R. M. Malkani Vs. State of Maharashtra
 INSC 232 (22 September 1972)
CITATION: 1973 AIR 157 1973 SCR (2) 417 1973
SCC (1) 471
R 1986 SC 3 (30,147,219) F 1987 SC1748 (20)
Indian Penal Code-ss. 161, 385, 420 read with
s. 511Appellant charged for attempted bribery along with other
charges-Conversation between appellant and witness tape recorded-Whether
admissible in evidence Indian Telegraph Act-S. 25-Scope.
The appellant, the Corner of Bombay, was
charged under s. 161, 385 and 420 read with s. 511 of the I.P.C., for the
alleged offences including attempting to obtain a bribe from a doctor who
performed an operation but the patient died subsequently.
The High Court convicted the appellant under
s. 161 and 385 of the I.P.C. and sentenced him accordingly.
Four questions were canvassed before this
Court: (1) The Trial Court and the High Court erred in admitting the evidence
of the telephonic conversation between Dr. M. a witness and the appellant which
was recorded on the tape.
The evidence was illegally obtained in
contravention of s. 25 of the Indian Telegraph Act, and therefore, the evidence
was inadmissible; (2) The conversation between Dr. M and the appellant which
was recorded on the tape took place during investigation, inasmuch as the
Director of the Anticorruption Branch asked Dr. M. to talk to the appellant and
therefore, the conversation was not admissible under s., 162 of the Cr. P.C.;
(3) That the appellant did not attempt to obtain gratification; and (4) That
the sentence of six months' imprisonment should be interferred with because the
appellant has already paid Rs. 10,000/ as fine. The appellant, suffered heart
attacks, and therefore, the sentence should be reduced.
Dismissing the appeal,
HELD : (i) There was no violation of the
Indian Telegraph Act. The substance of the offence under S. 25 of the Indian
Telegraph Act is damaging, removing, tampering, touching machinery, battery
line, or post for interception or acquainting oneself with the contents of any
massage. Where a person talking on the telephone allows another person to
record it or hear it, it cannot be said that the other persons who is allowed
to do so is damaging, removing, tampering, touching machinery, battery line or
post for intercepting or acquainting himself with the contents of any message.
There was no element of coercion or compulsion in attaching the tape-recorder
to the telephone. Therefore, the High Court's observation that the telephone
call put by Dr. M. to the appellant was tapped by the Police Officer and that
there was violation of s. 25 of the Indian Telegraph Act, is erroneous.
(ii) Tape recorded conversation is
admissible, provided first the conversation is relevant to the matters in
issue, secondly, there is identification of the voice and thirdly, the accuracy
of the tape-recorded conversation is proved by eliminating the possibility of
erasing the tape-recorder.
The tape-recorded conversation is, therefore,
a relevant fact under section 8 of the Evidence Act and is admissible under s.
7 of the Evidence Act.
[424 F] 418 N. Srirama Raddy v. Shri V. V.
Giri  1 S.C.R. 399;
Yusaf Ali lsmail Nagri v. The State of
Maharashtra,  3 S.C.R. 720 and S. Pratap Singh v. State of Punjab 
4 S.C.R. 733, referred to.
(iii) The tape-recorded conversation is not
within the vice of s. 162 of Cr. P. C. It was said that the tape-recording was
in the course of investigation. S. 161 and 162 of the Cr.P.C. indicate that
there is investigation when the police officer orally examine a person. The
telephonic conversation was between Dr. M and the appellant, Each spoke to the
other. Neither made a statement to the police officer.
Therefore, there was no mischief of s. 1 62.
[427 H] (iv) It is also not correct that the appellant did not attempt an
offence. The conversation was said to show bargain. The evidence is that the
patient died on the 13th May 1964. Dr. M saw the appellant on 3rd October 1964.
