IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.20574 of 2009 and M.P.NO.1 OF 2009 The Superintendent, Office of the Public Prosecutor, High Court, Chennai-104. .. Petitioner Vs. 1.The Registrar, Tamil Nadu Information Commission, Post Box No.6405, Kamadhenu Super Market I Floor, No.273, New No.378, Anna Salai, Teynampet, Chennai-18. 2.M.Sivaraj .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent passed on 22.10.2008 in Case No.26176/O4/2008 and the subsequent summon issued on 10.09.2009 in Case No.38994/2008 and to quash the same. For Petitioner : Mr.M.Dhandapani, Spl.G.P. Assisted by Mr.R.Neelakandan, GA For Respondents : Mr.G.Rajagopal, SC for M/s.G.R.Associates for R1 No appearance for R2 - - - - ORDER Heard both sides. 2.The writ petition is filed by the Superintendent of office of the Public Prosecutor, High Court, Madras, seeking to challenge https://hcservices.ecourts.gov.in/hcservices/ the summons issued by the first respondent, Tamil Nadu Information Commission. The summons came to be issued on a complaint made by the second respondent, dated 6.12.2008. The second respondent initially applied to the Additional Public Prosecutor, who also was designated as the Information Officer of the office of the Public Prosecutor under the Right To Information Act (for short RTI Act), dated 7.7.2008. In that letter, he sought for records relating to the FIR in Dharmapuri City Police Station in Crime No.2208/2001 as well as the judgment of this court in Criminal Appeal No.699 of 2005, dated 21.2.2008. The petitioner wanted to have Photostat copies of all the documents relating to these two references from his office, including the office noting found in the file. He also wanted to have the copy of the opinion tendered by the Public Prosecutor regarding filing of an appeal against the order of this court. 3.He further wanted to know as to who was responsible for taking action against persons on the basis of observation made in paragraph 18 of the said judgment. In case, their office had written any letters, he wanted to have Photostat copies of those letters along with annexures. In case, if they do not have any such records in their office, they were asked to act in terms of Section 6(3) of the RTI Act. 4.On receipt of the said requisition, the petitioner's office informed that they are not in a position to inform the second respondent as he was not entitled to get such information. In respect of the opinion tendered in respect of any case, they are not available under the provisions of the Act. Since the second respondent approached the first respondent Commission, the Commission informed the Information Officer of the petitioner's office to furnish such information as sought for by the second respondent. When the second respondent failed to get any information, he filed a second appeal to the first respondent under Section 19(3) of the RTI Act. 5.In the meanwhile, the petitioner's office informed that whatever information sought for by the second respondent have been sent to the Home (Police) Department. The said department by G.O.Ms.No.1042, Public, dated 14.10.2005 was exempted from the purview of the RTI Act. Further, they had already informed that the opinion tendered by their office cannot be divulged to the second respondent. It was further impressed that the relationship between the office of the Public Prosecutor and the Government is one of lawyer-client relationship. Under Section 126 of the Indian Evidence Act, 1872, it is a privileged information and there is a bar from divulging such information. 6.Notwithstanding the stand taken by the petitioner's office, the Commission issued the impugned summons asking the petitioner's office to appear before the Commission along with the original records on 24.09.2009 for further consideration. The said date was https://hcservices.ecourts.gov.in/hcservices/ postponed to 14.10.2009 at the instance of the second respondent. In the meanwhile, the petitioner filed the present writ petition and it was admitted on 08.10.2009 and an interim stay was also granted. After notice, the matter came to be posted. 7.Mr.M.Dhandapani, learned Special Government Pleader contended that the information sought for by the first respondent Commission is a privilege communication and is fully protected by Section 126 of the Indian Evidence Act. Therefore, there is no necessity to furnish any information as sought for by the second respondent and as directed by the Commission. Reference was also made to 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: 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." (Emphasis added) 8.Per contra, Mr.G.Rajagopal, learned Senior Counsel appearing for the first respondent submitted that the Public Prosecutor is not a mere mouthpiece of the Government. He holds a public office and information available with his office is in the public domain. He further submitted that if an exemption is claimed from disclosure of any information more particularly in terms of Section 8(1)(e) of the RTI Act, then it is for the competent authority to be satisfied as to whether disclosure was in larger public interest. Section 8(1)(e) of the RTI Act reads as follows: https://hcservices.ecourts.gov.in/hcservices/ 8. Exemption from disclosure of information.