Gujarat High Court
Kshitijbhai Manubhai Patel vs Dilipbhai Laxmanbhai Kanani on 8 May, 2026
NEUTRAL CITATION
C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026
undefined
Reserved On : 30/04/2026
Pronounced On : 08/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 120 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
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Approved for Reporting NoYes
No
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KSHITIJBHAI MANUBHAI PATEL & ORS.
Versus
DILIPBHAI LAXMANBHAI KANANI & ANR.
=====================================================
Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/
REPRESTENTATIVES for the Petitioner(s) No. 2
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 2.3
SR. ADV. MR. SHALIN MEHTA for SHASHVATA U
SHUKLA(8069) for the Petitioner(s) No. 1,2.1,2.2,3,4
MR. YOGESH THAKKAR for MR NAYAN Y RAVANI(10696) for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Invoking Article 227 of the Constitution of India, the petitioners prayed for the following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to pass an order quashing and setting aside the impugned order dated 30.12.2022 passed below application Exh.119 in Special Page 1 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined Civil Suit No.187 of 2006 in Annex-A, by the Learned 2 nd Additional Senior Civil Judge, Ahmedabad (Rural) and YOUR LORDSHIPS may be further pleased to reject the application Exh.119 filed by the Respondents-original Plaintiffs in Special Civil Suit No.187 of 2006, (B) During the pendency and until the final disposal of the present Special Civil Application, YOUR LORDSHIPS may be pleased to stay the execution, implementation and operation of the impugned order dated 30.12.2022 passed below application Exh 119 in Special Civil Suit No. 187 of 2006 in Annex-A, by the Learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), (C) YOUR LORDSHIPS may be pleased to grant ex-parte ad-interim relief in terms of Paragraph No. (B) above;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
2. The brief facts of the case are that, the respondents - original plaintiffs have instituted a Special Civil Suit No.187 of 2016 against the petitioners - defendants claiming, specific performance of oral agreement alleged to have been entered into with the petitioners for the sale of the immovable property consisting of bungalow situated in Muni Hemchandra Acharya Co-operative Housing Society, known as 'Bhikhubhai Bungalows'.
2.1 The petitioners, having been served, resisted the suit of the plaintiffs by filing the written statement denying execution of the oral agreement with the clarification that the negotiation between the petitioner and the respondent No.1 remained inconclusive and did not yield into any concluded contract.
Page 2 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined 2.2 The respondents - plaintiffs claim that they recorded the talks between the parties, which establish that the concluded contract was executed. The transcripts of the alleged oral talk was placed on record, which has been denied by the petitioners.
2.3 The multiple documents were produced by the respondents - plaintiffs and the proceeding taken place, including the filing of petition before this Court for exhibiting those documents. An Appeal from Order was also filed, which was disposed of later on passing of the order in proceedings in the suit, pursuant to which the petitioners have preferred Special Civil Application No.743 of 2016 before this Court. Vide order dated 03.10.2016, this Court was pleased to direct the learned trial Court to decide the application Exhibit-104 afresh and to pass appropriate order after examining each of the evidence as admissible evidence.
2.4 Meanwhile, the plaintiffs preferred an application Exhibit-119 seeking a direction to appoint the Director, Forensic Science Laboratory (FSL, for short) or any other authorized expert or technical officer as a Commissioner/Receiver to record the voice of petitioner Nos.1 and 2 and further, to record the voice before the Honourable Court through such Receiver and compare the same with the cassette (tape) relied upon by the respondents - plaintiffs to give a scientific technical opinion whether the cassette (tape) relied upon, contains the voice of the petitioner Nos.1 and 2 and to produce report before the learned trial Court and further to issue summons to Director, Forensic Science Laboratory as a witness in the interest of justice. This Page 3 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined application was filed on 26.04.2016. Meanwhile, on 28.11.2016, pursuant to the order passed by this Court, the learned trial Court was pleased to partly allow the application Exhibit-104 directing that the document produced at Mark-35/3, Mark- 35/4, Mark-35/5 and Mark-37/1 to be exhibited. The learned trial Court also passed an order to exhibit the original audio cassette relied upon by the respondents - plaintiffs.
2.5 The petitioners herein challenging the order dated 27.11.2016 passed below Exhibit-104 by filing Special Civil Application No.20425 of 2016. Meanwhile, the learned trial Court was pleased to reject the application Exhibit-119 filed by the respondents - plaintiffs. Being aggrieved, respondents - plaintiffs filed Special Civil Application No.5954 of 2018 before this Court.
2.6 This Court disposed of Special Civil Application No.5954 of 2018 and Special Civil Application No.20425 of 2016.
2.7 In Special Civil Application No.20425 of 2016, para 3 of the order passed by the coordinate Bench reads as under:-
"3. Having heard learned advocates for the respective parties and on overall consideration of the matter, so far as exhibition of the document as referred to in operative portion of the judgment is concerned, there appears no dispute in exhibiting and considering its evidentiary value in accordance with law. But, so far as exhibition of audio cassette lastly referred to in the operative portion is concerned, it is required to be proved by affording reasonable opportunity to the rival parties in accordance with the provisions of law. If the plaintiffs are able to prove the aforesaid audio cassette, it shall be exhibited and shall be accordingly considered as evidence."
