Yusufalli Esmail Nagree Vs. The State of
Maharashtra [1967] INSC 114 (19 April 1967)
19/04/1967 BACHAWAT, R.S.
BACHAWAT, R.S.
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 147 1967 SCR (3) 720
CITATOR INFO:
R 1971 SC1162 (15,20,22) R 1973 SC 157
(21,26) RF 1975 SC1788 (20) R 1986 SC 3 (28,144,146)
ACT:
Indian Evidence Act, 1872 (Act 1 of 1872) ss.
7 and 8-Tape recording-Value-Code of Criminal Procedure, 1898 ( Act 5 of 1898)
s. 162-Talk recorded on tape in seclusion with police decoy,-Police Officer in
another room-If statement made to the police.
Constitution of India, Art. 20(3)-Police laid
trap-Person makes incriminating statement not knowing the trap-If protected.
HEADNOTE:
On report of S, that the appellant had
offered a bribe to 'him, which S did not accept, the Police laid a trap. S
called the appellant at his residence and in the room where they alone were
present, the appellant handed over the bribe to S. In the room a microphone of
'a tape recorder was concealed and their conversation recorded. The Police officers
and the radio mechanic kept concealed in another room.
S was the only eye-witness to the offer of
the bribe and the tape was kept in the custody of the police inspector but was
not sealed. The appellant was convicted under s. 165A I.P.C., which the High
Court upheld. In appeal, this Court :HELD: The conviction must be upheld.
The contemporaneous dialogue between the
appellant and S formed part of the' res gestae and is relevant and admissible
under s. 8 of the Indian Evidence Act. The dialogue is proved by S. The tape
record of the dialogue corroborates his testimony. The process of tape
recording offers an accurate method of storing and later reproducing sounds.
The imprint on the magnetic tape is the direct effect of the relevant sounds.
Like a photograph of a relevant, incident, a contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible under s. 7 of the Indian
Evidence Act. The time and place and accuracy of the recording must be proved
by a competent witness and the voices must be properly identified. One of the
features of magnetic tape recording is the ability to erase and re-use the
recording medium. Because of this facility of erasure and re-use, the evidence,
must be received with caution. The court must be satisfied beyond -reasonable
doubt that the record has not been tampered with. [723 H-724 B, D] Rup Chand v.
Mahabir Parshad and Anr. A.I.R. 1956 Punj.
173; Mahindra Nath v. Biswanath Kundu, 67
C.W.N. 191;
approved.
S. Pratap Singh v. The State of Punjab,
[1964] 4 S.C.R.
733 and R. v. Maqsud Ali, [1965] 2 All E.R.
464; followed.
There was other evidence showing that the
tape recording was not tampered with. The fact that the defence did not suggest
any tampering lends assurance to the credibility of the other evidence. The
courts below rightly held that the tape recorder faithfully recorded and
reproduced the actual conversation. The use of the statements of both S and the
appellant when the trap was laid, was not barred by s. 162 of the 721 Code of
Criminal Procedure. 'The appellant was not making a statement to the
sub-inspector of police or to any other police officer. He was not even aware
that any police officer was listening to him. He was talking to S. No doubt S
was a police decoy assisting the police in their investigation, but the
statement of the appellant to S while making another offer of a bribe cannot be
regarded as a statement by him to the police. Nor can the words uttered by S be
regarded as a statement to the police. S was talking to the appellant. He knew
that what he said was being recorded for subsequent use by the police officers.
But he was not speaking to any police
officer. There was a dialogue in which. S and the appellant took part. Each
spoke to the other, but neither made a statement to a police officer. [724 H;
725 D-F] Ramkishan Mithanlal Sharma v. The State of Bombay, [1955] 1 S.C.R.
903, 922-23; referred to.
The appellant was not right in claiming
protection under Art. 20(3) of the Constitution against the use of the
statement made by him on the ,-,round that by the active deception of the
police, he, was compelled to be a witness against himself The appellant was not
compelled to be a witness against himself. He was free to talk or not to talk.
His conversation with S was voluntary. There was no element of duress, coercion
or. compulsion. His statements were not extracted from him in an oppressive
manner or by force or against his wishes. The fact that the, tape recording was
done without his knowledge is not of itself an objection to its admissibility
in evidence. [726 B-D]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No213 of 1963.
