Introduction

THE TAMIL NADU NATIONAL LAW SCHOOL, TIRUCHIRAPPALLI. ACADEMIC SESSION: 2016-2017

LAW OF EVIDENCE PROJECT ON “Admissibility of illegally obtained evidence”

SUBMITTED TO: PROF. DEEPA MAICKAM TNNLS

Tiruchirappalli ROLL NO. –BC0140032

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SUBMITTED BY: KUSHAGRA TRIVEDI B.Com., LL.B. (HONS.)

Title – Illegally Obtained Evidence: Admissibility and Developments in India.

Justification of Title – The advent of the advance techniques of tracing the evidence has posed threats to the basic human rights of individuals ranging from privacy to the malicious prosecution and mishandling of the accused in the court. Democracy is also being threatened through the rigging of elections and accusation based on telephone tapping with involvement of politicians like Rajiv Gandhi. Therefore it becomes prominent for the judicial system to acknowledge the evidence obtained illegally that is in breach of the basic structure of the constitution and whether this (valid) evidence would be entertained in the judicial proceedings or not.

Chapterization 1. 2. 3. 4. 5.

INTRODUCTION INDIAN APPROACH APPROACH IN COMMON LAW ARGUMENTS FOR EXCLUSION OF EVIDENCE CONCLUSION

Research Question 

To acknowledge the Indian approach towards the admissibility by examining the trend

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in the decisions of the cases. Comparative analysis to the common law Understand the newly developed principles and doctrines in regard to the illegal evidence

Research Methodology The researcher will be following doctrinal research method and the relevant material for this paper has been collected from the primary as well as secondary sources. The doctrinal research is the research which deals with the laid principles or prepositions. It is more based on the sources like books, case laws and online portals.

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Hypothesis The hypothesis taken is that courts in India believe in the rules and procedure and without it no justice can be granted due to which numerous situations arise where the perpetrator is held not guilty. Therefore this belief should be followed in where the evidence is illegally obtained but yet valid so as to provide the real justice that the subjects thrive for.

LIST OF CASES

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INDIAN CASES – 1. Shyni Varghese v. State (Govt. of NCT of Delhi) (2008) 147 DLT 691 (Del) 2. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 3. Lekhraj vs. Manipal, (1878) I.L.R. 5 Cal. 744 (P.C.) 4. Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, 364 5. State of Maharashtra v. Natwarlal Damodardas Soni, A.I.R. 1980 S.C. 593. 6. Bai Radha v. State of Gujarat, A.I.R. 1970 S.C. 1396. 7. Harikisandas Gulabdas & Sons v. State of Mysore, 27 S.T.C 434 (1971). 8. Agrawal Engineering Stores v. State of U.P., 29 S.T.C. 446 (1972). 9. S. Natarajan v. Joint Commercial Tax Officer, 28 S.T.C 319 (1971). 10. Balwant Singh v. R.D. Shah, 71 I.T.R. 550 (1969). 11. In R.M. Malkani v. State of Maharashtra, A.I.R. 1973 S.C. 157. 12. Ukha Kolhe v. State of Maharashtra, A.I.R. 1963 S.C. 1531.

FOREIGN CASES – 13. Kuruma v. R. (1995) 1 All E.R. 236 (P.C.). 14. R. v. Leathem, (1861) 8 Cox C.C. 408, 501 (Per Crompton. J.). 15. R. v. Sang, (1979) 3 W.L.R. 263, 288 (H.L) 16. People v. Cahan, 44 Cal 2d 434 (1955) 17. Mapp v. Ohio, 6 L Ed 2d 1081 : 367 US 643 (1961). 18. People v. Arnau, 58 N.Y.2d 29 19. Weeks v. United States, 232 U.S. 383. 20. People v. Martinez, 38 Cal.2d 556.