The appellant demanded Rs. 20,000/in order that Dr. A could avoid inconvenience
and publicity in papers, in case the inquest was field. Further, it was also
proved that the appellant bargained land lowered his demand to Rs. 10,000/and
then again raised to Rs. 15,000/-. These facts together with other facts found
by the courts to be correct anti these facts prove that the offence was
(v) The appellant's contention that the
sentence of imprisonment should be set aside in view of his payment of a fine
of Rs. 10,000/it is true that in some cases, the Courts have allowed the
sentence undergone to be the sentence. That depends upon the facts as to what
the term of the sentence is and what the period of sentence undergone is. In
the present case, it cannot be said that the appellant had undergone any period
of sentence. Further the gravity of the offence and the position held by the
appellant at the relevant time do not merit any lenient view about the
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal 229 of 1969.
Appeal by certificate from the judgment and
order dated October 9, 1969 of the Bombay High Court in Cr. A. No. 727 of 1967.
B. M. Mistry and Vineet Kumar, for the M. C.
Bhandare and B. D. Sharma and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
RAY, J.-This is an appeal by certificate, from the judgment dated 8 and 9
October, 1969 of the High Court at Bombay convicting the appellant under
sections 161 and 385 of he Indian Penal Code. The High Court confirmed the
substantive sentence to simple imprisonment for six months under section 161 of
the Indian Penal Code and simple imprisonment for three months under section
385 of the Indian Penal Code. In addition, the High Court imposed on the
appellant a fine of Rs. 10,000 and in default of payments of fine, further
simple imprisonment for six months.
419 The appellant was at the crucial time the
Coroner of Bombay.
The prosecution case was as follows. Jagdish
prasad Ramnarayan Khandelwal was admitted to the nursing home of a Gynecologist
Dr. Adatia on 3 May, 1964. Dr. Adatia diagnosed the case as acute appendicitis.
Dr. Adatia kept the patient under observation. After 24 hours the condition of
the patient became serious. Dr. Shantilal J. Mehta was called. His diagnosis
was acute appendicitis with "generalised peritonitis" and he advised
immediate operation. Dr. Adatia performed the operation. The appendix,
according to Dr. Adatia had become gangrenous.
The patient developed paralysis of the ilium.
He was removed ?to Bombay Hospital on 10 May, 1964 to be under the treatment of
Dr. Motwani. The patient died on 13 May, 1964.
The Hospital issued a Death Intimation Card
as "paralyticileus and peritonitis following an operation, for acute
The appellant allowed the disposal of the
dead body without ordering post-mortem. There was however a request for an
inquest from the Police Station. The cause for the inquest was that his was a
case of post operation death in a hospital. The Coroner's Court registered the
inquest on 13 May, 1964. The dates for inquest were in the months of June,
July, September and October, 1964. The appellant was on leave for some time in
the months of June and July, 1964.
This is said to delay the inquest.
It was the practice of the Coroner's Court to
send letters to professional people concerned in inquest to get the explanation
of the Doctor who treated or operated upon the patient. The appellant on 3
October, 1964 made an order that Mr. Adatia be called. It is alleged that the
appellant had told Dr. Adatia a ,few days earlier that though he might have
operated satisfactorily the cause of death given by the hospital would give
rise to a presumption of negligence on his part. Dr. Adatia was asked by the
appellant to meet Dr.Motwani, so that the latter could get in touch with the
appellant to resolve the technical difficulties. Dr.Motwani met the appellant
on 3 October, 1964. The appellant told Dr. Motwani that Dr. Adatia was at fault
but he might be cleared of the charge in the inquest. The appellant asked for a
sum of Rs. 20,000. Dr. Motwani said that he would consult Dr. Adatia. Dr.
Motwani conveyed the proposal to Dr. Adatia. The latter refused to pay any
illegal gratification. Dr. Motwani intimated the same to the appellant. The
appellant then reduced the demand to Rs.10,000. Dr. Adatia also refused to pay
the same On 4 October the appellant got in touch with Dr. Jadhav.
Superintendent of the Bombay Hospital to find
out if the cause of 420 death given in the Hospital Card could be
Dr. Motwani told Dr. Jadhav on the same day
that incorrect cause of death was shown and great injustice was done to Dr.Adatia.
Dr. Jadhav said that he Would send an amended deposition to the Coroner, the
On 5 October, 1964 Dr. Motwani and Dr Adatia
decided to lodge a complaint with the Anti Corruption Bureau. Dr.Adatia's
Nursing Home got messages on the telephone to get in touch with the appellant.