Appeal by special leave from the judgment and
order dated' July 2, 3, 1963 of the Bombay High Court in Criminal Appeal, No.
1243 of 1962.
B. M. Mistry, Jatendra Mahajan, and J. B.
Dadachanji, for the appellant.
S. G. Patwardhan, R. N. Sachthey, S. P.
Nayyar for R. H.Dhebar, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J. In this appeal, the appellant challenges the legality of his
conviction under S. 165-A of the Indian Penal Code. His wife Rukhanbai was the
owner of the two house properties in 'F' ward of the Bombay Municipal
Corporation.. The buildings were in a ruinous condition and she was served with
notices under S. 354 of the Bombay Municipal Corporation Act requiring her to
repair and secure them. The notices were not complied with and prosecutions
under S. 471 of the Act were started against her in the Presidency magistrate's
court. The summonses issued to her were served by affixation and on her failure
to appear in court a bailable warrant for her arrest was issued. One Munir
Ahmed Shaikh, a notice clerk attached to 'F' ward building department of the
Bombay Muni-722 cipal Corporation, was entrusted with the duty of serving the
warrant. The charge against the appellant was that he offered to Shaikh on July
18, 1960, a sum of Rs. 25 and on August 2, 1960, a sum of Rs. 100 as a bribe
for not executing the warrant. The appellant started making approaches to
Shaikh from July 1, 1960. Shaikh reported the matter to the municipal commissioner
who directed N. W.
Naik to investigate into the matter. Naik was
the administrative, officer of the corporation in charge of investigation of
complaints regarding corruption, bribery and other malpractices. Over the
telephone Shaikh arranged a meeting with the appellant in the evening of July
18, 1960 at the office of the India Metal Co., of which one A. M. Karachiwala
was the proprietor. Naik under the assumed name of C. J. Mehta went with Shaikh
to the office of the India Metal ,Co. In the presence of Naik, the appellant
offered a bribe of Rs. 25 to Shaikh on July 18, 1960 but Shaikh did not accept
the bribe.
On August 2, 1960 the appellant had a
telephone talk with Shaikh and fixed an appointment at 'Shaikh's residence in
the evening. Shaikh lodged a complaint with the anticorruption Bureau reporting
the offer of a bribe of Rs. 25 on July 18 and the appointment at his residence
in the evening_ of August 2. After the complaint was recorded, S. G. S. I.
Mahajan obtained the necessary permission from the Chief Presidency magistrate
to investigate into the offence.
Mahajan decided to lay a trap. ,On a sofa in
the outer room of Shaikh's residence he set up a microphone which was connected
to a tape recorder in the inner room The microphone was concealed behind books.
Mahajan, a radio mechanic and other members of his party remained in the inner
room. Shaikh stayed in the outer room. The outer room and the person of Shaikh
were searched and no cash was found. At the appointed hour, the appellant came
to Shaikh's residence and was received by Shaikh in the Outer room. Shaikh and
the appellant had an intimate conversation. The appellant offered :a bribe to
Shaikh, produced ten currency notes of Rs. 10 each and gave them to Shaikh.
When Shaikh gave the pre-arranged signal "Salim pan lao", Mahajan and
other members of his party entered the outer room and found the currency notes
in Shaikh's short pocket. The tape recorder was switched on as :Soon as the
appellant arrived and was switched off after the signal was given. The
conversation between Shaikh and the appellant was recorded in the tape
recorder. The tape remained in the custody of Mahajan. From the shorthand notes
made after the tape was replayed one Yakub prepared a transcription of the
conversation. The accuracy of the transcription is admitted. At the trial of
the case, the tape recorder was played in court.
723 The special judge for greater Bombay
found the appellant guilty of the offence under S. 165-A of the Indian Penal
Code and sentenced him to simple imprisonment for 18 months and a fine of Rs.
500, in default further imprisonment for six months. with the recommendation
that he should be treated as class 1 prisoner. Karachiwalla, the proprietor of
India Metal Co., at whose office the bribe of Rs. 25 was offered was charged at
the trial with aiding and abetting the commission of the offence under S.