INTRODUCTION The advent of the advance techniques of tracing the evidence has posed threats to the basic human rights of individuals ranging from privacy to the malicious prosecution and mishandling of the accused in the court. There are various instances within which the authorities indulge in illegal means for collecting the evidence. At these situations the illegal evidence although sufficient for the culprit to be held guilty becomes an illegal evidence. There are several methods by which evidence may be illegally obtained, e.g., by 4 | Page

eavesdropping, illegal search, violating the body of a person and other methods which shock the human conscience. In India there has not been any statutory provision or legislation that prohibits the admissibility of such evidence and therefore the Indian judicial system follows the traditional approach that follows that the means of obtaining evidence does not affect the admissibility within the court.1 According to report submitted by the law commission of India, there are various models in the common law countries where the approaches towards the admissibility varies and the models are as follows – 1) Strict Approach – the strict approach is followed in nations like India wherein the illegality or the illicit means of procuring the evidence does not render the evidence obtained as inadmissible in the court. However this approach has been existing due to the lack of any statutory provision which would prohibit such evidence from being entertained in the court.2 2) Moderate approach – these situations arise in in nations like Australia and Scotland wherein the admissibility of the illegal evidence or the improper means of evidence is determined at the time of trial and rests on the discretion of the judges. 3) In the third category the evidence is excluded from admissibility by some specific statutory provision and such admissibility is in violation of some substantive norm of conduct.3 4) In the fourth category (where countries like USA are included) a constitutional guarantee or a judicial construction of a constitutional guarantee, excludes certain evidence from use at the trial, where the evidence has been obtained in the violation of such constitutional guarantee. In the United States the Fourth Amendment (protection against unreasonable search and service) and the Fourteenth Amendment (the Due Process Clause) provides for such protection.4

1 Law Commission of India, Ninety Fourth Report on Evidence obtained illegally or improperly. 2 An example of this can be Section 123 of the Indian Evidence Act which prohibits unpublished records of the Government from being called as evidence unless and until prior sanction is taken from the Head of the Department/Minister, Comments and Suggestions on 185th Report on Indian Evidence Act, Draft by Bimal N. Patel, November 2013, GNLU 3 Section 24 of the Indian Evidence Act (Referral). 4 Supra note 3. 5 | Page

The approach in India has been that under the Evidence Act, 1872 which is a law consolidating, defining and amending the law of evidence permits relevance of a piece of evidence as the only test of admissibility of evidence. 5 The courts have taken the view that there is no law in force that excludes relevant evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained. 6 Thus under these circumstances it is necessary to evolve out of the former English judgements on which the Indian judiciary relies upon and develop certain standards to be followed to restrict the admissibility of such evidence in the courts since the phrases illegally obtained evidence and improperly obtained evidence have been interchangeably used and refer to those evidence which have been obtained broadly by employing methods in breach of privacy, personal security, violence, torture and entrapment.7

INDIAN APPRAOCH

5 The Evidence Act, 1872, Section 5; Fruits of the Poisoned Tree: Should illegally obtained evidence be admissible, Talha Abdul Rahman 6 Shyni Varghese v. State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del); M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 7 Supra Note 5. 6 | Page

The Indian Courts and the legal system sway towards the first approach in judging the admissibility of evidence which has been obtained by illegal or improper ways, i.e., the admissibility of such evidence is not affected by such illegality and they are mostly admitted in a Court of law as evidence except when a statute forbids the admissibility of such evidence.8 Such approach has been a result of the early codification of the major laws in India and the Indian law on evidence i.e. Indian Evidence Act was established and codified prior to many commonwealth nations. Later developments in allotting the judiciary with the freedom and the discretion to regard certain evidence as inadmissible could not be followed up in the Indian scenario due to the likewise upbringing of the courts in a manner of the codified law. The criminal procedure code and the Indian evidence law came in a codified form and the strict interpretation of the same resulted in the strict approach that was followed. This approach was fortified by the well-known pronouncement of the Privy council to the effect that the “essence of a code is to be exhaustive in respect of all matters dealt with the code.” 9 This approach was mainly provided for the criminal procedure code but was later adapted in the Indian evidence act also.10 Also the admissibility of evidence has very well been codified in the laws thus excluding the scope of discretion for the judicial system in respect of illegally obtained evidence. Although with respect to admissibility of evidences like confessions the courts have not provided any safeguards, the courts have provided safeguards in the Criminal Procedure Code for the searches procedure and the seizure of evidence so as to ensure the safety of the parties involved and thereby focussed on the inadmissibility of illegal evidence through a separate medium. The judicial approach is that law of evidence permits relevance of a piece of evidence as the only test of admissibility of evidence.11 The courts believe that there is no law that excludes the admissibility of evidence on it being illegally obtained 12 and for this SC has gone to an 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 8 Supra note 2. 9 Supra note 1. 10 Lekhraj vs. Manipal, (1878) I.L.R. 5 Cal. 744 (P.C.) 11 The Evidence Act, 1872, Section 5. 12 Shyni Varghese v. State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del) 7 | Page