Dr. Adatia complained to Dr.Motwani of the harassment on the telephone. Dr.
Motwani rang up the appellant. The appellant asked Dr. Motwani to intimate by
10 a.m. on 7 October whether Dr. Adatia was willing to pay Rs. 10,000. Dr.
Motwani rang up Mugwe, Director of the Anti Corruption Branch and complained
that a higher Government official was demanding a heavy bribe from a Doctor.
Must we then arranged for his staff to be present near Dr. Motwani's residence
on the morning of 7 October with the tape recording equipment to record on the
tape the telephonic conversation.
On 7 October 1964 Mugwe and the Assistant
Commissioner of Police Sawant went to Dr. Motwani's residence. They met Dr.Motwani
and Dr. Adatia. When they commenced recording the First Information Report of
Dr. Motwani, Dr. Adatia left for his Nursing Home. Mugwe then arranged for the
tape recording equipment to be attached to the telephone of Dr.Motwani. Dr.
Motwani was asked by Mugwe to ring up the appellant in the presence of Mugwe
and other Police Officers about the appellant's demand for the money. Dr.
Motwani ran,, up the appellant and spoke with him. Dr. Motwani reported the
gist of the talk to Mugwe. Mugwe then asked Dr. Motwani to ring up Dr. Adatia
to speak on certain special points. After the talk with Di. Adatia Dr. Motwani
was asked by Mugwe to ring up the appellant and askfor an appointment to
discuss the matter further. Dr. Motwani rang up the appellant and an
appointment was made to meet the appellant at 12 noon the same day. The
conversation between Dr. Motwani and the appellant and the conversation between
Dr. Motwani and Dr. Adatia are all recorded on the tape, The two Doctors
Motwani and Adatia met the appellant in the Coroner's Chamber at 12 noon. The
appellant raised the demand to Rs. 15,000 and said that Rs. 5,000 was to he
paid to Coroner's Surgeon for giving an opinion in favour of Dr.Adatia. The
appellant said that if the amount was not paid the police Surgeon's opinion
would be incorporated in the case. The two Doctors went out of the Chamber for
Dr. Adatia then told the appellant that lie
would pay the appellant Rs. 15,000 on 9 October, 1964.
421 Dr. Adatia paid Rs. 15,000 to Dr.
Motwani. Dr. Motwani took the amount to his house. Dr. Motwani informed the
appellant on the. telephone that he had received the money from Dr.Adatia. The
appellant asked Dr. Motwani to keep it. The appellant also told Dr. Motwani to
bring the money to the appellant's house on 10 October, 1964. On 10 October the
Assistant Commissioner Sawant came to Dr. Motwani's residence and asked him to
go to the appellant's residence to fix up an appointment for payment of money.
Dr. Motwani went to the appellant's house on 10 October, 1964 at 10 a.m.
The appellant was not in the house. The
appellant's wife was there. Dr. Motwani told her that he had come to pay the
money. The appellant's wife said that he could pay her.
Dr. Motwani said that he had no instructions
to pay. As Dr.Motwani was leaving the building Sawant, the Assistant
Commissioner met him. Sawant asked Dr. Motwani to come to Dr. Adatia to ring up
the appellant from there.
The Police Officers and Dr. Motwani met at
the residence of Dr. Adatia at about 4 p.m. The raiding party connected the
tape recorder to the telephone mechanism of Dr. Motwani.
Dr.. Motwani dialled the, appellant's
residence and spoke with the appellant in, the presence of the Police Officers.
The conversation was also recorded on the
tape. It was arranged at the talk that Dr. Motwani would pay the amount to the
appellant's wife on 12 October 1964.. Dr. Motwani was asked to take a letter
addressed to the appellant stating that he was returning a loan of Rs. 15,000
which he had taken at the time of buying a flat.
