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Dearth of discretion to refuse evidence obtained illegally in Indian Courts

The essential and fundamental part of a justice delivery system in a dynamic society is Criminal Justice', since it has direct impact on the lives of the individuals. The fate of an under trial individuals life and liberties is based on the verdict of the Judiciary in a legal proceeding. A free and fair trial demands compliance of statutory rules and principles of equity and justice.

While the procedure of conducting a proper trial is laid down under the codified laws in India, however, at times to meet the justified ends, means to the same are compromised with. Therefore, the following study deals with the need to consider the protections against the illegal means of obtaining evidence, against under trial individuals under the Indian Judicial System and reforms to cater to the need of the hour, in view of the recognised right to Privacy as a Fundamental Right'.

The doctrine of Exclusionary Rule

This doctrine is a court made rule of evidence which explicates that every legal system excludes some evidence which is deemed irrelevant or untrustworthy or unauthentic or unreliable. It permits a criminal defendant to prevent the prosecution from introducing at trial, otherwise admissible, evidence that was obtained in violation of his /her rights under the Constitution. However, the rule may not be applied in rejecting highly probative evidence having consequence of nullifying a meritorious prosecution. Exclusionary Rule includes several other rules and theories such as the Hearsay Rule and the doctrine of Fruit of the Poisonous Tree.

Development of the federal Exclusionary Rule of Fruit of the Poisonous Tree:

The doctrine of Fruit of the Poisonous Tree' was coined by Justice Felix Frankfurter of the United States (US) Supreme Court, as part of the Exclusionary Rule' of evidence. This doctrine postulates that illegally obtained evidence is inadmissible in court.

The doctrine is afforded protection by the Fourth Amendment of the US Constitution, which protects an individual against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance. What constitutes illegal search and seizure is more a matter of Constitutional Law' than of the Law of Evidence' in US.

Back in 1886, in the landmark case of Boyd v. United States, the US Supreme Court held that articles obtained by unlawful search were inadmissible in evidence, since admission of such evidence would effectively nullify the guarantees of personal protection afforded by the Fourth Amendment to the Federal Constitution.

In the case of United States v. Rabinowitz, the US Supreme Court held that whether or not a particular search and seizure is unreasonable depends on the total atmosphere of the case and not on the practicality of procuring a search warrant beforehand.

Eventually it was the case of Mapp v. Ohio, which concluded the development towards full acceptance of the above Exclusionary Rule, imposing it as a federal rule on all state courts, applicable only to evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable search and seizure.

However, much thereafter in the case of Stone v. Powell, the US Supreme Court departed from the Exclusionary Rule and held that, the ultimate question of guilt or innocence should be the central concern in a criminal proceeding. Application of the exclusionary rule, however, deflects the truth finding process and often frees the guilty.

Though, the rule is thought to deter unlawful police activity, in part through nurturing respect for Fourth Amendment values, indiscriminate application of the rule may well generate disrespect for the law and the administration of justice.

Thus, while the doctrine of Exclusionary Rule is well embedded in the constitutional and precedential law of US, eventually the courts have realised that indiscriminate and blanket applicability or invocation of the rule may lead to maladministration of Justice and loss of crucial evidence necessary for deciding upon the guilt or innocence of an accused.

Later in 1967 the decision in Katz v United States, (Katz) revolutionized the interpretation of the Fourth Amendment regarding the extent to which a constitutional right to privacy applies against government interference.

The constitutional question in the case was whether the Fourth Amendment protection from unreasonable searches and seizures' was restricted to the search and seizure of tangible property, or did it extend to intangible areas such as conversations overheard by others. It overruled the decision in Olmstead v. United States and held that:
the Government's eavesdropping activities violated the privacy, upon which petitioner justifiably relied, while using the telephone booth, and thus constituted a search and seizure within the meaning of the Fourth Amendment, and that the Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements.

Strict approach in India

India, pursues a strict approach where the illegality or impropriety employed in collection of evidence doesn't (in the absence of the specific constitutional provisions on the subject) render the evidence so obtained legally inadmissible, though such illegality or impropriety might possibly affect its weight. In India, the legal relevance of the evidence to the facts in issue under the present law, is the only pertinent consideration.

