The Supreme Court of India in R.M. Malkani Vs. State of Maharashtra, AIR 1973 SC 157 : 1973 (2) SCR 417 : (1973) 1 SCC 471 : 1973 SCC (Cri) 399 held that where a person talking on the telephone allows another person to 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.
A bench comprising of RAY, A.N. AND DUA, I.D. JJ. observed that there was no element of coercion or compulsion in attaching the tape-recorder to the telephone.
The appellant, the Coroner 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.
While dismissing the appeal, the Apex Court held that 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.
Therefore, the High Court’s observation that the telephone call put by Dr. Motwani to the appellant was tapped by the Police Officer and that there was violation of s. 25 of the Indian Telegraph Act, is erroneous.
Tape Recorded Conversation
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.
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 conversation was between Dr. Motwani and the appellant, Each spoke to the other. Neither made a statement to the police officer. Therefore, there was no mischief of s. 162.
Case Law Reference
- N. Srirama Raddy v. Shri V. V. Giri  1 S.C.R. 399
- Yusaf Ali lsmail Nagri v. The State of Maharashtra,  3 S.C.R. 720
- S. Pratap Singh v. State of Punjab  4 S.C.R. 733
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. Motwani saw the appellant on 3rd October 1964. The appellant demanded Rs. 20,000/- in order that Dr. Adatia 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.
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.
Facts of the Case
Four questions were canvassed before Apex Court:
- 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;
- The conversation between Dr. Motwani and the appellant which was recorded on the tape took place during investigation, inasmuch as the Director of the Anti- corruption Branch asked Dr. Motwani to talk to the appellant and therefore, the conversation was not admissible under s., 162 of the Cr. P.C.;
- That the appellant did not attempt to obtain gratification; and
- That the sentence of six months’ imprisonment should be interferred with because the appellant has already paid Rs. 10,000/ as fine.
- The appellant, suffered heart attacks, and therefore, the sentence should be reduced.