(This is a guest post by Chaaru Gupta)
Search and seizure is a significant part of an investigation for gathering evidence and is outlined in the Criminal Procedure Code, 1973 (hereinafter “the Code”). The power given to the investigating agencies is a double-edged sword that can be used to infringe upon the Fundamental Rights of the citizens guaranteed by the Part III of the Constitution. However, time and again the search procedure has been interpreted to be ‘directory’ instead of ‘mandatory’ except under the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act). This post attempts to discuss the effect of illegal search on the admissibility of evidence and validity of the trial, and a need to rethink the effects.
Some Procedural Requirements for Searches
Given the extensive nature of the search procedure, there are numerous steps at which errors or omissions can be made. There are different legal consequences for every error or omission. I discuss two of these provisions: search conducted without proper authority and a search conducted in absence of independent witnesses.
Although not necessary, the Code does provide for a warrants-based approach for carrying out a search. However, search warrants cannot be issued by every Magistrate. Section 94 of the Code empowers only certain Magistrates to issue a search warrant and these are District Magistrates, Sub-divisional Magistrates, and Magistrates of the first class. Where the search is made in pursuance of a warrant issued by a Magistrate and the concerned Magistrate was not empowered to issue such a warrant, it shall be considered an irregularity and it will not vitiate proceedings.
Section 100 of the Code requires the presence of at least two independent and respectable witnesses during the search. The provision uses a ‘shall’ which usually means mandatory instead of discretionary. However, in the case of Mohan Singh v. International Airport Authority of India, the Supreme Court (hereinafter “the SC”) held that interpretation should be done in light of the intention of the legislature, and therefore, the word ‘shall’ can be construed to be directory or mandatory depending on the provision and its interpretation. Courts in India have construed the presence of independent witnesses to be directory instead of mandatory, which doesn’t seem to reflect the intention of the legislature while drafting the provision.
It has been held that the absence of independent witnesses during the search does not affect the prosecution case and merely requires a court to adopt greater care while scrutinising evidence. In case the evidence submitted is found acceptable, it would be an erroneous proposition to find the arguments of the prosecution unacceptable solely on this ground. This implies that the obligation to take witnesses is not absolute and it does not vitiate the seizure.
Admissibility of Evidence and Illegal Search
The position of law in India with respect to the effect of illegal search on the admissibility of evidence is very similar to the position of law in India concerning the effect of illegal search on the validity of the trial. In cases under the NDPS Act, the exclusionary rule is applied and in cases under the Code, the inclusionary rule is applied.
However, this position is worrisome on many levels as illegal search and seizure vis-a-vis admissibility of evidence under the Code poses a number of problems including its being antithetical to the spirit of the Constitution (1), its leading to miscarriage of justice (2) and its having at stake the integrity and honour of the judicial system (3).
Antithetical to the Spirit of the Constitution
The current position of law leads to a breach of the right to privacy of the suspect. In K.S. Puttaswamy v. Union of India (hereinafter “Puttuswamy”) the SC recognised the right to privacy as a fundamental right. It forms an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution and as a part of the freedom guaranteed by Part-III of the Constitution. The right to privacy is an inalienable right that includes freedom from interference. An illegal search violates the right to personal liberty of a person and is thus unconstitutional. In fact, Dr. Ambedkar considered the right to be secured against illegal and unreasonable searches “very important so far as personal liberty is concerned” but due to political reasons, the same was not incorporated in the Constitution. A similar argument was presented before a Constitution Bench in Pooran Mal v. Director of Inspection (Investigation). It was argued that admitting evidence obtained by illegal search and seizure was antithetical to the “spirit of the Constitution”. The SC held that the criterion for admissibility is relevance and there was no express or implied prohibition in the Constitution against admitting evidence obtained by an illegal search.
However, there are two issues with this decision that need to be discussed. Firstly, the SC was misled to believe that there needed to be a specific prohibition against the inclusionary rule in the Constitution. It needs to be noted that the exclusionary rule is distinct from the rights guaranteed under the Constitution. The rule operates as “judicially created remedy to safeguard the constitutional rights.” Therefore, there is neither an express right to exclusionary rule, nor a specific prohibition against inclusionary. Secondly, the SC relied on State v. Navjot Sandhu which, while referencing RM Malkani v. State of Maharashtra, upheld the admissible-if-relevant test. However, it needs to be noted that Puttaswamy overrules, directly or indirectly, each of these cases as far as these aspects are concerned.