165-A, but was acquitted. The appellant preferred an appeal to the High Court.
At the commencement of 'the appeal he waived formal notice for enhancement of
the sentence. The High Court convicted the appellant under s. 165-A on both
counts of the charge separately and sentenced him to rigorous imprisonment for
one year on each count, the sentences to run concurrently, and a fine of Rs.
250 or in default rigorous imprisonment for three months on each count. The
High Court decline& to recommend class 1 to the appellant. Subject to this
modification of the sentence, the appeal to the High Court was dismissed. The
appellant has filed this appeal by special leave.
With regard to the incident of July 18, 1960
the High Court was not inclined to accept the evidence of Shaikh without
independent corroboration. The High Court found that Shaikh was substantially
corroborated by Naik who had played the role of a detective. Mr. Mistry argued
that Naik was an accomplice and his evidence should not be accepted without
corroboration. It is not right to say that Naik was an accomplice. He did not
provoke or participate in any crime.
The defence counsel conceded in the High
Court that Naik had no animus for giving false evidence. The High Court found
Naik to be a reliable witness and worthy of credit and we see no ground for
reviewing this conclusion and the concurrent finding of the courts below that
the charge of the offer of a bribe by the appellant to Shaikh on July 18, 1960
was proved.
Shaikh was the only eye-witness to the offer
of the bribe on August 2, 1960. Mahajan the radio mechanic and other persons
who kept themselves concealed in the inner room of Shaikh's residence did not
witness the offer of the bribe, nor did they hear the conversation between
Shaikh and the appellant. The High Court was not inclined to accept the
evidence of Shaikh without corroboration. But the High Court found that his
evidence was sufficiently corroborated by the tape recorder. The appellant
handed over Rs 100 to Shaikh on August 2, 1960. The contemporaneous dialogue
between them formed part of the res gestae and is relevant and admissible under
S. 8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape
record of the dialogue corroborates his testimony. The process 72 4 of. tape,
recording offers an accurate method of storing and later reproducing sounds.
The imprint on the magnetic tape is the direct effect of the relevant sounds.
Like a photograph of a relevant.incident, a contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible under s. 7 of the Indian
Evidence Act.
In Rup Chand v. Mahabir Parshad and
another(1), a tape record of a former statement of a witness was admitted in
evidence to shake the credit of the witness under s. 155(3) of the Indian
Evidence Act. The case was followed in Manindra Nath v. Biswanath Kundu(2). In
S. Pratap Singh v. The State of Punjab(1), the tape record of a conversation
was admitted in evidence, to corroborate the evidence of witnesses who had
stated that such a conversation had taken place. In R. v. Maqsud Ali(4) a tape
record of a conversation was admitted in evidence, though the only witness who
overheard it was not conversant with the language and could not make out what
was said. If a statement is relevant, an accurate tape record of the statement
is also relevant and admissible. The time and place and accuracy of the
recording must be proved by a competent witness and the voices must be properly
identified. One of the features of magnetic tape recording is the ability to
erase and re-use the recording medium.
'Because of this facility of erasure and
re-use, the evidence must be received with caution. The court must be satisfied
beyond reasonable doubt that the record has not been tampered with.
The radio mechanic did not hear the
conversation but he proved that the tape recorded all the sounds produced in
the room where only Shaikh and the appellant were present. The voices of the appellant
and Shaikh were properly identified.
The tape was not sealed and was kept in the
custody of Mahajan. The absence ,of sealing naturally gives rise to the
argument that the recording medium might have been tampered with before it was
replayed. However, it was not suggested either in the cross examination of the
prosecution witnesses or in the answers under s. 342, Criminal Procedure Code,
that any tampering had taken place with the Recording. While admitting the
accuracy of material parts of the conversation reproduced by the tape recorder,
the appellant in his examination under s. 342 attempted to explain the
conversation and the object of his visit and-said that-tie had gone to Shaikh's
'residence for obtaining repayment of a loan of Rs. 100 which he had advanced
to Shaikh on July 19, 1960. The High Court rejected the appellant's
explanations. Mr. Mistry was right in saying that the High Court could-not
accept the inculpatory ,part and reject the exculpatory part of the appellant's
answers 2,1.5 (1) A.I.R. 1956 Punj. 173.
