Case Brief
Name of Court: Allahabad High Court, Lucknow Bench
Parties: Mahant Prasad Ram Tripathi @ M.P.R. Tripathi v. State of U.P. thru C.B.I. / A.C.B., Lucknow & Anr.
Case No.: Criminal Revision No. 935 of 2023
Date of Order: 23.08.2023
Bench: Hon’ble Subhash Vidyarthi J.
Topic: Recording illegally obtained can be considered as valid evidence
Facts: X alleged that Y demanded bribe from X on behalf of Z for payment of certain bills. X filed a complaint against Y (co-accused) and Z (co-accused in trial and revisionist in this case) based on which the Central Bureau of Investigation (Respondent No. 1 – ‘CBI’) registered a case under the Prevention of Corruption Act, 1988.
CBI recorded a telephonic conversation between Y and Z wherein the following was recorded:
- Y told Z on the phone that “Haider had come and he has paid the amount of 6%”,
- Z acknowledged Y’s statement with a mere “yes”,
- When Y tried to carry the conversation forward, Z forbade him to talk on the issue and asked him to talk in the office.
Z filed an application for his discharge on the ground that the telephonic conversation recorded on the digital recorder was not admissible in evidence, but the learned trial court rejected the application. Aggrieved by the order rejecting his application for discharge, Z filed the instant petition.
Issue: Whether telephonic conversation recorded without the consent of Y and Z is admissible in evidence?
Law:
- Section 5, Indian Telegraph Act deals with power for Government to take possession of licensed telegraphs and to order interception of messages
- Rule 419, Indian Telegraph Rules, 1951 deals with interception or monitoring of telephone messages
Analysis:
Counsel for Z (Revisionist) made the following submissions:
- Z relied on Sec. 5 of the Indian Telegraph Act and Rule 419 of the Indian Telegraph Rules
- Interception of telegraph messages are allowed only in certain contingencies only, and that too under the orders of the Government
- There was no government order in the instant case
- Interception of telephonic conversation between Y and Z was wholly illegal
- Telephone conversation between Y and Z was recorded in an illegal manner cannot be admitted in evidence in support of the prosecution case
- Z relied on the following cases:
- PUCL v. UoI & Anr. [(1997) 1 SCC 301]: dealt with tapping of politicians’ phones by the CBI
- Sanjay Pandey v. Directorate of Enforcement [2022 SCC OnLine Del 4299): dealt with tapping phone lines or recording calls without consent being a breach of privacy
- Rayala M. Bhuvaneswari v. Nagaphanender Rayala (AIR 2008 AP 98): dealt with the act of tapping the conversation of wife by husband
Counsel for CBI (Respondent No. 1) made the following submissions:
- Recording of conversation between two persons without interfering in the communication system will not amount to interception of the messages.
- Recording of telephonic conversation between two accused persons is not the sole evidence relied upon by the prosecution against Z
- There is other evidence including the statement of Y and some independent persons
- The conversation in question was made between Y and Z through their mobile phone. Y was directed by the CBI officials to make a phone call to Z and make a conversation with him regarding the payment of bribe. The communication between the mobile phone devices of Y and Z was received by putting the mobile phone of Y on speaker mode and it was recorded in another device called ‘digital voice recorder’. The way in which the conversation between Y and Z was recorded does not fall within the meaning of the term ‘interception’.
Conclusion:
The court made the following observations:
- The provisions of law regarding interception of telephonic communication would not apply to the facts of this case as the action of recording the call recording between Y and Z was not by way of interception.
- The court relied on the following judgements:
- State v. N.M.T. Joy Immaculate [(2004) 5 SCC 729]: The Supreme Court held that “The admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. The Evidence Act or the Code of Criminal Procedure or for that matter any other law in India does not exclude relevant evidence on the ground that it was obtained under an illegal search and seizure… If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence… So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out…”
- State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600]: The Supreme Court held that “Section 5(2) of the Telegraph Act or Rule 419-A does not deal with any rule of evidence. The non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility…There is warrant for the proposition that even if evidence is illegally obtained it is admissible…”
- Gayatri Prasad Prajapati vs. Directorate of Enforcement [2023 SCC OnLine All 376]: dealt with the requirements to be kept in mind while framing charges and considering an application of discharge of accused persons.
- The Court made the following observations in respect of the citations relied upon by the Counsel for Z (Revisionist)
- PUCL v. UoI & Anr. [(1997) 1 SCC 301]: The question of admissibility of an intercepted telephonic conversation in evidence was not raised before the Hon’ble Supreme Court, and this question was not decided in PUCL case. Therefore, the PUCL case is not an authority for adjudging the admissibility of a telephonic conversation allegedly intercepted without following the due process of law.
- Sanjay Pandey v. Directorate of Enforcement [2022 SCC OnLine Del 4299)] and Rayala M. Bhuvaneswari v. Nagaphanender Rayala [AIR 2008 AP 98] have not taken into consideration the judgements of the Supreme Court and therefore, are not binding precedents.
- The court held that “…whether the telephonic conversation between the two accused persons was intercepted or not and whether it was done legally or not, would not affect the admissibility of the recorded conversation in evidence against the applicant…”
The revision petition was accordingly dismissed as the court was of the opinion that there was no illegality in the order rejecting the discharge application filed by Z.
By – Divya R, Trainer & External Member, Chief Research & Development Officer