On 11 October, 1964 Dr. Motwani received a
telephone call from the appellant asking Dr. Motwani to come to his residence
to meet the person to whom the money was to be paid. Dr. Motwani declined to go
then. On 12 October 1964 the appellant told Dr. Motwani that the appointment
was cancelled because he had not come to the appellant's residence on 11
October. Dr. Motwani conveyed the news to the Assistant Commissioner.
Mugwe then ordered an open investigation into
The appellant was charged under sections 161,
385 and 420 read with section 511 of the Indian Penal Code. Broadly stated, the
charges against the appellant were these. He attempted to obtain from Dr.
Adatia through Dr. Motwani a sum of Rs. 20,000 which was later reduced to Rs.
10,000 and which was then raised to Rs. 15,000 as gratification for doing or
forbearing to do official acts. He put Dr. Adatia in fear of injury in body,
mind, reputation and attempted dishonestly to induce Dr. Adatia and Dr. Motwani
to pay the sum of money. The appellant was also 422 charged with cheating for
having falsely represented to Dr.Adatia and Dr. Motwani that Rs. 5,000 out of
the amount of Rs. 10,000 was required to be paid to the Police Surgeon for
obtaining his favourable opinion.
The appellant denied that he demanded any
amount through Dr.Motwani. He also denied that he threatened Dr. Adatia (if the
consequence of an inquest.
Four questions were canvassed in this appeal.
The first contention was that the trial Court and the High Court errect in
admitting the evidence of the telephonic conversation between Dr. Motwani and
the appellant which was recorded on the tape. The evidence was illegally
obtained in contravention of section 25 of the Indian Telegraph Act and
therefore the evidence was inadmissible.
Secondly, the conversation between Dr.
Motwani and the appellant which was recorded on the tape took place during
investigation inasmuch as Mugwe asked Dr. Motwani to talk and therefore the
conversation was not admissible under section 162 of the Code of Criminal
Procedure. The third contention was that the appellant did not attempt to
obtain gratification. Fourthly. it was said that the sentence of six months
imprisonment Should be interfered with because the appellant has already paid
Rs. 10,000 as fine. The appellant suffered heart attacks and therefore the
sentence should be modified.
The trial Court as well as the High Court
found that the evidence of Dr. Motwani and Dr. Adatia needed corroboration.
The High Court found that the conversation
recorded on the tape corroborated their evidence. The evidence of Dr. Motwani
is that on 7 October, 1964 Mugwe accompanied by Sawant and members of the
Police staff went to the residence of Dr. Motwani. Mugwe directed Sawant to
record Dr.Motwani's statement. Mugwe had instructed his staff to bring a tape
recording machine. After the statement of Dr. Motwani Mugwe connected the tape
recording machine to Dr. Motwani's phone and asked Dr. Motwani to talk to anyone
he liked in order to test whether the tape recording machine was in order.
Motwani was then asked to talk to the appellant. Motwani talked with the
appellant. That conversation was recorded on the tape. This tape recorded
conversation is challenged by counsel for the appellant to be inadmissible
because it infringes Articles 20(3) and 21 of the Constitution and is an
offence tinder section 25 of the Indian Telegraph Act.
Section 25 of the Indian Telegraph Act 1885
states that if any person intending (b) to intercept or to acquaint himself
with the contents of any message damages, removes, tampers with or touches any
battery, machinery. telegraph line, post or other thin 423 whatever, being part
of or used in or about any telegraph or in the working thereof he shall be
punished with imprisonment for a term which may extend to three years, or with
fine, or with both. "Telegraph" is defined in the Indian Telegraph
Act in section 3 to mean any appliance, instrument, material or apparatus used
or capable of use for transmission or reception of signs, signals, writing,
images and sounds or intelligence of any nature by wire, visual or other
electro-magnetic emissions, radio waves or Hertzian wave s, galvanic, electric
or magnetic means.
Counsel for the appellant submitted that
attaching the tape recording instrument to the telephone instrument of Dr. Motwani
was an offence under section 25 of the Indian Telegraph Act. It was also said
that if a Police Officer intending to acquaint himself with the contents of any
message touched machinery or other thing whatever used in or about or telegraph
or in the working thereof he was guilty of an offence under the Telegraph Act.
