Report No. 94
3.5. Illegal searches.-
It is also probable that once this "statute-oriented" approach established itself in the sphere of confessions where there are specific statutory provisions as to the admissibility of confessions recorded in varying circumstances, it later became a matter of habit for the courts to adopt the same approach on other topics as well. As a result, in regard to other species of evidence also, even though there were no specific statutory provisions as to admitting or not admitting a particular species of evidence obtained in violation of the law, the same stance came to be adopted by the courts. The most familiar example of this is furnished by the judicial approach in India in respect of evidence pi ocured by search. The Code of Criminal Procedure, 1973 lays down elaborate provisions as to the mode of search to be carried out by the police for the purposes of investigation into an offence.1
These provisions incorporate a number of safeguards required to be observed by the police in carrying out such searches. When questions arose as to the admissibility in evidence of materials gathered in a search that had been conducted in violation of the relevant statutory requirements (particularly, the statutory requirement that the search must have been conducted in the presence of two independent witriesses),2 the courts, in general, started adopting a legalistic approach. According to the trend of authority, evidence so obtained is not per se, inadmissible.3 Nor is there recognised any discretion on the part of the trial judge to exclude evidence obtained through a search not conducted in accordance with law. Non-compliance with the statutory safeguards may call for strictures against the police and may, also, affect weight4 of the evidence. But the legality of a conviction based on such evidence remains unaffected by the defect in the search.5
1. Section 100, Code of Criminal Procedure, 1973.
2. Section 100(4), Code of Criminal Procedure, 1973.
3. (a) Benamali v. Emp., ILR (1939) 1 Cal 210;
(b) Valayudhan v. State, AIR 1961 Ker 8 (FB);
(c) Kau Sain v. State of Punjab, AIR 1974 SC 329, para. 9;
(d) Govindan, AIR 1959 Mad 544 (548).
4. (a) Malal Khan v. Emp., AIR 1946 PC 16 (19);
(b) Legal Remembrancer v. Mamtazuddin, ILR (1947) 1 Cal 439.
5. Sunder Singh v. State, AIR 1956 SC 411 (415).