Recently, a question was posed to the undersigned about the acceptability of evidence when there is a challenge that the evidence was obtained through illegal means. Following is my reaction to the query.
There have been many occasions in which an Indian Court had to debate whether an evidence can be admitted when it is brought to its notice that the evidence was obtained illegally. Most of these cases in the past have arisen on account of the Government tapping the telephone conversations and it has been challenged either as “Improper” or “Illegal”.
Illegality arises when the person has obtained an evidence by deceit, stealing or in the case of Cyber Evidence, by “hacking”. Impropriety may arise when there was a legal means and a procedure for collection of evidence which was not followed.
Obviously, it is easy to assume that “Procedural Irregularities” can be condoned but human rights activists often raise objection when evidence has been obtained through illegal means.
The opposition to the Courts accepting an illegally obtained evidence stems from the fact that it may violate the “Constitution of India”, the “Right to Privacy” and such other principles which are dear to some activists and even some Judges.
In many cases of matrimonial disputes, the spouses often plant spyware in the other spouse’s phone or computer and gather incriminating evidence. We had recently reported a West Bengal Adjudication verdict in which a husband was fined for violating the privacy of his wife when he extracted evidence supportive of his matrimonial dispute case by means which were held violative of the privacy of his wife.
There are also instances when some resort to hacking of face book or gmail accounts to extract evidence.
In all such cases the counter party has a case against the party which has obtained evidence that it was obtained illegally and hence should not be admitted.
However, a series of Indian judicial decisions have held that an evidence is admitted if it is “relevant” though it was obtained improperly or illegally.
Hopefully the matter is considered a settled view since according to this Business Standard Report, the Bench headed by Justice B.S. Chauhan has stated,
“It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained,”
It must however be noted that once a person adduces some evidence, it is an admitted evidence against him and can be used against him if required.
Hence when an evidence is presented which has been obtained illegally, it is open to the Court to accept it and proceed with the trial in the subject case where it was presented as evidence. At the same time a separate action may lie against the person who obtained the evidence in violation of some law.
Hence parties should weigh the pros and cons of presenting an evidence obtained illegally before a Court. Police may however use the evidence during the preliminary investigation and for interrogation so that they may be able to unearth further evidence through legal means which can be used in the Court.
Considering the inconsistency that prevails in the Judicial system and the views of different judges, it cannot however be ruled out that Judges may selectively accept or reject evidence based on whether it was obtained improperly or illegally and the degree of illegality involved.
In some of the matrimonial cases as was referrred to earlier (West Bengal Adjudication) the illegality was only restricted to using of a shared password between husband and wife or “access to a system exceeding the authority provided by the owner” (Section 43). Such contraventions may be considered as “Technical Overreach” by one party and is unlikely to be strong enough a reason for rejecting the evidence (if it is relevant).
However, an operation like a “Sting Operation” where inducements are thrown out to tempt a party to transgress law (eg: corruption cases) which are similar to operating “Honey Pots” or policemen trapping sex predators on the chat rooms, could be falling in the grey area of whether the evidence should be accepted or not since these could be “evidence that is created by the person when it did not exist in the first place”.
Again, when an evidence which is present some where (say a Computer or Mobile or Private page of a Facebook, Encrypted Message etc) is extracted for presentation in a Court as defense in a case brought on the person who is presenting the evidence, it should be considered as a legitimate reason where the evidence should be admitted even if the manner in which it was obtained was not entirely above board.
In the case of offensive action based on such evidence, Court may exercise its discretion whether the evidence was collected as it was present and not created out of an inducement and therefore there was a duty to bring out truth before the Court of an offence already committed by the accused for which the evidence was collected.
Comments welcome
Naavi
Also Read :
A Research report on 2013 Law Commission report
Delhi High Court Judgement-2012 (Digambar Khattar Vs Union of India)
Will it not be in violation of Art 20(3) and the right to remain silent. How will it stand in the present situation where SC has declared privacy as an absolute right?
I donot think it violates Art 20(3). It only condones the procedural irregularity but does not protect the violator from separate action. Of course Supreme Court has the right to interpret it in any manner it likes. Going by the Section 66A decision and the recent Shafhi Mohammad decisions, anything is possible in Supreme Court
This law says 18 U.S. Code§ 2515.Prohibition of use as evidence of intercepted wire or oral communications. So if it’s prohibited how can it be used. So the court can IGNORE the law?