YUSUFALLI ESMAIL NAGREE versus THE STATE OF MAHARASHTRA

YUSUFALLI ESMAIL NAGREE

THE STATE OF MAHARASHTRA April 19, 1967 [M. HIDAYATULLAH, R. S. BACHAWAT AND C. A. VAIDiALINGAM, JJ.]

Indian Evidence Act, 1872 (Act 1 of 1872) ss. 7 ·and 8-Tape re• cording-Value-Code of Criminal Procedure, 1898 ( Act 5 of 1898) s. 162-Talk recorded on tape in seclusion with police decoy,-Pollce Officer in another room-If statement made to the police.

Constitution of India, Art. 20(3)-Police laid incriminating statement not knowing the trap-If protected,

trap-Person makes

On report of S, that the appellant had offered 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 microphone of tape re· corder was concealed and their conversation recorded. The Poliee offi· cers and the radio mechanic kept concealed in another room. S was tho 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 bet.ween 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 record· ing 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 photograph of relevant incident, cont.:mporaneous tape record of relevant conversation is 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 competent witness and the voices must be properly identified. One of. the features of magnetic tape re-cording 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, DJ

Rup Chand v. Mahabir Parshad and Anr. A.I.R. 1956 Punj. 173; Mahindra Nath v. Biswanath Kundu, 61 C.W.N. 191; approved.

S. Pratap Singh v. The Slate of Punjab,', (1964] 4 S.C.R, 733 and R. v. Maqs11d Ali, [1965] 2 All E.R. 464; .followed.

There. was other evidence showing thRt · the tape recording w~s not tamp~red with. The fact that the defence did not sugant any tamper· in~ lends assurance to the credibility of the other evidence. The courts below rightly held that the tape recorder faithfully recorded and repro· duced the actual conversation. The use of the stateme11ts of both S and the appellant when the trap was laid. was not barred by s, 162 of the

Code of Criminal Procedure. The appellant was not making state· ment 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 talk-ing to S. No doubt S was police decoy assisting the police in their investigation, but the statement of the appellant to S while making an-other offer of bribe cannot be regarded as statement ·by him to the police. Nor can the words uttered by S be regarded as 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 dialogue in which S and the appellant took part, Each spoke to the other. but neither made· statement to police officer. [724 H; 725 D·FJ

Ramkisha11 Mitlzan/al Sharma v. The State of Bombay, [1955) I 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 ground that by the active deception of the police, he was compelled to be . witness against himself. The appellant was not compelled to be witness against himself. He was free to talk or not to talk. His con-versation with S was voluntary. There was no element of duress, coer[4 ]cion 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 objec-tion to its admissibility in evidence. [726 B·D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 213 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 appeUant.

S. G. Patwardhan, R. N. Sachthey, S. 1'. Nayyar for R. H. Dhebar, for the respondent.

The Judgment of the Court was delivered by

~chawa~, J. I_n .this appeal, the appellant challenges the· legahty of his conv1cuon under s. 165-A of the Indian Penal Code. . H_is ~ife Rukhanbiri was the owner of the two house· properu.es. m wa~d of the Bombay Municipal Corporation. T~e bml.dmgs were m ruinous condi!ion and she was served "Ith noti~~s under s. 354 .of the Bombay Municipal Corporation Act requ1~mg ~er to repair and secure them. The notices were not comphc:d with a!Jd prosecutions under s. 471 of the Act were started aga1~st her 1n the Presidency magistrate's court. The su!11monses issued to her wl!re s.erved by affixation and on her failure to ~ppear in court bailable warrant for her arrest was 'Issued. One Munir Ahmed Shaikh notice clerk attached to 'F' ward building department of the Bombay Muni-

<:ipal 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, sum of Rs. 25 and on August 2, 1960, sum of Rs. 100 as bribe for not executing the war-rant. The· appellant started making approaches to· Shaikh from July l, 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 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 bribe' of Rs. 25 to Shaikh pn July 18, 1960 but Shaikh did not accept the bribe.On August 2, 1960 the appellant had telephone talk with .Shaikh and fixed an appointment at 'Shaikh's residep.ce in the -evening. Shaikh lodged complaint with the anti-corruption Bureau reporting the•offer of 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 trap. •On sofa in the outer room of Shaikh's residence he set up microphone which was connected to tape recorder in the inner room. The microphone was conce.aled behind books. Mahajan, radio mechanic. and other members of his party remained in the inner room. Shaikh stayed in the outer room. Tlfe outer room and the person of Shaikh were searched and no cash was found. At the appoin'.ed hour, the appellant came to Slfaikh'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-arrange? ·signal "Salim pan lao", Mahajan and oth:r members. of ~1s party entered the outer room and found the curren!ly notes m Shaikh's short pocket. The tape recorder was switched on as ·soon as the appellant arrived and was switched <?ff after the signal was given. 'D!e conversation between Shaikh and. the appellant was recorded m the tape recorder. The tape remamed in the custody of Mahajan. From the shorthand notes _m~de after the tape was replayed one Yakub prepared. . tr~scnptt~n of the conversation. The accuracy of the transcnption 1s adm~t­·ted. At the trial of the case, the tape recorder was played m -court.

