Report No. 94
9.4. Other comments.-
The Registrar of one High Court, presumably expressing his personal view, agrees that a statutory amendment, as proposed in the Working Paper conferring a discretion on the court, is needed.1
The Registrar (Appellate side) of another High Court, again expressing his personal view, is opposed to an amendment, thinking that vesting a discretion even in the judiciary may "degenerate into caprice." However, in the very next paragraph of his reply, he has stated that violations of human rights can be more effectively chocked by "judicial vigilance" rather than by the suggested changes in the law.2 In this context, it should be pointed out that judicial vigilance is precisely what is contemplated in the recommendations that are going to be made in this Report.3
The comments of the Registrar (Appellate side) of the High Court express the apprehension that a judicial discretion to exclude such evidence will help criminals.4 But we are happy to note that the other side of the picture has been correctly put by an Additional Chief Metropolitan Magistrate, who has stated in his comment as under5:-
"If the courts overlook the collection of evidence by illegal or improper means, the respect for the purity of the judicial process is undermined in the public eye. If the rule of wholesale admission of evidence illegally or improperly obtained were to be applied, then there is a live danger that the conduct of the police in securing such type of evidence will be seldom scrutinized in the courts of law. The cross-examining counsel will become resigned to the position and may not question the police about their questionable methods."
He has whole-heartedly favoured the conferment of a discretion on the judge to exclude evidence obtained illegally or improperly, where the illegality is of a shocking nature. Besides wholly agreeing with proposed section 166A, he has also made the suggestion that confessions obtained by fraud, deception or trick should be made inadmissible and that section 29, Evidence Act should be amended for the purpose.6
1. Law Commission File No. F.2(7)/83-L.C., S. No. 9.
2. Law Commission File No. F.2(7)/83-L.C., S. No. 2.
3. Chapter 11, infra.
4. Law Commission File No. F.2(7)/83-L.C., S. No. 2.
5. Law Commission File No. F.2(7)/83-L.C., S. No. 2 (Two comments were received with S. No. 2).
6. Law Commission File No. F.2(7)/83-L.C., S. No. 2.