Rationale:
This case clarifies the legal position about the
telephonic conversation illegally collected or obtained where Supreme Court
clarified that contemporaneous tape record of relevant conversation of relevant
fact is admissible as res gestae under Section 7 IEA, even if Section 25 of
Indian Telegraph Act is contravened
Facts of the case
1. Appellant in this case was the coroner of Bombay (coroner
is the term used for official who holds inquests into violent, sudden and
suspicious deaths) whereas complainants were Doctor Motwani (under whose
treatment patient was after operation) and Dr. Adatia (who performed the
operation).
2. Dr. Aditia was a gynaecologist who performed an operation
on the patient who later died. Appellant allowed the disposal of the body
without ordering post mortem. However, the request for inquest was raised by
police station on ground of death after operation.
3. Appellant coroner asked Dr. Motwani to ask Dr. Adatia to
pay a sum of Rs. 20,000. Dr. Adatia refused to pay any illegal gratification to
the appellant who later reduced the demand to 10,000 which was also refused by
Dr. Adatia.
4. Soon, appellant came into contact with Dr. Jadhav who was
superintendent of Bombay Hospital and conveyed to appellant that serious
injustice is done to Dr. Adatiya as the report made by coroner was wrong.
5. Dr, Motwani and Dr. Adatia lodges a complaint to
Anti-Corruption bureau against the appellant that he is asking for bribe to
make the correct report.
6. On repeated calls from appellant, Dr. Adatia conveyed it
to Dr. Motwani who confirmed the appellant on phone that Dr. Adatia had agreed
to pay the sum of Rs 10000. On the other side Dr. Motwani also called Mugwe who
was director of Anti-corruption cell who arranged the staff to be present near
Dr. Motwani's residence and also arranged tape recording devices for recording
the telephonic conversation.
7. Police officer Sawant came to Dr. Motwani's house where
Dr. Motwani and Dr. Adatia were present. On insistence of Mughwe a call was
connected to Appellant in presence of Mughwe and police officers. Further,
another call was connected to ask for appointment to discuss matter further.
All these conversations were recorded too.
8. At appointment, appellant raised the amount to Rs. 15000
stating that Rs. 5000 has to be paid to coroner's surgeon as his report also
need to be corrected.
9. Dr. Adatia paid Rs. 15000 to Dr. Motwani. Dr. Motwani
called appellant and informed him about the same. Appellant told him to keep
money with himself. Dr. Motwani took the money to appellant’s house where
appellant was not present and wife of appellant told him to pay money to her.
But, Dr. Motwani refused to pay the same saying that he had no instructions
regarding paying the money to her.
10. Dr. Motwani and police officer Sawant met at Dr.
Adatia's clinic and raiding party connected the telephone recording device with
Dr, Adatia's phone and then they called upon Appellant and Appellant told Dr.
Motwani to pay the amount via a letter stating that he was returning the money
he had taken loan from appellant at time of buying the flat.
11. Appellant then called to Mr. Motwani to come to his
residence to meet the person whom money is to be paid, but Mr. Motwani didn't
reach there. On the following day appellant tod Dr. Motwani that appointment
was cancelled as he didn't come there. Dr. Motwani informed about same to
police officer.
Contentions on behalf of appellant
1. The first contention was that the trial Court and the
High Court erect 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.
2. Secondly, the conversation between Dr. Motwani and the
appellant which was recorded on the tape took place during investigation in as
much as Mugwe asked Dr. Motwani to talk and therefore the conversation was not
admissible under section 162 of the Code of Criminal Procedure.
3. The third contention was that the appellant did not
attempt to obtain gratification.
4. 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.
Court Observations:
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.
Observation on Contention 1
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.
Observation on Contention 2
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 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.
Observation on Contention 3
Telephonic conversations between Dr. Motwani and Appellant;
Bargain of amount from 20000 to 10000 and the to 15000; repeated calls to Dr.
Adatia, Complaint made to Mughwe, recordings made of conversations were
sufficient to prove appellant attempt to obtain gratification.
Observation on Contention 4
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
Final Judgement:
Appeal was dismissed.
-Summary by Tushar Bawa
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