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THERE WAS NO VIOLATION OF THE INDIAN TELEGRAPH ACT BY RECORDING CONVERSATIONS R. M. Malkani vs State Of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 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 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 taperecorder 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.

THE TAPE-RECORDED CONVERSATION IS

RELEVANT FACT UNDER SECTION 8 OF

THE EVIDENCE ACT AND IS ADMISSIBLE UNDER S. 7 OF THE EVIDENCE ACT R. M. Malkani vs State Of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 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 taperecorded 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 R. M. Malkani vs State Of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 The taperecorded conversation is not within the vice of s. 162 of Cr. P. C. It was said that the taperecording 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. M and the appellant, Each spoke to the other. Neither made a statement to the police officer. Therefore, there was no mischief of s. 162. EVIDENCE RECORDED ON A TAPE RECORDER OR OTHER MECHANICAL PROCESS THE PREPONDERANCE OF AUTHORITIES IS IN FAVOUR OF THE ADMISSIBILITY OF THE STATEMENTS SUBJECT TO CERTAIN SAFEGUARDS Ram Singh & Ors vs Col. Ram Singh AIR 1986 SC 3, 1985 SCR Supl. (2) 399 As regards the evidence recorded on a tape Recorder or other mechanical process the preponderance

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of authorities is in favour of the admissibility of the statements subject to certain safeguards viz., (1) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The voice of the speaker should be audible and not distorted by other sounds or disturbances. (3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence. (4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out; (5) The statement must be relevant according to the rules of evidence and (6) The recorded cassette must be carefully sealed and kept in safe custody. (7) While accepting the tape recorded statements the court should proceed cautiously. The evidence should be examined on the analogy of mutilated documents. If the tape recording is not coherent or distinct or clear it should not be relied upon.

ERASURES HERE AND THERE IN THE TAPE AND VOICES RECORDED BEING NOT VERY CLEAR, IT IS HAZARDOUS TO BASE A DECISION ON SUCH EVIDENCE Ram Singh & Ors vs Col. Ram Singh AIR 1986 SC 3, 1985 SCR Supl. (2) 399 A good part of the statement recorded on the cassette has been denied not only by the respondent but also the respondent's witnesses. No other witness has come forward to depose identification of the voice of the respondent or of witnesses. .. There are erasures here and there in the tape and besides the voices recorded being not very clear, lt is hazardous to base a decision on such evidence. The Deputy Commissioner recorded the statements in violation of the instructions or the Government and erred in not placing the recorded cassette in proper custody. He kept it with himself without authority and therefore the possibility of tampering with the statements cannot be ruled out. The transcript was prepared in his office by his stenographer and when the transcript was being prepared the Deputy Commissioner himself was absent from his office. The possibility of its being tampered with by his stenographer or somebody else cannot be ruled out. Respondents witnesses have denied the identity of their voices. The recording was done in a haphazard and unsystematic manner.

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THE NON-COMPLIANCE WITH THE PROVISIONS OF THE TELEGRAPH ACT DOES NOT PER SE AFFECT THE ADMISSIBILITY OF RECORDED CONVERSATION State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru 2005 AIR 3820 Section 5(2) of the Telegraph Act or Rule 419A does not deal with any rule of evidence. The noncompliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res integra in view of the decision of this Court in R.M. Malkani Vs. State of Maharashtra [(1973) 1 SCC 471]. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Indian Telegraph Act was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows: "There is warrant for the 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 (1870) 34 JP 759. The Judicial Committee in Kumar, Son of Kanju V. R [1955 1 All E.R. 236] 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."

TAPE RECORDED VERSION OF A CONVERSATION WAS ADMISSIBLE IN EVIDENCE TO CORROBORATE THE EVIDENCE OF A WITNESS OR TO SHAKE THE CREDIT OF THE WITNESS

Supreme Court in S. Pratap Singh v. State of Punjab AIR 1964 SC 72 Court held that tape recorded version of a conversation was admissible in evidence to corroborate the evidence of a witness or to shake the credit of the witness.

