SHIRISH PAWAR, 7738990900 (Advocate) 08 January 2021
Advocate has to represent every client who comes for his services. Further evidence is legal or illegal question has to be decided by the court.
175B083 Mahesh P S 09 January 2021
If you could be more specific with respect to the context, we could assist you better. Presenting evidence obtained illegally is inadmissible in the court of law.
India, pursues a strict approach where the illegality or impropriety employed in collection of evidence doesn't (in the absence of the specific constitutional provisions on the subject) render the evidence so obtained legally inadmissible, though such illegality or impropriety might possibly affect its weight. In India, the legal relevance of the evidence to the facts in issue under the present law, is the only pertinent consideration.
Section 3 sub clause (e) of the of the Indian Evidence Act, 1872 (Evidence Act) defines Relevant in the context of facts to say that, one fact is relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the Evidence Act. Further, Chapter 2 of the Evidence Act deals with Relevancy of the Facts, wherein Section 5 particularly envisages that Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared as relevant, and of no others.
Thus, the provisions of Chapter 2 of the Evidence Act determine relevancy' as the only test of admissibility of evidence. There is no provision that bars admissibility of evidence obtained illegally and/or improperly under Chapter 2 or otherwise under the Evidence Act.
Furthermore, it is interesting to note that Section 167 of the Evidence Act, bars new trial or reversal of any decision in any case for the sole reason that there was improper admission or rejection of evidence, if it appears to the court that regardless there was sufficient evidence to justify the decision or that if the rejected evidence had been received, it ought to not have varied the decision.
Furthermore, the Code of Criminal Procedure, 1973, (CrPC) lays down elaborate provisions, incorporating a number of safeguards as to the mode of search to be carried out by the police for the purposes of investigation into an offence.
Further, reading into the provisions of the Evidence Act, Section 24 holds a confession made due to inducement, threat or promise coming from the person in authority as irrelevant' in the criminal proceeding. Also, while Section 26 doesn't admit the confession made by any person while he is in the custody of a Police Officer as provided against such a person, and Section 27 permits admission of such confession under the condition laid down in this section.
The condition under Section 27 makes admissible, such fact which is discovered as a consequence of the information received (confession) from an accused in the custody. It would thus be seen that in India and England, where the test of admissibility of evidence lies in relevancy unless there is an express or implied prohibition in the Constitution or other laws, evidence obtained illegally is not liable to be shut out.
Therefore, the doctrine of Fruit of the Poisonous Tree' has no parallel in India. There is nothing that prevents Indian courts from considering even stolen evidence, if it helps establish guilt or prove one's innocence. The Indian courts' powers to admit such evidence is bolstered with the probative value of the evidence which indicates its relevance. Even otherwise, the Indian Constitution empowers the Supreme Court to make any order for the discovery or production of any document before it. Hence, as things stand today, source is not what takes priority in India.
In Radha Kishan v. State of U.P., the recovery of certain articles was challenged on the ground that the search was made in contravention of Sections 103 and 165 CrPC. The Hon'ble Supreme Court repelled the contention with the following view:
So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provision of Sections 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched.
It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.
In the case of Magraj Patodia vs. R.K. Birla and Ors., the Hon'ble Supreme Court for the first time opined 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 genuineness is proved. But while examining the proof given as to its genuineness the circumstances under which it came to be produced into court have to be taken into consideration.