Showing posts with label INDIAN EVIDENCE ACT. Show all posts
Showing posts with label INDIAN EVIDENCE ACT. Show all posts

CONCEPT OF RELEVANCY AND ADMISIBILITY


INTRODUCTION  

Indian Legal system including the evidence law is largely influenced by the British Legal  system. Like Britain, In India, the illegally obtained evidence was admissible, In Britain  the Statutory Provision Changed the admissibility of such evidence under section 78 of the  Police and Criminal Evidence Act,1984. Whereas in India Judiciary has to make the first  move in absence of any legal provision excluding the illegally obtained evidence. The only  criteria regarding the admissibility of evidence in Indian law is relevancy. After the judicial  pronouncements, the following were the rules that came to light. All relevant evidence is  admissible subject to any constitutional or statutory prohibition. The court has discretion  to exclude illegally obtained evidence, if it has harmful and unfair affect for the accused. In India the rule of admissibility is governed by the statutory provision provided by The  Indian Evidence Act, 1872.when the enactment is in operation, all the previous uncodified  laws which are inconsistent with the code were overruled.  

Over a period of time there has been a change in the trend. Several countries have amended  their laws. While in others, the judiciary has changed the interpretation of laws and  constitution. The Law Commission of India in 1983 undertook the responsibility to study  the possible solutions for the issue of illegally obtained evidence. The commission also  gave certain recommendations. However still there is no settled legal position on India  about the exclusion of illegally obtained evidence.  





 CONCEPT OF RELEVANCY AND ADMISIBILITY 

Evidence means anything admitted by a court to be proved or disprove. The term  Relevancy and admissibility are often considered synonyms. All admissible evidence is  relevant; however, all relevant evidence is not relevant. The evidence must be relevant and must satisfy all the conditions of admissibility. 

There are certain differences between Relevancy and Admissibility. 

DIFFRENCE BETWEEN RELEVANCY AND ADMISSIBILITY 

RELEVANCY 

ADMISSIBILITY

When the facts are so related as to render the  existence or non-existence of other facts  probable according to a common course of  events.

When facts are declared to be legally relevant  under the Indian Evidence Act,1872.

Relevancy is founded on logic. 

Admissibility is founded on law and not  directly on logic. 

All relevant facts are not admissible. 

All admissibly facts are relevant.


COMPARATIVE ANALYSIS 

POSITION IN THE UNITED STATES OF AMERICA 

In early twentieth century, warrantless and illegal searches were common and evidence  obtained through such search was admissible in courts hence, illegally obtained evidence  was always admissible in the courts.6 

In the United States of America, the illegally obtained evidence is inadmissible due to the  Fourth Amendment Act which bars the use of evidence secured through illegal search and  seizure. In case of Fremont Weeks v. United states, 7the court overruled the conviction  of the accused based on the 4th Amendment. 

The judiciary created an Exclusionary principle, according to which the Judge may exclude  evidence from criminal trial if it was obtained by police by misconduct.8illegally obtained  evidence is inadmissible in criminal trial. The Exclusionary rule is not an absolute rule but  it also has its own exceptions:  

If the evidence is found inevitable by police even without illegal search or seizure, then  such evidence is admissible. 

Illegally obtained evidence is admissible to impeach the credibility of the accused.  If an officer in good faith believes that he is authorized to search then such an evidence  is also admissible.  

Evidence obtained illegally by an independent third person is admissible. 


Doctrine of “Fruits of The Poisonous Tree”: this doctrine was first used by Justice  Frankfurter in case of Nardone v. United States.9 The court rejected the evidence procured  by tapping wires as inadmissible evidence. The Doctrine states that the evidence from an  illegal search or seizure which is a tainted source, would also be tainted and hence  inadmissible. Evidence is inadmissible because it originates from a poisonous tree. This  doctrine is part of the Exclusionary principle.  

In Mapp v. Ohio10 the US Supreme Court held that the evidence obtained by violating 4th amendment was inadmissible. 

POSITION IN THE UNITED KINGDOM 

The evidence was admissible even if it was obtained through illegal means. In Kuruma v.  The Queen11, it was held that illegally obtained evidence is admissible if it is relevant to  the case and it is the discretion of the court to exclude such evidence if it causes unfairness  to the accused. in this case, the evidence of the accused’s unlawful possession of  ammunition, discovered in consequence of an illegal search of his person was admissible.  Lord Goddrad said that the test to be applied in considering whether evidence is admissible  is that whether it is relevant to the matters in issue. If it is, it is admissible and the court is  not concerned with how the evidence was obtained.  