Reliance was placed on rule 149 of the Telegraph Rules which states that it
shall be lawful for the Telegraph Authority to monitor or intercept a message
or messages transmitted through telephone, for the purpose of verification of
any violation of these rules or for the maintenance of the equipment. This Rule
was referred to for establishing that only the Telegraph Authorities could
intercept message under the Act and Rules and a Police Officer could not.
In the present case, the High Court held that
the telephone call put by Dr. Motwani to the appellant was tapped by the Police
Officers and, therefore, there was violation of section 25 of the Indian
Telegraph Act. But the High Court held that the tape recorded conversation was
admissible in evidence in spite of the violation of the Telegraph Act.
The Police Officer in the present case fixed
the tape recording instrument to the telephone instrument with the authority of
Dr. Motwani. The Police Officer could not be said to intercept any message or
within the meaning of section 25 of the reason is that the Police Officer
instead the oral conversation between Dr. Motwani recorded the conversation
with the device of the substance of the offence under section graph Act is
damaging, removing, tampering, touching battery line or post for interception
or acquainting oneself with damage or remove or touch any machinery Indian
Telegraph Act. of hearing directly and the appellant tape recorder. 25 of the
Indian Tele machinery the contents of any message. Where a person talking on
the telephone allows another person to record it or to hear it it cannot be
said that the other person who is allowed to do so is damaging, removing,
tampering, touching machinery battery line or post for intercepting or
acquainting himself with the contents of any.
424 message, There was no element of coercion
or compulsion in attaching the tape recorder to the telephone. There was no
violation of the Indian Telegraph Act. The High Court is in error ,on that
This Court in Shri N. Sri Rama Reddy etc. v.
Shri V. V.Giri(1), Ysufalli Esmail Nagree v. The State of Maharashtra(2) ,and
S. Pratap Singh v. The State of Punjab(3) accepted conversation or dialogue
recorded on a tape recording machine as admissible evidence. In Nagree's case
the conversation was between Nagree and Sheikh. Nagree was accused of offering
bribe to Sheikh.
In the Presidential Election case (supra)
questions were put to a witness Jagat Narain that he had tried to dissuade the
petitioner from filing an election petition. The witness defied those
suggestions. The election petitioner had recorded on tape the conversation that
had taken place between the witness and the petitioner. Objection was taken to
admissibility of tape recorded conversation. The Court admitted the tape
recorded conversation. In the Presidential Election(4) case the denial of the
witness was being controverted, challenged and confronted with his earlier
statement. Under section 146 of the Evidence Act questions might be put to the
witness to test the veracity of the witness. Again under section 153 of the
Evidence Act a witness might be contradicted when he denied any question
tending to impeach his impartiality. This is because the previous statement is
furnished by the tape recorded conversation. The tape itself becomes the
primary and direct evidence of what has been said and recorded.
Tape recorded conversation is admissible
provided first the conversation is relevant to the matters in issue; secondly,
there is identification of the voice'; and. thirdly, the accuracy of the tape
recorded conversation is proved by eliminating the possibility of erasing the
tape record. A contemporaneous tape record of a relevant conversation is a
relevant fact and is admissible under section 8 of the Evidence Act. It is res
gestae. It is also comparable to a photograph of a relevant incident. The tape
recorded conversation is therefore a relevant fact and is admissible under
section 7 of the Evidence Act. The conversation between Dr. Motwani and the
appellant in the present case is relevant to the matter in issue. There is no
dispute about the identification of the voices. There is no controversy about
any portion of the conversation being erased or mutilated. The appellant was
given full opportunity to test the genuineness of the tape recorded
Conversation. The tape recorded conversation is admissible in evidence.
(1)  1 S C. R. 399.
(2)  3 S.C.R. 720 (3)  4 S.C.R.
