INTRODUCTION

During the course of the investigation of criminal cases, the authorities have great powers at
their disposition to collect various forms of evidence. In usual circumstances, a warrant is
mandatory to conduct a search in a particular place. However, under special circumstances
where an expeditious search is required, it is upon the Police’s volition to conduct the search
and no prior approval is required from the Magistrate. But as they say it, despotic power leads
to exploitation and this wide array of powers at the behest of the investigative agencies leads
to misuse. This misuse and exploitation manifests in forms like planting evidence in the
accused’s house, tampering with evidence etc. Consequences are that the accused is falsely
implicated and a case is concocted against him/her.

The Criminal Procedure Code provides for certain procedural requirements to regulate such
exploitation and ensure that the evidence collected is indubitable and evidentiary documents
do not lose their value and importance in a criminal case. Above all, it is upon the courts to
interpret these guidelines of investigative procedures. The courts, while interpreting these
guidelines, must keep in mind not only the safety of the state and the well-being of the
society but also the interests of the accused. Lacunae in procedural matters and obligations
must not be taken advantage of and should not let a criminal abscond. Justice shouldn’t be
compromised in any scenario. Thus, while the provisions should be interpreted to ensure a
fair process towards the person under trial, there should be no such attempt on part of him/her
such that the work of the investigating authorities is interrupted unnecessarily.

ILLEGAL SEARCHES
There is a difference between illegality and irregularity in a search. An irregularity is when
there is a slight deviation from compliance of the various provisions for search. If there is a
mere irregularity as per its meaning in section 465(5), the proceedings are not vitiated and the
conviction is not set aside unless it can be proven that there has been a failure of justice
because of that irregularity.1

A search becomes illegal on various grounds such as:

1. The warrant issued is illegal on grounds of being in contravention with certain

statutory provisions such as:
(a) If the warrant was issued under the name of such officer not correctly designated
and/or the house that was searched was not the house for which the warrant was
obtained and it was not mentioned in the same.2
(b) If the warrant has not followed Form number 10 of the 2nd Schedule, post or if it
does not bear the court’s seal.3

1
Shyam Lal Sharam v. Madhya Pradesh, (1972) 1 SCC 764.
2
Ahmed v. state, AIR 1966 Mys 289 (293).
3
Siddanna v. state of Mysore, AIR 1966 Mys 289 (293).
 (c) If the warrant was issued by the court where the judicial mind applied to the
necessity for issuing the warrant was not in regards with the provisions of section
93(1) of the CRPC.4
(d) If the warrant was issued for a collateral purpose it may render the search illegal if
the magistrate’s reason for issuing the warrant are not apt.5
(e) If the Magistrate simply accords the word ‘approved’ to the police officer’s
petition for a search-warrant instead of actually issuing a search warrant, the
search becomes illegal.6
(f) If the search is in contravention of the provisions of section 165 of the CRPC.7

In the aforementioned situations and in general when a search is conducted without a search-
warrant by a police officer who was not authorised to do so, the search is illegal and void of
any legal authority.8 This would vitiate this part of the investigation but all other parts of the
investigation and the trial cannot be set aside based solely on this. 9 Justice Jaganmohan
Reddy, in the case of Shyam Lal Sharam v. Madhya Pradesh, stated that Section 165 is
limited to the search and seizure of evidence during an investigation. Non-conformity to the
procedure of the search makes the search illegal but it stops having any effect on the
subsequent steps of investigation. According to him, the effect of an illegal search rendering
subsequent investigation invalid would encourage people to take law into their own hands
and “frustrate the investigation of crimes and thwart public justice.”10

What then is the consequence of the illegal search and seizure? The person who is being
illegally searched is given the power to resist such search and has a right of obstruction
towards that search. The accused also has other remedies in law such as constitutional and
civil remedy. Even though, the trial is not vitiated by the illegality of the search, the accused
can file a writ of Mandamus for recovering the articles seized during such search. 11 If the
warrant that was issued was illegal, there would also lie a civil remedy against the person
who issued such a warrant since it would be a maintainable suit for trespass. As of now, no
other substantial remedy is present in law against illegal searches and my opinion on the
same is expressed in the next part.

Therefore, it is clear that the police are given wide discretion to do searches as per section
165 of the CRPC in contrast to the USA who have the ‘Exclusionary Rule’ which
discourages illegal searches. Moreover, section 166 of the CRPC also allows such searches to
be carried out by another police officer of that area through agency. Consequently, the Indian
Police hardly ever tries to procure a search warrant and goes for searches as per 165 of CRPC
which is very discretionary and hardly stringent for its non-compliance.