Section 3 sub clause (e) of the of the Indian Evidence Act, 1872 (Evidence Act) defines Relevant in the context of facts to say that, one fact is relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the Evidence Act. Further, Chapter 2 of the Evidence Act deals with Relevancy of the Facts, wherein Section 5 particularly envisages that Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared as relevant, and of no others.

Thus, the provisions of Chapter 2 of the Evidence Act determine relevancy' as the only test of admissibility of evidence. There is no provision that bars admissibility of evidence obtained illegally and/or improperly under Chapter 2 or otherwise under the Evidence Act.

Furthermore, it is interesting to note that Section 167 of the Evidence Act, bars new trial or reversal of any decision in any case for the sole reason that there was improper admission or rejection of evidence, if it appears to the court that regardless there was sufficient evidence to justify the decision or that if the rejected evidence had been received, it ought to not have varied the decision.

Furthermore, the Code of Criminal Procedure, 1973, (CrPC) lays down elaborate provisions, incorporating a number of safeguards as to the mode of search to be carried out by the police for the purposes of investigation into an offence.

Further, reading into the provisions of the Evidence Act, Section 24 holds a confession made due to inducement, threat or promise coming from the person in authority as irrelevant' in the criminal proceeding. Also, while Section 26 doesn't admit the confession made by any person while he is in the custody of a Police Officer as provided against such a person, and Section 27 permits admission of such confession under the condition laid down in this section.

The condition under Section 27 makes admissible, such fact which is discovered as a consequence of the information received (confession) from an accused in the custody. It would thus be seen that in India and England, where the test of admissibility of evidence lies in relevancy unless there is an express or implied prohibition in the Constitution or other laws, evidence obtained illegally is not liable to be shut out.

Therefore, the doctrine of Fruit of the Poisonous Tree' has no parallel in India. There is nothing that prevents Indian courts from considering even stolen evidence, if it helps establish guilt or prove one's innocence. The Indian courts' powers to admit such evidence is bolstered with the probative value of the evidence which indicates its relevance. Even otherwise, the Indian Constitution empowers the Supreme Court to make any order for the discovery or production of any document before it. Hence, as things stand today, source is not what takes priority in India.

Borrowing the principle from English Law

The strict legalistic approach has been borrowed from the English Law, wherein the Privy Council in Kuruma v. the Queen, case held that evidence of the accused's unlawful possession of ammunition, discovered in consequence of an illegal search of his person, was admissible. The person against whom such evidence is tendered may have a civil remedy against the person who obtained it unlawfully; and the latter may be liable to disciplinary, or even criminal, proceedings.

In the recent English case of Singh v. Singh, it was reiterated that there is no absolute prohibition on the use of illegal or covertly obtained evidence and that the courts will allow such evidence to be presented, if it is particularly relevant to the case. Though, it was noted that caution should be exercised in relying on such covertly obtained evidence as there is always a risk of the content being manipulated with a view to drawing the party, who is unaware, into something that can be taken out of context.

Landmark decisions in India

In Radha Kishan v. State of U.P., the recovery of certain articles was challenged on the ground that the search was made in contravention of Sections 103 and 165 CrPC. The Hon'ble Supreme Court repelled the contention with the following view:
So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provision of Sections 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched.

It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.

In the case of Magraj Patodia vs. R.K. Birla and Ors., the Hon'ble Supreme Court for the first time opined that:
the fact that a document was procured by improper or even illegal means will not be a bar to its admissibility if it is relevant and its genuineness is proved. But while examining the proof given as to its genuineness the circumstances under which it came to be produced into court have to be taken into consideration.

In the case of R.M. Malkani v. State of Maharashtra, it was observed and held that a document such as a tape recorded conversation, procured by improper or even by illegal means, as contemporaneous relevant evidence is admissible if its relevance and genuineness are proved. If the same is not tainted by coercion or unfairness, there is no reason to exclude this evidence.
A Constitution Bench in Pooran Mal v. Director of Inspection, clarified that:
If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence.