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PREVIOUS STATEMENT RECORDED ON TAPE COULD BE USED TO CONTRADICT HIS EVIDENCE GIVEN BEFORE THE COURT AS WELL AS TO TEST VERACITY OF THE WITNESS AND ALSO TO IMPEACH HIS IMPARTIALITY In N.Sri Rama Reddy v. V.V. Giri, (1970) 2 SCC 340, a Constitutional Bench of the Supreme Court laid down that a previous statement made by a person and recorded on a tape can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court as well as to test the veracity of the witnesss impartiality. . Supreme Court held that the previous statement made by a person recorded on tape could be used not only to corroborate the evidence given by the witness in Court but also to contradict his evidence given before the Court as well as to test veracity of the witness and also to impeach his impartiality. Supreme Court in the case of Rama Reddy vs. V.V. Giri, AIR 1971 SC 1162 in which it was held that the previous statement recorded on tape could be used not only to corroborate the evidence given by the witness but also to contradict the evidence given before the Court as well as to test the veracity of the evidence and also to impeach his impartiality upon holding that it was primary and direct evidence admissible as to what has been said and picked up by the recorder. A previous statement made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in court but also to contradict his evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three matters under ss. 146(1), 153, Exception (2) and s. 155(3) of the Evidence Act. If a previous statement made by a person can be used to corroborate his evidence given before court, on principle, there is no reason why such previous statement cannot 'be used to contradict under s. 153, Exception 2 and also for the other purposes under ss. 146(1) and, 155(3).

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 Rayala M. Bhuvaneswari vs Nagaphanender Rayala AIR 2008 AP 98 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

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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.

TAPE RECORDING WAS DONE WITHOUT HIS KNOWLEDGE IS NOT OF ITSELF AN OBJECTION TO ITS ADMISSIBILITY IN EVIDENCE

In Yusufalliesmail Nagree v. State of Maharashtra, 1968 AIR 147, 1967 SCR (3) 720, the Apex Court has held that like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 of the Indian Evidence Act, and that if a statement is relevant, an accurate tape record of the statement is also relevant and admissible. 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 a photograph of a relevant, incident, a contemporaneous tape record of a relevant conversation is a 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 a competent witness and the voices must be properly identified. One of the features of magnetic 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 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 ,-,round that by the active deception of the police, he, was compelled to be a witness against himself The appellant was not compelled to be a witness against himself. He was free to talk or not to talk. His conversation with S 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. The fact that the, tape recording was done without his knowledge is not of itself an objection to its admissibility in evidence.

ADMISSIBILITY OF THE TAPE-RECORDED CONVERSATION IS SUBJECT TO CERTAIN QUALIFICATIONS

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The admissibility of the tape-recorded conversation is subject to certain qualifications, as held in Yusufalli Esmail Nagree v. State of Maharashtra, 1968 AIR 147, 1967 SCR (3) 720 , (a) the time, place and accuracy of the recording must be proved by a competent witness; (b) the voices of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it; (c) accuracy of what was actually recorded has to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, has to be there so as to rule out possibilities of tampering with the record; (d) the Court should be satisfied, beyond reasonable doubt, mat the record has not been tampered with; and (e) the subject-matter recorded has to be shown to be relevant according to rules of relevancy found in the Indian Evidence Act.

WHERE THE VOICE IS DENIED BY THE ALLEGED MAKER THEREOF, A COMPARISON OF THE SAME BECOMES INEVITABLE AND THE PROPER IDENTIFICATION OF VOICES MUST BE PROVED BY A COMPETENT WITNESS

Dial Singh Narain Singh Vs. Rajpal Jagan Nath and others, AIR 1969 Punjab and Haryana 350, For a use of an earlier tape-recorded statement, the identification of the taped voices is a crucial matter and indeed such proper identification is the sine qua non for the use of the earlier tape-recording. Where the voice is denied by the alleged maker thereof, a comparison of the same becomes inevitable and the proper identification of voices must be proved by a competent witness. The recording, of the voice of a witness for the purpose of comparison with and identification of his earlier recorded voice can, therefore, be allowed by the Court and such comparison is neither expressly nor impliedly prohibited under any statute.

