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Report No. 94

11.6. Fourth issue-factors to be considered.-

We now come to the fourth and the last issue that remains to be considered,1 before formulating the legislation to be recommended. Should the law enumerate the circumstances to be taken into account by the court in exercising the discretion to exclude evidence obtained illegally or improperly? We think that there should be such an enumeration. We are aware that such enumerations can never be exhaustive, and that their utility may therefore be limited. Still, we think that an indication of the important guidelines may be helpful in concrete cases. The guidelines that we have in mind will be apparent from the draft of the legislative provision that we are giving towards the end of this Chapter.2 In that draft, we have put human dignity and social values in the forefront.

These two considerations constitute, in a sense, the ethical justification for a statutory provision giving the proposed discretion to the court.3 This composite concept will, of course, be applied with reference to the context of each case. That context is sought to be spelt out in three concrete factors4 mentioned in our draft, which are intended to cover the seriousness of the case, the importance of the evidence and the magnitude of the wilful harm, if any. The demands of law enforcement-which may possibly balance the factors so far enumerated-have also been given due weight in the last clause of our formulation,5 which expects the court to consider whether there were any circumstances justifying the action complained of as illegal or improper.

1. Para. 11.1, supra.

2. Para. 11.7, infra [Section 166A, Evidence Act, as recommended].

3. Section 166A(2)(a), as recommended.

4. Section 166A(2)(b) to (d), as recommended.

5. Section 166A(2)(e), as recommended.



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




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