—(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,— (a) to (d) omitted (e)information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; 9.In such a case, the petitioner will have to convince the competent authority about their inability to furnish the information. It is for the competent authority to decide whether larger public interest warrants such disclosure. Therefore, the attempt to file the writ petition to challenge the summons issued by the Commission is not valid. He submitted that the Public Prosecutor is a "public authority" covered by Section 2(h) of the RTI Act. The relationship between the Prosecutor and the State is not merely that of a lawyer-client. They are duty bound to furnish the information in terms of Section 4 of the RTI Act, failing which they should convince the authority about an exemption under Section 8(1)(e) of the RTI Act. 10.Considering the rival submissions, it has to be seen whether the petitioner is entitled to challenge the notice issued by the first respondent Commission. It is no doubt true that the Public Prosecutor is undoubtedly a public authority under Section 2 (h) of the RTI Act. In this context, it is necessary to refer to the judgment of the Supreme Court in Shrilekha Vidyarthi (Kumari) v. State of U.P. reported in (1991) 1 SCC 212. In paragraphs 14,15 and 17, the Supreme Court observed as follows: "14.We may now refer to some provisions of the Code of Criminal Procedure, 1973, relating to Public Prosecutors. Section 24 provides for appointment of Public Prosecutors in the High Courts and the districts by the Central Government or the State Government. ........ there can be no doubt about the statutory element attaching to such appointments by virtue of these provisions in the Code of Criminal Procedure, 1973. In this context, Section 321 of the Code of Criminal Procedure, 1973, is also significant. Section 321 permits withdrawal from prosecution by the Public Prosecutor or Assistant Public Prosecutor in charge of a case, with the consent of the court, at any time before the judgment is pronounced. This power of the Public Prosecutor in charge of the case is derived from statute and the guiding consideration for it, must be the interest of administration of justice. There can be no doubt that this function of the Public https://hcservices.ecourts.gov.in/hcservices/ Prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it. 15. A brief reference to some decisions of this Court, in which the character of engagement of a Government Counsel was considered, may be made. In Mahadeo v. Shantibhai 2 it was held that a lawyer engaged by the Railway Administration during the continuance of the engagement was holding an ‘office of profit’. The engagement of the Railway counsel was similar to that of the Government Counsel in the present case. It was pointed out that by ‘office’ is meant the right and duty to exercise an employment or a position of authority and trust to which certain duties are attached; and such an engagement satisfied that test. Even though the decision was rendered in the context of disqualification under the Election Law by holding an ‘office of profit’, yet it is useful for appreciating the nature of such an engagement or appointment of a counsel by the government. In Mundrika Prasad Singh v. State of Bihar 3 the nature of appointment of Government Pleaders came up for consideration and it was said that the office of a Government Pleader, as defined in Section 2(7) of the Code of Civil Procedure, 1908, is a public office. Krishna Iyer, J., in that decision, also pointed out that the (SCC p. 707, para 16) “governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself”. In that decision, an earlier Madras decision was quoted with approval, wherein, it was clearly held that the duties of the Government Pleader are of a public nature and that the office of a Government Pleader is a public office. The relevant extract is as under : (SCC pp. 706-07, para 15) “... A Government Pleader is more than an https://hcservices.ecourts.gov.in/hcservices/ advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami 4 and regard the view there, expressed about a Government Pleader’s office, as broadly correct even in the Bihar set up. ... the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. ... * * * I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible.” Similarly, in Mukul Dalal v. Union of India 5, it was held that (SCC pp. 149 & 152, para 6 & 9) “the office of the Public Prosecutor is a public one” and “the primacy given to the Public Prosecutor under the Scheme of the Code (CrPC) has a social purpose”. ...... 