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Report No. 94

10.12. Vindication of rights of the accused.-

Against this, it is stated that though an exclusionary rule entails a collateral inquiry in a criminal trial, it does vindicate the accused's rights immediately, without the need for him to start expensive new proceedings. The accused may have alternative remedies, but such alternative remedies are not always adequate.1 Criminal proceedings against a wrongdoer have to overcome several obstacles, such as the burden of proof and the possible sympathy of the court for the policeman.

Moreover, the victim of the illegality is unlikely to know how to initiate criminal proceedings or to be able to do so, particularly if he is poor, uneducated, or in prison precisely because of the admission against him of the illegally obtained evidence. The State may be unlikely to undertake criminal proceedings against police officers. In the words of an American Judge, "self-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered".2

Hence, even though, from the technical point of view, an inquiry into illegality may be collateral one, it is required in the interests of justice.

1. Para. 10.4, supra.

2. Wolf v. Colorado, (1949) 338 US 26 (42), per Murphy, J. (dissenting).

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

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