425 It was said by counsel for the appellant
that the tape recorded conversation was obtained by illegal means. The
illegality was said to be contravention of section 25 of the Indian Telegraph
Act. There is no violation of section 25 of the Telegraph Act in the facts and
circumstances of the present case. There is warrant for proposition that even
if, evidence is illegally obtained it is admissible. Over a century ago it was
said in an English case where a constable searched the appellant illegally and
found a quantity of offending article in his pocket that it would be a
dangerous obstacle to the administration of justice if it were held, because
evidence was obtained by illegal means, it could not be used against a party
charged with an offence. See Jones v. Owen(6). The Judicial Committee in Kur
ma, Son of Kanju v. R.(7) dealt with the conviction of an accused of being in
unlawful possession of ammunition which had been discovered in consequence of a
search of his person by a police officer below the rank of those who were
permitted to make such searches. The Judicial Committee held that the evidence
was rightly admitted. 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.
This Court in Magraj Patodia v. R. K. Birla
& Ors.(3) dealt with the admissibility in evidence of two files containing
numerous documents produced on behalf of the election petitioner. Those files
contained correspondence relating to the election of respondent No. 1. The
correspondence was between respondent No. 1 the elected candidate and various
other persons. The witness who produced the file said that respondent No. 1
handed over the file to him for safe custody. The candidate had apprehended
raid at his residence in connection with the evasion of taxes or duties.
The version of the witness as to how he came
to know about the file was not believed by this Court. This Court said that a
document which was procured by improper or even by illegal means could not bar
its admissibility provided its relevance and genuineness were proved.
In Nagree's case (supra) the appellant
offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The
Police laid a trap. Sheikh called Nagree at the residence. The Police kept a
tape recorder concealed in another room. The tape was kept in the custody of
the police inspector. Sheikh gave evidence of the talk. The tape record corroborated
his testimony. Just (1)  34 J.P. 759.
(2)  A.C. 197.
(3). A.I.R.  S.C. 1295.
426 as a photograph taken without the
knowledge of the person photographed can become relevant and admissible so does
a tape record of a conversation unnoticed by the talkers. The Court will take
care in two directions in admitting such evidence. First, the Court will find
out that it is genuine and free from tampering or mutilation. Secondly, the
Court may also secures scrupulous conduct and behaviour on behalf of the
Police. The reason is that the Police Officer is more likely to behave properly
if improperly obtained evidence is liable to be viewed with care and caution by
the Judge. In every case the position of the accused, the nature of the investigation
and the gravity of the offence must be judged in the light of the material
facts and the Surrounding circumstances.
The admissibility of evidence procured in
consequence of illegal searches and other unlawful acts was applied in. a
recent English decision in R. v. Maqsud Ali(1). In that case two persons
suspected of murder went voluntarily with the Police Officers to a room in
which, unknown to them, there was a microphone connected with a tape-recorder
in another room. They were left alone in the room. They proceeded to have a
conversation in which incriminating remarks were made. The conversation was
recorded on the tape. The Court of Criminal Appeal held that the trial Judge
had correctly admitted the tape-recording of the incriminating conversation in
evidence. It was said "that the method of the informer and of the
eavesdropper is commonly used in the detection of crime. The only difference
here was that a mechanical device was the eavesdropper". The Courts often
say that detection by deception is a form of police procedure to be directed
and used sparingly and with circumspection.
When a Court permits a tape recording to be
played over it is acting on real evidence if it treats the intonation of the
words to be relevant and genuine. The fact that tape recorded conversation can
be altered is also borne in mind by the Court while admitting it in evidence.
In the present case the recording of the
conversation between Dr. Motwani and the Appellant cannot be said to be illegal
because Dr. Motwani allowed the tape recording instrument to be attached to his
instrument. In fact, Dr.Motwani permitted the Police Officers to hear the
conversation. If the conversation were relayed on a microphone or an amplifier
from the telephone and the police officers heard the same they would be able to
give direct evidence of what they heard. Here the police officers gave direct
evidence of what they saw and what they did and what they (1)  2 All.
427 recorded as a result of voluntary
permission granted by Dr. Motwani. The tape recorded conversation is
contemporaneous relevant evidence and therefore it is admissible. It is not
tainted by coercion or unfairness. There is no reason to exclude this evidence.
It was said that the admissibility of the
tape recorded evidence offended Articles 20(3) and 21 of the Constitution.
