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Introduction:-
The role of media in the Indian legal system has been growing in
the recent times, to the extent that today media has even started
to play the judicial role of deciding cases even before the trail
begins. No doubts that the coming of the investigatory journalism
has benefited the country in ways more than one and it has been
playing a crucial role of bringing up issues of public concern and
importance to the notice of the courts.
Today the
media is not only referring the areas of concern rather collecting
statistics, evidence and of course shaping the public opinion to
the extent that at times even the educated lawyers get carried
away and act as they did in the court premises in Noida recently
in reference to the
Nithari Case,
such is the power media already enjoys.
Supreme Court
has added a new, and significant, chapter to the conservative
criminal jurisprudence and given a role to the media in criminal
trials by ruling that interviews given by an accused to TV
channels could be considered evidence by courts, where by
enhancing the power of the already powerful media.
No doubt such
a decision is a fabulous step in the direction of curtailing the
misuse of the freedom of speech, which in the recent years has
been used to mislead the investigation process. Still there are
serious issues that need to be deliberated as to how such a
scenario will fit into the existing evidence mechanism.
In this
project of ours we have dealt with the admissibility of the
interview as evidence by dealing with the related issues and the
latest decision of the apex court in this regard.
The
Questions
There is no question as to the admissibility of the Television
interview as evidence in the Indian judicial process, still if we
say that there are questions involved then they pertain as to
# What kind of evidence a television interview will prove to be?
# Whether it will be taken as oral evidence or documentary
evidence?
# If documentary then whether a television interview is a primary
evidence or secondary Evidence?
# What will be the issues involved when one confesses of having
committed a crime in an interview on television, will it be
admissible as a confession?
# Whether the confession would amount to extra-judicial
confession?
# Whether those parts of confession (interview) can be used
selectively which most obviously prejudices the accused
‘suggesting the inference that he committed the crime’?
# What should be the standards of the video tape or record in
which the evidence in produced?
And many more.
The
Decision :-
Sajidbeg
Asifbeg Mirza Vs. State of Gujarat
Facts:
The process began right at the trial court stage in
Gujarat. In a murder incident of 2000, police allegedly beat up
the accused Sajidbeg Asifbeg Mirza during his custodial
interrogation. When Mirza was admitted to a hospital in Surat, a
local TV channel interviewed him. As what he said in the
interview, being relevant to prove his guilt, the prosecution
moved trial court requesting it to summon the videographer as
witness to prove contents of the interview.
The accused
and his counsel objected saying extra-judicial confessions before
media cannot be cited as evidence during the trial in a criminal
case. The trial court did not agree with this plea and summoned
the videographer to depose before it as a witness.
Sessions Judge:
it appears that, no principle has been laid down by Hon'ble
Supreme Court, but, it appears that, Hon'ble Supreme Court has
observed that, if a statement is made in the course of an
interview prearranged by the police, no weightage can be given to
it at the time of appreciation of evidence. It appears that, there
is no question of appreciation of evidence, but the only question
to be decided is whether the grievance which is sought to be
adduced by the prosecution is relevant or not ? And whether the
prosecution can be permitted to adduce such evidence or not?
The accused
moved Gujarat High Court to appeal the summoning order and cited
the SC judgment in the Parliament attack case, which narrated that
Ram Jethmalani, appearing for SAR Geelani, had cited a TV
interview given by Mohammed Afzal to a TV channel purportedly
confessing to his guilt but absolving Geelani.
High Court:
The HC said the apex court, in the Parliament attack case, had
rejected the admissibility of Afzal's statement to the TV channel
as it became apparent that the interview was arranged by the
police and recorded in their presence.
The HC, agreeing with the trial court, held that the SC has not
laid down any principle about admissibility of confessional
statement by an accused to media, if it were given suo-motu and
without any pressure from the police. Mirza carried his appeal to
the Supreme Court.
Supreme Court:
A Bench comprising Justices Arijit Pasayat and SH Kapadia
dismissed Mirza's petition saying, "There is no merit in it.