The special judge for greater Bombay found the appellant guilty of the offence under s. 165-A of the Indian Peria! Code and sentenced him to simple . imprisonment for 18 months and fine of Rs. 500, in default further imprisonment for six months with the recommendation that he should be treated as class 1 prisonpr. 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 conourrently, and fine of Rs. 250 or in default rigorous im-prisonment for three months on each count. . Tli.e High Court declined 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 inde-pendent corroboration. The High Court found that Shaikh was substantially corroborated by Naik who had played the role of 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 con-ceded in the High Court that Naik had no animus for giving false evidence. The High Court found Naik to be 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 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 mochanic 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 h~ar the conversation, be!Ween Shaikh and the appellant. The High Court was not mchned to accept the evidence of Shaikh without corroboration. But the High Court found that his evidence was sufficiently corroborated by •he tape reoorder. 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 Indi!I!\ Evidence Act. The dialogue is proved .by Shaikh. The tape record of th~.qla;logue 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 photograph of 11 relevant incident, contemporaneous .tape record of relevant conversation is relevant fact and is admissible under s. 7 of the Indian Evidence Act.

In Rup Chand v. Mahabir Parshad and another('), tape record of fonner statemPnt of witness was admitted in evi-dence 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('). In S. Pratap Singh v;' The State of Pun· jab ( [3]), the tape re.cord of conversation was admitted in evi-dence, to corroborate the evidence of witnesses who had stated ihat such conversation had taken place. In R. v. Maqsud Ali(') tape record of 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 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 competent witness and the voices must be properly identified. One of the features of magc netic 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 r.~played. 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 ta!Cen place with the r.ecording. While admitting the accuracy of material parts of t~e ·conversation reproduced by the tape recorder, th~ appellant m his examination under s. 342 attempted to explain the conver· sation and the object of his visit and ·said that he had go~e to Shaikh's residence for obtaining repayment of loan of Rs. 100 which he had advanced to Shaikh on JUiy 19, 1960. The High _ Court rejected the appellant's explan~tions. Mr. Mistir was right in saying that the Htgh Court coulif not accept the mculpatory part and reject the exculpatory part of the appellant's answers

1[%~5J~~ii1l.~.464. ]

fl) A.1.R.1956)'uni. I73.

(3) [1964] 4 S.C:R. 733.

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 conver-sation.

The appellant had walked into pre-arranged trap. Mahajan and other police officers had hidden themselves in the inner room. Shaikh kiiew that the police officers were recording the conversa-tion 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 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 ,;md. the appellant met and talked. The evidence of the conversation was tendered at the trial of the offence ·committed on July 18, 1900 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 Procedure. We are not im-pressed with this argument. The appellant was not making 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 police decoy assisting the police in their investigation, but the statement of the appel-lant to Shaikh while making another offer of bribe cannot be regarded as statement by him to the police. Nor can the words uttered by Shaikh be regarded as 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 dialogue in which Shaikh and the appellant took part. Each spoke to the other, but neither made sta:tement to police officer. The case of Ramkishan Mithanlal Sharma v. The State of Bombay(') shows tha~ where identification parades are directed and supervised . by pohce o~cers and ~eld in their presence and the panch witnesses take mmor part m the matter, the statements of the identifiers may be regarded .as statements to the police officers. In the pre-sent case, the pohce officers set the stage for the drama in which the ac~ors we!e Shaikh and ,the appellant. The officers hid them-selves 11! the mner room and took no part in the drama. Neither of them can be regarded as having made statement to 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.

tion against the use of the· statements made· by the appellant on August 2, 1960. H~ argued that by the active deception of the police, the appellant was compelled to be. witness against him-self. Had the appellant known that the police had arranged ~ trap, he would not have talked as h~ did. Compulsion may take many forms. person accused of an offence may be subject to physical or mental torture. He may be starved or bJlllten and 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 compell-ed to make an incriminating statement. But we cannot say that in this case the appellant was compelled to be witness against himself. He was free to talk or not td 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 catt· not claim the protection of Art. 20(3 ). The fact that tho tape recording was done without his knowledge is not of . itself . an objpction to its admissibility in evidence. In saying so, the Court does not lend its approval tO the police practice of tapping tele-phone 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 plead-ed 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. Hav-mg r~ard to these and other circumstances, we reduce the sub-stantive sentence of imprisonment to the period of imprisonment already undergone by him. With this modification of ~he sen-tence, the appeal is dismissed.

Appeal dismissed.