Illegally Obtained Evidence



India’s legal system has grown enormously, the nobility, valour and intelligence which the Indian Courts have showcased have been taken up as exemplary in Countries of the Commonwealth, mostly, and other countries alike. But there are still corners of the law that needs to be brought out into the light and made clear, to uphold the good image of the Indian Courts. One such corner is the admissibility of Illegally obtained evidence.

Evidence being one of the main instruments used by the law in either convicting or acquitting an individual against whom a legal proceeding is being taken place. Thus, there cannot be enough importance placed on the reliability of the evidence that Is to be used against or for someone in a Court of law.  We shall go over the position within India as well how a few other countries handle illegally obtained evidence.


Evidence even if illegally obtained is admissible within India. One of the reasons for this may be because of:-

“The fact that the Indian Law of Evidence is completely codified, with an elaborate classification of facts into relevant and irrelevant, and specific categorisation of admissible and inadmissible evidence, and similar other differentia laid down by statute.”

The Indian Evidence act being, arguably, the first ever code of evidence within the commonwealth (1872), had already been an established law even when the other substantive laws were being laid down. This code as along with substantive criminal law and criminal codes of procedure were established much within the same time frame.

Once the procedure for search and seizure had been established by way of The Code of Criminal Procedure,1973 (CrPC) there were specific methods laid down by the Statutes in regards to the guidelines to be followed by the police during the conduction of the investigation. As according to the Courts the guidelines were to give the police some direction but all an illegal search and seizure would do would be to affect the weight of the evidence and not affect it’s admissibility.

As in the Indian Evidence act:

 “Section 5. Evidence may be given of facts in issue and relevant facts. Evidence may be given in any suit or proceeding of the existence or nonexistence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Section 3. Interpretation Clause. – “Facts in Issue”. – The expression “facts in issue” means and includes – any fact from which, either by itself or about other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.”

These sections go to show that regarding the laws in question what the courts are looking for are if they are connected to the facts in issue or if they are relevant information. When having a reading of the sections in simplistic terms we may say that basically any relevant information will be admissible.

In the case of R.M Malkani v. State of Maharashtra, in which a tape recording of an individual was taken without his consent or knowledge. The courts had issued actions against the police for the taking of the recording but still held it admissible. The court’s only problem with admissibility was with regard to whether the tape was tampered with or if there was anything left out on purpose to win their part of the case. The Court said:

“Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice: and, thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible. . ..”

The court had in this regard compared a tape recording to a photograph while saying that just like a photograph will be admissible as evidence of a certain event so will a tape recording. They reasoned that it matters not how the evidence was obtained but whether it be relevant or not.


Similarity between the English and Indian law shows when looking at the admissibility of illegally obtained evidence. Since the laws of England are court made the doctrine was developed through cases.

In the case of Kuruma v. R, The Privy Council held that the evidence was admissible even though there was an illegal search of his person. They had relied on this sort of decision making by referring older case law which led them to the conclusion that evidence even if illegally obtained shall be admissible if it is relevant. However, the case had said that

“No doubt, in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused . . . If, for instance, . . . some piece of evidence . . . had been obtained from a defendant by a trick, no doubt, the judge might properly rule it out.”[1]

It can be seen from this reasoning that the English courts have the same thinking as that of Indian courts with regard to illegally obtained evidence.


The law of Scotland does not seem to have followed its United Kingdom partner, England in this matter. The Scottish courts have held that evidence that is illegally obtained should not be allowed to enter within the confines of the Courts are it is not pure and it was tainted by ulterior motives.

The Scottish courts had laid down that they are torn between the interest of the Citizens and the interests of the State, and came to the decision that the rights of their citizens are inalienable that the State shan’t defile the rights of the people that it is meant to protect.

In the case of Lawrie v. Muir the Scottish courts held that the evidence found by the police officers in that case was not to be made admissible and that a conviction should be quashed. The courts said that the Inspectors ought to have known that they were well exceeding the limits of their authority. The Scottish Courts had observed that the evidence obtained as part of an irregularity is not necessarily considered inadmissible fatally but they have brought about a broad subjective discretionary jurisdiction to include improperly obtained evidence.

They laid down that if:-

  1. The inspectors “acted in good faith, in a mistaken belief as to their powers and in an endeavour in the public interest to vindicate the law”[2]
  2. Evidence may be excluded where there are no circumstances of urgency.[3]
  3. Found by chance in the course of an otherwise legal search for another purpose.[4]

The Scottish approach has along with it an added power that the judiciary may keep the police practices under scrutiny, and the subjective approach, owing to the judges, has proved to be its positive but even though the very fact that it is subjective leads one to under how it can be a negative as well.


The American legal system takes another step from the Scottish approach and lays down that if evidence is obtained against someone without their consent and if their constitutional rights are violated even in the slightest then such evidence to be produced as a part of this shall not be held admissible.

The courts have said that, the victim of illegal search and seizure, takes his stand and (in either direct examination or cross-examination) denies possession of the materials seized from him because of the illegal search and seizure.[5]

The Stand taken by the U.S courts must be seen with other caveats that the Power of the state to enforce certain powers conferred on it by the People will not be done because of the very rights that they fight for. Suppose, a criminal is known by an entire neighbourhood to be a habitual delinquent but there is not enough evidence or facts for the police to issue a warrant to conduct a search and seizure of that criminal’s house or properties. Even if the police officers going against their posts and their jobs conduct a search and seizure, which without a warrant would be illegal, the evidence collected would not be admissible as the victim of such an illegal search and seizure has the right to stand on trial and deny the possession of whatever evidence that may be used against him.

All of the stands taken by all the countries mentioned above have come from years of experience of the learned judges and their thoughts that were provoked by the learned advocates in their courtrooms. The main argument that I would raise against the Indian system is the same question that the Scottish courts were in a dilemma over, whether to protect the interest of the Citizens or to protect what the interest of the State. In the words of Abraham Lincoln, “Government of the people, by the people, for the people, shall not perish from the Earth.” And as according to him and me, the State has been formed for the People and it’s main interest should be to safe guard the people’s interest and not it’s own.

#Law Commission of India, Ninety-Fourth Report. Rep. N.p.: n.p., 1983. Print.

[1]Kuruma v. R (1955) 1 AII E.R 236 (P.C)

[2] Fairly v. Fishmongers of London (1951) S.L.T 54, 58.

[3] Hay v. H.M Advocate, (1968) S.L.T, 334.

[4] Lawrie v. Muir, (1950) S.L.T, 37.

[5] U.S. v. Havens, (1980) 446 U.S. 620.

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