Having due regard to the principles realised and recognised in the above decisions of the superior courts, in Swastik Gear Ltd. v. Income Tax Officer, the Allahabad High Court discussed and noted that:
no system of law recognises or permits an authority, public or private, to obtain evidence illegally. No provision in a statute, criminal or civil, can be visualised which may empower a person to take action against law as it might result into obtaining of evidence which may assist in prosecution of a man or yield revenue to the State. Such a provision may be struck down being contrary to public policy.

The three Judge Bench of the Hon'ble Supreme Court in the recent decision on this aspect, State v. N.M.T. Joy Immaculate, reiterated and settled the principle that:
............ The admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. The Evidence Act or the Code of Criminal Procedure or for that matter any other law in India does not exclude relevant evidence on the ground that it was obtained under an illegal search and seizure.

The issue of admissibility of tape recordings of intercepted calls against the accused, was dealt by the Hon'ble Supreme Court in the case of State (N.C.T. of Delhi) v. Navjot Sandhu and Ors. The Counsel for the accused challenged and objected to the tape recording of the intercepted phone call as a violation of the Indian Telegraph Act, 18885, and the corresponding Rules. The Hon'ble Court relying upon the precedent laid down in Malkani case, however, opined that such deficiencies or inadequacies did not, preclude the admission of intercepted telephonic communication in evidence.

In another case of Selvi and Ors. v. State of Karnataka, the Hon'ble Supreme Court discussed and interpreted the right against self-incrimination under article 20(3) and the right to life and personal liberty under article 21, in context of the mode and/or method adopted by investigating agencies to extract evidence in breach of legal process, violating the fundamental right of the individuals.

It was held that:
Compulsory involuntary administration of the Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the `right against self-incrimination' enumerated in Article 20(3) of the Constitution as the subject does not exercise conscious control over the responses during the administration of the test. Article 20(3) not only a trial right but its protection extends to the stage of investigation also.

Further, it was also highlighted that:
….. the inter-relationship between the 'right against self-incrimination' and the right to fair trial has been recognised under Article 21. Forcing an individual to undergo any of the impugned techniques violates the standard of 'substantive due process' which is required for restraining personal liberty. Compulsory administration of these techniques an unjustified intrusion into the mental privacy of an individual which amount to 'cruel, inhuman or degrading treatment'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the 'right against self-incrimination.Thus, no individual to be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise.

However, it was clarified that the:
Provisions of Section 27 of the Evidence Act are not within the prohibition under Article 20(3) unless compulsion has been used in obtaining the information and any information or material that is subsequently discovered with the help of voluntary administered test results to be admitted. Thus, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act.

The recent case of Manoharlal Sharma v. Narendra Damodardas Modi & Ors., was the one involving public and national interest, wherein a group of writ petitions (PIL) were filed on the issue relating to the procurement of 36 Rafale Fighter Jets for the Indian Airforce. During the said proceedings, the government intimated the Hon'ble Supreme Court that documents related to Rafale Aircraft deal had been stolen from the Defence Ministry and the petitioners sought a review of its verdict dismissing all pleas against the purchase of the jets relying upon those stolen' documents.

The bench on perusing and hearing the Rafale review petitions stated that it couldn't ignore information that was brought before it, as the same would be relevant in greater public interest. The government initially challenged the admissibility of such documents produced before the Hon'ble Court as being stolen and attributed the violation of the Official Secrets Act, 1923 (OS Act), to the same. However, the government did not challenge the credentials of the documents per se, and only questioned the methods adopted by the reporter to obtain the documents. Thus, with the allegations made in the review petitions, the Supreme Court took the contents given to it in the sealed cover at face value and based its decision on review and perusal of such documents.

It can thus be inferred that once a particular piece of evidence is before the court the same shall not be over looked and/or ignored. The existence and relevance of such evidence if found probative to the facts and circumstances of the case, the same is taken due cognizance of and is admitted as evidence. The onus shifts upon the accused/defence to deny the veracity, authenticity and/or reliability of such evidence. The issue of improper and illegal mode or method of obtaining such evidence doesn't have a direct impact upon its contents and relevance.