(3) [1964] 4 S.C.R. 733.
(2) 67 C.W.N. 191.
(4) [1965] 2 All E.R. 464.
72 5 under S. 342. But there was other
evidence showing that the tape recording 'was not tampered with. The fact that
the defence did not suggest any tampering lends assurance to the credibility of
the other evidence. The courts below rightly held that the tape recorder
faithfully recorded and reproduced the actual conversation.
The appellant had walked into a pre-arranged
trap. Mahajan and other police officers had hidden themselves in the inner
room. Shaikh knew that the police officers were recording the conversation and
was naturally on his guard while talking to the appellant. The appellant was
not aware of the presence of the police officers. He was lulled into a sense of
security and was off his guard. The offence of the attempt to bribe Shaikh on
July 18, 1960 had already been committed and reported to the police and was
under investigation on August 2, 1960 when Shaikh and the appellant met and
talked. The evidence of the conversation was tendered at the trial of the
offence committed on July 18, 1960 and of the connected offence committed on
August 2, 1960. Mr. Mistry argued that in these circumstances, the use of the
statements of both Shaikh and the appellant on August 2, 1960, was barred by S.
162 of the Code of Criminal Procedure. We are not impressed with this argument.
The appellant was not making a statement to Mahajan or to any other police
officer. He was not even aware that any police officer was listening to him. He
was 'talking to Shaikh.
No doubt Shaikh was a police decoy assisting
the police in their investigation, but the statement of the appellant to Shaikh
while making another offer of a bribe cannot be regarded as a statement by him
to the police. Nor can the words uttered by Shaikh be regarded as a statement
to the police. Shaikh was talking to the appellant. He knew that what he said
was being recorded for subsequent use by the police officers. But he was not
speaking to any police officer. There was a dialogue in which Shaikh and the
appellant took part. Each spoke to the other but neither made a statement to a
police officer. The case of Ramkishan Mithanlal Sharma v. The State of
Bombay(1) shows that where identification parades are directed and supervised
by police, officers and held in their presence and the panch witnesses take a
minor part in the matter, the statements of the identifiers may be regarded as
statements to the police officers. In the present case, the police officers set
the stage for the drama in which the actors were Shaikh and the appellant. The
officers hid themselves in the inner room and took no part in the drama.
Neither of them can be regarded as having made a statement to a police officer
as contemplated by S. 162.
Counsel claimed protection under Art. 20(3)
of the Constitution (1) [1955] S.C.R.903,922-23.
726 against the use of the statements made by
the appellant on August 2, 1960. He argued that by the active deception of the
police, the appellant was compelled to, be a witness against himself. Had the
appellant known that the police had arranged a trap, he would not have talked
as he did.
Compulsion may take many forms. A person
accused of an offence may be subject to physical or mental torture. He may be
starved or beaten and a confession may be extorted from him. By deceitful means
he may be induced to believe that his son is being tortured in an adjoining
room and by such inducement he may be compelled to make an incriminating
statement. But we cannot say that in this case the appellant was compelled to
be a witness against himself. He was free to talk or not to talk. His
conversation with Shaikh was voluntary. There was no element of duress,
coercion or compulsion. His statements were not extracted from him in an
oppressive manner or by force or against his wishes. He cannot claim the
protection of Art. 20(3). The fact that the tape recording was done without his
knowledge is not of itself an objection to its admissibility in evidence. In
saying so, the Court does not lend its approval to the police practice of
tapping telephone wires and setting up hidden microphones for the purpose of
tape recording.
The High Court rightly convicted the
appellant of the offence under s. 165A of the Indian Penal, Code. Counsel
pleaded for reduction of the sentence. The appellant is sixty years old. He is
suffering from cardiac troubles. He was removed to jail from the hospital in an
ambulance on July 29, 1963. He remained in jail until December 12, 1963 when he
was released on bail. Having regard to these and other circumstances, we reduce
the substantive sentence of imprisonment to the period of imprisonment already
undergone by him. With this modification of the sentence, the appeal is
dismissed.
Y.P. Appeal dismissed.
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