Rules for production, use and recording of the Tape-Recorded Evidence in Court incorporated in Criminal Manual issued by the Bombay HC

"24. The Honourable the Chief Justice and Judges, with the previous approval of the Governor under Article 227 of the Constitution of India, are pleased to make the following rules regarding recording of the tape-recorded evidence in Court:

(1) These Rules may be called the Rules for the production, Use and Recording of the Tape-Record Evidence in Courts.

(2) These Rules came into force with effect from 1st August, 1978.

(3) The party producing the tape recorded evidence shall also produce the transcript of the tape record along with the tape.

(4) The Court or its authorised officer who is to accept the tape should accept only such tapes as are under the seal of the party producing them.

(5) Court or such officer shall hear the tape record in order to verify whether the transcript produced alongwith the tape is correct or not and endorse such verification on the transcript record under his signature with date.

(6) The tape shall be kept in safe custody in a cover under the seal of the Court. In case the tape is replayed or the seal is broken for any reason, the tape shall be re-sealed.

(7) The Notice of production of the tape together with the transcript shall be served on the other side through the Court.

(8) Any party to the proceeding may apply to the Court to hear the tape record.

(9) The tape-record would be played within the hearing and sight of an officer appointed by the Court for that purpose and as far as possible in the presence of the other side or its Advocate. The Court on receipt of application may grant the necessary permission. However, the tape shall ordinarily not be played on 3rd or 4th occasion, unless the Court specifically permits hearing of the same. The Court while granting such permission should bear in mind that repeated use and play of the tape may affect the tape and its audibility. The Court may also permit any party to record the voice on the tape, produced in Court, on another tape.

(10) Every Court shall maintain a record showing as to how, when and why the seal of the tape-record was opened and when the tape-record has been resealed. Such record shall be kept in the proceedings alongwith the tape record and its transcript.

(11) The tape in a sealed cover together with its transcript shall be given a separate exhibit.

(12) In Criminal cases where appeal lies to the High Court and when the tape record is not in English, either, wholly or in part, the transcript must be accompanied by an agreed or official English translation of the said transcript or part thereof, as the case may be.

(13) In case of discrepancy or doubt, the Court may direct the tape to be replayed and the transcript record shall be corrected if the Court so directs.

(14) While preparing the paper book for appeal to the High Court the Lower Court shall include therein the transcript in English under Rule 12, and a copy of record referred to in Rule 10 above.

(15) The rules as to the production, preservation and destruction of the Court record should mutatis mutandis apply to the tapes.

(16) The above rules (Rules Nos. 1 to 15) are framed for guidance of the Courts and they should be followed as far as possible and subject to the provisions of the Evidence Act and Code of Civil Procedure."

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 793 of 2013

Decided On: 09.06.2021

Anil Krishnarao Apashingkar Vs. The State of Maharashtra

Hon'ble Judges/Coram:

P.D. Naik, J.

Citation: AIRONLINE 2021 BOM 2759, 2021 ALLMR (CRI) 2273, MANU/MH/1406/2021

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Whether the court can permit a party to play tape recording in the court during the recording of evidence?

Evidence Act, 1891 (Indian Act 1 of 1891)--Section 3, 7 & 8--Tape recorded conversation is admissible in evidence--Strict proof as to every aspect of its authenticity and perfection is to be insisted on.

The writ Petitioner, Defendant in O.S. No. 210/02, a Suit instituted for realisation of amounts as per cheque issued by him, is challenging the order passed by the learned Munsiff declining his request to have the magnetic tape, that he has produced, played in open Court as evidence of his defence. He contended that the conversation he had with the Plaintiff on handing over the cheque is fully recorded in the cassette and that the same is essential to prove his case that the cheque happened to be transmitted on account of the deception and subterfuge perpetrated by the Plaintiff to secure a job as Conductor in the KSRTC for his son. Actually there was no consideration for the cheque. The petition was opposed by the Respondent contending inter alia, that the conversation recorded in a tape is not reliable evidence and not admissible in evidence. Overruling the contention of the Respondent and allowing the writ petition.