Miscarriage of Justice
The inclusionary rule can lead to a miscarriage of justice. Section 465 of the Code provides that there shall be no direct bearing of an irregularity or illegality in the investigation unless it leads to failure of justice. However, a search by an officer not empowered to conduct the search or a search in absence of independent witnesses is far from being a “mere irregularity” and consequently, should be considered a miscarriage of justice and thus be quashed. As pointed out earlier, it comes at the cost of the fundamental rights of the citizens and thus, cannot be just. The ends do not justify the means and injustice cannot lead to justice. The absence of witnesses has the potential to allow the search team to be arbitrary which is inconsistent with the rule of law. It may provide a faster way to conduct the procedure but at the cost of the liberty of the citizens.
Integrity and Honour of the Judicial System
The choice between exclusionary and inclusionary rule has the integrity and honour of the judicial system at stake. The judicial system will be brought to disrepute in case of condonation of the arbitrary and illegal conduct of the investigating authorities. At the same time, excluding important and concrete evidence due to a minor irregularity in the procedure can also jeopardise the reputation of the judicial system. This implies that there is a need to strike a balance between the two rules as both can lead to extremely inflexible situations.
One aspect to be considered under fair trial can be the legality of search and seizure conducted during the investigation. The position with respect to the effect of illegal search on the validity of trial is similar to the effect of illegal search on the admissibility of evidence. Non-compliance with the provisions like the presence of independent witnesses is a mere irregularity and does not vitiate the trial. This position may vary from case to case, for instance, if an irregularity affects the trial to the prejudice of the accused, the accused would be entitled to acquittal as this affects an aspect of fair trial which is the presumption of innocence. Irregularities in general merely act as a direction to the court to adopt greater caution while examining the evidence during the trial. However, the same is not the case with search in violation of the NDPS Act.
NDPS Specific Searches and Vitiating Trials as a Remedy
The courts in India are divided on the effect of illegal search on the validity of trial under the NDPS Act. Though the SC through a landmark decision in the case of Balbir Singh v. State of Punjab (hereinafter “Balbir”) cleared the position of law by holding that illegal search and seizure or illegal arrest under the NDPS Act vitiates the trial, the position is still not settled.
In Balbir, the SC did not take into consideration any precedent which held that illegal search does not vitiate the trial altogether. The circumstance which can lead to the vitiation of the trial is the procedural lapse which vitally affects the trial to the prejudice of the accused and is irreversible. In this case, the accused would be entitled to be acquitted. This position has been followed by the courts for a long time and rightfully so. The following factors need to be considered while deciding the same.
Vitiation of the trial itself in case of illegal search under the Code or the NDPS Act comes at a huge opportunity cost. In case the trial is vitiated because of an illegal search, the opportunity cost is the benefit that would have been driven by its continuation by a number of beneficiaries. The beneficiaries would include all the stakeholders in that particular case such as the victim, the police, the counsels, and most importantly, the criminal justice system. The benefits which are forgone by vitiating a trial are far more than the benefits which are driven by vitiating it due to violation of search procedure. It needs to be understood that our judicial system, with its increasing number of pending cases, does not afford this high an opportunity cost. The interest of the stakeholders needs to be kept into consideration while deciding the case. Furthermore, vitiation of a trial should be the last resort in case of an illegal search.
In case of an illegal search, the Magistrate has other alternatives before the Court vitiates the trial. The first is that the Magistrate in case of illegal investigation can order further investigation or re-investigation. In Kishan Lal v. Dharmendra Bafna, the Court held “An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.” However, in case of reinvestigation or de novo investigation, the SC in Vinay Tyagi v. Irshad Ali held that neither the investigating agency nor the Magistrate has any power to order or conduct fresh or de novo investigation since their jurisdiction and powers are limited within the Code. However, the Code doesn’t place any limitation to the exercise of power by the High Courts under Section 482 of the Code and the SC under Article 142 of the Constitution of India. In addition to this, the writ jurisdiction of the SC and High Court under Article 32 and 226 of the Constitution respectively makes it competent to direct reinvestigation to ensure justice or to prevent the abuse of any process of the Court.
Conclusion: Need to Strike Balance
The criteria for striking a balance between the two rules can be (1) the nature of the crime, (2) the degree of necessity to compromise the rights of the suspect, (3) the reputation of the judicial system, and (4) whether the violation of rights was ‘wilful’. Sufficient judicial discretion should be granted to the Magistrate, coupled with proper and strict guidelines for the investigating authorities. There should be no endorsement of unfair conduct of the investigating authorities. At the same time, flexibility should be provided to the methods adopted by the investigating authorities considering the nature of the crime and surrounding circumstances.
It can be said that the position of law, with respect to the effect of non-compliance with the rules of search procedure, needs to be settled for the better. The fundamental rights of citizens are inalienable and cannot be compromised under any circumstances. With respect to the effect on the validity of the trial, the decision in Balbir is unreasonable and fails to acknowledge the various other means to which the court can resort in order to right the wrong, before vitiating the trial itself. The interests of various stakeholders of the judicial system need to be acknowledged, accepted, and balanced.