The sole criterion for the admissibility of evidence in Courts in India is its ‘relevance’ as per the provisions of the Indian Evidence Act, 1872. Illegality or impropriety in the process of collection of the evidence does not affect its admissibility. The test of admissibility of evidence depends on the relevance only and not on the method of its collection. However, improperly collected evidence (Illegally Collected Evidence) has to be analyzed with due caution by the court.
Early common Law Position
The early common law situation highlighted the fact that admissibility is dependent only on the relevance of the evidence rather than how it was obtained.
In the case of R v. Leathem[i], Crompton J. made a very significant observation regarding the admissibility of such evidence, “It matters not how you get it; if you steal it even, it would be admissible.”
The matter of concern is that the Courts in India have used and applied this observation to a number of situations, even leading to the infringement of the right to personal liberty and privacy of individuals. Generally, the question of such admissibility arose in cases where telephone tapping was used by the State machinery as a means for obtaining vital information that can be used for the purpose of national security. Such methods were also used for the detection of organized crimes on many occasions, helping the Police in preventive arrest and taking precautionary measures.
Human rights activists have always opposed the adoption of such practice stating that it constitutes a blatant violation of a person’s right to personal liberty and the right to privacy.
Decisions regarding the admissibility of illegally collected evidence
In the case of Kuruma v. The Queen[ii], the Privy Council had laid down that “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.” The court, in this case, permitted the evidence that was obtained by an illegal search of the body of a person.
This observation was approved by the Supreme Court of India in the case of Pooran Mal v Director of Inspection[iii]. In this case, the court observed that the test of admissibility of evidence lies in the relevancy unless there is an express or necessarily implied prohibition in the Constitution or other law, and evidence obtained as a result of illegal search or seizure is not liable to be shut out. Here, the challenge against a search and seizure done in contradiction with the provision of Section 132 of the Income Tax Act was rejected by the Court stating that the material obtained by such search and seizure was liable to be used as evidence.
In an earlier decision of the Supreme Court in Magraj Patodia v R K Birla and Ors.[iv], it was opined that the fact that a document was procured by illegal means would not bar its admissibility if it is relevant otherwise. The court laid down that the provisions of the Code of Criminal Procedure concerning search and seizure have to be treated as guidelines and even if there is any violation, the Court would have the discretion to accept the evidence.
The issue was also addressed in certain cases relating to the Telegraph Act of 1885. In it decision in the case of S. Pratap Singh v. State of Punjab[v], The Supreme Court allowed the recording of a telephonic conversation between the Chief Minister’s wife and a doctor to be used as an evidence to corroborate the evidence of the witnesses who had deposed that such conversations had taken place.
In the case of Yusufalli Esmail Nagree v. State of Maharashtra[vi], a recorded conversation by means of a tape recorder placed in a room was admitted as evidence. It was also noted that if a photograph taken without the knowledge of the person being photographed becomes relevant and admissible, the same principle would be applicable to the tape recording unnoticed by the talkers. This decision was heavily influenced by the decision of the English Court in R v. Maqsud Ali[vii], in which the tape record of conversations of two persons suspected of murder was allowed to be used as evidence.
A controversial judgment in this regard was R.M. Malkani v. State of Maharashtra[viii]. The question that was the basis of the case was whether a criminal prosecution could be initiated against a person based on certain incriminating portions of a Police- recorded telephonic conversation that he had with another individual. The Court held that having another person listening in on a conversation was a mechanical process and had no element of threat or force or coercion. The Court admitted the recording as evidence terming it a mechanical eavesdropping device. However, the Court added that it should be used sparingly with proper circumspection and under proper direction. It was decided that the tape-recorded evidence would not hit the admission of improperly obtained evidence under Sections 7 and 8 of the Indian Evidence Act, 1872. The Apex Court held that illegally obtained evidence would be admitted in Court since the eavesdropper neither subjects the person to duress nor does he interfere with his privacy. Justice Ray had opined that the tape recording would not amount to infringement of Articles 20(3) and 21 of the Constitution of India and this opinion of his was based upon the decision of an overruled American case.
In the case of Umesh Kumar v State of AP[ix], the Supreme Court, while dealing with a prayer to invalidate a charge-sheet in a corruption case registered on the basis of sale deeds showing possession of disproportionate assets, held that even if the letter based on which the case was registered was forged, as per the contention of the accused, the sale deeds annexed to it can be looked into.
