Madras High Court
A.R.Periyasamy vs G.Karunakaran on 1 December, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.12.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.4 of 2008 and M.P.No.1 of 2008 A.R.Periyasamy ... Petitioner Vs. G.Karunakaran .... Respondent Prayer: Petition filed under Article 227 of the Constitution of India against the order passed in I.A.No.4 of 2007 in O.S.No.935 of 2004 dated 11.09.2007 on the file of Principal District Munsif Court, Bhavani Taluk, Erode District is liable to be set aside. For Petitioner : Mr.M.Sundaresh For Respondent : Mr.N.Manokaran ORDER
The civil revision petitioner/petitioner/defendant has filed the present revision as against the order dated 11.09.2007 in I.A.No.4 of 2007 in O.S.No.935 of 2004 passed by the Principal District Munsif Court, Bhavani Taluk, Erode District in dismissing the application filed by the revision petitioner/petitioner/defendant under Section 45 of the Indian Evidence Act and under Section 151 of Civil Procedure Code.
2.The trial Court, while passing orders in I.A.No.4 of 2007, has inter alia observed that 'the respondent/plaintiff has filed the suit for a declaration that he is the absolute owner of the suit property and for consequential permanent injunction and this suit is to be determined on the basis of documents and that the revision petitioner /petitioner/defendant has not prayed for a relief of comparing the recorded voice found in the cassette with that of the evidence to be recorded, to be compared by an expert and has held that the application is not maintainable and further there are efficient persons who can speak with the voice of another and in this circumstance, it is difficult to come to the conclusion that the voice found in the cassette is that of P.W.3 and therefore, dismissed the application.'
3.The learned counsel for the revision petitioner urges before this Court that the trial Court ought to have allowed the I.A.No.4 of 2007 wherein the revision petitioner/defendant has prayed for permission to be given to him to record the sample voice of P.W.3 for the purpose of comparison and that as per Section 73 of the Indian Evidence Act, the Court has got the power to compare the voice of tape recorder with that of P.W.3 to be recorded before the Court and that the trial Court has not appreciated of the fact that a voice recorded in a tape recorder is admissible in law and therefore, prays for allowing the civil revision petition in the interest of justice.
4.The learned counsel for the revision petitioner/defendant cites the decision in Ziyauddin Burhanuddin Bukhari V. Brijmohan Ramdass Mehra and others AIR 1975 Supreme Court 1788 at page 1795 wherein the Hon'ble supreme Court has observed as follows:
"We think that the High Court was quite right in holding that 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 know 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.
These requirements were deduced by the High Court from R. V. Maqusd Ali (1965) 2 All ER 464."
5.He also relies on the decision in 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.'
6.Yet another decision is relied on the revision petitioner R.M.Malkani V. State of Maharashtra AIR 1973 Supreme Court 157 at page 158 wherein the Hon'ble Supreme Court has observed as follows:
"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.
When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape-recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.
Held the tape recorded conversation was admissible in evidence. There was no unlawful or irregular method in obtaining the recording of the conversation. There was no violation of either Art. 20(3) or Art. 21 of the Constitution. Further the conversation was not within the vice of S.162, Criminal P.C. Cr.A. No.727/1967 dated 9.10.1969 (Bom) Affirmed. AIR 1968 SC 147 and AIR 1964 SC 72. Rel. on."
7.The learned counsel for the revision petitioner also places reliance to the decision in Dial Singh Narain Singh V. Rajpal Jagan Nath and others AIR 1969 Punjab and Haryana 350 wherein it is held that 'fresh tape-recording for comparison of earlier recorded voice is admissible.' To lend support to the contention that the tape recorded statement is a relevant fact and the same is admissible under the Indian Evidence Act, the learned counsel for the revision petitioner cites the decision in N.Sri Rama Reddy and others V. V.Giri AIR 1971 Supreme Court 1162 wherein the Honourable Supreme Court has held that 'the tape recorded statement is admissible under Section 146(1), exception 2 to Section 153, and Section 155 (3) and also for corroboration.'
8.The learned counsel for the respondent submits that I.A.No.4 of 2007 filed by the revision petitioner/defendant is not maintainable in law since P.W.3 who has been cross examined has denied the voice found in the tape recorder and that it is not the voice of the respondent/plaintiff and that the trial Court has given proper reasons while dismissing the application and therefore, the same need not be interfered by this Court sitting in revision.
9.The learned counsel for the respondent/plaintiff relies on the decision in Saeeda Irfana V. Inspector of Police 2001 (4) CTC 542 wherein this Court has inter alia held that 'tape recorded conversations is normally admissible in evidence but tape recorded telephonic conversations relied on by petitioner could not be acted upon by court at preliminary stage for transferring case from State Police to CBI as its accuracy, relevancy and whether it has not been tampered were yet to be identified, proved or established etc.'
10.In this connection, this Court points out the decision in Yusufalli Esmail Nagree V. The State of Maharashtra AIR 1968 L.W. (Cri) at page 12 wherein the Hon'ble Supreme Court has observed as follows:
"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.
If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. 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."
11.Further, this Court also points out that in the decision in R.M.Malkani V. State of Maharashtra 1973 Supreme Court Cases (Cri.) 399 at page 400 wherein the Hon'ble Supreme Court has held as follows:
"A tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.
If the conversation is voluntary and there is no compulsion, the attaching of the tape recording instrument though unknown to the person whose conversation is recorded does not render the evidence of conversation inadmissible. The conversation cannot be said to have been extracted under duress or compulsion. Tape recording a conversation is a mechanical contrivance to play the role of an eavesdropper."
12.Moreover, this Court points out the decision in Rup Chand V. Mahabir Parshad and another 1956 Punjab 173 wherein it is observed as follows:
"The record of a conversation appearing on a tape-recorder cannot be regarded as a statement "in writing or reduced into writing". The record which appears on a tape-recorder cannot fall within the ambit of the definition of "writing" as given in Section 3 (65), General Clauses Act, 1897. 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 can be reproduced through the mechanism of a tape-recorder."
13.On a careful consideration of respective contentions, this Court is of the considered view that the tape itself is a primary and direct evidence as to what has been said and picked up by the recorder and can only be an corroborative evidence and in that view of the matter, the revision petitioner/defendant is directed by this Court to file necessary fresh interlocutory application before the trial Court seeking comparison of the recorded voice found in the cassette with that of the evidence of P.W.3 to be recorded by the trial Court, to be compared by an expert as per rules of relevancy found in the Indian Evidence Act and that the trial Court is to ensure that accuracy of what has to be recorded, has to be proved by the maker of the record with due identification through direct or circumstantial evidence so as to rule out the possibility of tampering with the record and in this regard, the trial Court shall provide opportunity to both parties including the filing of counter if any and to dispose of the matter on merits, uninfluenced with any of the observations made by this Court in this revision. Consequently, the observation of the trial Court in I.A.No.4 of 2007 to the effect that 'presently an individual can speak with the same voice that of another and in this regard many are talented and available etc.', are not correct in the eye of law, in the considered opinion of this Court.
With these observations and directions, the Civil Revision Petition is disposed off, leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed.
01 .12.2008 Index : Yes Internet : Yes sgl To The Principal District Munsif Court, Bhavani Taluk, Erode District.
M.VENUGOPAL,J.
Sgl ORDER IN C.R.P.(PD).No.4 of 2008 01.12.2008