17. We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the government excluding judicial review. ...." (Emphasis added) 11.The Public Prosecutor and the other Additional Public Prosecutors attached to his office are also subjected to disciplinary control of the respective Bar Councils. As enjoined by the Advocates Act, 1961, they are also Advocates as much as any other Advocate as can be seen from the observations made by the Supreme Court in Sushma Suri v. Govt. of National Capital Territory of Delhi reported in 1999 (1) SCC 330. The following passage found in paragraph 10 can be reproduced below: https://hcservices.ecourts.gov.in/hcservices/ "10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of Law Officers of the Government and corporate bodies despite his being a full-time salaried employee if such Law Officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its Law Officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such Law Officer engaged by the Government does — whether he acts or pleads in court on behalf of his employer or otherwise? If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression ‘advocate’ as one who is actually practising before courts which expression would include even those who are Law Officers appointed as such by the Government or body corporate.” (Emphasis added) 12.Though this judgment was sought to be distinguished by the subsequent judgment in Satish Kumar Sharma v. Bar Council of H.P. reported in (2001) 2 SCC 365, the question about their being amenable to disciplinary control of the Bar Council was not doubted in the said decision of the Supreme Court. 13.The Bar council of India has framed rules under Section 49 (1)(c) of the Advocates Act prescribing standards of professional conduct and Etiquette. Section II Para 17 prescribes an Advocates' duty to his client and it reads as follows: "17.An Advocate shall not, directly or https://hcservices.ecourts.gov.in/hcservices/ indirectly, commit a breach of the obligation imposed by Section 126 of the Indian Evidence Act." 14.Therefore, the petitioner is perfectly right in contending that the information sought for by the second respondent is a privileged communication and they cannot disclose the same without the express consent of their client, i.e. the State of Tamil Nadu. The second respondent not only wanted the opinion tendered by the Public Prosecutor to the State but also all their letters and correspondence with reference to the FIR and the judgment in the criminal appeal. Such information is completely privileged and disclosure of the same is barred by Section 126 of the Indian Evidence Act. Therefore, the contention by the learned Senior counsel appearing for the first respondent Commission that in terms of Section 8(1)(e) of the RTI Act, the Public Prosecutor will have to move the Information Commission for satisfying the non disclosure of such information. That question is unnecessary when there is a statutory bar imposed by an another statute. 15.Even though the learned Senior Counsel by referring to Section 22 of the RTI Act, providing an overriding effect over the Official Secrets Act or any other law for the time being in force, it will have to be examined whether the RTI Act had also intended to override the privilege conferred by Section 126 of the Indian Evidence Act. 16.On the question of a lawyer's privilege under Section 126 of the Evidence Act, the Supreme Court in Supdt. & Remembrancer of Legal Affairs v. Satyen Bhowmick reported in (1981) 2 SCC 109, in paragraphs 3 and 26 had observed as follows: "3. ... The lawyer of the defence appearing before the Magistrate first agreed to show his notebook but later claimed privilege under Section 126 of the Evidence Act on the ground that the register in which he had taken down the notes of the evidence also contained certain instructions given to him which amounted to a privileged communication and could not be looked into by the court. In this view of the matter the Magistrate found himself helpless and proceeded with the inquiry. As the prosecution was not satisfied with the procedure adopted by the Magistrate, the State filed a revision before the High Court for quashing of the order of the Magistrate in allowing the lawyer to cross-examine the witnesses without impounding the notes comprising the statements of the witnesses taken down in extenso by the lawyer. ...... 