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Report No. 94

3.6. Supreme Court decisions.-

A Supreme Court decision of 19731 is sometimes regarded as recognising a discretion in the courts in India to exclude evidence obtained illegally. But in fact the Supreme Court in that case held the evidence to be admissible and did not accept the contention that illegality in gathering the evidence affected its admissibility. The point related to the admission, in evidence, of a tape record of a conversation that took place in the telephone. The charge was one of bribery, the accused being the Coroner of Bombay who had demanded a bribe of Rs. 20,000 from a Bombay doctor. The bribe was demanded as the Coroner's price for not declaring the doctor guilty of negligence. The conversation that took place was between the doctor and the accused. The conversation was recorded by the anti-corruption police, who had been called in by the doctor for the purpose.

A tape recorder was attached to the telephone at the doctor's end and the conversation that took place between the doctor and the accused was recorded on the tape recorder attached to the telephone. Rejecting the argument that it was illegal so to tamper with a telephone communication, the Supreme Court held that even if there was any illegality, admission of the evidence in question did not thereby become impermissible. A feeble attempt was made to challenge the evidence on the score of Article 21 of the Constitution, but that challenge also did not succeed. In its discussion of the legal position relating to evidence obtained illegally and in support of the view that admissibility was not affected by the illegality, the Supreme Court referred, inter ailia, to the English law on the subject.

It was in this context that it referred to the judgment of Lord Goddard in the well known Privy Council case of Kuruma. Lord Goddard had, in that case squarely, held that the adoption of illegal means in collecting evidence did not affect its admissibility. Lord Goddard had ended this exposition of law with certain dicta about the existence of a judicial discretion to exclude evidence obtained illegally, if its admission was likely to operate unfairly against the party against whom it is sought to be tendered. The Supreme Court of India, when dealing with English law, naturally referred to Lord Goddard's judgment, and it was in this context that the Supreme Court made a brief mention of the above doctrine contained in the dicta towards the end of Lord Goddard's exposition of the law.

But the Supreme Court had no occasion to consider at length the question whether courts in India possess any such discretion. In fact, the case before the Supreme Court was not decided on the basis of the existence or absence of any such discretion. The evidence was admitted notwithstanding the supposed illegality. In any case, if the Supreme Court judgment is to be construed as indicating that the courts2 in India have such a discretion, then our recommendation to incorporate such a discretion in our statute law should be welcome.

1. R.M. Malkani v. State of Maharashtra, AIR 1973 SC 57.

2. Chapter 11, infra.

Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back

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