WHERE TWO CASSETTES WITH RECORDING OF TWO VOICES ARE PRODUCED IN EVIDENCE, CAN COURT EXAMINE WHETHER BOTH VOICES ARE OF ONE AND SAME PERSON In H. Chandrashekar v. Shafiq Ali Khan (2000)6 Kar.L.J.237 the Court held that if witness is unwilling to lend his sample voice for recording, issue of commission for such

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purpose amounts to forcing witness to submit himself for test, and issue of such commission in such case, is violative of his constitutional right and it is only where two cassettes with recording of two voices are produced in evidence, can Court examine whether both voices are of one and same person, on analogy of comparing signature, writing or seal with others admitted or proved. MERE PRODUCTION OF THE AUDIO CASSETTE EVEN CERTIFIED BY THE ELECTION COMMISSIONER IS NOT CONCLUSIVE OF THE FACT THAT WHAT IS CONTAINED IN THE CASSETTE WAS TRUE AND CORRECT Tukaram S. Dighole vs. Manikrao Shivaji Kokate, (2010) 4 SCC 329 a cassette placed before the Court was discarded from evidence. This was the cassette stated to have been produced from the custody of an Election Commissioner s office. It was taken to be a public document. It was held that mere production of the audio cassette even certified by the Election Commissioner is not conclusive of the fact that what is contained in the cassette was true and correct. Justice RS Dalvi of Bombay high court in the case of Mrs. Havovi Kersi Sethna vs Mr.Kersi Gustad Sethna Decided on 28 January, 2011 by quoting above case observed that This is on par with the certified copy of any document produced from public record. Such a document would show that it was a document filed in the public office and is a true production of whatever was filed in the public office. It however cannot prove the truth of the contents of the document merely by the production of even its certified copy by the public office as held in the case of Om Prakash Berlia vs. United Trust of India, AIR 1983 Bombay 1.

WHEN AN ACCUSED IS ASKED TO GIVE VOICE SAMPLE, HE IS NOT GIVING ANY TESTIMONY OF THE NATURE OF A PERSONAL TESTIMONY Ritesh Sinha vs State Of U.P.& Anr 2013 (2 ) SCC 357, 2012 (12 ) JT 258 If an accused person is directed to give his voice sample during the course of investigation of an offence, there is no violation of his right under Article 20(3) of the Constitution. Voice sample is like finger print impression, signature or specimen handwriting of an accused. Like giving of a finger print impression or specimen writing by the accused for the purposes of investigation, giving of a voice sample for the purpose of investigation cannot be included in the expression to be a witness. By giving voice sample the accused does not convey information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous. By comparing it with tape recorded conversation, the investigator may draw his conclusion but, voice sample by itself is not a testimony at all. When an accused is asked to give voice sample, he is not giving any testimony of the nature of a personal testimony. When compared with the recorded conversation with the help of mechanical process, it may throw light on the points in controversy. It cannot be said, by

