Admissibility of Illegally Obtained Evidence

 

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Admissibility of Illegally Obtained Evidence

Under the Indian Evidence Law, an illegally obtained evidence is admissible in the Court if it is ‘relevant’ to the case and the admission of such evidence has not been expressly or impliedly barred by the Constitution or any other law.

Section 136 of Indian Evidence Act provides that the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the facts, if proved, would be relevant, and not otherwise.

Section 136 of Evidence Act is reproduced below:

136. Judge to decide as to admissibility of evidence. - When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the facts, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen.
It is proposed to prove that he denied to the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts, (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue.

The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

 

 

Four Principles providing illegally obtained pieces of evidence should not be accepted.

There are four principles which are based on which illegally obtained pieces of evidence should not be accepted. The four principles are

1.    Reliability principle

·       According to Reliability Principle, the evidence is admitted based on reliability but if evidence obtained through torture, violence or under pressure might not be reliable.

2.    Disciplinary principle

·       “Disciplinary Principle” states that Judiciary should discourage the improper manners used for obtaining evidence. This will deter the prosecution or defendant from resorting to such manners for getting pieces of evidence.

3.    Protective principle

·       “Protective principle” follows the idea that exclusion of illegally obtained evidence is one of the remedies to the person against whom the evidence was obtained with the breach of individual’s right.

4.    Judicial integrity principle.

·       “Judiciary Integrity Principle” is based on the idea that to maintain respect for the administration of justice, the court should be careful while admitting illegally obtained evidence as by allowing such shreds of evidence, courts are promoting the improper methods of procuring evidence.

 

Rule of Admissibility of Illegally Obtained Evidence in US and UK-

1.    United States- 

In the United States, illegally obtained evidence is inadmissible due to the application of the exclusionary principle and the doctrine of ‘Fruits of Poisonous Tree’.

While the former rule suggests that illegally obtained evidence cannot be made admissible in a criminal trial, the latter doctrine suggests that even the evidence obtained from primary illegality in the procedures which includes both physical evidences and live testimonies are inadmissible as the evidence evolves from the poisonous tree i.e. the illegal procedure.

Both these doctrines were formulated to support the Fourth Amendment Rights to the U.S. Constitution which warrant the right of citizens against any unwarranted search and seizures in their persons, houses, or papers.

In the case of Boyd v. U.S. (116 U.S. 616), the US Supreme Court held that illegal search and seizure is an unreasonable interference to the right to privacy of an individual and compelling a person to produce private papers is violative of Fourth Amendment Rights. Further, the US Supreme Court made the exclusionary rule mandatory in all state prosecutions and held that exclusionary rule also acts as a safeguard against Fifth Amendment Rights which include right against self-incrimination.

The scope of the exclusionary rule was also expanded by US Supreme Court in the case of Katz v. U.S. (389 U.S. 347 (1967) when it was held that eavesdropping and recording of private conversions of accused also amount to ‘unreasonable search and seizure’ and is violative of Fourth Amendment Rights.

The exclusionary principle is not an absolute rule and certain exceptions have been carved to its application for example,

·       if the evidence is found by the private individual instead of law officer,

·       if the evidence would inevitably appear through an illegal search, and

·       if the officer conducted the search in good faith and subsequently the warrant was found to be invalid, 

Then the exclusionary rule will not be applicable.

 

Note: This rule of excluding 'fruits of a poisonous tree' has a limited application in India under Sections 24, 25 and 26 of the Indian Evidence Act which bar the admissibility of confessions made to police officers, custodial confessions etc.

 

2.    United Kingdom- 

Under the Queen’s rule, the evidence is made admissible even if it is illegally obtained through the unlawful procedure.

In the landmark case of Kuruma v. the Queens (1955) AC 197 (U.K.), it was held an illegally obtained evidence is admissible if it is relevant to the case and it is the discretion of the Court to exclude such illegally obtained evidence if it leads to unfairness to the accused which was later known to be ‘Unfair Operation Rule.’

This rule is now codified under section 78 of the Police and Criminal Evidence Act 1984 (PACE) wherein Court has the discretion to exclude evidence if it leads to unfairness to the accused.

 

·       POSITION IN INDIA

The Indian Evidence Act, 1872, formulated during the British Rule contemplates that the admissibility of evidence depends on the extent of its relevancy in the case.

Thereby, Indian Judiciary in the case of State of Maharashtra v. Natwarlal Damodardas Soni, (1980) 4 SCC 669, and R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157 held that any illegally obtained evidence is admissible in the Court of Law if it is relevant to the matter, but the value of such evidence is to be dealt with care and caution by the Courts.

