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Report No. 94

11.5. Third issue-the governing consideration.-

This logically takes us to the third question posed by us.1 What ought to be the governing consideration that should weigh with the court in exercising the proposed discretion? Should the governing consideration be

(i) the fact that the circumstances in which the evidence was procured were such that admitting the evidence would be bringing the administration of justice into disrepute?

(ii) the need to avoid unfairness to the party against whom the evidence is sought to be used?

What have been put as items (i) and (ii) above are to be considered as alternatives. In fact, they were so put in our Working Paper. After careful consideration, we have come to the conclusion that the first one should be the governing consideration. The second one, based on the test of unfairness, while there is something to be said in its favour, may occasionally turn out to be vague. As regards the first one, it is undeniably a reasonably concrete test. Moreover, since, in exercising its discretion, the court is expected to take into account various circumstances (see the recommendation in the next paragraph), the court will have some assistance in arriving at a decision.

1. Para. 11.1, supra.

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

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