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PETITIONER: YUSUFALLI ESMAIL NAGREE

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 19/04/1967

BENCH: BACHAWAT, R.S. BENCH: 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 offi- cers 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

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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]

JUDGMENT: 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

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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  anti- corruption  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  admit- ted.  At the trial of the case, the tape recorder was played in  court.

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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  per- sons  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

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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

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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 Constitu- (1)  [1955] S.C.R.903,922-23. 726 tion 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

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dismissed. 727