Evidence act is also a procedural law and Cr.P.C is also a procedural law. Hence all procedural laws are to be the handmaid of Justice and not the Mistress of Justice but the procedural law must be fair. Hence, if the act is to cause miscarriage of justice by affecting the fairness and fair play the judge can decide the admisibility of the evidence because evidence act of 1872 gives the judge this power. In this regard it would be worthile to state the followin on the same subject matter in foriegn country to exclude the admission of evidence “prejudicial to the accused”,
If “the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” That “prejudice to the accused” is a different concept from “adverse effect on the fairness of the proceedings” is succinctly put by Judge R. May in this illuminating passage:
“It is submitted, with respect, that the view expressed in Fulling accords with the intention of Parliament, which, in sections 78 (2) and 82 (3) of [PACE], preserved the common law rules. As a result, it would appear that section 78 [of PACE] must be considered on its wording.
Thus if the evidence had been obtained and unless the prosecution if it is by a confession leading to recovery the confession must have been volountary or otherwise it is also inadmissible.
If source of information of the evidence if not proved to genuine then the first part when not proved makes the second part also not proved because the law of evidence act on Logic.
In this regard it would be worthwhile to quote,Sir Arthu Eggar a renouned jurist of Burma who in his book on the Indian Evidence act of 1872 has said it the Law of Logic that governs the rule of evidence whereby relevancy mkes the operation but if the illegality cannot be brought in to usurp the fairness of play.