BUSTED! BUT NOT FOR LONG-ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE * TARANG CHELAWAT 1 Introduction- Evidence which are obtained via methods that would violate a person s constitutional rights such as illegal search and seizure or invalid warrants or without probably cause are illegal evidence. It has been held that the admissibility of evidence is not affected by the illegality of the means by which the evidence has been obtained albeit a person taking recourse to illegality may be accountable under the law. If the evidence is relevant the court is not at all concerned by the method through which it was obtained or with the question whether that method was tortious but excusable. Many a times, the functionaries of the state are involved in obtaining evidence using illegal methods just to book the culprits under the charges. It may be reliable and true but the question comes on the admissibility of such evidence in the court. The question remains unanswered under Indian Evidence Act, except that section 27 of the act which states that anything discovered in consequences of the information received from a person accused of any offence, in the custody of a police officer, so much information as relates distinctly to the fact thereby discovered may be proved. It is obvious that section 27 of the act will apply even though the information is obtained through the means not fair. 2 Indian perspective on illegally obtained evidence and approach of judiciary- In India, the general approach of judiciary is clearly not to exclude evidence obtained illegally. The thinking of judiciary is that the evidence cannot be rejected on the ground that it is illegally obtained as it does not affect the reliability of the evidence. The court has taken the view that there is no law in force that excludes the relevant evidence even if obtained illegally under an 1 LL. B JINDAL GLOBAL LAW SCHOOL 2 S.N. Jain, Journal of the Indian Law Institute, volume 22:3(2016) 62
illegal search or seizure, or was otherwise illegally obtained. 3 The Supreme court has gone to the extent of holding that It will be wrong to invoke the supposed spirit of our constitution for excluding such evidence. It, therefore, follows that neither by invoking the spirit of our constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search. 4 There are certain number of cases which throws the light on admissibility of illegally obtained evidence. The last case among the landmark judgement is the case Maharashtra V. Natwarlal Damodardas Soni in which the premises of the accused were searched and gold was seized by the respective authorities. Thereafter, he was charged with certain offences. His contention was that the search was illegal and thus the seizure was inadmissible in evidence. The apex court held that even if the search was illegal it did not affect the seizure and its admissibility in evidence. At most the court may be inclined to examine the evidence to the seizure very carefully. 5 In Bai Radha V. State of Gujrat, it was held that non-compliance with some of the provisions relating to search would not affect the admissibility of the evidence so collected unless a prejudice was caused to the accused. 6 The question of admissibility of illegally obtained evidence has also occurred in the context of illegal searches and seizure by the tax authorities. We can also see conflict of opinion amongst various high courts on whether the evidence collected by tax authorities can be used or not. Talking about Mysore High Court in Harikisandas Gulabdas & Sons V. State of Mysore, the court held that such evidence could not be used. 7 Contrary to this Delhi High Court in Balwant Singh V. R.D. Shah 8, Allahabad High Court in Agrawal Engineering Stores V. State of U.P. and Madras 9 High Court in S. Natarajan V. Joint Commercial Tax Officer 10 held that such evidence could be used. 3 Shyni Varghese V. State (Govt. of NCT of Delhi), (2008) 147 DLT 691(Del): M.P. Sharma V Satish Chandra, AIR) Malkani V State of Maharashtra, (1973) 1 SCC 471: 1973 SCC (Cri) 399; State (NCT of Delhi) V. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC(Cri) 1715 4 Pooran Mal V. Director of Inspection (Investigation), (1974) 1 SCC 345, 346, para 23: 1974 SCC (Tax) 114 5 A.I.R. 1980 S.SC. 593; Radhkishan V. State of U.P. (1963) Supp. 1 S.C.R.408 6 A.I.R. 1396(SC,1970) 7 Harikisandas Gulabdas & Sons V. State of Mysore, 27 S.T.C. 434 (1971) 8 Balwant Singh V. R.D. Shah, 71 I.T.R. 550 (1969) 9 Agrawal Engineering Stores V. State of U.P., 29 S.T.C. 446 (1972) 10 S. Natarajan V. Joint Commercial Tax officer, 28 S.T.C. 319 (1971) 63
In R.M. Malkani V. State of Maharashtra the police had used an eavesdropping to tape record conversation between the accused and a third person about the demand of bribed by the former. The accused contended that he could not be charged under corruption on the basis of tape recordings illegally obtained. The court admitted the evidence and said even if the evidence is illegally obtained the warrant can be issued 11. However, the court made the significant observation that the police officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. 12 Finally, in Ukha Kolhe V. State of Maharashtra, the blood of the accused was taken to determine whether he had committed an offence under Bombay Prohibition Act. The prohibition prescribed in the section 129 A of the statute was, however, not followed in that matter. There was a provision in the statute which said nothing in section 129A shall preclude the fact that the person accused of an offence has consumed an intoxicant from being proved otherwise than in accordance with the provisions of this section. Relying on this section the majority, 4:1 held that the evidence collected in this case is admissible. But the dissenting judge said that in proving the alcoholic content of the blood the specific procedure prescribed in section 129A must be followed. Since, this was not done the result of blood examination could not be admissible in evidence. 