Law Commission’s Suggestion
The Law Commission of India, in its 94th Report, had suggested giving Courts the discretionary power to prohibit illegally obtained evidence(Illegally Collected Evidence ). The Commission observed that there can be no absolutes in the debate regarding the exclusion of illegally obtained evidence. It recognized that an absolute rule of exclusion might result in grave injustice in certain cases; but, it added that there could be cases where the infringement is so manifest that admitting such evidence might cause disgrace to the administration of justice.
Hence, the Commission suggested that it was necessary to confer a discretion on the Courts to exclude evidence that is obtained illegally if, the admission of such evidence appears to be likely, from the circumstances of the case, to bring the administration of justice into disgrace. It was also the suggestion of the Commission that incorporation of Section 166A of the Indian Evidence Act is necessary to give the Court the discretionary power to exclude illegally or improperly obtained evidence. The Commission enlisted certain parameters for determining if the admission of such evidence is likely to bring the administration of justice into disrepute, as follows:
- the extent to which human dignity and social values were violated in obtaining the evidence;
- the seriousness of the case;
- the importance of the evidence;
- the question whether any harm to an accused or others was inflicted wilfully or not;
- 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.
However, there has not been an acceptance of these suggestions of the Law Commission.
Analysis of the present situation
A principle of criminal jurisprudence states that when a safeguard or right is provided favoring the accused, it has to be strictly followed. The United States Courts follow the doctrine of ‘fruits of a poisonous tree’, which excludes illegally obtained materials from evidence. The doctrine is based on the fourth amendment to the United States Constitution, which guarantees the right of privacy to citizens. The US Supreme Court has observed that allowing evidence gathered as an indirect result of an unconstitutional search and seizure “reduces the Fourth Amendment to a form of words”. However, this rule has attracted criticism as well. Justice Benjamin Cardozo has opined that under the rule, “The criminal is to go free because the constable has blundered.”
The Hon’ble Supreme Court of India in the recent privacy judgment[x] has laid down that the right to privacy is a fundamental right under Article 21 of the Constitution of India and is enforceable against the state, subject to reasonable restrictions. Subsequent to this invoking of ‘privacy’ as a fundamental right under Article 21 of the Constitution, the admissibility of illegally obtained evidence is being questioned.
The position of law has now changed and unlike the reasoning is given in Pooran Mal[xi]; Article 21 of the Constitution can be interpreted to exclude the illegally obtained evidence Section 5 of the Indian Evidence Act.
Following the recent judgment of the Supreme Court of India, Article 21 of the Constitution includes the right to privacy. Now, no statute can be valid if it violates any fundamental right enumerated under Part III of the Constitution of India. Hence, apparently, the Courts ought not to admit illegally collected evidence.
However, certain previous decisions of the Supreme Court have made it clear that the admission of illegally collected evidence does not infringe the right of privacy and personal liberty of individuals. Therefore, an opinionated view is that illegally collected evidence should not make it inadmissible per se. The person responsible for such illegal collection may be punished but not admitting the evidence would amount to the denial of a fair trial to the party for whom such evidence was purported to be used in the Court of law. Since like all other fundamental rights, the right to privacy is not absolute, it has to be balanced with the right to fair trial thereby making way for the admission of such evidence.
[i] R v. Leathem, (1861) 8 Cox CC 498
[ii] Kuruma v. The Queen,  AC 197
[iii] Pooran Mal v Director of Inspection, AIR 1974 SC 348
[iv] Magraj Patodia v R K Birla and Ors., AIR 1971 SC 1295
[v] S. Pratap Singh v. the State of Punjab, AIR 1964 SC 72
[vi] Yusufalli Esmail Nagree v. the State of Maharashtra, AIR 1968 SC 147
[vii] R v. Maqsud Ali,  1 QB 688
[viii] R.M. Malkani v. the State of Maharashtra, 1973 SCR (2) 417
[ix] Umesh Kumar v State of Andhra Pradesh, AIR 2014 SC 1106
[x] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
[xi] Supra note [iii]
Student, School of Law and Justice, Adamas University
The author is currently pursuing B.Sc. LL.B. (H) from the School of Law and Justice Adamas University, Kolkata. She has completed her plus two with 98% marks in the ISC. She is a regular mooter and article-writer. Her area of interest mainly includes Constitutional Law and Criminal Law. However, she also takes a keen interest in Human Rights issues. Public speaking is her passion, and her ardour for penning down her opinions has not been dampened. With an additional benefit of belonging to the legal fraternity, she has a passion for the discipline, and also understands the need for legal research and legal education in the country.