Justice Crompton stated that the law is that: “It matters not how you get it; if you steal it  even, it would be admissible in evidence.12 this was a case of allegations of corrupt  practices. A letter was written by the person suspected of bribery to his agent and the same  letter was produced by his agent. On information being subsequently filed, this letter was  called for and was produced by the secretary of the Commission. Objection was raised that  it was inadmissible because it was discovered in consequence of an inadmissible statement  by the accused. The court held that the letter is admissible.  

In R V. Sang13 the accused was charged with the offence of conspiracy to utter counterfeit  American bank notes. the court held that the judge at a criminal trial has always a discretion  to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative. 

The Unfair Operation Principle is now codified in the UK. Statutory provisions in the UK  allow courts to refuse any evidence which the court feels that admission of the evidence  will have an adverse effect on fairness of the proceedings14 the court can exclude the  evidence if it causes unfairness to the accused.15


THE INDIAN EVIDENCE LAW 

India follows the strictest approach in taking evidence. There is no statutory or  constitutional provision in Indian Law that excused illegally obtained evidence.16 there is  nothing in Indian Evidence Act that forbids courts from taking into account illegally  obtained evidence. There is no parallel doctrine in India such as the doctrine of the fruits  of the poisonous tree. Illegality employed in collection of evidence does not render  evidence inadmissible. Relevancy is the only test of admissibility. Nothing prevents Indian  Courts from considering even stolen evidence. The Indian Legal System followed the  English Law and applied many decisions of the English Courts in the Indian Context. If  the evidence is admissible, it does not matter how it was obtained. the ends do justify  means. there are certain reasons due to which the Courts have been admitting illegally  obtained evidence:  

The Indian Evidence law is codified, it lays down clearly what is admissible and what  is not admissible. The courts are therefore not inclined to go outside the statute to  determine the question of admissibility.  

There is no Constitutional Safeguard such as The Fourth Amendment in the USA.  Which excludes the illegally obtained evidence.  

The Indian Courts have been relying on the English Case laws. The Courts have  recognized safeguards to be carried out during investigation under the Code of Criminal  Procedure, 1973. The Indian Courts have been admitting the illegally obtained  evidence, however there has been a change of trend in the past few years. The trend of  Indian Courts can be divided into three phases:  


A) Illegally obtained evidence was admissible: 

CASE LAW: 

In Birinder Kumar Ghosh 17the court held that relevant evidence remains relevant even  if it was obtained in the course of a search and seizure in violation of the provisions of the  criminal procedure code. In Kruruma v. R18 it was held that a judge cannot reject the  evidence on the ground that it is obtained by unfair means. 

CASE LAW: 

R v. Maqsud Ali.19 

Two persons suspected of murder went voluntarily with police officers into a room where  there was a hidden microphone connected with a tape recorder. They were left alone; they  had a conversation and some incriminating information was therefore recorded. The  question before the court was, whether such tape recording is admissible in the court of  law or not. 

The court observed that it is wrong to deny to the law of evidence advantages to be gained  by new techniques and new devices, provided the accuracy of the recording can be proved  and the voices recorded can be identified. Tape recording was held to be relevant and  admissible.  

CASE LAW: 

In Magraj Patodia v. R.K. Birla20 the court observed 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 geniuses is proved.  

CASE LAW: 

R.M. Malkhani v. State of Maharashtra 21 

Appellant was a Coroner of Mumbai and was trying to take illegal gratification from a  doctor to get him out from a case of medical negligence. Doctor, on directions of police  officials proceeded to have a phone conversation with the coroner which was being  recorded without knowledge of Malkani. 

The Supreme Court held that the tape recording was admissible. The police have fixed  a tape-recording instrument to the telephone with the consent of only one party. The other  party contended that the evidence was obtained by illegal means. The court held that the  tape recording was admissible.  

CASE LAW: 

Pooran Mal V. Director of Income Tax New Delhii22 

The Supreme Court declined to issue writ of prohibition in restraint of the use of evidence  obtained during search and seizure by contravention of section 132 of the Income Tax Act,  1961. Court held that the Evidence Act permits relevancy as the only test of admissibility  of evidence.  