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”13 In the matter of State of Maharashtra v. Natwarlal Damodardas Soni14, the premises of the accused were searched and gold was seized by the authorities and as a consequence charged with certain offences. Defence was posed that since the search was illegal the seizure was inadmissible in evidence. It was held, assuming that the search was illegal, it did not affect the validity of the seizure and its admissibility in evidence. In Bai Radha v. State of Gujarat 15

, 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. The tax departments have also procured evidence illegally and there has been conflict of opinion amongst high courts regarding this. The Mysore High Court 16 held that such an evidence could not be used but the Allahabad17, Madras18, and Delhi High Courts19 took a contrary view. In Pooran Mai v. Director of Inspection20 the Supreme Court held that there was no constitutional or statutory bar in using such evidence. In R.M. Malkani v. State of Maharashtra21, the police had used an eavesdropping device to tape record conversation between the accused and a third person about the demand of bribe by the former. The accused contended that he could not be convicted of the charges of corruption on the basis of the evidence of tape recordings illegally obtained. The court held the evidence to be admissible, 13 Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, 364 14 A.I.R. 1980 S.C. 593. 15 A.I.R. 1970 S.C. 1396. 16 Harikisandas Gulabdas & Sons v. State of Mysore, 27 S.T.C 434 (1971). 17 Agrawal Engineering Stores v. State of U.P., 29 S.T.C. 446 (1972). 18 S. Natarajan v. Joint Commercial Tax Officer, 28 S.T.C 319 (1971). 19 Balwant Singh v. R.D. Shah, 71 I.T.R. 550 (1969). 20 93 I.T.R. 505 (1974). The case was followed by the Kerala High Court in Verghese v. Commissioner of Agricultural Income-Tax 105 I.T.R. 732 (1*76). 21 A.I.R. 1973 S.C. 157. 8 | Page

and said that there was warrant for the proposition that even if evidence is illegally obtained it is admissible. 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." In Ukha Kolhe v. State of Maharashtra22, the blood of the accused was taken to determine whether he had committed an offence under the Bombay Prohibition Act. The procedure prescribed in section 129A of the statute was, however, not followed in that matter. There was a provision in the statute which said that 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 provision the majority, four to one, held that the evidence collected in the case was admissible. But the dissenting judge held 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 the blood examination could not be admissible in evidence.23

22 A.I.R. 1963 S.C. 1531. 23 “ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE”, S.N. Jain 9 | Page

APPROACH IN COMMON LAW The Indian law is primarily founded on the traditional common law but the English law has been liberal enough to identify a modernised approach towards the inadmissibility of illegal evidence. The subject of evidence obtained illegally was represented in the leading case of Kuruma24. The actual decision in the case was although in favour of the admission of the evidence but the observations of the judicial committee of the Privy Council are considered as the first point of the recognition of the subject. The council in that 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 Privy Council acted on the principle that provided real evidence is relevant, it is legally admissible, however improperly, it had been obtained. The person against whom such evidence is tendered may have a civil remedy against the person who obtained it and the latter may be liable to disciplinary, or even criminal proceedings. But the law is that: “It matters not how you get it; if you steal it even, it would be admissible in evidence.”25 Lord Goddard, L.C.J., said: “No doubt, in a criminal case the judge always has a discretion to disallow evidence of the strict rules of admissibility would operate unfairly against an accused…… If, for instance, ……. Some piece of evidence……. Had been obtained from a defendant by a trick, no doubt; the judge might properly rule it out.”26 24 Kuruma v. R. (1995) 1 All E.R. 236 (P.C.). 25 R. v. Leathem, (1861) 8 Cox C.C. 408, 501 (Per Crompton. J.). 26 Clayton Hutchins, “Discretion of a trial Judge to exclude otherwise admissible evidence” (May 1981) Vol. 6. 10 | P a g e

