she also will come within the purview of client coming under Section 126 of the Act. So without express consent of the client, the advocate cannot disclose any communication made to him/her in the course of or for the purpose of employment. Prima facie the records attached with the final report would not reveal that the victim or her parents had given any express consent to the petitioner to disclose the communication made to her by the victim or her parents. So I am of the considered view that the communication alleged to have been made by the victim approaching the petitioner in her office will come within the purview of the communication as provided under Section 126 of the Evidence Act and Crl.MC.3129/2020 12 hence she cannot be held liable by invoking Section 21 of the PoCSO Act. 17. In the result, Crl.M.C allowed. All further proceedings against the petitioner/6[th] accused in S.C.No.325/2019 pending on the file of Additional Sessions Court, Palakkad, is hereby quashed. Sd/- M.R.Anitha, Judge Mrcs Crl.MC.3129/2020 13 ANNEXURES ANNEXURE A1 A TRUE COPY OF THE F.I.R IN KUZHALMANNAM POLICE STATION CRIME 182/2017 S.C.NO.325/2019 BEFORE THE IST ADDITIONAL SESSIONS COURT, PALAKKAD. ANNEXURE A2 ANNEXURE A3 ANNEXURE A4 A TRUE COPY OF THE FINAL REPORT IN CRIME 182/2017 OF KUZHALMANNAM POLICE STATION IN S.C.325/2019 BEFORE THE IST ADDITIONAL DISTRICT COURT, PALAKKAD. AN ORIGINAL COPY OF THE F.I.R AND FINAL REPORT DATED 20.5.2016 IN S.C.NO.798/2016 BEFORE THE 1ST ADDITIONAL DISTRICT COURT, PALAKKAD. AN ORIGINAL COPY OF FIR DATED 27.6.2016 IN S.C.NO.884/2016 BEFORE THE IST ADDITIONAL DISTRICT COURT, PALAKKAD.