LexR. M. MALKANI versus STATE OF MAHARASHTRA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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R. M. MALKANI
v.
STATE OF MAHARASHTR,A
September 22, 1972
[A. N. RAY AND I. D. DUA, JJ.]
417
/11dia11 Penal Code--Ss. 161, 385, 420 iead u·l~h s. 5 l 1-Appcl/ant
charged for atte111pted bribtry along with other charges-Con\'ersation h<•t~
11·,•e11 appellant und u·ittu::i:s tap~ recorded-Whether l1d111issihle i11 r1·idc11ce
-Indian Te/egraplr Act-S. 25--Scope.
The appellant. the ·Corner of Bombay, was charged under s. 161, 385
anu 4W re:iu with s. 5 l l of the I.P.C., 'ior the alleged offences incluuing
attcm"pting to obtain a bribe from n. doctor \\'ho pcrforn1cJ an operation
but thi: patient died subsequently.
The High Court convicted the appellant under s. l6l anu 385 of the
l.P.C. and sentenced him accordingly.
Four questions "·ere canvassct.1 before thi:s ('ourt: ( l) The TriaLCourL
1.1nJ the High Court erred in admitting the cvidi:ncc of the telephonic con-
\\.!rsation bet\\·ecn Dr. M. a \\'itncss an<l the appcll:1nt ,,·hich \\'as rcco~dcd
on the tape. The evidence \\·as illegally obtained in ~ontr~tvention of s. 25
l)f the Indian Telegraph Act, •1n<l therefore, lhi: evidence ,,·as inOOmissiblc;
( 2} The conversation bcty,·ccn Dr. M an<l the appellant \\'hi ch Yo as rccor<l-
cd on the tape took place during investigation. inasn1uch as the Director
of the Anti-corruption Branch asked Dr. M. to talk to the nppcllant and
thcn:forc. the conversation Y.'as not adrilissiblc under s. 162 of the ('r. P.C.:
I 3) ·rhat the appcJ!ant di<l not attcn1pt to obtain g:r;1tilication; and ( 4)
1'hat the sehtcnce of six months' irnprisonntcnt shopld bc intcrfcrrcd \vith
hccausc the appellant has already paid Rs. 10.000.' us tine.
The appel-
lant. surTcrcd heart attacks, an<l therefore. the scntcnct: should he reduced.
Dismissing the appc;.tl,
HELD: (i) There .was no violation of thl! Indian Tclcgr;;1ph ;\et. ·rhc
:-.uhsta.1cc of the offcnc.: u:i<.lcr S. 25 of the lndi:11 Tclt:gr<.tph Act is dno1:1g-
ing. rl!n1ov:ng, tan1pc;ing, .1ouching nlJC~incry, h.1tll.:ry line, t.1r post fnr
interception or acquainting oneself with the cvntcnts of uny mas.,ugc.
Where a person talking on the telephone allO\\'s anothl!r person to record
it or hear it, it cz.~not he sa:d that the other pc~rsons \\'ho is allowed to do
so is damaging, rcn1oving. tan1pering, touching machinery, batti.:ry line
or post for intercepting or ·acquaiqting himself v.-ith thi.: contl!nts o'f any
111cs.,agc.
There was no clement of coi.:rcion or t:on1pulsion in attaching
lhc t:1pe-rccor<.lcr to the rclcphone.
Therefore. thi.: H.igh Courfs observa-
tion that the telephone cull put by Dr. M. to
lh~ ::ippcllant \vas tapped
hv the Police Officer and that there \yas violation of s. 25 of the Indian
T·c!l!graph Act. is erroneous.
·
(ii) Tnpc rccor<lcc.I co 1vcrsat:on is admissihlc, provi<led first the con-
versation is relevant tu the 111;.ittcrs in issue. secondly, there is identifica-
tion of the voice and thirdly. the accuracy of the tapc-rccorc.lcd conversa-
tion is proved by eliminating the possihility of erasing the tape-recorder.
The· tape-recorded conversation is, therefore, n relevant fact under section
8•of the Evidence' Act an<l is admissible tinders. 7 of the Evidence Act.
[424 Fl
418
SUPREME COURT REPORTS
[ 1973] 2 S.C.R.
N. Srirama Raddy v. Shri V. V. Giri [1971] 1 S.C.R. 399; Yusaf Ali
A
Ismail Nagri v. The State of Maharashtra, [1967(] 3 S.C.R. 720 and S.
Pratap Singh v. State of Punjab [1964] 4 S.C.R. 733, reforred to.
(iii) The tape-recorded conversation is not within-the vice of s. 162
of Cr. P. c.;. It was said that the tape-recording was in the course of inves·
tigation.
S. 161 and 162 of the Cr.P.C. indicate that there is investiga-
tion when the police officer orcilly examine a person. The telephonic con-
versation was between Dr. M and the appel!"Ont. Each spoke to the other.
B
Neither made a statement to the police officer.
Therefore, there· was no
mischief of s. 162. [427 HJ
(iv) It is also not correct that tho appellant did not attempt an offence.
fho conversation was snid to show bargain,
The ovidence is
that the
patient died on the 13th May 1964.
Dr. M saw the appellant on 3rd
October 1%4, The appellnnL demanded Rs. 20,000/· In order thnt Dr. A
could nvoiu Inconvenience nnd publicity In pnpcrs, Jn we tho Inquest wt11
C
held.
Further, ii was nlso proved thnt the uppcllnnt barsnlncd und lower·
ed his dcnrnnd to Rs. 10,000/· and then ngnin rnlscd to Rs. 15,0Excerpt shown. Read the full judgment & AI analysis in Lexace.