13 Thus after going through various landmark cases and obiter dicta it is quite clear that the overwhelming judicial view thus is illegally obtained evidence is admissible unless a prejudice is caused to the accused. However, such an evidence should be viewed with care and caution. Why this approach is followed in India? This approach might have been due to some extent, to the fact that the Evidence Law in India is almost entirely codified, with an elaborate classification of facts into relevant and irrelevant, and specific categorization of admissible and inadmissible evidence and similarly other differentia laid down by the statute. The Indian Evidence Act was perhaps the first comprehensive code of evidence enacted in the entire commonwealth (1872). By the time regarding the discretion of courts to exclude evidence on grounds of public policy took shape elsewhere, the act had already become firmly embedded in the training and upbringing of the Indian Judiciary. The superimposition of common law doctrines upon codified framework of the Law of Evidence did not 11 A.I.R. 157 (SC, 1973) 12 Id, at 163 13 A.I.R.1531 (SC, 1963) 64
find a very hospitable in the Indian Legal system. Courts, in deciding questions of admissibility or otherwise of evidence, had recourse only to the scheme and text of the Evidence Act, and were not inclined to go outside the four corners of the Act for determining the question of admissibility. 14 CONSTITUTION ON ILLEGALLY OBTAINED EVIDENCE- Indian constitution grants various rights to the citizen of India which actually limits the scope of evidence obtained illegally. However, it is very shocking that no illegality or impropriety in the collection of evidence renders it inadmissible in a court of law in India but a few exceptions are also there such as law of confessions. In the famous case of Maneka Gandhi, the apex court construed the fundamental right to personal liberty, embodied in Article 21, in an altogether new light and dimension. Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. 15 the court held that law cannot be any law. It must be valid and one which conforms to other fundamental rights. More to the point, the court said that the procedure which Article 21 contemplates is not any procedure either. It must be a procedure which is fair, just and reasonable. 16 It is true that Indian constitution does not contain any express guarantee against unreasonable searches like the Fourth Amendment of the of the US constitution. But the expression personal liberty in Article 21 would cover privacy, having regard to the Supreme Court s wide definition of the expression. Law commission on Illegally obtained evidence- The law commission s 94 th report submitted to the government of India recently, concerns a subject of vital importance to the citizen s rights and to the probity of police services. It is the admission, in a criminal trial, of evidence which has been obtained illegally or improperly by the police. 14 Law commission of India 94 th Report, Evidence obtained illegally or improperly: Proposed Section 166A, Indian Evidence Act,1872. 15 The Constitution of India, Article 21 16 Maneka Gandhi V. Union of India, 1978 AIR 597, 1978 SCR (2) 621 65
Rather than leave it to debate why not amend the law in explicit terms? This what the law commission has recommended in the form of a new section in the Evidence act, S 166A. the section states that In a criminal proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after considering the nature of illegality or impropriety and all circumstances under which the things was obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or improper means by which it was obtained, its admission would tend to bring the administration of justice into disrepute. Note that the section suggested does not impose a complete ban. It confers a wide but regulated discretion on the court. The net result is a ban on illegally obtained evidence as a rule and its reception only in exceptional cases where the crime is particularly heinous land the illegality none too grave. While determining whether the evidence should be excluded, the commission further added that courts should consider the extent to which human dignity and social values were violated in obtaining evidence, the seriousness of the case, the importance of the evidence, and the question whether there were circumstances justifying the action- such as a situation of urgency requiring action to prevent the destruction or loss of evidence. 17 Comparative position and perspective of different countries- A) Different countries, Different system We all know Indian Law, of course is based on English law. Those who seeks uniformity among civil codes might note that Scottish law is completely different it vests the discretion on the judge. So, does the law in Australia. However, in 1979 House of the Lords relented a bit A trial judge at a criminal trial has always a discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighs its probative value. 18 Talking about U.S. the invocation of the constitutional guarantee, contained in the Fourth Amendment against unreasonable searches, led the apex court to rule against the admissibility 17 Law commission of India 94 th Report, Evidence obtained illegally or improperly: Proposed Section 166A, Indian Evidence Act,1872. 18 House of the Lords, 1979 66
of illegally obtained evidence. In Mapp V. Ohio, the court ruled to that majority of five: three. The court held that under the clause of due process, the evidence obtained by a search or seizure in violation of fourth amendment is inadmissible in a state prosecution in a state crime. In Mapp Vs Ohio, the police officer suspecting that an offender was hiding in ascertain house, broke into the house they manhandled a woman resident and searched her premises. They discovered some obscene material in a trunk. She was charged of possessing such materials after the evidence has been admitted. However, the supreme court set aside the conviction. 19 The supreme court said The ignoble shortcut to conviction left open to the state tends to destroy the entire system of constitution restraints on which liberties of the people rest. The court in well-mannered pointed out that the constitutional guarantee of right to privacy would be an empty promise if evidence obtained through its violation is accepted and admitted by the court. Also the court had begun to recognize principle since 1914. In 1961, something bigger came into picture and it was the prohibition of the fruit of poisonous tree extends to statement overheard through a concealed microphone, wiretapping and eavesdropping are regarded as searches and seizures. 