Tape recorded conversation By Vaibhav verma

Introduction

The phenomenon of tendering tape-recorded conversation before law courts as evidence, particularly in cases arising under the Prevention of Corruption Act, where such conversation is recorded by sending the complainant with a recording device to the person demanding or offering bribe has almost become a common practice now. In civil cases also parties may rely upon tape records of the relevant conversation to support their version. In such cases, the court has to face various questions regarding the admissibility, nature, and evidentiary value of such a tape-recorded conversation. The Indian Evidence Act, before its being amended by the Information Technology Act, 2000, mainly dealt with evidence, which was in oral or documentary form.

The relationship between law and technology has not always been an easy one. However, the law has always yielded in favor of technology whenever it was found necessary. The concern of the law courts regarding utility and admissibility of tape-recorded conversation, from time to time found its manifestation in various pronouncements.

The Apex Court laid down the followings principles:

  1. The contemporaneous dialogue, which was tape-recorded, formed part of res-gestae and is relevant and admissible under section 8 of the Indian Evidence Act.
  2. The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act.
  3. Such a statement was not in fact a statement made to police during the investigation and, therefore, cannot be held to be inadmissible under section 162 of the Criminal Procedure Code.
  4. Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion, or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of article 20(3) was not available.
  5. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with

The phenomenon of tendering tape-recorded conversation before law courts as evidence, particularly in cases arising under the Prevention of Corruption Act, where such conversation is recorded by sending the complainant with a recording device to the person demanding or offering bribe has almost become a common practice now. In civil cases also parties may rely upon tape records of the relevant conversation to support their version. In such cases, the court has to face various questions regarding the admissibility, nature, and evidentiary value of such a tape-recorded conversation. The Indian Evidence Act, before its being amended by the Information Technology Act, 2000, mainly dealt with evidence, which was in oral or documentary form. Nothing was there to point out about the admissibility, nature, and evidentiary value of a conversation or statement recorded in an electro-magnetic device. Being confronted with the question of this nature and called upon to decide the same, the law courts in India and England devised and developed principles so that such evidence would be received in law courts and acted upon.

The relationship between law and technology has not always been an easy one. However, the law has always yielded in favor of technology whenever it was found necessary. The concern of the law courts regarding utility and admissibility of tape-recorded conversation, from time to time found its manifestation in various pronouncements.

In Hopes v. H.M. Advocate, 1960 Scots Law Times 264, the court while dealing with the question of admissibility of tape-recorded conversation observed as under:
New techniques and new devices are the order of the day. I can’t conceive, for example, of the evidence of a ship’s captain as to what he observed being turned down as inadmissible because he had used a telescope, any more than the evidence of what an ordinary person sees with his eyes becomes incompetent because he was wearing spectacles. Of course, comments and criticism can be made, and no doubt will be made, on the audibility or the intelligibility, or perhaps the interpretation, of the results of the use of a scientific method; but that is another matter and that is a matter and that is a matter of value, not of competency.

An authoritative and categorical exposition of this point is found in Rex v. Maqsud, 1965(2) All ER,461 wherein the Court of Criminal Appeal observed that the time has come when this court should state its views of the law matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the print as seen represents situations that have been reproduced using mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye has been admitted, and now there are devices for picking up, transmitting, and recording conversations. In principle, no difference can be made between a tape recording and a photograph. The court was of the view that it would wrong to deny to the law of evidence advantages to be gained by new techniques and devices.

In India, the earliest case in which the issue of admissibility of tape-recorded conversation came for consideration is Rupchand v. Mahabir Prasad, AIR 1956 Punjab 173. The court in this case though declined to treat tape-recorded conversation as writing within the meaning of section 3 (65) of the General Clauses Act but allowed the same to be used under section 155(3) of the Evidence Act as a previous statement to shake the credit of the witness. The Court held there is no rule of evidence, which prevents a party, who is endeavoring to shake the credit of a witness by use of the former inconsistent statement, from deposing that while he was engaged in conversation with the witness, a tape recorder was in operation, or from producing the said tape recorder in support of the assertion that a certain statement was made in his presence.

In S. Pratap Singh v. the State of Punjab, AIR 1964 SC 72 a five judges bench of Apex Court considered the issue and clearly propounded that tape-recorded talks are admissible in evidence and the simple fact that such type of evidence can easily tamper which certainly could not be a ground to reject such evidence as inadmissible or refuse to consider it because there are few documents and possibly no piece of evidence, which could not be tampered with. In this case, the tape record of the conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation has taken place.

The Apex Court in Yusufalli Esmail Nagree v. the State of Maharashtra, AIR 1968 SC147 considered various aspects of the issue relating to the admissibility of tape-recoded conversation. This was a case relating to an offense under section 165-A of the Indian Penal Code and at the instance of the Investigating Agency, the conversation between the accused, who wanted to bribe, and the complainant was tape-recorded. The prosecution wanted to use this tape-recorded conversation as evidence against the accused and it was argued that the same is hit by section 162 CrPC as well as article 20(3) of the constitution. In this landmark decision, the court emphatically laid down in unequivocal terms that the process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is a direct effect of the relevant sounds. Like a relevant incident photograph, a relevant conversation’s contemporaneous tape record is a relevant fact and is admissible under section 7 of the Indian Evidence Act.

The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles:
a) The contemporaneous dialogue, which was tape-recorded, formed part of res-gestae and is relevant and admissible under section 8 of the Indian Evidence Act.
b) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act.
c) Such a statement was not in fact a statement made to police during the investigation and, therefore, cannot be held to be inadmissible under section 162 of the Criminal Procedure Code.
d) Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion, or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of article 20(3) was not available.
e) One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.

Condition of Admissibility:

The tape-recorded conversation can be erased with ease by subsequent recording and insertion could be superimposed. However, this factor would have a bearing on the weight to be attached to the evidence and not on its admissibility. Ultimately, if in a particular case, there is a well-grounded suspicion not even say proof, that the tape recording has tampered with that would be a good ground for the court to discount wholly its evidentiary value as in Pratap Singh v. the State of Punjab, AIR 1964 SC 72. in the case of Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, following conditions were pointed out by the Apex Court for admissibility of tape-recorded conversation:

  1. The speaker’s voice must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
  2. The accuracy of the tape-recorded 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 tape-recorded 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 the 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

Identification of Voice:

As regards the identification of the taped voice, proper identification of such voice is a sine qua non for the use of such tape recording, therefore, the time and place, and accuracy of the recording must be proved by a competent witness and the voices must be properly identified.

Transcript:
The importance of having a transcript of the tape-recorded conversation cannot be underestimated because the same ensures that the recording did not tamper subsequently. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788, the Apex Court considered the value and use of such transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained. The Apex Court also made it clear that such transcripts can be used by a witness to refresh his memory under section 159 of the Evidence Act and their contents can be brought on record by direct oral evidence in the manner prescribed by section 160 of the Evidence Act.

Nature:
The tape-recorded conversation is nothing but information stored on magnetic media. In the case of Roopchand though, Punjab High Court declined to treat tape-recorded conversation as writing within the meaning of section 3 (65) of the General Clauses Act but this view could not survive for a long and the Apex Court in Ziyauddin Burhanuddin Bukhari clearly laid down that the tape-recorded speeches were “documents as defined by section 3 of the Evidence Act”, which stood on no different footing than photographs

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