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.
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 GujaratFacts: 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 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.
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 AnrFacts: 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 CaseContention 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.
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.
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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