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any stretch of imagination that by giving voice sample, the accused conveyed any information based upon his personal knowledge and became a witness against himself. The accused by giving the voice sample merely gives identification data to the investigating agency. He is not subjected to any testimonial compulsion. Thus, taking voice sample of an accused by the police during investigation is not hit by Article 20(3) of the Constitution. THE IDENTIFICATION OF VOICE THROUGH SPECTROGRAPHIC VOICE PRINTS 2013 SC Ritesh Sinha vs State Of U.P.& Anr 2013 (2 ) SCC 357, 2012 (12 ) JT 258 The voice sample is analysed or measured on the basis of time, frequency and intensity of the speechsound waves. A voice print is a visual recording of voice. Spectrographic Voice Identification is described in Chapter 12 of the Book Scientific Evidence in Criminal Cases written by Andre A. Moenssens, Ray Edward Moses and Fred E. Inbau. The relevant extracts of this chapter could be advantageously quoted. Voiceprint identification requires (1) a recording of the questioned voice, (2) a recording of known origin for comparison, and (3) a sound spectrograph machine adapted for voiceprint studies. .. The sound spectrograph is an electromagnetic instrument which produces a graphic display of speech in the parameters of time, frequency and intensity. The display is called a sound spectrogram. Voice prints are like finger prints. Each person has a distinctive voice with characteristic features. Voice print experts have to compare spectrographic prints to arrive at an identification. In this connection, it would be useful to read following paragraphs from the book Law Enforcement and Criminal Justice an introduction by Bennett-Sandler, Frazier, Torres, Waldron. . Voice prints. The voiceprint method of speaker identification involves the aural and visual comparison of one or more identified voice patterns with a questioned or unknown voice. Factors such as pitch, rate of speech, accent, articulation, and other items are evaluated and identified, even though a speaker may attempt to disguise his or her voice. Through means of a sound spectrograph, voice signals can be recorded magnetically to produce a permanent image on electrically sensitive paper. This visual recording is called a voiceprint. .. A voiceprint indicates resonance bars of a persons voice (called formants), along with the spoken word and how it is articulated. Figure 9.7 is an actual voiceprint sample. The loudness of a voice is indicated by the density of lines; the darker the lines on the print, the greater the volume of the sound. When voiceprints are being identified, the frequency and pitch of the voice are indicated on the vertical axis; the time factor is indicated on the horizontal axis. At least ten matching sounds are needed to make a positive identification, while fewer factors lead to a probable or highly probable conclusion. .. Voiceprints are like fingerprints in that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulators. Oral and nasal cavities act as resonators for energy expended by the vocal cords. Articulators are generated by the lips, teeth, tongue, soft palate, and jaw muscles. Voiceprint experts must compare spectrographic prints or phonetic elements to arrive at an identification. These expert laboratory technicians are

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trained to make subjective conclusions, much as fingerprint or criminalistic experts must make determinations on the basis of evidence. WITNESSES IDENTIFYING THE VOICE HAD PREVIOUS ACQUAINTANCE WITH THE CALLER SUCH IDENTIFICATION OF VOICE CAN BE RELIED UPON Mohan Singh v. State of Bihar (2011) 9 SCC 272 where the witnesses identifying the voice had previous acquaintance with the caller i.e. the accused, such identification of voice can be relied upon; but identification by voice has to be considered carefully by the court. RECORDING OF THE EVIDENCE OF A PERSON BY WAY OF AUDIO RECORDING OR ASKING HIM TO FURNISH HIS VOICE SAMPLE COULD NOT BE DEEMED TO BE VIOLATIVE OF CONSTITUTIONAL GUARANTEE UNDER ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA Central Bureau of Investigation, New Delhi V. Abdul Karim Ladsab Telgi and others 2005 CRI. L.J. 2868 wherein it is held as follows: "Requiring the accused to lend his voice sample for the limited purpose of identification of his voice as to compare the same with the tape-recorded telephonic conversation, is neither requiring him to impart knowledge in respect of relevant facts, by means of oral statements or statements in writing of his personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. Besides, the accused will not be called upon to state on any of the state of facts which will have to be determined by a Court or authority authorised to come to a decision, by testifying to what he has seen or something he has heard, which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of the matters in controversy. Accordingly, the requirement of lending voice sample to the investigating agency by the concerned accused for the purpose of identification of their voice cannot infringe Art. 20(3) of the Constitution of India, as it is outside the limit of "testimony" much less, "testimonial compulsion". Moreover, one of the precondition for admissibility of tape-recorded conversation is identification of the voice. If identification of the voice is the quitessence for the admissibility of the tape-recorded conversation, it is preposterous to suggest that it is not open to the investigating agency to require the concerned accused to lend his voice sample for the purpose of identification of the voice in the tape-recorded conversation. Further, as voice is associated with an individual or his person and a personal trait, if scientific analysis for identification of voice is possible then, there is no inhibition in taking the voice sample of a person on the basis of which, his identity in the tape-recorded telephonic conversation can be established.'