Though, such evidence is bound to be looked into intricately and with caution and an inquiry also becomes necessary to find out the reasons for adopting any such method of obtaining evidence, other than following the due course of law. This is a secondary issue which doesn't frustrate the ongoing trial proceedings.

Suggestions of the law commission report by Justice K. K. Mathew

The subject of How far should there be a discretion with the court in a criminal case to exclude evidence that has been obtained illegally or improperly?, was taken up for consideration by the Law Commission of India of its own accord, having regard to the importance of the controversies that had assumed, or were likely to assume, in the light of the increasing stress laid on human rights in recent times.

The committee disused and noted that the Indian Constitution did not have any provision that was strictly corresponding to the Fourth Amendment of the US, and as regards the concept of procedure established by law laid down in Article 21 of the Indian Constitution, remained to be spelt out in its application to the law of evidence.

The Commission concluded in its 94th Law Commission Report dated October 28, 1983, that there is need for conferring on the court a discretion to exclude evidence obtained illegally or improperly if, in the circumstances of the case, the admission of such evidence would bring the administration of justice into disrepute. From time to time, there must arise cases where the illegality or impropriety is so shocking and outrageous that the judiciary would wish that it had a power to exclude the evidence.

But the Indian law had no specific provision recognising such a power. At the same time it also recognised that a provision mandatorily shutting out a piece of evidence merely because some illegality has been perpetrated in collecting it would not be advisable. Such a provision would be an extreme one and fail to take note of the infinite variety of situations that could arise in life.

Since, both the extremes ought to be avoided, it was therefore, preferred to confer discretion on the court, rather than providing a mandatory statutory provision.
In view of the same, the Commission recommended a new Chapter containing new section 166A in the Indian Evidence Act, 1872, on the following lines:-

Chapter 10A - Evidence Obtained Illegally Or Improperly 166A

  1. 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 the illegality or impropriety and all the circumstances A under which the thing tendered 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

    In determining whether evidence should be excluded under this section, the court shall consider all the circumstances surrounding the proceeding and the manner in which the evidence was obtained, including:
    1. the extent to which human dignity and social values were violated in obtaining the evidence;
    2. the seriousness of the case;
    3. the importance of the evidence;
    4. the question whether any harm to an accused or others was incited wilfully or not, and
    5. 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.


The Commission also quoted the various circumstances surrounding the proceedings that may entail the exclusion of such evidence but the suggestion of the Law Commission was not accepted and no legislation was effected in line with the recommendations of the 94th Report of the Law Commission and the position continues to be that the evidence obtained under illegal search could still be admitted in evidence, provided there is no express statutory violation or violation of the constitutional provisions.

Implications of the right to privacy as a fundamental right

The Nine Judges of the Hon'ble Supreme Court determined the question of whether privacy was a constitutionally protected value in the case of Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India.

The previous decisions in the case of M.P. Sharma v. Satish Chandra, District Magistrate, Delhi and Kharak Singh v. State of Uttar Pradesh were over-ruled and it was thereby held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

Until this decision the challenge to admit an illegally obtained evidence was put down with the argument, that unlike the US Constitution no such protection in favour of privacy, was available against illegal search and seizure except for the procedure laid down under statute of CrPC. Yet, the non-compliance of such procedure under the CrPC did not hold back the courts to consider and admit such evidence in the court of law, though it was duly scrutinised and dealt with caution, and relevant inquiry was undertaken against the officials in breach of the same.

However, there being a decision of the apex court straightening out the right to privacy being an intrinsic Right to Life and Personal Liberty under Article 21, calls for re-consideration of the statutes dealing with law of evidence and procedures in a trial. The right to privacy under the Article 21 is now analogous to the right granted under the Fourth Amendment of the US Constitution.

Thus, the precedents followed in the US courts can now be seen to be relevant in India. Therefore, at the present stage relevancy being the only criteria for admissibility is not enough, and it ought to satisfy the test and protection of right to privacy under Article 21. Due to the absence of further legislation post this judgement, it is left for the courts to balance a well-settled question of law with a violation of a fundamental right without any procedure established by law. However, it will be difficult to argue the same before a trial court and the declaration of the right to privacy thus leaves a gaping hole in evidence and constitution law, requiring the attention of the Legislature as well as of the Judiciary.