No other provision of any other law excludes illegally obtained evidence. The Court also  did not accept any agreement relating to constitutional protection. The court observed that  neither by invoking the spirit of the constitution nor by strained construction of any  fundamental right can we spell out the exclusion of the evidence obtained on an illegal  search. 

the court held that unless there is an express or necessary implied prohibition in the  constitution or other law, the evidence obtained as a result of illegal search and seizure is  not liable to be shut out.  

CASE LAW: 

State v. NMT Joy23 

The court held that the Evidence Act or the Code of Criminal Procedure does not exclude  relevant evidence on ground that it was obtained under an illegal search or seizure.  

B) Illegally obtained evidence held inadmissible 

CASE LAW:  

Ukha Kolhe v. State of Maharashtra24 

The issue was whether illegally obtained evidence from the body of the accused person by  private person could be admitted in evidence.  

 

Appellant was tried for rash and negligent driving under influence of alcohol. On hearing  about death of the accident victim, the appellant fainted and was admitted to the hospital  where one of the doctors took a blood sample. The court disallowed the blood samples and  held that due procedure has to be followed to obtain blood samples. Court observed that  the legislative intent was that the prescribed due procedure must be followed for collection  of blood samples, there can be no other way of collecting evidence other than what is  specifically laid down. In this case court relied on case of Nazir Ahmad v. The King  Emperor25 where it was held that where the power is given to do a certain thing in a certain  way, the thing must be done in that certain way or not at all. Evidence should follow a due  procedure of law, then only it will be admissible. 

CASE LAW:  

State of Punjab v. Baldev Singh26 

The Supreme Court held that illegally obtained evidence is not admissible in the court if it  is obtained in violation of section 50 of the NDPS Act. The Supreme court opined that the  Pooran Mal case cannot be interpreted to have laid down that a contraband seized as a  result of illegal search or seizure could by itself be treated as evidence of possession of the  contraband to fasten liability, arising out of unlawful possession of the contraband, on the  person from whom the alleged contraband had been seized during illegal search conducted  on violation of section 50 of NDPS Act. 


CASE LAW: 

State (NCT of Delhi) v. Navjot Sandhu 27 

The case related to the 13 December, 2001 Parliament Attack. Accused were charged for  various offences. One of the major issues was the admissibility of the calls recording. The  telephonic conversation of one of the terrorists with his wife was taped. The accused  contended that the recording was not credible. The Supreme Court admitted the tape  recording relying on the Malhani judgement. The court observed that the tape recording  was admissible in the court of law.  

CASE LAW: 

Selvi and ors v. State of Karnataka28 

Several criminal appeals filed from 2004 to 2010 were taken up by Supreme Court. The  appeal was about the persons who were accused of a crime, suspects, witnesses involved  in the investigation were being subjected to polygraph test, narco analysis etc. without their  consent. 

The court was considering the issue of legality of scientific test like polygraph or  narcoanalysis. The Court observed that the Right against self-incrimination serves as a  safeguard against torture and other methods that could be used to get the information. No  individual should be forcibly subjected to any of the techniques in question, whether in  pretext of investigation in criminal cases or otherwise.  


The court in this case seems to suggest or at least presage the exclusion of  unconstitutionally obtained evidence. This judgement renders the tests such as polygraphy  etc. as unconstitutional and void. This judgement also deals with aspect of privacy and self incrimination. The Court laid down several guidelines to be followed while getting  evidence by using any of the abovementioned methods.  

CASE LAW: 

Umesh Kumar v. State of Andhra Pradesh29 

The court observed that as a matter of caution, the court in exercise of its discretion may  disallow certain evidence in a criminal case if strict rules of admissibility would operate  unfairly against the accused. The court must also conclude that the evidence obtained is  genuine and free from any tampering. 

C) After the Justice K.S. Puttaswamy v. Union of India Judgement CASE LAW:  

Justice K.S. Puttaswamy v. Union of India30 The court held that the Right to Privacy is  a Fundamental Right under Article 21 of the Indian Constitution. There exists a protection  against unreasonable search and seizure with respect to personal data. Illegally obtained  personal data and its use as evidence will violate the Fundamental Right to Privacy. 