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THE PHONOGRAPHIC REPRODUCTION OF SOUND IS GENERALLY ADMISSIBLE IN EVIDENCE UPON THE TRIAL BY SHOWING THE MANNER AND THE CIRCUMSTANCES UNDER WHICH IT WAS SECURED Rup Chand vs Mahabir Parshad And Anr. AIR 1956 P H 173 Chief Justice Bhandari of the then Punjab High Court observed This petition raises a question which is as novel as it is new, namely, whether the record of a conversation which has appeared on a taperecorder can be admitted under the provisions of the Indian Evidence Act . The only two sections which appear to have any bearing on the matter in controversy between the parties are Sections 145 and 155(3) Indian Evidence Act. Section 145 provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. .. The record of a conversation appearing on a tape-recorder can by no stretch of meaning be regarded as a statement "in writing or reduced into writing" for Section 3(65), General Clauses Act declares that expressions referring to "writing" shall be construed as including references to printing, lithography; photography and other modes of representing or reproducing words in a visible form and the record which appears on a, tape-recorder cannot fall within the ambit of this definition. The expression "writing" appearing in Section 145 refers to the tangible object that appeals to the sense of sight and that which is susceptible of being reproduced by printing, lithography photography etc. It is not wide enough to Include a statement appearing on a tape which car. be reproduced through the mechanism of a tape recorder. .. The other provision on which reliance has been placed is Section 155(3), Evidence Act. This section provides that the credit of a witness may be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. If the witness in the present case made a statement to the defendant before the commencement of tills case which is at variance with the statement made by him on a later date, there can be no doubt that it can be proved by the defendant going into the witness-box and deposing that the statement was in fact made to him. The correctness of this proposition is not in dispute. Difficulty has, however, been presented by the question whether a record of that statement as prepared by a scientific instrument can be produced in evidence in Court. .. The answer is in my opinion clearly in the affirmative. Legal evidence consists of the oral testimony of witnesses and of documents produced in the case, but it is open to a person giving evidence in Court to produce instruments or devices used in the commission of a crime and to exhibit maps, charts, diagrams, models, photographs and X-ray pictures, when properly authenticated, of some fact in issue. .. I am aware of no rule of evidence which prevents a defendant who is endeavouring to

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shake the credit of a witness by proof of former inconsistent statements, 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. FOREIGN DECISIONS QUOTED BY JUSTICE BHANDARI This proposition is fully supported by a number of American decisions in which the admissbility of evidence furnished by devices for electro-telephonic communication has been fully considered. Evidence based on conversations on telephone is admissible provided the identity of the person with whom the witness spoke or the person whom he heard speak is satisfactorily established. -- 'Andrews v. United States', 105 Am. LR 322 (A). The phonographic reproduction of sound is generally admissible in evidence upon the trial by showing the manner and the circumstances under which it was secured. A person who objected to a rail road company laying its track upon a certain street was permitted to operate a phonograph in presence of the Jury to produce sounds claimed to have been made by the operation of trains in proximity to his hotel. The Supreme Court of Michigan held that there was no error in the admission of this testimony particularly as it was established that the instrument was a substantially accurate and trustworthy reproducer of sounds actually made. In the course of his order Blair J. observed as follows: "Communications conducted through the medium of the telephone are held to be admissible, at least in cases where there is testimony that the voice was recognized ..... The ground for receiving the testimony of the phonograph would seem to be stronger, since in its case there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sounds themselves". (Boyne City, G. and A. R. Co. and v. Anderson', 117 Am SR 642 (B).) Similarly, testimony as to a conversation heard by the witness through a "detectophone" is admissible; and where evidence obtained through a dictograph is received it is open to the State to produce the dictograph in evidence and to have the operator thereof explain the instrument and demonstrate the principles on which it operates. -- 'Brlndley v. State', 193 Ala .43 (O); Annotated Cases 1916 E 177 (D). The only English case to which my attention has been invited is that of 'Buxton v. Cumming, (1927) 71 Sol. Jo. 232 (E) in which Swift J. is reported to have raised the question whether a dictaphone record has ever been accepted in evidence by the Courts and upon counsel replying that he did not think so said that he saw no reason why such a record as the one which the witness sate he had made should not be put in evidence.

