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PETITIONER: R.   M. MALKANI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT22/09/1972

BENCH: RAY, A.N. BENCH: RAY, A.N. DUA, I.D.

CITATION:  1973 AIR  157            1973 SCR  (2) 417  1973 SCC  (1) 471  CITATOR INFO :  R          1986 SC   3  (30,147,219)  F          1987 SC1748  (20)

ACT: Indian  Penal  Code-ss.  161, 385, 420  read  with  s.  511- Appellant  charged  for attempted bribery along  with  other charges-Conversation  between  appellant  and  witness  tape recorded-Whether  admissible  in evidence  Indian  Telegraph Act-S. 25-Scope.

HEADNOTE: The  appellant, the Corner of Bombay, was charged  under  s. 161,  385  and 420 read with s. 511 of the I.P.C.,  for  the alleged offences including attempting to obtain a bribe from a  doctor  who performed an operation but the  patient  died subsequently. The High Court convicted the appellant under s. 161 and  385 of the I.P.C. and sentenced him accordingly. Four  questions  were canvassed before this Court:  (1)  The Trial  Court  and  the High Court  erred  in  admitting  the evidence  of  the telephonic conversation between Dr.  M.  a witness  and the appellant which was recorded on  the  tape. The  evidence was illegally obtained in contravention of  s. 25 of the Indian Telegraph Act, and therefore, the  evidence was inadmissible; (2) The conversation between Dr. M and the appellant  which was recorded on the tape took place  during investigation,  inasmuch  as  the  Director  of  the   Anti- corruption Branch asked Dr. M. to talk to the appellant  and therefore, the conversation was not admissible under s., 162 of the Cr.  P.C.; (3) That the appellant did not attempt  to obtain  gratification;  and  (4) That the  sentence  of  six months’ imprisonment should be interferred with because  the appellant has already paid Rs. 10,000/ as fine.  The  appel- lant,  suffered heart attacks, and therefore,  the  sentence should be reduced. Dismissing the appeal, HELD  : (i) There was no violation of the  Indian  Telegraph Act. The substance of the offence under S. 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 massage.  Where a  person talking on the telephone allows another person  to

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record  it  or  hear it, it cannot be said  that  the  other persons  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.   Therefore, the High Court’s observation that the telephone call put  by Dr. M. to the appellant was tapped by the Police Officer and that  there was violation of s. 25 of the  Indian  Telegraph Act, is erroneous. (ii) 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-recorder. The  tape-recorded  conversation is, therefore,  a  relevant fact  under section 8 of the Evidence Act and is  admissible under s. 7 of the Evidence Act. [424 F] 418 N.   Srirama  Raddy v. Shri V. V. Giri [1971] 1 S.C.R.  399; Yusaf Ali lsmail    Nagri  v.  The  State  of   Maharashtra, [1967] 3 S.C.R. 720 and S. Pratap  Singh v. State of  Punjab [1964] 4 S.C.R. 733, referred to. (iii) The tape-recorded conversation is not within the  vice of s. 162 of Cr.  P. C. It was said that the  tape-recording was  in the course of investigation.  S. 161 and 162 of  the Cr.P.C. indicate that there is investigation when the police officer  orally  examine  a  person.   The  telephonic  con- versation was between Dr. M and the appellant, Each spoke to the other.  Neither made a statement to the police  officer. Therefore, there was no mischief of s. 1 62. [427 H] (iv) It  is  also  not correct that the  appellant  did  not attempt  an  offence.   The conversation was  said  to  show bargain.  The evidence is that the patient died on the  13th May 1964.  Dr. M saw the appellant on 3rd October 1964.  The appellant  demanded Rs. 20,000/- in order that Dr.  A  could avoid  inconvenience  and publicity in papers, in  case  the inquest  was  field.  Further, it was also proved  that  the appellant bargained land lowered his demand to Rs.  10,000/- and then again raised to Rs. 15,000/-.  These facts together with  other  facts found by the courts to  be  correct  anti these facts prove that the offence was committed. (v)  The   appellant’s  contention  that  the  sentence   of imprisonment should be set aside in view of his payment of a fine  of  Rs. 10,000/- it is true that in  some  cases,  the Courts  have  allowed  the  sentence  undergone  to  be  the sentence.   That depends upon the facts 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.  Further the  gravity  of the offence and the position  held  by  the appellant  at  the relevant time. do not merit  any  lenient view about the sentence.

