Yusufalli Esmail Nagree v.
The State of Maharashtra
"There is warrant for the proposition that even if evidence is illegally obtained it is admissible. The
reason given was that if evidence was admissible it matters not how it was obtained. There is of
course always a word of caution. It is that the judge has a discretion to disallow evidence in a
criminal case if the strict rules of admissibility would operate unfairly against the accused. That
caution is the golden rule in criminal jurisprudence." The SC has repelled the contention that
obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of
the Constitution of India (Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147).
In Yusufalli Esmail Nagree v. State of Maharashtra, a conversation that was recorded by means of a
tape recorder placed in a room was admitted in evidence. The appellant Nagree had offered a bribe
to a municipal clerk Munir Ahmed Sheikh. Sheikh informed the police who then laid a trap at his
residence by concealing a voice recording apparatus in the room where the bribe amount was to be
paid.
This tape was then allowed as evidence by the Court to corroborate the Sheikh’s testimony. It was
noted that if a photograph taken without the knowledge of the person being photographed
becomes relevant and admissible, the same principle would apply to the case of a tape-record of a
conversation that is unnoticed by the talkers.
Selvi v. State of Karnataka
The judgement this commentary will be dealing with namely Smt. Selvi v. State of Karnataka[2] has
given a good fight on behalf of humanity against technology. The judgement delivered by the then
Hon’ble Cheif Justice himself and two of his other companion judges rendered the practise of
narcoanalysis, brain mapping, FMRI and polygraph test to be unconstitutional and void. One of its
kinds; this judgement given by a three judges bench deals primarily with an all new aspect of privacy
and right against self-incrimination’ protected by Article 20(3) of the constitution. In short this is a
landmark judgement in the history of Indian Judiciary.
State of Bombay v. Kathi Kalu
The law laid down by the Supreme Court in the said case of State of Bombay v. Kathu,[23] still holds
good and was followed in subsequent decisions. In Kathu Kalu’s case the majority held that to be a
‘witness’ may be equivalent to furnishing evidence in the sense of making oral or written statements
but in the larger sense of the expression giving of thumb impression or impression of palm or foot or
finger or specimen writing or exposing a part of body by an accused person for purpose of
identification are not included in the expression ‘to be a witness. The Constitution makers may have
intended to protect the accused person from the hazards of self-incrimination in the light of English
Law on the subject. Word: Compelled, but here he was not compelled.
Upkar singh vs ved prakash
The court also referred to its decision in Upkar Singh v Ved Prakash & Ors, wherein it had observed:
“Be that as it may, if the law laid down by this Court in TT Antony case is to be accepted as holding
that a second complaint in regard to the same incident filed as a counter-complaint is prohibited
under the Code then, in our opinion, such conclusion would lead to serious consequences.”
There are 2 FIR’s and the second complaint was with regard to same incident filed as a counter
complaint, held, not prohibited under CrPC. Hence on refusal by police, to register the counter
complaint, magistrate can direct the police, at any stage to register the complaint and investigate
the same. 161 and 162 do not apply to such a situation.
Tahsildar Singh Vs. State
It is laid down in the case of Tahsildar Singh Vs. State, AIR 1959, Supreme Court-1012, that ' relevant
& material omissions amount to vital contradictions which can be established by cross- examination
and confronting the witness with his 7 previous statement. Take an example ' in a murder case, the
witness tells investigating officer that only one accused had fired his gun while in Court he states
that both the accused had fired their guns. This kind of omission is very significant and relevant and
shall amount to contradiction because the ballistic report says that the dead man received bullets
fired from two different guns. Section 162 of Code of Criminal Procedure, casts a restriction about
the use of statement made by any witness to a police officer in the course of an investigation which
mandates that, such statement cannot be used for any purpose but any part of his statement, if duly
proved may be used to contradict such witness in the manner prescribed by Section 145 of the
Indian Evidence Act.