Analysis
On a conspectus of the position of law practiced in India, even if it be assumed that the court, by admitting illegally obtained evidence, merely ignores the illegality of the procedure or method of obtaining it, however, the court by doing so, indirectly implicates itself in the illegality. To this extent, the court becomes a party to a procedure which can breed disrespect for the law and for the judicial process. Also, the admission of evidence obtained illegally, would be unfair or unjust to the accused.

Exclusion of such evidence is considered proper in order to protect the integrity of the court by requiring or permitting the court to refuse to countenance unlawful actions. There are certain cases where the illegal conduct is so shocking that the count would consider it unjust to admit the evidence. Lack of the option of excluding evidence obtained by illegal search and seizure to the Judge, implied that such improper and illegal conduct of the investigating agencies will seldom be scrutinised in the courts and there will be no stage at which police officers may be cross-examined with regard to the propriety of their unfair actions.

On the other hand, if the evidence obtained illegally is not admitted at the trial, grave injustice might be caused in some cases and the respect for the courts as of justice would be lowered. The major deficiency in the present Indian position is that it reflects a legalistic and statute oriented approach, which at times shuts out any consideration of deeper human values.

Well, the predominant concern of a court/tribunal is the search for truth, and the fact of the illegal acquisition of evidence does not affect the logical relevance of that evidence and the court should not undertake a collateral inquiry.

There are other sanctions and remedies that exist against the perpetrator of illegal acts that are better suited to deter wrongdoers than an evidentiary rule of exclusion and, it would be a grave injustice to a party to be denied the use of illegally obtained evidence where he was not involved in the illegality.

Bridging the dichotomy

There is a need to look back and re-consider the recommendations of the 94th Law Commission Report. The Commission had made valid recommendations in order to strike a balance between delivery of justice, protection of fundamental rights of individuals and enforcement of rule of law and following of due procedure, by the investigating agencies during legal proceedings.

In fact, the recommendations of the said Committee make much sense today, due to clarity and certainty in respect of right to privacy being a fundamental right under the Constitution. Undoubtedly, there is dearth of discretion with the courts especially the trial courts due to their strict adherence to procedural and codified laws. Though, the higher courts have been able to exercise their discretion and have laid down certain principles of law to protect the rights of the individuals against unlawful and illegal means of being prosecuted or incriminated by the authorities.

However, there is short handedness in this regard, of the trial courts which are primarily concerned with admissibility of evidence and are at the grass root of the Indian Judicial system. The twin side of the argument would be, that it would lead to neglect of probative evidence however, eventually it would have a deterrent effect upon authorities to exercise the legitimate and appropriate means to extract and obtain evidence, in order to prove the guilt of an accused.

However, evidence obtained illegally violates all canons of basic human rights and puts the justice system in a bad light, shattering the faith of the public in the same. In the evolved scenario of expansive fundamental rights of the citizen in India, it is high time for the legislature to throw light and bring about relevant statutory provisions, to enable courts to exercise due power to reject and refuse such evidence that causes more harm and injustice to an under trial than the actual and final verdict.

End-Notes:

  1. Fruit of the Poisonous Tree, Cornell Law School, available at https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree, last seen on 22/05/2020
  2. 116 U.S. 616 (1886)
  3. 339 U.S. 56 (1950)
  4. 367 U.S. 643 (1961)
  5. 428 U.S. 465 (1976)
  6. 389 U.S. 347 (1967)
  7. 277 U.S. 438 (1928)
  8. [1955] 2 WLR 223
  9. [2016] EWHC 1432
  10. (1963) IILL J667 SC
  11. [AIR 1971 SC 1295]
  12. (1973) 1 SCC 471
  13. [1974] 93I TR 505 (SC)
  14. 1989 175 ITR 384 All
  15. 2004 Cri LJ 2515
  16. AIR 2005 SC 3820
  17. Supra 12
  18. AIR 2010 SC 1974
  19. (2019) 3 SCC 25
  20. Available at https://indiankanoon.org/doc/4019664/?type=print
  21. AIR 2017 SC 4161

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