MANU/SC/0204/1972

Equivalent/Neutral Citation: AIR1973SC 157, 1973C riLJ228, 1972 INSC 234, 1973MhLJ92, 1973MPLJ224(SC ), (1973)1SC C 471,
(1973)SC C (C ri)399, [1973]2SC R417

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 229 of 1969
Decided On: 22.09.1972
R.M. Malkani Vs. State of Maharashtra
Hon'ble Judges/Coram:
A.N. Ray and I.D. Dua, JJ.
Case Note:
Criminal - evidence of tape recorded conversation - Section 7, 8, 146 and 153
of Indian Evidence Act, 1872 and Section 25 of Telegraph Act, 1885 -
evidence of tape recorder telephonic conversation challenged - witness
permitted to record telephonic conversation he had with accused - in such
case evidence cannot be challenged on ground that it violates Section 25 of
Telegraph Act.

JUDGMENT
A.N. Ray, J.
1 . 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 payment
of fine, further simple imprisonment for six months.
2. The appellant was at the crucial time the Coroner of Bombay. The prosecution case
was as follows. Jagdishprasad Ramnarayan Khandelwal was admitted to the nursing
home of a Gynaecologist 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 ileum. 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 "paralytic
ileus and peritonitis following an operation for acute appendicitis".
3. 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

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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.
4 . 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.
5 . On 4 October the appellant got in touch with Dr. Jadhav. Superintendent of the
Bombay Hospital to find out if the cause of death given in the Hospital Card could be
substantiated. 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 appellant.
6. 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. Mugwe
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.
7. 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 men 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 rang 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 Dr. Adatia Dr. Motwani was asked by
Mugwe to ring up the appellant and ask for 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.
8. 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
be paid to Coroner's Surgeon for giving an opinion in favour of Dr. Adatia. The

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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 a while. Dr.
Adatia then told the appellant that he would pay the appellant Rs. 15.000 on 9 October,
1964.
9 . 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.
10. 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 dialed 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.
1 1 . 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.
12. Mugwe then ordered an open investigation into the case.
13. 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 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.
14. The appellant denied that he demanded any amount through Dr. Motwani. He also
denied that he threatened Dr. Adatia of the consequence of an inquest.
15. Four questions were canvassed in this appeal. The first contention was that the trial
Court and the High Court erred 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

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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 CrPC. 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.
16. 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 any one 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 Under Section 25 of the Indian Telegraph Act.
17. 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
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 waves, galvanie, electric or magnetic means.
18. 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.
19. 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.
20. 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

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said to intercept any message or damage or tamper or remove or touch any machinery
within the meaning of Section 25 of the Indian Telegraph Act. The reason is that the
Police Officer instead of hearing directly the oral conversation between Dr. Motwani and
the appellant recorded the conversation with the device of the tape recorder. The
substance of the offence Under Section 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 message. Where a person talking on the
telephone allows another person to record it or to hear it it can-not 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 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
point.
21. This Court in Shri N. Sri Rama Reddy etc. v. Shri V. V. Giri MANU/SC/0333/1970 :
[1971]1SCR399 , Yusufalli Esmail Nagree v. The State of Maharashtra
MANU/SC/0092/1967 : 1968CriL J103 and S. Pratap Singh v. The State of Punjabi
MANU/SC/0272/1963 : (1966)ILL J458SC 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.
2 2 . 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 denied 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 MANU/SC/0333/1970 :
[1971]1SCR399 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.
23. 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 gestate . 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.
24. 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

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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
s[1870] 34 J.P. 759. The Judicial Committee in Kuruma, Son of Kanju v. R. [1955] A.C.
197 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.
2 5 . This Court in Magraj Patodia v. R. K. Birla and Ors. MANU/SC/0322/1970 :
[1971]2SCR118 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.
26. 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 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
behavior 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.
27. 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 [1965] 2 AII.
E.R. 464. 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

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eavesdropper". The Courts often say that detection by deception is a form of police
procedure to be directed and used sparingly and with circumspection.
2 8 . 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.
29. 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 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.
30. 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 [1861] 8 Cox. C.C. 498 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 admissible.
31. 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.
32. 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.

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There is no mischief of Section 162.
3 3 . 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 committed.
3 4 . 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.
35. For these reasons, the appeal is dismissed. The appellant will surrender to his bail
and serve out the sentence.
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