Further, in the landmark case of Pooran Mal v. Director of Inspection of Income Tax (AIR 1974 SC 348), the Indian Supreme Court held that no Constitutional or Statutory construction prescribes to exclude the illegally obtained evidence thereby the only test of admissibility of evidence is the relevancy of the evidence. This case also decreed the ‘Unfair Operation Rule’ of England wherein the Courts have the discretion to exclude the illegally obtained evidence if it leads to unfair treatment to the accused.

Exception in cases of illegally recovered contraband

This rule cannot be applied to use illegally recovered contraband as evidence of possession. Statutes like Narcotic Drugs and Psychotropic Substances Act, Abkari Act etc, raise a presumption of guilt if possession of illegal article is established. Such laws have stringent provisions for search and seizure, as the mere possession of the article can lead to punishment. "Unlawful possession" of the contraband is necessary for recording conviction under the NDPS Act.

This position of law was shifted a little when in the case of State of Punjab v. Baldev Singh ((1999) 6 SCC 172), Supreme Court held that illegally obtained evidence is not admissible in the Court of Law if it is obtained in violation of Section 50 of the NDPS Act, as this provision confers procedural rights to the accused which are statutorily mandated thus are deemed to be followed. This standing of law to exclude the illegally obtained evidence is only confined to the provisions of the NDPS Act and does not apply to other situations.

Status of Involuntary Statement Leading To 'Section 27 Recovery'

1.    The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad [AIR 1961 SC 1808, It was observed in the majority opinion by Jagannadhadas, J.,

"13. ... The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat that will be admissible in evidence and that will not be hit by the provisions of clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion [has] been used in obtaining the information."

2.    Selvi v. State of Karnataka (2010) 7 SCC 263, wherein it was held that if a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3) of the Constitution.

3.    Ashish Jain v. Makrand Singh AIR 2019 SC 546

Accused persons were grilled and interrogated multiple times before extracting confessions which lead to recovery of ornaments, cash, weapons and key

Held that the Confessions that led to recovery of incriminating material not voluntary, but caused by inducement, pressure or coercion is hit by Article 20(3) of Constitution, rendering such confession inadmissible.

Position after recognition of Right to Privacy:

The 9 Judge Bench in the landmark Supreme Court Case of Justice K.S. Puttaswamy and Anr. v. Union of India and Ors. , has recognized that the right to privacy forms an integral part of the right to life and personal liberty under Article 21 of the Constitution and citizens have the right to give consent in relation to the physical body, personal data, and property.

This right is enforceable against the state subject to reasonable restrictions. With the invocation of privacy as a fundamental right under Section 21 of the Indian constitution, the admissibility of illegally obtained evidence can now be questioned as no statute should contradict the fundamental rights. 

Recently in Yashwant Sinha and Ors. v. Central Bureau of Investigation, (2020) 2 SCC 338.

The Supreme Court hearing of the review petitions seeking inquiry into the Rafale deal, arguments based on the doctrine of “Fruit of the Poisonous Tree” were submitted. Coined by Justice Frankfurter of the United States Supreme Court, this doctrine is part of the court-made “Exclusionary Rule” of evidence and postulates that illegally obtained evidence is inadmissible in court.

However, relying on an English decision, the Court noted that, “it matters not how you get it if you steal it even, it would be admissible in evidence.” So long it is not tainted by an inadmissible confession of guilt evidence, even if illegally obtained, is admissible. While passing its decision the Court also cited its dicta in another case and noted that “a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved.”

 

Law Commission's suggestion

It may also be noted that the Law Commission of India in its 94th Report suggested to give Court's discretionary power to exclude illegally obtained evidence.

The Commission suggested incorporation of Section 166A of the Indian Evidence Act for giving courts the discretionary power to exclude illegally or improperly obtained evidence.

The following parameters were enlisted in the proposed Section to determine whether the admission of such evidence will bring administration of justice into disrepute:

(i) The extent to which human dignity and social values were violated in obtaining the evidence;

(ii) The seriousness of the case;

(iii) The importance of the evidence;

(iv) The question whether any harm to an accused or others was inflicted wilfully or not;

(v) 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.

But the suggestion of Law Commission has not been accepted.

Present Position of Admissibility of Illegally obtained Evidence:

Thus, the rule of admissibility of illegally obtained evidence after these judicial pronouncements are as follows:

• All relevant evidence is admissible subject to any Constitutional or Statutory prohibition. E.g.
• Section 50 NDPS Act
• Section 27 IEA r/w Article 20(3) of Constitution.
• The Courts have discretionary power to exclude any evidence obtained in defiance of any procedural statutory right if the evidence leads to unfair treatment to the accused.
• The conviction of any accused cannot be upheld based on evidence obtained in violation of the procedural statutory right of the accused. 

·       The value of such evidence is to be dealt with care and caution by the Courts.