The submission was that the manner of
acquiring the tape recorded conversation was not procedure established by law
and the appellant was incriminated. The appellant's conversation was voluntary.
There was no compulsion. The attaching of the tape recording instrument was
unknown to the appellant. That fact does not render the evidence of
conversation inadmissible. The appellant's conversation was not extracted under
duress or compulsion. If the conversation was recorded on the tape it was a
mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham(1)
it was said "It matters not how you get it if you steal it even, it would
be admissible in evidence".. As long as it is not tainted by an
inadmissible confession of guilt evidence even if it is illegally obtained is
There is no scope for holding that the
appellant was made to incriminate himself. At the time of the conversation
there was no case against the appellant. He was not compelled to speak or
confess. Article 21 was invoked by submitting that the privacy of the
appellant's conversation was invaded..
Article 21 contemplates procedure established
by law with regard to deprivation of life or personal liberty. The telephonic
conversation of an innocent citizen will be protected by Courts against
wrongful or high handed' interference by tapping the conversation. The
protection is not for the guilty citizen against the efforts of the police to
vindicate the law and prevent corruption of public servants. It must not be
understood that the Courts will tolerate safeguards for the protection of the
citizen to be imperiled by permitting the police to proceed by unlawful or
irregular methods. In the present case there is no unlawful or irregular method
in obtaining the tape recording of the conversation.
The second contention on behalf of the
appellant was that the entire tape recorded conversation is within the vice of
section 162 of the Criminal Procedure Code. In aid of that contention the oral
evidence of Mugwe, the Director of Intelligence Bureau was relied on. Mugwe
said that it was under his advice and instruction that Dr. Motwani starting
talking with the appellant and Dr. Adatia. Therefore, it was said that the tape
recording was (1)  8 Cox.C.C.498.
10-L498SupCI/73 428 in the course of
investigation. Sections 161 and 162 of the Criminal Procedure Code indicate
that there is investigation when the Police Officer orally examines a person.
The telephonic conversation was between Dr. Motwani and the appellant. Each
spoke to the other. Neither made a statement to the Police Officer. There is no
mischief of section 162.
The third contention was that the appellant
did not attempt an offence. The conversation was said to show bargain. The
evidence is that the patient died on 13 May, 1964. Dr.Motwani saw the appellant
on 3 October, 1964. The appellant demanded Rs. 20,000. The appellant asked for
payment of Rs.20,000 in order that Dr. Adatia would avoid inconvenience and
publicity in newspapers in case inquest was held. Dr.Motwani informed Dr.
Adatia about the conversation with the appellant. On 4 October, 1964 the
appellant rang up Dr.Motwani and said that he was willing to reduce the amount
to Rs. 10,000. On 5 October, 1964 Dr. Adatia received calls from the appellant
asking him to attend the Coroner's Court on 6 October, 1964. Dr. Adatia got in
touch with Dr.Motwani on 6 October and gave him that message. Dr. Adatia rang
up the appellant on 6 October and asked for adjournment. The appellant granted
the adjournment to 7 October. On 6 October there were two calls from the
appellant asking Dr. Adatia to attend the Coroner's Court on 7 October and also
that Dr. Adatia should contact the appellant on 6 October. Dr. Motwani rang up
the appellant and told him that the telephonic conversation had upset Dr.
Adatia. On 6 October Dr. Motwani conveyed to
Mugwe, Director of Intelligence Bureau about the demand of bribe to the
appellant. These are the facts found by the Court.
These facts prove that the offence was
The last contention on behalf of the
appellant was that the sentence of imprisonment should be set aside in view of
the fact that the appellant paid the fine of Rs. 10,000. In some cases the
Courts have allowed the sentence undergone to be the sentence. That depends
upon the fact as to what the term of the sentence is and what the period of
sentence undergone is. In the present case, it cannot be said that the
appellant had undergone any period of sentence. If it is said that the
appellant had heart attacks and therefore the Court should take a lenient view
about the sentence the gravity of the offence and the position held by the
appellant at the relevant time do not merit such consideration.
For these reasons, the appeal is dismissed.
The appellant will surrender to his bail and serve out the sentence.
S.C. Appeal dismissed.