CASE LAW: 

Vinit Kumar v. CBI.31 

The Bombay High Court set aside certain interception orders and directed the destruction  of copies of the intercepted messages. The court held that adopting the adage ‘the ends  justify the means would amount to declaring the government authorities may violate any  directions of the Supreme Court or mandatory statutory rules in order to secure evidence  against the citizens. It would lead to manifest arbitrariness and would promote the scant  regard to the procedure and Fundamental Rights of the citizens and law laid down by the  Supreme Court. 

 

ILLEGALLY OBTAINED EVIDENCE AND THE RIGHT  TO PRIVACY  

The right to privacy has been declared as a fundamental Right under Article 21 of the  Indian Constitution in the recent case of Justice Puttaswamy and Anr V. Union of India.  The right to privacy is very important right in the present context. The judgement comes  in direct conflict with admissibility of illegally obtained evidence. The nine-judge bench  decided this case and held that the citizen has have the right to give consent in relation to  the physical body, personal data and property. There exists a protection against  unreasonable search and seizure with respect to personal data. Illegally obtained personal  data and its use as evidence will violate the Fundamental Right to Privacy.  

The right has been extended from person to personal information. This means that the  information given for a specific purpose to the state, can be only used for that purpose and  not extend to other purposes.32The court observed that the telephone tapping and internet  hacking by state in order to get personal data is violation of right to privacy of the citizens.  one of the aspects of right to privacy is of informational privacy which deals with person's  mind. within right to privacy exists an exception against unreasonable search and seizure.  this would mean that evidence that is illegally obtained by violating the fundamental right  to privacy will be inadmissible. with declaration that right to Privacy is a Fundamental  Right under the constitution of India, the admissibility of illegally obtained evidence is  bound to be question. Now the constitution (Article 21) can exclude illegally obtained  evidence. There is still no legal provision which excludes illegally obtained evidence. This  judgement has set a precedent for the Courts to follow.  



LATEST CASE LAWS 

CASE LAW:  

Yashvant Sinha and Ors. V. Central Bureau of investigation 33 

There were three document that provided evidence about Rafale deal. In 2019 Yashwant  Sinha and others filed an appeal in Supreme Court to review the 2018 judgement. On March  6,2019 the CBI informed the court that documents relating to Rafale deal has been stolen  from Defense ministry. The court relied on Pooran Mal case and held that the test of  admissibility of any evidence lies in its relevancy until and unless it is expressly or  impliedly barred by constitution or any statute The Court stated that it cannot now ignore  the information before it, as the same may be relevant in greater public interest.  


THE LAW COMMISSION REPORT 

The Law Commision on its own took up the matter of illegally obtained evidence and  formulated its 94th Report. The Commission thoroughly examined various legal systems of  the world and tried to find the method and approaches used by those countries to deal with  illegally obtained evidence. 

1. The commission observed that the Indian Constitution does not have any provision  relating to the exclusion of evidence. The Commision at the end of its report tried  to pose a question that does Indian Legal System need any reform in law to deal  with the issue. 

2. It also analyzed the kind of reform needed, I.e., is there any need for legislative  change or solely giving the judges the discretion to exclude the illegally obtained  evidence solve the purpose.  

3. If the admission of evidence brings disrepute to the legal system, then the courts  must be given discretion to exclude such evidence.  

4. The Commission felt that the major deficiency in the present Indian position is that  it reflects a legalistic and statute-oriented approach, which completely shuts out any  consideration of deeper human values. 

5. There should be a recognized power in the court to take into account all important  aspects which are of basic relevance to the functioning of judiciary.  6. The Commision did not advice incorporation of provision which would shut out an  evidence just because it is illegally obtained. The provision must give discretion the  courts rather than mandating the exclusion of evidence. The Commision want to  refer to the English way, where a statutory provision gives discretion to the court  to exclude the evidence.  

 

7. The commission also discussed the factors which should influence the discretion of  the courts. The reasonable concrete test to exclude evidence should be the fact that  does circumstances in which the evidence is obtained were such that admitting such  evidence bring disrepute to judiciary.  

8. The Commision also found it useful to enumerate the circumstances to be taken  into account by court in exercising its discretion. 

9. The commission recommended addition of new chapter containing new section  166A in the Indian Evidence Act, 1872  

CHAPTER 10A 

166A. (1) In a criminal proceeding, where it is shown that nothing in evidence was obtained  by illegal or improper means, the court after considering the nature of illegality or  impropriety and all the circumstances 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. 