However, it said, "It goes without saying that the relevance and
admissibility of the statement, if any, given by the accused
before the media persons shall be considered at the appropriate
state in the trial." Once the "shall" word is used in the
direction, then the trial court will definitely consider the
admissibility.
Criticism:
Neither before the learned Sessions Judge nor before this Court it
is argued or pointed out by the learned advocate for the
petitioner that as to how the production of the evidence in
question, in the form of video cassette of the interview or the
examination of the videographer, who recorded that interview, is
going to prejudice. In absence of any convincing material to show
the production of this evidence is going to cause prejudice to the
petitioner it can be said that the learned Sessions Judge is right
in observing that the contents of that interview might support the
defence.
The
Reflections
The SC verdict saying that TV interviews can be used as evidence
in a case where it has given more weight to the saying 'Think
before you speak'.
While this verdict gives more muscle to the media, will it deter
the accused from make controversial statements to media. In this
light, the apex court's January 22 order that the trial court
could consider admissibility of statements given by an accused to
the media, is not only a significant leap in law but also a
trend-setter. This has wide implications for sting operations. The
recent "entrapment"
of MPs seeking bribes for local area development contracts is a
case in point, as such interviews may become key evidence in
corruption trials. Also, those accused who seek to use these
interviews to influence investigation need to watch out.
Let us see how
the people reacted to this decision before we proceed further.
"Yes, that's
what this verdict aims at - to discourage the suspects or the
accused from giving any public statements while the investigation
is still on. That's because it complicates the investigation in
cases where the accused would want to change his statement later,"
states Majeed Memon, well-known criminal lawyer.
"Moreover,
such public statements are directly admissible in the court of law
as they are regarded as voluntary disclosures and not made under
pressure, as the version given to the police might be construed
as," adds Memon.
Now, isn't
that giving far too much power to the media "But media was always
powerful. This verdict just recognises its strength and is
actually a tribute to it. Still, law empowers each one of us with
the right to silence - then why make public statements at all and
complicate the case"
he says.
However, actor
and social activist Nafisa Ali has her apprehensions about the
media getting to play such a crucial part. "Media
is the voice of the nation and it's fine that its powers are being
brought to use. But while the bytes on TV might look real, there
may be cases where there are some digital manipulations. To avoid
that, it's important that the credentials of the journalist who's
covering a sensitive issue or interviewing an accused, be well
established. Or there should be another law for cases of
inaccuracy found in the taped confessions that would put the onus
on the media house involved. And only then would justice be meted
out to all."
And while Ali
might be apprehensive, director Mahesh Bhatt has no doubts about
where the verdict is taking our society. "This judgement has come
at the right time. It's the age of audio-visual media. One must
make the most of it in every possible way. However, the
authenticity of these clippings needs to be checked. But still,
you can't doubt and question the sagacity of such a senior body as
the Supreme Court, and think that it could be misled by any small
interview on TV. There are ways of proving everything."
Well, while
the others might be weighing the pros and cons of this judgement,
it seems the police are the happiest of all.
Welcoming the
move, DC Pandey, DIG, Public Complaint, Lucknow,
says,
"Investigation is all about evidence collection and with the
SC making bytes given by an accused on TV admissible in a court of
law, it would only help us in that exercise. And e audio-visual
bytes make for strong evidence."
"As
long as the police and media are working towards the same goal, it
can't get any better,"
he adds.
The above is
how the society reacted to the supreme court verdict, which in
general was accepted by almost all, but still the questions as to
the law remains so let us have an analysis of the legal points
involved which the court has not clearly dealt with as regards the
kind of evidence.
Other Cases
R v
Thomas
Facts: It is a recent decision of the Victorian Court of Appeal.
Briefly put, the facts are as follows. Joseph Thomas is an
Australian national who converted to Islam. In 2001 he travelled
to Afghanistan and attended the Al Faroq training camp run by Al
Qaeda. Whilst there, he met Osama Bin Laden and other high ranking
Al Qaeda officials. He then went to Pakistan where he stayed for a
year and met an Al Qaeda official called Khaled bin Attash. He was
arrested at Karachi Airport when attempting to catch a flight back
to Australia. Thomas' passport had been altered, seemingly to
disguise the amount of time he had spent in Pakistan. He had a
substantial amount of money in his possession. He said that he had
been given the money and the airline ticket by Attash. He was
detained in custody in Pakistan because of his suspected links to
Al Qaeda.