26. Thus on an overall consideration of the facts https://hcservices.ecourts.gov.in/hcservices/ and circumstances of the case and a true interpretation of the language employed in Section 14 of the Act, we reach the following conclusions: 1 to 3 omitted 4. That there was absolutely no impropriety on the part of the Magistrate in not taking action against the defence lawyer for his refusal to show his register because the lawyer had rightly claimed privilege under Section 126 of the Evidence Act as the register contained instructions given by the client which being privileged could not be disclosed to the court. On a parity of reasoning we find no impropriety on the conduct of the lawyer in refusing to show the statement of witnesses recorded by the court in extenso in order to prepare himself for an effective cross-examination of the witnesses. Hence the strictures passed by the High Court on the Magistrate as also on the lawyer of the defence were, in our opinion, totally unwarranted. 5. That if the lawyer of the defence or staff of the court or anyone who was not excluded from the hearing of the case made any attempt to disclose the contents of the documents or the statements of the witnesses, (sic) exposed himself to a prosecution on a charge under Section 5 of the Act." 17.Similar view was taken by the Supreme Court in People's Union for Civil Liberties v. Union of India reported in (2004) 9 SCC 580. In paragraph 38 it was observed as follows: "38. It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. A lawyer cannot claim a right over professional communication beyond what is permitted under Section 126 of the Evidence Act. .... Of course the investigating officers will be circumspect and cautious in requiring them to disclose information. In the process of obtaining information, if any right of a citizen is violated, nothing prevents him from resorting to other legal remedies." 18.Therefore, Section 22 of the RTI Act cannot undoubtedly override Section 126 of the Indian Evidence Act. It must also be noted that the rules framed under Section 49(1)(c) of the Advocates Act, 1961 as extracted above, clearly prohibit a counsel directly or indirectly from committing breach of the obligation imposed by Section 126 of the Indian Evidence Act. A careful reading of https://hcservices.ecourts.gov.in/hcservices/ Section 126 of the Indian Evidence Act as well as the standards of professional conduct framed under Section 49(1)(c) of the Advocates Act, 1961 will clearly show that it is not as if this information cannot be asked from the Government directly rather than asking a counsel to divulge the nature of the advice tendered by him. Though the office of the Public Prosecutor is a public authority, the Act only enjoins upon him to furnish such information, which are available with him to be furnished subject to Section 8(1)(e) of the Act. 19.But if the communication is privilege and with the express permission of the client, it can be furnished, it is not expected of the Public Prosecutor to furnish the information after getting permission of his client, i.e. the State of Tamil Nadu. Such a contingency is not contemplated provided under the Act. On the contrary, the Public Prosecutor's office had clearly informed the respondents that they can approach the State Government with whom the documents are available. Though the attention of this court was drawn to the exemption granted to the Home (Police) Department by G.O.Ms.No.1042, Public Department, dated 14.10.2005, this court is not going into the validity or otherwise of such an exemption. 20.It is suffice to state that in the present case, instead of asking the petitioner, who holds such an information in the capacity of counsel, the petitioner is very well entitled to approach the client, i.e. the State of Tamil Nadu directly for getting such information. If such information are available in the public domain without being circumscribed by Section 8 of the RTI Act, he can always get such information without seeking such information from the hands of the Public Prosecutor. 21.It will not be out of place to refer to the Freedom of Information Act, 2000 enacted by the United Kingdom. Section 42 of the said Act reads as follows: "42.Legal professional privilege.- (1) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information. (2)The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings." 22.Even the earlier Tamil Nadu Right to Information Act, 1997 (which is no longer valid in the light of the RTI Act, 2005), under Section 3(2)(i) provided an exemption in respect of information covered by legal professional privilege. 23.The Supreme Court even without reference to the provisions of the Act while considering about the right of the citizens to https://hcservices.ecourts.gov.in/hcservices/ know certain details about the candidate standing in an election delineated the right of the Government to withhold an information relating to several matters vide its judgment in People's Union for Civil Liberties v. Union of India reported in (2004) 2 SCC 476. In paragraph 58, the Supreme Court had observed as follows: "58. Every right — legal or moral — carries with it a corresponding obligation. It is subject to several exemptions/exceptions indicated in broad terms. Generally, the exemptions/exceptions