(2) In determining whether an evidence should be excluded under this section, the court  shall consider all the circumstances surrounding the proceedings and the manner in which  the evidence was obtained, including- 

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

(b) the seriousness of the case; 

(c) the importance of the evidence; 

(d) the question whether any harm to an accused or others was inflicted willfully or not,  and 

(e) the question whether there were circumstances justifying the action, such as a situation  of urgency requiring action to prevent the destruction or loos of evidence.

ANALYSIS  

Departure from the traditional approach of not excluding illegally obtained evidence will  be advantageous in certain ways:  

It will incentives police to improve their methods of obtaining evidence and  investigating according to the law.  

It would protect the rights and dignity of the citizens 

It will check police arbitrariness. 

It will also deter the police in adopting the unfair means to get evidence. In order that  such conduct may not be resorted to in the law enforcement, the only effective sanction  within the apparatus of law is a rule which excludes evidence obtained illegally. 

It is also argued that where an evidence is obtained by improper or illegal means, it  may not always be reliable.  

The disciplinary principle requires that illegally obtained evidence should be excluded  even if its reliability is not in doubt and by doing so, the courts will discourage the  improper investigations.  

The evidence obtained by illegal means provides a prima facie justification for the  exclusion of such evidence.34 

Excluding illegally obtained evidence is the best remedy available with the accused.  Unless the courts refuse to admit illegally obtained evidence, the practice of securing  evidence illegally wouldn’t stop. 


It is argued that there are other safeguards to deter the police against using illegal  methods. However, these safeguards are not enough to deter officials from taking  recourse to illegal means.  

Giving discretion to the courts by statutory provisions might remove the incentive to  break the law to get the evidence. 

The ethical argument is that by denying the illegally obtained evidence, it acts as a  sanction against the deriving of such benefit by a person who obtained the evidence  illegally. 

The admissibility of illegally obtained evidence will be unfair for the accused. Hence,  such evidence must be excluded. 

Court by admitting illegally obtained evidence, indirectly implicates itself in the  illegality. 

There are several arguments which are against the exclusion of illegally obtained evidence: 

The concern of the courts is to find the truth. Exclusion of evidence will obstruct the  process of seeking the truth. 

Other remedies against the official employing illegal means should be used rather than  excluding the evidence itself. 

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. 

The job of the court is not to see how the evidence is obtained. Hence there should be  no exclusion of illegally obtained evidence.  

 

SETTLED POSITION OF LAW IN INDIA 

Admissibility of illegally obtained evidence has been a matter of debate almost in all Legal  systems. The position was settled in the U.S.A. by amending the constitution and  introducing the Fourth Amendment Act. In England, the legislature had codified the “unfair  Operation Principle.” India has not settled its position in regard to admissibility of illegally  obtained evidence and it depends on the discretion of court to settle the position of law in  absence of any statutory provision. There is a change in the position of law with the  Landmark Puttaswamy judgement. Section 5 of the Evidence Act read with Article 23 and  21 allows to exclusion of illegally obtained evidence. However, this is a judicial  pronouncement. The Courts tend to divert from the earlier judicial pronouncements. In the  latest case regarding Rafale Jets, the court have again relied on the Pooran Mal case. In  absence of any legal provision, Indian Judiciary will continue to witness the to and fro  movement of opinion of courts on the same subject. 


CONCLUSION  

Indian law has been influenced by common law principles and the English legal system.  All relevant evidence is admissible subject to any constitutional or statutory prohibition.  The courts have the discretionary power to exclude illegally obtained evidence. The  conviction of any accused cannot be upheld based on evidence obtained in violation of  procedural statutory right of the accused. 

While the Indian Courts continue to rely on the English Judgements, the English Courts  themselves have distanced from those judgements and have moved on to exclude illegally  obtained evidence. Moreover, the English law now has a statutory provision for exclusion  of evidence. 

There is a need to fill the gap that is present in the law of evidence. The legislature must  now strike a balance between the fundamental right to privacy and the conflicting  principles of admissibility of illegally obtained evidence. It is imperative for the legislature  to enact a provision to solve this conflict between admissibility of illegally obtained  evidence and the fundamental rights. The test of this is Article 21 as illegally obtained  evidence would now be in direct conflict with fundamental rights. Till the time any  provision is enacted, the judiciary itself have to perform the balancing act. 

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