In the recent judgement about the discretion of the court, R. v. Sang27, the general question by the House of Lords was “does a trial judge have a discretion to refuse to allow evidence – being evidence other than the evidence of admissions – to be given in any circumstance in which such evidence is relevant and of more than minimum probative value?” the answer to this question was provided as follows – 1) 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. 2) With regard to admissions and confessions and generally with regard to evidence obtained from the accused after his commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.” Another area which provides discretion in England is that the evidence may not be given of a party’s misconduct on prior occasions, if its only purpose is to show that he is a person likely to have misconducted himself on the occasion in question. As Cross stated, “In all such cases, the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it profusely directed, to make it desirable in the interests of justice that it should be admitted. If so far as the purpose is concerned it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it.”

27 R. v. Sang, (1979) 3 W.L.R. 263, 288 (H.L) 11 | P a g e

ARGUMENTS FOR EXCLUDING THE EVIDENCE There are at least four accepted principles on the basis of which improperly obtained evidence must not receive favour from courts.28 

Reliability Principle - is based on the premise that determining the truth of the criminal charges is the sole purpose of the criminal trial, and evidence should be admitted or excluded solely on grounds of reliability. It is argued that evidence obtained by improper means including torture, violence, or under a promise may not

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be reliable. Disciplinary Principle - requires that improperly obtained evidence should generally be excluded, even when its reliability is not in doubt, since the court should use its position to discourage improper practices in the investigation of crime. It is argued that if judges routinely exclude improperly obtained evidence, the prosecutorial

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system would stop resorting to improper techniques as they would cease to be useful. Protective Principle - which is based on the premise that evidence obtained by infringing individual 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 or vindicated. There is some support to this principle from the judgment of Dragan Nikolic by International Criminal Tribunal for Yugoslavia as well.29

28 Peter Duff, Admissibility of Improperly Obtained Physical Evidence in the Scottish Criminal Trial: The Search for Principle (2004) 8 Edin LR 152. 29 Cedric Ryngaert, The Doctrine of Abuse of Process: A Comment on the Cambodia Tribunal Decisions in the Case against Duch (2007) (2008) 21 Leiden Journal of International Law 719. 12 | P a g e

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Judicial Integrity Principle - operates on the basis that unless the courts refuse to admit improperly obtained evidence, they are endorsing the improper conduct by which such tainted evidence was procured. Therefore, to maintain their integrity and respect of administration of justice, the courts must be cautious of admitting such evidence.30 The thrust of the judicial integrity principle is not on morality but on public confidence in integrity of the system. This is because judicial integrity is at risk not only in the guilty escaping the conviction, but also in the manner in which the conviction is achieved.31

Further there are certain principles that have evolved from the 4 th amendment of the U.S. constitution to protect and safeguard the rights of the people whose basic rights are being violated at the expense of the seizure processes being conducted against him. The most important of the rule is the ‘Exclusionary rule’. Illegally obtained evidence applies to criminal cases only and is typically "evidence acquired by violating a person's constitutional protection against illegal searches and seizures; evidence obtained without a warrant or probable cause"32 Exclusionary Rule, states "evidence collected or analyzed in violation of the U.S. Constitution is inadmissible for a criminal prosecution in a court of law (that is, it cannot be used in a criminal trial)". It was established in the matter of Weeks v. United States33, also to provide certain ristrictions over the illegal search and seizures there are approaches like Carey Winnick Approach which states that before conducting the search a report should be sent to the magistrate for the probable methods that would be applied for collecting and conducting seizures. Another is Border Protocol which states that there is no permission available to the authorities to enter into other countries to collect evidence. EXCEPTIONS 30 Origin of this principle appears to be in the American case of People v. Cahan, 44 Cal 2d 434 (1955) where the Californian Supreme Court observed that out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such a dirty business. It is morally incongruous for the State to flout constitutional rights and at the same time demand that its citizens observe the law., Mapp v. Ohio, 6 L Ed 2d 1081 : 367 US 643 (1961). 31 https://www.universalclass.com/articles/law/illegally-obtained-evidence.htm 32 (Blackwell, 2004) 33 232 U.S. 383. 13 | P a g e

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First, even when the rule applies, it only excludes illegally obtained evidence for the purpose of proving the defendant's guilt for the particular crime. Such proof can still