Issue:
The central issue of the appeal was whether the trial judge should
have admitted into evidence an interview taken on 8 March 2004 by
the Australian Federal Police ("AFP") in Pakistan. The AFP
was only given an interview strictly limited to 2 hours, with no
access to a legal representative for Mr Thomas (despite the AFP's
request that he be given such access). Thus, the interview took
place with no access to legal representation for Mr Thomas. The
AFP told Mr Thomas that he had a choice whether or not to answer
their questions and that he had the right to remain silent.
However, from previous interviews involving American, Pakistani
and ASIO officials, Mr. Thomas understood that he would not see
his wife and child again unless he cooperated with investigators.
Held:
The Court of Appeal found that, while nothing occurred in the
actual interview of 8 March 2003 to overbear Mr Thomas' will, he did not
have a real choice as to whether or not to answer the AFP's
questions. This was because he felt that he had to cooperate to
see his wife and child again, and that if he did not cooperate,
there was a risk being incarcerated in an unidentified foreign
goal. Thus, the admissions made in the 8 March 2003 interview
could not be described as voluntary, and should not have been
admissible as evidence. Accordingly, Mr. Thomas has been released
from custody. This has caused outrage among some groups and
commentators.
The Department
of Public Prosecution had sought leave to make submissions for a
retrial based on a television interview Mr. Thomas made with Four
Corners on 27 February 2006.
Sharad Yadav
and Ors. Vs. Union of India (UOI) and Anr.
Facts:
Facts of the present case are in pari materia with the case
instituted against Shri L.K. Advani. The specific allegations in
the charge sheet filed against Shri L.K. Advani and Jain brothers
were that he received a sum of Rs. 25 lacs from Jain brothers
during his tenure as a Member of Parliament (besides a sum of Rs.
35 lacs which was received by him while he was not a Member of
Parliament).
The entry about payment of Rs. 25 lacs to Shri L.K.
Advani was made at page 8 of MR-72/91. Allegations were made in
the charge-sheet that Jain brothers entered into a criminal
conspiracy among themselves, the object of which was to receive
unaccounted money and to disburse the same to their companies,
friends and other persons including influential public servants
and political leaders; that in pursuance of the said conspiracy,
S.K. Jain lobbied with various public servants, Union Ministers
and influential politicians to persuade them to award contracts to
different foreign bidders with the motive of getting illegal
kickbacks from them The gravamen of the charge against Shri Sharad
Yadav is that he received Rs. 5 lacks from Jain brothers as
illegal gratification.
It is pertinent to mention that there is no
proof of the payment of the said amount to Shri Sharad Yadav or
why it was paid, aliunde in the case. The learned Special Judge,
relying upon the entry made at page 8 of the file MR-72/91 and the
extra judicial confession alleged to have been made by Shri Sharad
Yadav during interviews given to Shri Rajat Sharma of ZEE T.V. and
Shri Vikram Aditya Chandra, came to the conclusion that a prima
facie case had been made out against Shri Sharad Yadav.
Issue:
Whether the two interviews by him would amount to confession? And
whether the said statements of Shri Sharad Yadav can be construed as
extra-judicial confessions suggesting the inference that he
committed the alleged offence.
Reasoning:
The question that falls for consideration is whether Shri Sharad Yadav
admitted having received any amount as bribe from Jain brothers.
It needs to be highlighted that in both the interviews, Shri
Sharad Yadav has nowhere stated that he had received any amount
from Jain brothers or from J.K. Jain, towards bribe. He had simply
admitted having received a sum of Rs. 3 lacs from one Jain as
donation to the party fund. In both the interviews he had stated
that he did not know who that Jain was and he had come along with
Chimmanbhai Patel. Editing the said statements of Shri Sharad
Yadav so as to exclude the reference to receipt of Rs. 3 lacs as
donation to the party fund from one Jain whom he did not know
would utterly distort the true sense of both the statements. The
facts must be interpreted reasonably and an admission of all the
facts which constitute the offence should be present.