4
V.S. Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 184.
5
Cf. Nawal Kishore v. State of Punjab, AIR 1964 Punj 268 (FB).
6
Nidhi v. State, (1955) 59 CWN 649.
7
State of Rajasthan v. Rehman, AIR 1960 SC 210.
8
R.V. Kelkar, Criminal Procedure (6th ed. 2014), at 53.
9
State of Maharashtra v. Natwarlal Demodardas Soni, AIR 1980 SC 593.
10
Shyam Lal Sharam v. Madhya Pradesh, (1972) 1 SCC 764.
11
Bd. Of Revenue v. Jhaver, AIR 1985 SC 59.
 ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE
The trend in the Indian Judiciary has been to not exclude evidence obtained through illegal
means. This includes evidence or other seized material used as evidence that has been
procured from illegal searches by the police.12 The Supreme Court has time and again
reiterated the same but has added some caution along with the allowance of such evidence. In
the case of Natwarlal Demodardas Soni13 the court ruled that illegally obtained evidence
would be admissible but the court would examine it carefully in the light of its seizure. In Bai
Radha v. State of Gujarat14 the court held that the evidence would only be excluded if a
prejudice was caused to the accused. There was also a constitutional validity challenge of the
same in the case Pooran Mal v. Director of Inspection15 where the court held that no
fundamental right was violated unreasonably by allowing such evidence to be admitted in
court.

There are arguments for both the sides in regards to the issue. The usual argument taken for
the admissibility is that reliability and relevance are more important than method of
collection since the court needs highly relevant evidence to decide the case. 16 There is also
the argument that the punishment for illegally obtaining evidence should be rendered upon
that person and the effect of the same should not be on the accused since it is the law’s duty
to protect the society from such people who will walk free just because of a procedural fault.
The arguments, though substantial are flawed in the way that it fails to overlook the fact that
this leeway being given to procedural authorities can be widely misused and would ultimately
fail to fulfil the principle that the society needs to be protected from those who malafidely
commit a wrong. Another argument that is taken up is that rendering the evidence
inadmissible is not a remedy since the illegal search has already been conducted. 17 This
argument is inherently flawed since this renders the whole criminal justice system redundant
by saying that there is no use of doing anything post a wrong has been committed. There are
four principles which form an argument for the inadmissibility of such evidence as
propounded by Rahman.18 The first principle is the reliability principle. This relates to the
reliability of the evidence and dictates that if evidence is obtained through illegal means such
as torture, violence etc., it ceases to be reliable and should hence be excluded. The same
principle can be seen in international jurisprudence where the International Criminal Court
has codified the same in Article 69(7) of the Rome Statute. The second principle is the
‘protective principle’ which talks about protection to the accused and dictates that exclusion
of such evidence acts as a protection towards the accused from illegal searches and other
activities. It propounds that the inadmissibility of such evidence clears the intention of such
persons who may want to act illegally to obtain certain materials to be used as evidence. The
12
Radha Kishun v. State of U.P., AIR 1963 SC 822; State v. Sant Prakash, (1976) CrLJ 274.
13
State of Maharashtra v. Natwarlal Demodardas Soni, AIR 1980 SC 593.
14
Bai Radha v. State of Gujarat, AIR. 1970 SC 1396.
15
Pooran Mal v. Director of Inspection, (1974) 1 SCC 345.
16
S.N. Jain, admissibility of illegally obtained evidence, 22 Journal of the Indian Law Institute 324 (1980)
17
Id.
18
Talha Abdul Rahman,. “Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible?” S-
38, PL, no. May (2011). Accessed October 1, 2019. http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=20972.
third principle is the “Judiciary Integrity Principle” which says that if courts allow such
evidence in the proceedings, they are essentially promoting illegal ways of collection of
evidence which would hamper the integrity of the proceedings and would result in the society
losing faith in the judiciary as an administration of justice. This too has been codified by the
International Criminal Court in the Rome Statute in Article 69(7). The fourth principle is the
‘Disciplinary Principle’ which dictates that the Judiciary should discourage such evidence by
rendering it inadmissible to make the procedural authorities more disciplined in their manner
of collection of evidence. Other arguments for the same are that since there are no other
better alternative remedies, inadmissibility of such evidence should be adopted to ensure
justice to the accused.19 It is also propounded that rendering such evidence inadmissible frees
the judges from “repugnant complicity in the dirty business”. 20 In my opinion, the arguments
against the admissibility are stronger and such evidence should be excluded from the
proceedings.

