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TMI Blog2010 (1) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclose 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 126 of the Indian Evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 under those laws entitle the Government to withhold information relating to the following matters: (i) to (vii) omitted (viii) Information which is subject to a claim of legal professional privilege, e.g., communication between a legal adviser and the client; between a physician and the patient. 24.Under Section 8(2), a publi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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