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ADMISSIBLE UNDER S. 8 OF THE EVIDENCE ACT PROVIDED THE RECORDED CONVERSATION IS RELEVANT TO THE MATTER IN ISSUE Joginder Kaur vs Surjit Singh AIR 1985 P H 128 , Has the appellant-wife been suffering continuously or intermittently from a mental disorder including schizophrenia of such a kind and to such an extent that the trial Court could justifiably grant a decree for divorce against her in terms of S. 13(1)(iii) of the Hindu Marriage Act, 1955 (for short, the Act), is the solitary question that arises for decision in this appeal. Apparently this sub-clause has four elements--(I) the party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder; (ii) the decease must be of such a kind; (iii) and of such an extent that (iv) the other party cannot reasonable be expected to live with her or him. The case set up by the respondent husband in his petition under S.13 of the Act is as follows:-- The appellant has an incomplete development of mind and has been suffering from split personality and psychopathic disorder. She has been suffering from schizophrenia from the very beginning which fact was kept concealed by her parents. Soon after the marriage she started behaving in an abnormal manner as she would laugh and cry without any rhyme or reason in the presence of the members of the house and even the visitors. She had no sense of decency and cannot differentiate between vulgarity and decency. At times she would urinate in the open compound in the presence of the males and would even ease herself in the living room. Soon after the marriage when the neighbors and other relatives paid customary visits to see and meet her she behaved in an abnormal manner a couple of times and went to the extent of spitting at the face of the visitors on slightest enquiry by them. When he and his father protested to the father of the appellant about her strange behaviour, he admitted that "she has been suffering from psychopathic disorder but she was got treated by them from Mental Hospital" and insisted that she had already recovered from the disease. The evidence led ..in support of the .. case of his can conveniently be divided into three categories in order to find the weight and worth of the same:--(I) Oral evidence about the abnormal behaviour of the appellant, (ii) her admission about the ailment in question as tape-recorded, and (iii) the medical or the experts' evidence. So far as the second category of evidence is concerned, it is no doubt true that a taperecorded conversation is comparable to a photograph and is admissible under S. 8 of the Evidence Act provided the recorded conversation is relevant to the matter in issue and the identification of the voice and the accuracy of conversation is proved by eliminating the possibility of erasing the recorded tape. It deserves to be highlighted that the respondent has not made even a remote reference to this recorded conversation in his petition under S. 13 of the Act. He has nowhere explained either in the petition or in his statement as A. W. 5 as to under what circumstances and in what manner this conversation had been recorded. None except himself has proved the recorded female voice to be that of the appellant. He has not got this voice compared by recording the voice of the appellant in Court. It has been

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observed by their Lordships of the Supreme Court in Yusuf alli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147, that "The time and place and accuracy of the recording must be proved by a competent witness and the voice must be properly identified. One of the features of magnetic tape recording is the ability to erase and reuse the recording medium. Because of this facility of erasure and reuse, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the record has not been tampered with".

PROCEDURE TO BE FOLLOWED WHEN TAPPING TELEPHONE OFFICIALLY PUCL v. Union of India & Anr., AIR 1997 SC 568 In order to rule-out arbitrariness in the exercise of power under Section 5(2) of the Act (Indian Telegraph Act, 1885) and till the time the Central Government lays down just, fair and reasonable procedure under Section 7(2)(b) of the Act, it is necessary to lay down procedural safeguards for the exercise of power under Section 5(9) of the Act so that the right to privacy of a person is protected. We, therefore, order and direct as under: 1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned with one week of the passing of the order-. 2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order. 3. The matters to be taken into account in considering whether an order is necessary under Section list of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means. 4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses specified in the order belong an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises described in the order.

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5. The order under Section 5(9) of the Act shall, unless renewed, case to have effect at the end of the period of two month from the date of issue. The authority which issued the order may, at any time before the end of two month period renew the order if it by the State Government. (a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act. (b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material. (c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months. 6. The authority which issued the order shall maintain the following records: (a) the intercepted communications, (b) the extent to which the material is disclosed, (c) the number of persons and their identity to whom any of the material is disclosed. (d) the extent to which the material is copied and (e) the number of copies made of any of the material. 7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act. 8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.

