-By Gunjan Shrivastav
In this blog, it is argued that any evidence obtained by the police by way of a trap should not be admissible in a court of law. In the absence of any specific provision that restricts the admissibility of evidence procured by way of trap, the court should adopt an approach of exclusion of improperly procured evidence. The scope of this blog is restricted to the analysis of evidence obtained by way of entrapment.
Evidence Obtained through Entrapment
In order to understand the nature of evidence obtained by way of entrapment, it is pertinent to look at what exactly constitutes entrapment and when can evidence procured through such entrapment be inadmissible. The word entrapment is not defined in any statute. In Sorrels v, U.S, the court stated that “entrapment occurs when the criminal conduct is the product of the creative activity of law enforcement officials. A comprehensive definition of entrapment suggested by Hock Lai Ho and generally accepted is that an act counts as legal entrapment if the police intentionally tempt the accused, in a deceitful and covert manner with the desire to convict and punish the accused.When evidence is obtained by law enforcement agencies in such a manner, there are certain public policy considerations which may lead to such evidence being held inadmissible. If the prejudicial effect outweighs the probative value of any evidence obtained through entrapment, such evidence should not be admissible.
Moreover, an approach of subjective tests laid down by Andrew Ashworth provides an appropriate standard for understanding whether the evidence obtained through entrapment should be accepted by court or not. As per the test the court should look at the question of whether an offence would have occurred if the accused had not been encouraged by the police. If the answer is in the negative, then any evidence obtained through such entrapment should not be accepted. The impropriety associated with entrapment should not render any evidence admissible. This is essentially because when the police lays down a trap, a crime creation set up is laid, which leads the accused to commit the crime. The argument that the accused had a predisposition and would have anyways committed offence fails to understand that if police itself is providing the accused an opportunity to commit an offence which would otherwise not be committed, then it is unfairly prejudicing the accused. An entrapment essentially allows for virtue testing as a way of conducting investigation and procuring evidence.
While it is possible that in certain cases such as bribery, it becomes difficult for the police to collect evidence against the accused in a lawful manner and therefore it might become important for the police to lay down a trap to catch the accused red handed but any evidence obtained through a trap has a very high prejudicial effect and should not be admitted. It simply provides an easy escape to the police to not conduct the investigation in a fair manner and could easily be misused, as police can simply use a trap to implicate any person so as to conclude the investigation and obtain evidence against such person.In Yusufalli Esmail Nagree v. State of Maharashtra, the police adopted an active deceptive method for obtaining evidence. Police had hidden a microphone in a room where the accused was supposed to meet the police decoy, and the conversation between the two was recorded. The recorded conversation was then used as evidence against the accused. Despite acknowledging the fact that a trap was laid down by the police and evidence was obtained in an unfair manner the Supreme Court still regarded the recorded conversation as admissible and failed to look at the prejudicial value associated with such evidence.
Need for Exclusion of Evidence Obtained by Entrapment
The position of law in most of the common law countries on the issue of admissibility of improperly procured evidence in a criminal trial can be divided into four categories. (i) Countries that strictly follow the statute and in the absence of any specific provision restrict the use of improperly procured evidence allows such evidence as admissible, (ii) where discretion is given to the court to decide whether an improperly procured evidence even if relevant should be admissible or not (iii) where there exists a specific statutory provision that restricts admissibility of improperly procured evidence, and (iv) where the constitution guarantees certain evidence to be excluded from the trial.
India comes under first category, where the admissibility of improperly procured evidence in a criminal trial is based on a strict interpretation of the Indian Evidence Act 1872 (IEA). This is essentially because of two reasons. Firstly, the courts have stated that in the absence of any specific statute restricting the admissibility of improperly or illegally procured evidence, such evidence should be admissible. The courts are reluctant to look beyond the codified law so as to determine admissibility. In fact, whenever any evidence is procured by police through improper or illegal means, courts have reprimanded the police for the same but nevertheless have allowed admissibility of such evidence. Secondly, Indian courts have considered relevancy as the test for admissibility of evidence. It has been held that S.5 of Indian Evidence Act, 1872 (hereinafter “IEA”) provides relevancy as the only test for admissibility. Even in Yusufalli, the court used relevancy and admissibility interchangeably and held that “a tape recording of a relevant conversation is admissible”. This position of law has been further upheld in R.M. Malkhani v. State of Maharashtra where the court held that impropriety or illegality does not affect the admissibility of evidence. Though the court did point out that the judges should have the discretion to disallow evidence that unfairly prejudices the accused, it has only been a mere statement of caution. The approach of the Indian courts has been to allow improperly procured evidence as long as they are relevant and the focus is on the end and not on the means through which the evidence is procured.
This approach is highly problematic as it unfairly prejudices the accused in a criminal trial. It is argued that the rule of exclusion of improperly procured evidence should be adopted by courts and legislature should enact a provision specifically restricting admissibility of such evidence. Any trial involves balancing the two conflicting public policy considerations, one being, getting the accused convicted and other being protecting rights available to an accused and ensuring that a fair procedure is adopted in an investigation. The rules of procedural fairness in the criminal justice system must be weighed keeping into account the wide amount of resources available with the state and the relatively weaker position of the accused. Accordingly, the law should consider it proper to adopt procedural fairness and an unbiased approach while following rules of admissibility of evidence in order to provide greater protection to the accused and counterbalance the resources that the state has. Consequently, it should be deemed imperative for the court to exclude evidence that is obtained in an irregular or improper manner.
In U.K, S.78 of the Police and Criminal Evidence Act 1984 (PACE) provides discretion to the trial judge to exclude evidence if ‘admission of such evidence would adversely affect the fairness of proceedings’. This section has been used by the courts to exclude evidence obtained improperly in cases of police entrapment. In R. v. Smurthwaite, the court clearly stated that S.78 should be applied in cases of entrapment and judicial discretion to exclude evidence comes within the scope of S.78. In fact, it is also pointed out that even if evidence obtained by an agent provocateur is relevant, the judges have the discretion to exclude such evidence. Similarly, even in the U.S, Federal Rules of Evidence 403, gives discretion to the judges to exclude evidence if its “probative value is prejudiced, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” It provides a balancing test for determining whether relevant evidence should be excluded if it is of adverse prejudices to the accused. Such provisions have allowed courts to exercise discretion in excluding improperly procured evidence. Even the 94th Law Commission Report criticized the way Indian courts have simply condoned the impropriety or illegality of evidence and have allowed such evidence to be admissible. The commission pointed out in favour of exclusionary rule as it was of the opinion that such exclusionary rule would act as a deterrent against procuring improper evidence. It further recommended the need to reform the law on admissibility of improperly procured evidence by inserting S.166A to IEA, which would allow the court to exclude such evidence.
Conclusion
It is concluded that any evidence obtained by way of entrapment should not be made admissible simply because it is relevant.The lacuna in the rules of evidence law in India with respect to the admissibility of improperly or illegally procured evidence should not allow the Indian courts to allow any evidence that is made relevant. The court should look at principals of fairness and should follow a balancing test so as to ensure that the admissibility of improperly procured evidence does not prejudice the accused. The fact that the police have excessive resources to carry out of investigation should not allow them to abuse such power.
[The author is a third year B.A.LL.B student at NLSIU Bangalore.]