So far as the law as to the admissibility of the tape record is concerned, the same is no longer a grey area. The courts have permitted the same very much prior to the amendment of the Indian Evidence Act by the Information Technology Act, 2000, enlarging the definition of "Evidence" in Section 3 as including electronic records. Really, the courts can no longer remain confined to the conventional parameters of 'Evidence' amidst the ground-breaking advances in science and technology. The courts in India have admitted tape records as a relevant item of evidence as early as 1956. It appears that the trial court in the instant case has virtually skirted the issue despite the fact that the tape record of the conversations and the transcription of the same were admitted and marked. Once the same are admitted, it is incumbent on the part of the court to examine the genuineness of the same. Various decisions of the High Courts and that of the highest court of the land have laid down that the tape record like photograph of an incident is a record capable of re-presenting the situation admissible under Section 7 and also a relevant fact under Section 8 as the recording of the contemporaneous dialogue is part of res gestae. It is admissible to corroborate under Section 157 to contradict under Section 155(3) and also to test the veracity of the witness under Section 146(1) and for impeaching his impartiality under Section 153 Exception 2 of the Evidence Act. It has been held that the above evidence is not hit by Article 21, nor barred by Article 20(3) of the Constitution of India, if there was no compulsion. The same is also not hit by Section 162 of the Code of Criminal Procedure if it is not made to a police officer in the course of investigation.

In the instant case, indiscretion is writ large in the attitude of the court below in declining the application of the Defendant to play the tape in court after receiving it in evidence. It appears to me that this Court is eminently justified in interfering to set right the sane in exercise of the extra ordinary jurisdiction. The order of the Court below in I. A. 1184/03 is quashed. The court below is directed to take whatever steps required including playing the tape to ascertain its authenticity keeping in mind the broad guidelines laid down by the Supreme Court and the precedents in the matter.

 IN THE HIGH COURT OF KERALA

W.P. (C) No. 35871 of 2003

Decided On: 30.03.2005

Pootholi Damodaran Nair  Vs.  Babu

Hon'ble Judges/Coram:

K.R. Udayabhanu, J.

Citation: MANU/KE/0149/2005

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Whether the court can refuse to admit tape-recorded evidence produced by the husband if it is infringing the privacy of wife?

Counsel for the petitioner relied on the Gazette notification by the Indian Government, New Delhi dated 16/02/1999 whereby, rule 419(A) (i) was inserted after rule 419 in the Indian Telegraph rules 1951. Whereby, directions, where interception of any message or class of message required, order to be issued from the Secretary to the Government of India and otherwise, interception was not permitted in the Indian Telegraph rules, whereas section 72 of the Information Technology Act of 2000, forbids access to any electronic record, book, register, correspondence etc., without the permission of the person concerned and the offence is punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. Similarly, Counsel submitted that such an approach in the electronic medium was moved only in the interest of public safety and the Central Government or State Government, may, if it is satisfied that it is necessary or expedient to do so has to record the reasons in writing and only then pass the order granting such permission.

6. On considering the above submissions and the impugned order, I find that the sole question that arises in consideration is whether the tapes produced by the husband are admissible evidence? Admittedly, the conversation was recorded without the knowledge of the wife, behind her back, and is definitely an infringement of her right to privacy. Besides, it is violative of article 11 & 21 of the Constitution of India and has rightly pointed out by the Counsel for the petitioner / wife, that interception in the recording conversation is permitted only under the circumstances. Besides, there is also penalty under section 72 of the Information Technology Act and it could not be used as instrument to create evidence of such nature. The cases cited by the Counsel for the respondent are not applicable in the present context and are of no use to the respondent.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Writ Petition No. 7479 & 7484/2014

Decided On: 21.05.2015

Anurima  Vs.  Sunil Mehta

Hon'ble Judges/Coram:

S.R. Waghmare, J.

Citation:  AIR 2016 MP 112 

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Whether family court can permit production of electronic evidence without certificate as per S 65B of Evidence Act?

 The argument of the learned counsel for the petitioner is that the Family Court failed to notice and to give effect to Section 14 of the Family Courts Act (for short 'the Act') which empowers the Family Courts to dispense with the application of the rigid rules of the relevancy and admissibility of evidence incorporated in the Indian Evidence Act 1872 to the proceedings before them and further erred in refusing to receive the uncertified CD in evidence. The argument, according to us, is legally sound and merits acceptance.

10. Section 14 of the Act reads as follows:

"Application of Indian Evidence Act, 1872:- A Family court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872)."