RIGHT TO PRIVACY IS RIGHT TO LIFE

In Ram Jethmalani & Ors. v. Union of India & Ors., (2011) 8 SCC 1, Court dealt with the right of privacy elaborately and held as under: "Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner....... The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values..... The notion of fundamental rights, such as a right to privacy as part of right to life,

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is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others". RTI APPLICATION TO OBTAIN INFORMATION RELATED TO TELEHONIC

INTERCEPTION NOT MAINTAINABLE The CENTRAL INFORMATION COMMISSION has observed in its Order dated 5th May, 2006, in State Vs. S.C. Sharma, that the orders of interception of telephones u/s 5(2) of the Indian Telegraph Act, 1885, were themselves sensitive for national security, sovereignty & integrity. Therefore, these are firmly within the ambit of Section 8(1)(a) of the RTI Act, and cannot, thus, be disclosed. The process of review of a matter connected with any top secret interception order must stand on the same footing as the main order itself and by inference be exempt from disclosure requirement u/s 8(1 )(a) of the RTI Act. It would be both imprudent and improper to apply the criteria of severability and to determine one part of the process as classified and other as open. The entire process of telephone interception is one and indivisible and thus, not liable for disclosure. Therefore, the information as sought by the Appellant in his RTI request attracts exemption under Section 8 (1) (a), (g) & (h) of the RTI Act. In any case, the deliberations of the Review Committee are maintained with the Ministry of Home.

ACCURATE VOICE IDENTIFICATION IS MUCH MORE DIFFICULT THAN VISUAL IDENTIFICATION - IT IS PRONE TO SUCH EXTENSIVE AND SOPHISTICATED TAMPERING, DOCTORING AND EDITING 2011 SC

Nilesh Dinkar Paradkar vs State Of Maharashtra 2011 (3 ) SCR 792 = 2011 (4 ) SCC 143 There is no seizure of any mobile phone or even sim card at the behest of the appellant. The prosecution has failed to produce any evidence from the operators with regard to the registration of the aforesaid phone numbers. .. The veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. . The evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. .. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses.

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Yusufalli Esmail Nagree vs The State Of Maharashtra 1968 AIR 147, 1967 SCR (3) 720 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 a photograph of a relevant, incident, a contemporaneous tape record of a relevant conversation is a 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 a competent witness and the voices must be properly identified. One of the features of magnetic 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.

Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors 1975 AIR 1778, 1975 SCR 453 The tape records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it. (b)Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c)The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.

SUPREME COURT EXPRESSES ITS CONCURENCE WITH FOREIGN JUDGEMENTS & JURISPRUDENCE ON THE POINT Ram Singh & Ors vs Col. Ram Slngh 1986 AIR, 3 1985 SCR Supl. (2) 399 The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities. In R. v. Maqsud Ali, [1965] All. E.R. 464., Marshall, J., observed thus:- C "We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new

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devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged. We find ourselves in complete agreement with the view taken by Marshall, J., who was one of the celebrate Judges of the Court of Criminal Appeal. To the same effect is another decision of the same court in R. v. Robson [1972] 2 All E.R. 699, where Shaw, J., delivering a judgment of the Central Criminal Court observed thus: "The determination of the question is rendered more difficult because tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. During the course of the evidence and argument on the issue of admissibility the recordings were played back many times. In the end I came to the view that in continuity, clarity and coherence their quality was, at the least, adequate to enable the jury to form a fair and reliable assessment of the conversation which were recorded and that with an appropriate warning the jury would not be led into and interpretation unjustifiably adverse to the accused. Accordingly, so far as the matter was one of discretion, I was satisfied that / injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis." In Amercian Jurisprudence 2nd (Vo1.29) the learned author on a conspectus of the authorities referred to in the footnote in regard to the admissibility of tape recorded statements at page 494 observes thus: "The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

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