Report No. 94
9.7. Illegality and irregularity.-
A few comments on the Working Paper have argued that Indian law already makes a distinction between illegality and irregularity, even in the matter of admission of evidence. They assume that where an illegality goes to the root of the investigation of the wrong or the offence, the evidence is liable to be excluded in the trial of the matter. This assumption, however, does not harmonise with the judicial approach as reflected in numerous decisions. In fact, the Supreme Court has clearly held1 that illegality in obtaining evidence does not lead to its exclusion. Probably some confusion has been created because procedural illegality in a trial of a criminal case may be a ground for quashing the conviction, while, in contrast, mere irregularities do not lead to such a position. This does not mean that illegality in the gathering of evidence leads to its exclusion from use at the trial.
Questions of procedure are mostly decided on consideration like the mandatory or directory character of a procedural safeguard. What the present inquiry is concerned with is a different aspect: is the misconduct of a law enforcement officer such that the court ought not to lend its aid to it and should discourage it by excluding the evidence from admission? Some considerations may overlap in concrete cases, but the philosophy that needs consideration, and may supply justification for exclusion of evidence in situations contemplated by the present Report, is quite distinct from an exercise focussed on the mandatory or non-mandatory character of a statutory provision.
1. (a) R.M. Malkani v. State of Maharashtra, AIR 1973 SC 153; (b) Magraj v. R.K. Birla, AIR 1971 SC 1295.