The words employed in the Section make it abundantly clear that, any matter, information etc., placed before a Family Court may be admitted in evidence uninhibited by the rules of relevancy and admissibility prescribed by the Evidence Act, provided the Family Court is of the opinion that the matter before it is essential for the effective resolution of the dispute in the proceeding. Understood in the light of the object and scheme of the Act, Section 14 of the Act seems to convey the legislative intention that Family Court has absolute freedom to depart from adopting the sophisticated and strict rules of relevancy and admissibility applicable to the regular civil courts in the country. The freedom of partial departure from the Evidence Act helps the Family Courts prevent valuable information and materials necessary for effective adjudication of disputes from being shut out in the enquiries and trial. In effect, the rules of relevancy and admissibility in the Evidence Act ought to be read subject only to Section 14 of the Act. In the event of any inconsistency emerging between the provisions of these two Acts, Family Courts Act 1984 alone will prevail, thanks to Section 20 of the Act. In the two decisions of the High Court of Kerala, Treasa Bency Vs. Preceline George, MANU/KE/0658/2013 : (2013) (3) KLT 414) and Pankajakshan Nair Vs. Shylaja, MANU/KE/0097/2017 : (2017) (1) KLJ 739), the uniform view taken is to the effect that the technicalities of the Evidence Act should not be imported to the proceeding before the Family Courts in view of the provisions in Section 14 of the Act. We too concur with the view expressed in the said decisions.

11. In view of the overriding effect of the Section 14 of the Act on the rules of admissibility in the Evidence Act, we hold that the CD produced before the Family Court, Thalassery is admissible in evidence, despite the fact that it was not certified as mandated by Section 65-B(4) of the Act. The contention put forth by the learned counsel for the respondent that the non obstante clause in Section 65-B (1) introduced by Act No. 21 of 2000 would, however, prevail over Section 14 of the Act rendering production of certificate under Section 65-B(4) of the Evidence Act inevitable, does not merit acceptance. The words used in Section 65-B(1) sufficiently indicate that the non obstante clause does not extend outside the Evidence Act nor does it curtail the operation of any other law.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 513 of 2018

Decided On: 14.01.2019

Pramod E.K.   Vs.  Louna V.C.

Hon'ble Judges/Coram:

C.K. Abdul Rehim and T.V. Anilkumar, JJ.

Citation: AIR 2019 Kerala 85

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Whether it is necessary to prove certificate as per S 65B of evidence Act to prove Tape recorded evidence?

The Supreme Court in Anvar P.V.(supra) has
settled the law with respect to the admissibility of evidence
under Section 65B of the Indian Evidence Act. The Court held
that an electronic record by way of secondary evidence is
only admissible in a court of law if the requirements under
Section 65B are complied with. A certificate in terms of
Section 65B of the Evidence Act is mandatory for secondary
evidence pertaining to an electronic record such as a CD or a
chip to be admissible. The factual matrix of that case
involved CDs being used for announcements and songs. If
these CDs had been adduced as primary evidence, the same
would not have been hit by the requirements of Section 65B
of the Evidence Act. The announcements and songs were
recorded using other instruments and were then fed into a
computer, from which CDs were made, which can be
classified as secondary evidence. The Supreme Court held
that CDs could not be admitted as evidence without due
certification and compliance with the requirements under
Section 65B of the Evidence Act. The Court clarified and
made it amply clear that Section 65B of the Evidence Act
seeks to bring within its ambit only secondary evidence on
electronic record and the same does not bar the admissibility
of electronic records being used as primary evidence.
It is thus clear that provision of Section 65B of the
Act itself negates the requirement of the production of the
primary evidence in the form of the original media on which
data or information was stored and makes secondary evidence
admissible in the form of computer output, subject to the
production of a certificate. The purpose behind Section 65B
of the Act is to obviate the difficulty attached to the
production of primary evidence, which can lead to a denial of
justice in many cases. This provision through its
requirements brings secondary evidence to the level of
primary evidence in order to make it admissible in
accordance with law. Evidently, Section 65B is attracted in
cases where an electronic record is printed, copied etc. and
is produced by a computer(computer output), thus making it
a provision dealing with secondary evidence. It is, therefore,
significant to note that the difference between primary
evidence and secondary evidence is of utmost importance. A
tape recorded cassette, seen in the light of this analysis of
law, is clearly a primary and direct evidence of what has been
said and recorded.
The Supreme Court in R.M. Malkani(supra), in
such circumstances held that 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
importance of Section 65B of the Evidence Act is that it does
away with the requirement to produce the original computer
or the original media on which data or information was stored
and allows the secondary evidence in the form of computer
output to be produced and admitted in evidence, subject to
the condition that when evidence of computer output is
produced and tendered, certificate of a person occupying a
responsible official position in relation to operation of the
relevant device or management of the relevant activities as
prescribed by Section 65B of the Evidence Act is produced.
Since in the present case voice of accused Sunil
Panchal recorded at the time when ransom call was made by
him has matched with his voice recorded in another cassette
and it has been proved by FSL Report(Exhibit P-72) that voice
recorded in two cassettes were of the same person, it is an
important link connecting the accused with the crime.
All afore-discussed individual circumstances, when
joined together, thus form a complete chain which lead to an
inescapable conclusion that it were the accused-appellants
and none else, who abducted Abhishek @ Aakash, demanded
ransom and eventually murdered him. We, therefore, do not
find any error in impugned judgment and order passed by the
trial court and uphold the conviction and sentence awarded
to them by the trial court.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.
JUDGMENT
D.B. CRIMINIAL APPEAL NO. 151/2007
SUNIL PANCHAL VS. THE STATE OF RAJASTHAN.