20 The rules no doubt has suffered a lot of dents since, but methods which shock the conscience are shown disapproval by the rejecting the evidence so obtained. Talking about the opinions and comments of Justices, Chief Justice Warren so well put it The methods we employ in the enforcement of our criminal law have been appropriately called the measures by which the quality of our civilization may be judges. However, in our country, investigative methods in which brutality is substituted for brains as an instrument of crime detection are so common. We hear too often that the soft techniques will lead to impairment of investigation. 21 The best answer to this argument was given by famous reputed Justice Goldberg If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. B) Analysis between India and USA- After going through the approach of both the countries it is quite clear that in India illegally obtained evidence are admissible on the other hand in USA illegally obtained evidence are not 19 367 U.S. 643 (1961) 20 The Practical Lawyer, Fruits of the poisoned tree: Should illegally obtained evidence be admissible? April 15, 21 AG Noorani, Economic and Political Weekly, Vol. 19, Issue No. 24-25, 16 Jun, 1984 67
admissible. But now it is a need to know why these two countries are following two different approach and what is the reason behind the respective approaches. In India judiciary feels evidence should be admissible even if the evidence is obtained illegally if the evidence is reliable. What constitutes illegal search and seizure is more a matter of Law of Evidence than of the Constitutional Law. In short, the law of evidence ceased to draw its juices from any other roots except what had been enacted in a codified form. Talking about U.S.A, the approach is that obtaining evidence illegally affects once rights guaranteed by constitution and illegal search and seizure is more a matter of Constitutional Law than of the Law of Evidence in U.S.A. 22 Further, the police would face problem taking permission from courts and first class magistrates in India. On the other hand, in USA system is more transparent so, they get permission for obtaining such evidence easily due to more cooperation between different departments. Also, in India the number of cases are much more than the cases in USA, there is an utter need to dispose of cases rapidly in India which can be possible if proceedings and investigation is fast which clearly leads to the respective procedure. Arguments in favor of exclusion of Illegally Obtained Evidence- There are arguments which I briefly want to explain which clears the position why evidence illegally obtained should not be admissible. (a) in the absence of other remedies available before the accused, the rules are necessary to deter illegal methods of obtaining evidence. (b) contribution can be made towards the respect for Legal system by eliminating the apparent condonation of illegal police practices. (c) that they free the judges from what is felt by some of them to be repugnant complicity in the dirty business. Arguments against exclusion of Illegally Obtained Evidence- There are also arguments which tells not to exclude illegally obtained evidence. (a) from court s point of view what is important is reliability of evidence, evidence obtained illegally are generally true and reliable. (b) excluding such evidence does not serve the remedy towards illegality because the illegality has already taken place. The exclusion has the effect of acquitting the accused against whom the society is entitled to protection. The effect of exclusion is that both 22 Rothstein, Evidence in a Nutshell (May 1981) pages 466-467 68
the accused and the person who obtained evidence illegally escape. (c) the offending person should be punished for obtaining evidence illegally. Conclusion- Even if evidence if evidence obtained illegally if not admissible amounts to the release of countless guilty criminals I still strongly believe that the evidence obtained illegally should not be admissible. I think evidence should be admitted solely on the ground of admissibility and evidence obtained by improper means including torture, violence or under a promise may not be reliable. Even if the evidence is reliable and reliability is not in question still the court should exclude the evidence obtained illegally as the court should use its position to discourage the improper investigative practices. It can also be noted that if judges routinely started to ignore the evidence obtained illegally than the prosecutorial system will stop resorting to such practices and they would cease to be useful. Also, I believe that evidence obtained by infringing one s right provides a prima facie justification, for the exclusion of such evidence is one of the methods by which infringement of the right can be remedied. The Supreme Court of the United States also in this matter has been to exclude evidence obtained in violation of a specific constitutional prohibition. The principle was very dramatically states in a well-known case decided in 1952, 23 which holds that evidence obtained as a result of violation of a due process right of accused ( right to be free from abusive treatment at the hands of state authorities) would, of introduced against him a criminal case, itself be a violation of his right to due process. Also, it is not enough merely to condemn improper methods. It is necessary to banish from the court room the fruits of such methods. Policeman resort to brutal and wrong methods because they can procure convictions through evidence obtained by such methods. Make such admissible and the incentive of such resort goes. I also feel that illegally obtained evidence should be expressly excluded from the system as it is also said by Justice Goldberg: If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. 23 Rochin V. California (1952) 342 U.S. 165 69