The standing of the court on this subject has remained unchanged which can be seen in cases
as late as post 2010.21 However, the ‘Right to Privacy’ judgement 22 opens up a new arena to
re-evaluate the current standing that illegally obtained evidence is also admissible in courts
which has not been done. The judgement declared ‘Right to Privacy’ as a fundamental right
under Article 21 of the constitution subject to reasonable restrictions. The court in Baldev
singh case23 had held that there must be a statutory provision clearly prohibiting admission of
illegally obtained evidence and henceforth its ratio was kept limited to cases under NDPS
Act. Going by that reasoning, the legislation would have to enact a new statute or amend the
Indian Evidence Act to make such evidence inadmissible. However, this has not been done
by any Government. Post the Privacy judgement, 24 we can read section 5 of The Indian
Evidence Act along with Article 20 (self-incrimination) and Article 21(right to privacy) to
render illegally obtained evidence inadmissible. The Supreme Court has to evaluate this
position of law in regards with this new fundamental right and its own reasonable restrictions.
A look must also be taken at other countries that have made laws against the admission of
such evidence. In USA evidence in breach of the fourth amendment rights is inadmissible as
the principle of “Fruit of the poisonous tree” is applicable 25 which basically means that the
results of illegal activities are also tainted by that illegality. Even the UK prohibits admission
of those evidence which affect the fairness of the proceedings in a negative way. 26 However,
the Indian Judiciary still relies on old UK Case laws which say that illegally obtained
evidence is inadmissible even though the same case laws are not in use in UK itself 27 where

19
S.N. Jain, admissibility of illegally obtained evidence, 22 Journal of the Indian Law Institute 324 (1980).
20
Wigmore On Evidence , s. 2184a, p. 15 (1961).
21
State of A.P. v. Umesh Kumar, (2013) 10 SCC 591
22
Justice K.S. Puttaswamy (retd.) v. Union of India, (2017) 10 SCC 1.
23
State of Punjab v. Baldev Singh, 6 SCC (1999).
24
Justice K.S. Puttaswamy (retd.) v. Union of India, (2017) 10 SCC 1.
25
Brewer v. Williams, 97 S.Ct. 1232 (1977).
26
Talha Abdul Rahman,. “Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible?” S-
38, PL, no. May (2011). Accessed October 1, 2019. http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=20972.
27
Id.
the law has now evolved given the importance being given to Human rights, the right to
privacy being one of them.

In my opinion, the court should re-examine this position in light of the importance we place
on fundamental rights and now that the right to privacy is a fundamental right under Article
21 of the constitution. The ninety-fourth Law commission report proposed a new section
166A in the Criminal Procedure code. It took up the matter of re-examining the position that
illegally obtained evidence was admissible and said that in this growing world where human
rights are being given extreme importance and Article 21 of our constitution is ever
expanding, it is necessary to re-examine this age old position. The prediction actually came
true since Article 21 has now been expanded. It gave discretion to the judges to examine the
extent of illegality and the extent to which the human right was violated to obtain the
evidence and render the evidence inadmissible if those extents were crossed considerably.
The Law commission had made this report in 1983 analysing international and other
countries’ jurisprudence but the report was never considered properly by the then
Government. In my opinion, there is a need of a section 166A as proposed by this Law
commission in compliance with international jurisprudence to preserve the accused’s rights
which are just as important as anyone else’s rights. This would act as a deterrent towards
illegal searches which have very little remedy in law as of now towards the accused.

CONCLUSION
Upon critically examining the above analysis, we can clearly observe that there exists a
certain definite pattern that the court adopts while interpreting such procedural obligations. A
liberal approach is adopted while interpretation of the provisions and any stringent
interpretation is disregarded if it compromises justice. Even if the evidence has been attained
illegally, it cannot be dismissed unless the judgment is severely affected by non-compliance
with procedure. Additionally, it is the prerogative of the court alone to weigh the doubts of
the case upon the evidence and determine its credibility. This determination is not a question
of law but a question of fact. The court may declare the evidence inadmissible if the doubts
cast on the witnesses are indefensible because such an irregularity suggests that the evidence
in all probability is fabricated and false. If such evidence is allowed to be admitted, it would
be a denial of justice. Thus, if it is a minor aberration, it doesn’t impact the investigative
process, however, in case the non-compliance is too irregular, the entire process is set aside.
Essentially, it is imperative for the courts to recognize not just the letter of the law but also
take into consideration the spirit and objective of the law so that Justice is meted out in its
purest form and injustice doesn’t seep in because of certain minor lacunae in the letter of law.
Thus, after the ‘Right to Privacy’ judgement 28,in my opinion, illegal searches hamper the
right to privacy of the citizen and allowance of evidence obtained from the same is a
promotion of a violation of fundamental rights which are considered sacrosanct in our nation.

28
Justice K.S. Puttaswamy (retd.) v. Union of India) (2017) 10 SCC 1.