DATE OF JUDGMENT : 03.06.2016
MR. JUSTICE MOHAMMAD RAFIQ
MR. JUSTICE VIJAY KUMAR VYAS
Citation: 2016 CRLJ 4238 Raj

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Whether Tape recorded conversation of wife without her knowledge is admissible in evidence?

 On considering the above submissions and the
impugned order, I find that the sole question that arises in
consideration is whether the tapes produced by the husband
are admissible evidence? Admittedly, the conversation was
recorded without the knowledge of the wife, behind her
back, and is definitely an infringement of her right to
privacy. Besides, it is violative of article 11 & 21 of the
Constitution of India and has rightly pointed out by the
Counsel for the petitioner / wife, that interception in the7
recording conversation is permitted only under the
circumstances. Besides, there is also penalty under section
72 of the Information Technology Act and it could not be
used as instrument to create evidence of such nature. The
cases cited by the Counsel for the respondent are not
applicable in the present context and are of no use to the
respondent.
The tapes, however, cannot be admitted in evidence but

it may be kept on record.
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
BEFORE S. B:  MRS. JUSTICE S.R. WAGHMARE
 Writ Petition No. 7479 & 7484/20 1 4

Anurima @ Abha Mehta  vs.  Sunil Mehta S/o Chandmal

(Passed on 21/05/2015)
Per Mrs. S.R. Waghmare, J.
Citation:AIR 2016 MP112

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Whether witness can be cross examined with reference to his previous statement in CD?

Now a previous statement recorded on tape is admissible in evidence, I do not understand as to how a compact disc, (CD), which is capable of containing not only the audio signal but also the video signal can be held to be inadmissible in evidence by mere reference to Section 145 of the Indian Evidence Act, 1872. It does not require an expert opinion to find that a CD records not only the statement made by a person or the conversation between the persons but also the live picture frames of the person making a statement or the persons engaged in conversation. In other words, a CD can contain record of not only the statement or conversation but also of the person or the actors who can be heard and seen as making statements. Thus, by all means, a CD can be said to be containing previous statements of the persons appearing therein and, therefore, by the application of the principle of law laid down in the Constitution Bench Judgment of the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra), the previous statements recorded in the CD would also be admissible in evidence. Therefore, I am of the view that the learned Additional Sessions has committed a serious error of law in not considering these aspects of the matter and refusing to apply the law laid down by the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others 

Equivalent Citation: 2015(2)BomCR(Cri)428

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application (APL) No. 124 of 2015

Decided On: 09.03.2015

 Munaf and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:S.B. Shukre, J.

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How to prove evidence of CD in Civil or matrimonial proceeding?

Equivalent Citation: 2011(2)ALLMR577, 2011(3)BomCR100, 2011(113)BOMLR479, 2011(3)MhLj564

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 8 of 2010 IN Suit No. 16 of 2008

Decided On: 28.01.2011

Mrs. Havovi Kersi Sethna Vs. Mr. Kersi Gustad Sethna

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Law of Evidence - Tape Recorded Conversation - Admissibility thereof in evidence - Held, it is settled law that tape recorded conversation is admissible in evidence. The appreciation of evidence would require consideration of three requirements; identification, relevancy and accuracy. It is left to the Defendant to pass those tests. If the tests are not passed, the tape recorded conversation would be of no use in effect ultimately. Notice of motion disposed of.