Held:
The aforesaid
video recorded interviews of Shri Sharad Yadav do not
amount to confessions and cannot, therefore, be used to complete
the offence, with which Shri Sharad Yadav was charged. Eliminating
the aforesaid interviews of Shri Sharad Yadav, there remains
nothing on record to connect him with the alleged crime.
Consequently, the charges of conspiracy, sought to be framed,
cannot stand also against Jain brothers and their employee J.K.
Jain, for the simple reason that in a case of conspiracy there
must be two parties.
Mohd. Afzal
Vs. State or The Paliament Attack Case
Contention advanced by Shri Ram Jethmalani, learned Senior Counsel
appearing for S.A.R. Gilani with reference to the confession of
Afzal. Shri Jethmalani contended that
# Afzal in the
course of his interview with the TV and other media
representatives, a day prior to the recording of a confession
before the DCP, while confessing to the crime, absolved Gilani of
his complicity in the conspiracy. A cassette (Ext.DW-4/A) was
produced as the evidence of his talk. DW-4, a reporter of Aaj Tak
TV channel was examined. It shows that
Afzal was pressurrised to implicate Gilani in the confessional
statement, according to the learned Counsel.
# The statement of Afzal in the course of media interview is
relevant and admissible under Section 11 of the Evidence Act.
Learned Counsel for Afzal, Shri Sushil Kumar did not sail with
Shri Jethmalani on this point, realising the implications of
admission of the statements of Afzal before the TV and press on
his culpability. However, at one stage he did argue that the
implication of Gilani in the confessional statement conflicts with
the statement made by him to the media and therefore the
confession is not true.
The talk which
Afzal had with the TV and press reporters admittedly in the
immediate presence of the police and while he was in police
custody, should not be relied upon irrespective of the fact
whether the statement was made to a police officer within the
meaning of Section 162 CrPC or not. We are not prepared to attach
any weight or credibility to the statements made in the course of
such interview prearranged by the police. The police officials in
their over-zealousness arranged for a media interview which has
evoked serious comments from the counsel about the manner in which
publicity was sought to be given thereby. Incidentally, we may
mention that PW 60 the DCP, who was supervising the investigation,
surprisingly expressed his ignorance about the media interview. We
think that the wrong step taken by the police should not ensure to
the benefit or detriment of either the prosecution or the accused.
The Supreme
Court confirmed the death sentence of Mohammed Afzal in the
Parliament attack case, but condoned the death sentence of Shaukat
Hussain Guru and passed the order of 10 years rigourous
imprisonment. The court upheld the Delhi high court judgement of
acquitting S A R Geelani and Afsan Guru, wife of Shaukat Guru.
Justice P V Reddy and Justice P V Neolkar absolved Shaukat Guru of
charges under the Terror Act, but sentenced him to for concealment
of the conspiracy of the attack on Parliament.
Analysis
Television interviews are admissible as evidence in the court, but
we will have to see how evidence has been defined in the Indian
Evidence Act (hereinafter referred to as the act) in section 3
says:
Evidence-"Evidence" means and includes--
(1) All statements, which the Court permits or requires to be made
before such statements are called oral evidence;
(2) [All documents including electronic records produced for the
inspection of the Court]; such documents are called documentary
evidence.
Now the
question before us is whether the evidence in the form of an
interview is oral evidence or a documentary evidence. Can the
statement given in the interview be kept in the category of oral
evidence and be admitted as an evidence. If it is so then are the
interviews given with the permission of the courts. And if it is
only documentary evidence then such evidence has been accepted
earlier also so there is nothing new. Above all electronic records
are now accepted as documentary evidence by amendment to the
Evidence Act. So it can be taken that we are referring to the Oral
evidence in the form of interviews given to the Television
Channels.
Now even if
such interviews are admitted as oral evidence what will be the
relevance of such interviews? The Act defines relevant as
"Relevant"
-One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the
provisions of this Act relating to the relevancy of facts.