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION : Criminal Appeal  229  of 1969. Appeal  by  certificate from the judgment  and  order  dated October 9, 1969 of the Bombay High Court in Cr.  A. No.  727 of 1967. B.   M. Mistry and Vineet Kumar, for the M.   C.  Bhandare and B. D. Sharma and S. P. Nayar, for  the

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respondent. The Judgment of the Court was delivered by RAY, J.-This is an appeal by certificate, from the  judgment dated 8 and 9 October, 1969 of the High Court at Bombay con- victing  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 payments  of  fine,  further simple imprisonment for six months. 419 The appellant was at the crucial time the Coroner of Bombay. The  prosecution case was as follows.  Jagdish  prasad  Ram- narayan  Khandelwal  was admitted to the nursing home  of  a Gynecologist  Dr. Adatia on 3 May, 1964.  Dr.  Adatia  diag- nosed  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  ilium.   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". 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  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. 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 On  4  October the appellant got in touch with  Dr.  Jadhav. Superintendent  of  the Bombay Hospital to find out  if  the cause of 420 death  given  in the Hospital Card could  be  substantiated. Dr.  Motwani told Dr. Jadhav on the same day that  incorrect

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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. 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.  Must we 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. 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  then  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 ran,,  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 Di.  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, 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 he  paid to Coroner’s Surgeon for giving an opinion in favour of  Dr. Adatia.  The 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 lie would  pay  the appellant Rs. 15,000 on 9 October, 1964. 421 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. The Police Officers and Dr. Motwani met at the residence  of Dr.  Adatia at about 4 p.m. The raiding party connected  the

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tape  recorder  to the telephone mechanism of  Dr.  Motwani. Dr..  Motwani dialled 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. 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. Mugwe then ordered an open  investigation into the case. 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 422 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. The appellant denied that he demanded any amount through Dr. Motwani.  He also denied that he threatened Dr.  Adatia  (if the consequence of an inquest. Four  questions  were canvassed in this appeal.   The  first contention  was  that  the trial Court and  the  High  Court errect   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. 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 Code of Criminal Procedure.   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. 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

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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 tinder section 25  of the Indian Telegraph Act. 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                             423 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 wave s, galvanic, electric or magnetic means. 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  tele- phone,  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. 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. 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 said  to  intercept  any message or within  the  meaning  of section  25  of the The reason is that  the  Police  Officer instead  the oral conversation between Dr. Motwani  recorded the conversation with the device of the The substance of the offence  under  section  graph Act  is  damaging,  removing, tampering, touching  battery line  or post for  interception or  acquainting oneself with  damage or remove or touch  any machinery   Indian Telegraph Act.  of hearing directly   and the  appellant   tape  recorder.   25  of  the  Indian  Tele machinery  the  contents  of any message.   Where  a  person talking on the telephone allows another person to record  it or to hear it it cannot 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. 424

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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. This  Court  in Shri N. Sri Rama Reddy etc. v.  Shri  V.  V. Giri(1),   Ysufalli   Esmail   Nagree  v.   The   State   of Maharashtra(2)  ,and  S.  Pratap  Singh  v.  The  State   of Punjab(3)  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. 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 defied  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(4) 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. 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. (1) [1971] 1 S C. R. 399. (2) [1967] 3 S.C.R. 720 (3) [1964] 4 S.C.R. 733. 425 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.  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(6).  The Judicial Committee in Kur ma, Son of  Kanju

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v. R.(7) 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. This Court in Magraj Patodia v. R. K. Birla & Ors.(3)  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. 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 (1)  [1870] 34 J.P. 759. (2) [1955] A.C. 197. (3).   A.I.R. [1971] S.C. 1295. 426 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 behaviour 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. 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(1). 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

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detection  of  crime.  The only difference here was  that  a mechanical  device was the eavesdropper".  The Courts  often say  that  detection  by  deception  is  a  form  of  police procedure  to  be  directed  and  used  sparingly  and  with circumspection. 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. 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 (1) [1965] 2 All.  E.R. 464. 427 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. 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(1) 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. 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. 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

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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 (1) [1861] 8 Cox.C.C.498. 10-L498SupCI/73 428 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. 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. 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. For  these reasons, the appeal is dismissed.  The  appellant will surrender to his bail and serve out the sentence. S.C.                     Appeal dismissed. 429