Law of Evidence - Sealing of recorded conversation - Recording of Evidence Tape Recorded Conversation - Held, the requirement of sealing the recorded conversation would not be applicable in this case. This is a civil trial. There is no question of sealing of a conversation recorded by a party to the civil lis himself. The sealing requirement is only in criminal trials. Notice of motion disposed of.

Tape recorded conversation is admissible in evidence provided the identification, relevancy and accuracy of same is proved.

Requirement of sealing of recorded conversation used as evidence is not applicable to a civil trial but is applicable only to a criminal trial.

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How to determine admissibility of transcription of recorded conversation?

It is to be noted that in the first complaint filed by the second Respondent-the de facto complainant, there is no allegation for any demand for bribe by the Appellant. The allegation of demand is specifically against accused No. 2 only. That allegation against the Appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the Respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer and Ors. MANU/SC/0834/2014 : 2014 (10) SCALE 660.
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 97 OF 2015

[Arising out of S.L.P.(Criminal) No. 6927/2013]

Sanjaysinh Ramrao Chavan V Dattatray Gulabrao Phalke and others

Citation;2015CriLJ1259, 2015(1)Crimes90(SC),(2015)3SCC123, 2015 (2) SCJ 253,

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Whether conversation tape recorded by husband without wife's consent or without her knowledge, can be received in evidence?

Disclosure of even true private facts has the
tendency to disturb a person's tranquility. It may
generate many complexes in him and may even
lead to psychological problems. He may,
thereafter, have a disturbed life all through. In the
face of these potentialities, and as already held
by this Court in its various decisions referred to
above, the Right of Privacy is an essential
component of right to life envisaged by Article 21.
The 'right, however, is not absolute and may be
lawfully restricted for the prevention of crime,
disorder or protection of health or morals or
protection of rights and freedom of others."
Aspect about admissibility of evidence with reference to
provisions of Indian Evidence Act, 1872 has indeed been diluted by
Section 14 of the Family Court Act. The question, which still arises in the
present case, is whether conversation tape recorded by the husband
without wife's consent or without her knowledge, can be received in
evidence and be made use of against her? That question has to be
answered in an affirmative 'no', as recording of such conversation had
breached her “right to privacy”, one of the facets of her 'right to liberty'
enshrined under Article 21 of the Constitution of India. The exception to
privileged communication between husband and wife carved out in
Section 122 of the Indian Evidence Act, which enables one spouse to
compel another to disclose any communication made to him/her during
marriage by him/her, may be available to such spouse in variety of other
situations, but if such communication is a tape recorded conversation,
without the knowledge of the other spouse, it cannot be, admissible in
evidence or otherwise received in evidence. The argument that this
would defeat right of fair trial of the petitioner-husband, proceed on the
fallacious assumption of sanctimony of the method used in such
recording and in that process, ignores the right of fair trial of the
respondent-wife. In a case like present one, husband cannot be, in the
name of producing evidence, allowed to wash dirty linen openly in the
Court proceedings so as to malign the wife by producing clandestine
recording of their conversation.
In view of above, this Court is inclined to concur with the
view taken by Andhra Pradesh High Court in Smt. Rayala M.
Bhuvaneswari(supra) that recorded conversation between the
petitioner and the respondent, even if true, cannot be admissible in
evidence and that the respondent-wife cannot be forced to undergo
voice test and expert cannot be asked to compare CDs, which
conversation has been denied by her.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR.
ORDER
S.B. CIVIL WRIT PETITION NO. 14726/2013
WITH
S.B. CIVIL MISC. STAY APPLICATION NO. 12315/2013
VISHAL KAUSHIK
VS.
FAMILY COURT & ANOTHER.
DATE OF ORDER : 26.05.2015
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ

REPORTABLE
Citation; AIR 2015 RAJ146

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How to appreciate Tape recording Evidence?

