Section 128 of Evidence act comes under chapter 9 of act under PRIVILEGED COMMUNICATIONS topic.
Section 128 talks about “privilege not waived by volunteering evidence”.
Where certain matters come to the knowledge of any Judge or Magistrate in his personal capacity as an ordinary person, the Judge or magistrate is not entitled for the privilege under section 121 & can be compelled to testify to those facts.
According to Sec.128 of Evidence Act-If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; & if any party to suit or proceeding calls any such barrister, pleader, attorney or vakil as witness, he shall be deemed to have consented to such disclosure only if he questions such barristers, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.
Before We discuss on section 128 of Evidence Act we have to understand Section 126 of Evidence Act.
Section 126 of Act talks about 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.
A, a client, says to B, an attorney—”I have committed forgery and I wish you to defend me.” As the defense of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
According to section 126 of act communication which is occurred between client or his attorney or pleader or vakil that communication cannot be disclosed by attorney or pleader or vakil as evidence against his client unless his client gave consent for that.
So now let’s understand section 128 of Evidence Act.
According to Section 128 If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and, if any party to a suit or proceeding calls any such barrister, [pleader], attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.
Section 128 may be regarded as other exception to Section 126 or it is the supplement to Section 126. Under this section if the party gives evidence to the matter covered by secret communication it shall not amount that the party has given consent for disclosure. The section further provides that if the same party summons his lawyer as a witness it shall not be considered that the party has consented to disclose the communication, but if he questions his lawyer on the matter of confidential communication, it will be deemed to have consented to disclose the matter in issue.
This is the section dealing with the privilege of the client. It refers to implied waiver, but according to the section the privilege is not waived if the party to the suit gives evidence at his own instance or otherwise or by calling his legal adviser as a witness.
The privilege belongs to the client and therefore he alone can waive it. The privilege is not lost by calling the legal adviser as a witness, unless the party having the privilege questions him relating to confidential matters.
If client himself in court disclosed any communication which occurred between him & his attorney at that time it is not consider that attorney or pleader can also disclosed communication between him & his client.
But if client asked attorney to come as witness in court & asked him that particular matter to speak about so at that time if attorney speak it is valid & attorney is bound to speak that.
This section is talk all about privileges. Privileges are for clients so that attorney could not take benefits of their personal communication.
Under Section 126 of the Evidence Act, no barrister, Attorney, or Vakil, is permitted to disclose any communication made to him in the course of his employment by his client unless he consents for such disclosure.
The client, who made the communication, in his discretion, may waive the privilege & permit his legal counsel, to disclose the communication.
Section 128 provides that merely because the client gives evidence o the communication, at his own instance or otherwise, does not mean that he ha s consented for the disclosure by the attorney.
But when the client questions the lawyer on the very matter of the communication which he made to the lawyer it will amount to consent & the lawyer is free to disclose the communication.
A is a client & B is A`s first Vakil. At the time of giving employment to the B as A`s Vakil A disclose that he has committed forgery, & he wish B to defend him. This communication between A & B is privileged communication & B is not allowed to disclose this communication. After that because of some reason A hire C as his Vakil. After that in some respects A partially disclose his communication between him & B at that time also B is not allowed to disclose full information about his conversation with A. after that C Vakil of A send summons to B to appear in court room as witness & asked him about him about his communication with A. at that time if b told all the things in the court so this is acceptable because at that time it is consider that A gives him consent to tell all the conversation which occurred between them.
So according to section 128 if any party to suit gives consent after that only attorney or pleader or Vakil gives evidence against party.