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be used to impeach the credibility of the defendant's trial testimony. Inevitable Discovery Doctrine – It holds that evidence obtained through an unlawful search or seizure is admissible in court if it can be established, to a very high degree of probability, that normal police investigation would have inevitably led to the discovery of the evidence. In the case People v. Stith34, the court ruled that such evidence could be admitted under this doctrine, but only as secondary evidence. Primary evidence, or "the best and most important evidence in a case”,

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was still bound by the conditions of the exclusionary rule. Attenuation Exception – It states that "evidence may be suppressed only if there is a clear causal connection between the illegal police action and the evidence". In People v. Martinez35, a three-part test was established for this exception: "(1) the time period between the illegal arrest and the ensuing confession or consensual search; (2) the presence of intervening factors or event; and (3) the purpose and flagrancy of the

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official misconduct". Independent Source Exception – It allows evidence into proceedings if it came from a knowledgeable and independent source. In this sense, an independent source must

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be someone utterly unconnected to the illegality of the arrest, search, and/or seizure.36 Good Faith exception - It permits the admission of some illegally obtained evidence if it is the result of a minor or technical error. If "a magistrate is erroneous in granting a police officer a warrant, and the officer acts on the warrant in good faith, then the evidence resulting in the execution of the warrant is not suppressible". The good faith exception does not apply in all such situations, however. Specifically, "(1) no reasonable officer would have relied on the affidavit underlying the warrant. (2) the warrant is defective on its face for failing to state the place to be searched or things to be seized. (3) the warrant was obtained by fraud on the part of a government official. (4) The magistrate has "wholly abandoned his judicial role'".37

34 69 N.Y.2d 313 (1987). 35 38 Cal.2d 556. 36 People v. Arnau, 58 N.Y.2d 29 37 https://www.universalclass.com/articles/law/illegally-obtained-evidence.htm

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CONCLUSION It is argued that it is time that Indian courts should be coherent in adopting an inclusive rights approach and must attempt to distance themselves from receiving the evidence that has been collected in violation of individual freedom. While it may not be effective to automatically exclude such evidence, it is important for Indian courts in appropriate cases to develop a structure for exercise of their common law discretion to exclude evidence, something to which the Indian courts seem to have been oblivious. However, the job of a Judge is a difficult one, and even if assisted by a legislative change, a Judge would be required to grant appropriate remedy in the facts of the case before it. The above discussed case laws, which by no means are exhaustive, show the difficulties that the Judge faces in attempting to find a comfortable way to achieving conviction without overstepping the individual rights and at the same time keeping the reputation of a fine administrator of justice.38 In the respect of the complexity of cases that are arising in the judicial system with the advent of modern technologies that provide for the digital evidence. An encroachment within the 38 Fruits of the Poisoned Tree: Should illegally obtained evidence be admissible?, Talha Abdul Rahman. 15 | P a g e

digital sphere of the person becomes a violation of the right to privacy and is an utter disregard to the anonymity clause that is secured through the digital sphere and India has still no provisions to deal with the Crime scene investigation in the real world. The major deficiency that needs to be addressed is that the Indian law is statute oriented and there’s no consideration of deeper human values. The courts also need to address issues like 

The fact that the evidence was collected illegally and its admissibility brings the

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whole judicial system to a disrepute. It amounts to unfairness to the person against whom the evidence has been collected and therefore the very basic strata of the legal system i.e. justice and equity is demolished.

In determining the admissibility of evidence several matter should be looked into –     

The extent to which the basic human rights were violated. The seriousness of the case The importance of the evidence The question whether the harm was inflicted against the person wilfully or by mistake Whether the actions could be justified.

It is recommended that the Indian approach discards the traditional Common law approach and follows the U.S. approach in order to bring its statutory provisions at par with the modern day structure. Further the human dignity and values should be kept as forefront for the judges to determine the admissibility to the courts. In making a statutory provisions the rigid structure would prevail and admissibility might be hindered in the most extreme of the cases. Instead of rigidity, guidelines can be setup for the judges to determine the position for the parties and to apply their discretion over the matter that whether there was unfairness posed against him. Also it would be assisting in securing the belief in the judicial system to act against and authoritative law enforcement authorities.

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