In   the   case   of  Ramsingh  & Ors.  Vs.  Col. Ram  Singh,  1985  
(Supp)   SCC   611,   the   Apex   Court   has   held   that   a   tape­recorded 
statement   is   admissible   in   evidence,   subject   to   the   following 
conditions.
“32.   Thus, so far this Court is concerned, the conditions for  
admissibility   of   a   tape­recorded   statement   may   be   stated   as  
follows:­
  The voice of the speaker must be duly identified by the  
maker of the record or by others who recognize his voice.   In  
other words, it manifestly follows as a logical corollary that the  
first condition for the admissibility of such a statement is to  
identify the voice of the speaker.     Where the voice has been  
denied   by   the   maker   it   will   require   very   strict   proof   of 
determine whether or not it was really the voice of the speaker.
(2) The  accuracy of the tape­recorded statement has to be  
proved by the maker of the record by satisfactory evidence –  
direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part  
of   a   tape­recorded  statement   must   be  ruled  out  otherwise  it 
may render the said statement out of context and, therefore,  
inadmissible.
(4) The statement must be relevant according to the rules of  
Evidence Act.
(5) The recorded cassette must be carefully sealed and kept  
in safe or official custody.
(6) The voice of the speaker should be clearly audible and  
not lost or distorted by other sounds or disturbance.”

In the instant case, undisputedly the investigating officer had 

not instructed PW­1 to record the conversation.  It is also to be noted 
that though Pw1 had passed on the information of every subsequent 
call   received   from   the   alleged   kidnappers   to   the   police   and   his 
supplementary statements were recorded on every such occasion, in 
none of the statements recorded under Section 161 of the Cr.P
.C., PW­
1   had   disclosed   that   he   had   recorded   the   conversation.   It   is   also 
pertinent   to   note   that   PW­1   had   not   sealed   the   cassette.   He   had handed over the said cassette to PW­13 only on 5 th  October, 2005, 
which was much after the return of his son and after the arrest of the 
accused.   PW­1   has   not   explained   the   delay   in   handing   over   the 
cassette   to   the   Investigation   Officer.     These   material   discrepancies 
give   rise   to  the  possibility of the  cassette  being tampered and the 
conversation being recorded after the arrest of the accused. 

PW­3   Namdeo,   in   whose   presence   the   cassette   was   allegedly 
played   and   transcript   was   prepared   and   PW9   Eknath   in   whose 
presence the voice samples of the accused were recorded have not 
supported the case of the prosecution.  Furthermore, there is delay in 
forwarding the cassette to the scientific expert.  The testimony of PW­

13   does   not   indicate   that   he   had   kept   the   said   cassettes   in   safe 
custody   from   the   date   the   cassettes   were   seized   till   the   date   the 
cassettes were forwarded to the scientific expert. In the absence of 
compliance   of   essential   prerequisites   for   the   admission   of   tape­
recorded conversation as mandated by the Apex Court, the trial court 
was not justified in placing reliance on the expert opinion at Exh. 109 
and or on relying upon the transcripts of the recorded conversation. 

CRIMINAL APPEAL NO. 738 OF 2009 
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

Madansingh Hirasingh Bhakuni 

v/s.
The State of Maharashtra 

 CORAM : P . HARDAS & SMT. ANUJA PRABHUDESSAI, J.

 JUDGMENT PRONOUNCED ON : 14/10/2014  

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Whether court can permit production of Tape recorded evidence produced by husband recorded by him without knowledge of wife?

"Certain astonishing facts have come to light during the hearing of this revision. One of the facts relate to the purity of the relation between the husband and wife. Without the knowledge of the wife, the husband was recording her conversation on telephone which she was making with her friends and parents in india. If the husband is of such a nature and has no faith in the wife even about her conversations to her parents, then the institution of marriage itself becomes redundant. There should be some trust between husband and wife and in any case, in my view, the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others and if such a right is violated, which is fundamental, can such husband, who has resorted to illegal means, which are not only unconstitutional, but also immoral, later on, rely on the evidence gathered by him by such means. Clearly, it must not be permitted.

For all these reasons, I believe that the act of tapping itself by the husband of the conversation of his wife with others was illegal and it infringed the right of privacy of the wife. Therefore, these tapes, even if true, cannot be admissible in evidence. Hence, Ex. P. 18 itself is not admissible in evidence and there is no question of forcing the wife to undergo a voice test and then ask the expert to compare the portions denied by her with her admitted voice."

Andhra High Court

Decided; on 17 February, 2009

Citation;2009(5)ALT518 (AP)

Mrs. Neera Agarwal. Vs. Mahender Kumar Agarwal

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