Can Courts Admit Evidence Which Has Been Obtained Illegally Or Improperly?

The admissibility of evidence in Courts in India is dependent on its relevancy as per the provisions of Indian Evidence Act.Illegality or impropriety in obtaining the evidence will not affect its admissibility, if it is otherwise relevant.Test of admissibility of evidence lies in its relevancy and not on how it was obtained.In Kuruma v The Queen [1955] AC 197 the Privy Council laid down that if the evidence is admissible, the court is not concerned how it was obtained. The privy council observed :"...the test to be applied in considering whether evidence is admissible is 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".In this case, evidence obtained by illegal search of body of a person was not eschewed by the court.These observations of the privy council were quoted with approval by the Supreme Court in Pooran Mal v Director of Inspection AIR 1974 SC 348. After quoting the above observations of the Privy Council, the SC observed as follows:"It would be thus seen that in India, as in English, where the test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out".That was a case dealing with a challenge that a search and seizure were in contravention of the provisions of Section 132 of the Income Tax Act. Rejecting the challenge, the Supreme Court held that even assuming that the search and seizure were illegal, still the material seized was liable to be used in evidence. In an earlier decision in Magraj Patodia v R K Birla and others AIR 1971 SC 1295, the Supreme Court held that the fact that a document was procured by illegal means will not bar its admissibility, if it is relevant otherwise. It was held that provisions in Code of Criminal Procedure relating to search and seizure are to be treated as guidelines and even if there is any violation, the Court can accept the evidence.The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained was discussed in R.M. Malkani v. State of Maharashtra (1973) 1) SCC 471. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under S.7 of the Evidence Act, even if it is recorded illegally. The Court observed in Malkani :"There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owens (1870 (34) JP 759). The Judicial Committee in Kuruma v. R. (1955 (1) All ER 236) dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence." The SC has repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India (Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147).In Umesh Kumar v State of AP AIR 2014 SC 1106, the SC was dealing with a prayer to quash a chargesheet in a corruption case, which was registered on the basis of few sale deeds showing acquisition of disproportionate assets. The accused contended that the case was registered on the basis of a forged letter, to which the sale deeds were annexed. The Court held that even if the letter was forged, the sale deeds annexed to it can be looked into.The Delhi High Court in Dharambir Khattar v Union of India 2013 CriLJ 2011 held that telephonic conversations intercepted by authorities in violation of the Telegraph Act and the principles laid down by SC for phone-tapping in PUCL case are admissible in evidence.Law Commission's suggestionIt 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 Law Commission observed that there are no absolutes in the debate regarding exclusion of illegally evidence. It...

Can Courts Admit Evidence Which Has Been Obtained Illegally Or Improperly?

Manu Sebastian

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