The chapter on
relevance of facts lays the circumstances in which a fact can be
relevant. Under this chapter what is said in an interview can be
relevant only under section 8 of the Act, which talks about the
previous and subsequent conduct as an interview can only be a
conduct previous, the section provides that,
Any fact is
relevant which shows or constitutes a motive or preparation for
any fact in issue or relevant fact.
The conduct of
any party, or of any agent to any party, to any suit or
proceeding, in reference to such suit or proceeding, or in
reference to a fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of
any proceeding, is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent thereto.
Explanation 1.
the word "conduct" in this section does not include statements,
unless those statements accompany and explain acts other than
statements, but this explanation is not to affect the relevancy of
statements under any other section of this Act.
Explanation 2.
when the conduct of any person is relevant, any statement made to
him or in his presence and hearing, which affects such conduct, is
relevant.
After having
seen the relevance of the admission we need to see are they
admissible as extra judicial confession or not under section 24 of
the act but before that its important to note what is confession.
This was laid down by the Privy Council in Narayana Swami v.
Emperor , in these words:
"........&
confession must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively
incriminating fact, is not of itself a confession, e.g. an
admission that the accused is the owner of and was in recent
possession of the knife or revolver which caused a death with no
explanation of any other man's possession. Some confusion appears
to have been caused by the definition of confession in Article 22
of the Stephen's
Digest of the
Law of Evidence
as an admission made at any time by a person charged with a crime
stating or' suggesting the interference that he committed that
crime."
If the
surrounding articles are examined it will be apparent that, after
dealing with admissions generally, they are applied to admissions
in criminal cases, and for this purpose confessions are defined so
as to cover all such admissions, in order to have a general term
for use in the three following articles, confession secured by
inducement, made upon oath, made under a promise of secrecy. The
definition is not contained in the Evidence Act, 1872, and in that
Act it would not be consistent with the natural use of language to
construe confession as a statement by an accused 'suggesting the
inference that he committed the crime'.
And then
coming to the question related to the editing of the parts of the
interview the question becomes whether those parts of confession
(interview) can be used selectively which most obviously
prejudices the accused ‘suggesting the inference that he committed
the crime’ As Lord Widgrey, C.J. explained in
R. v. Pearce:
"A
statement that is not itself an admission is admissible if it is
made in the same context as an admission. ......... it would be
unfair to admit only the statements against interest while
excluding part of the same interview or series of interviews. It
is the duty of the prosecution to present the case fairly to the
jury. To exclude answers which are favorable to the accused whilst
admitting those unfavorable would be misleading."
It has been
established in the above case that the prosecution cannot
selectively use only those parts of a confession which most
obviously prejudice the accused. There can be no "editing" of
exculpatory passages that detract from those parts.
It is likely in many cases that such editing of a confession will
distort the true sense of the confession and unfairly accentuate
those parts that incriminate the maker himself. This was
recognized in
R. v.
Gunewardene
, where Lord Goddard, C.J. said :
"It not infrequently happens that (an accused) in making a
statement, though admitting his guilt upto a certain extent, puts
greater blame on the (co-accused) ............ In such a case the
accused would have a right to have the whole statement read and
could, with good reason, complain if the prosecution picked out
certain passages and left out others."
Thus it can be
said that the prosecution cannot selectively use only those parts
of a confession which most obviously prejudice the accused. There
can be no "editing"
of exculpatory passages that detract from those parts.
Conclusion
Stringent laws governing the admissibility of visual evidence in
courts of law should induce law enforcement agencies to turn to
advance video solutions to document and archive the proceedings of
interviews. The country's criminal jurisprudence, which presumes
innocence in favor of the accused and goes by the principle that
one hundred guilty could escape the clutches of law but not a
single innocent should be punished, had not recognized the role of
media in a trial. But in the light of admissibility of interview
as an evidence or infact admissibility of statements given by an
accused to the media, is not only a significant leap in law but
also a trendsetter. This has wide implications for sting
operations. The recent "entrapment" of MPs seeking bribes for
local area development contracts is a case in point, as such
interviews may become key evidence in corruption trials. Also,
those accused who seek to use these interviews to influence
investigation need to watch out. The televised confession can now
give different connotations to various complicated issues.
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