Page 4 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined 2.8 In Special Civil Application No.5954 of 2018, para 3 & 4 of order passed by the coordinate Bench reads as under:-
"3. Having heard learned advocates for the respective parties and having perused the impugned order, it appears that the aforesaid application is not considered by the learned trial court on its own merits and due to pendency of other petition and direction issued by this Court, the application came to be dismissed without entering into the merits or demerits of the application.
4. In view of aforesaid factual position, the learned trial court is directed to consider application Exh. 119 afresh. The learned trial court shall afford reasonable opportunity to both the parties and shall decide the application afresh on its own merits without being influenced by previous order passed by this Court or even in the present proceedings and taking into consideration the order of even date passed by this Court in Special Civil Application No. 20425 of 2016."
2.9 Pursuant to the aforesaid order, the application at Exhibit-119 was again decided by the order dated 30.12.2022. The 2nd Additional Senior Civil Judge, Ahmedabad Rural, passed the following order:-
"It is ordered that the audio tape submitted in the current suit shall be sealed in the presence of the Registrar and sent through a Special Bailiff to the F.S.L. (Forensic Science Laboratory), Gandhinagar for examination.
The F.S.L. officer is ordered to examine and provide an opinion on whether any tampering or alterations have been made to the said audio tape.
If it becomes necessary to record the voices of the Plaintiff, Defendant No. 1, and Defendant No. 2 for the F.S.L. examination of the audio cassette/tape, the Plaintiff, Defendant No. 1, and Defendant No. 2 shall provide their speech/voice samples at the F.S.L. office in Gandhinagar under the instructions and guidance of the F.S.L. officer.Page 5 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026
NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined For the aforementioned proceedings, the Plaintiff is ordered to deposit *₹20,000/- (Rupees Twenty Thousand Only) in this court within 3 days from the date of this order.
If any additional expenses occur in the future, all such costs shall be borne by the Plaintiff.
The Plaintiff shall separately deposit *₹500/- (Rupees Five Hundred Only)* towards the allowance of the Special Bailiff.
The costs of the present application shall follow the final outcome of the case.
A copy of this order be forwarded to the authorized officer of F.S.L., Gandhinagar. "
(Translated from Gujarati to English, for better understanding.) 2.10 It is in aforesaid background, the petitioners have filed this petition.
3. Learned Senior Counsel Mr. Shalin Mehta for Mr. Shashvata U. Shukla, referred to the judgment of the Supreme Court in Tukaram S. Dighole v. Manikrao Shivaji Kokate, reported in (2010) 4 SCC 329, more particularly para 23 thereof, and submitted that the tape record of any conversation are 'document', as defined in Section 3 of the Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act') and stand on no different footing than photograph.
3.1 He further submitted that the documents are required to be proved as per the provision of the 'Evidence Act'.
3.2 He further submitted that, in the present case, the Page 6 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined trial Court completely ignored the law laid down by the supreme Court in Tukaram (Supra) and appointed the FSL officer to verify whether the audio tape recorder is tampered or not and call his opinion.
3.3 He has further submitted that the troubling order passed by the learned trial Court for the defendant Nos.1 and 2, who are contesting defendants that they have been directed to provide their voice samples to be verified with the voice appearing in the tape recorded. Thereby, the learned trial Court has exceeded its jurisdiction. Learned Senior Counsel submits that in reality, the defendants are directed to give the evidence to prove the case of the plaintiffs.
3.4 He would further submit that, even otherwise, the evidence of the tape recorded is not conclusive evidence. The Court, therefore, was not required to pass any such directions until the tape record produced by the plaintiff is proved like a document to be proved under the provision of the 'Evidence Act' or now, the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as the 'BSA, 2023').
3.5 Mainly upon aforesaid submissions, learned Senior Counsel Mr. Shalin Mehta submitted to allow this petition.
4. Per contra, learned advocate Mr Yogesh Thakkar for learned advocate Mr Nayan Y. Ravani representing the respondents, referred to and relied upon the series of the following authorities:-
Page 7 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined "Judgments under Order XXVI Rule 10A
1. Committee of Management of Anjuman Intezamia Masajid, Varansi v. Rakhi Singh, reported in 2023 (0) AIJEL-SC 73064.
2. Rama Avtar Soni v. Mahanta Laxmidhar Das, reported in 2018 (0) AIEJEL-SC 62970.
3. Cryogas Equiptment pvt ltd v. Inox India Pvt Ltd., reported in 2026 (0) AIJEL-HC 253077.
4. Meenaben Rajendra Kumar v. Shreenand Rajchandra Adhyatmik Satsang Sadhana Kedra reported in 2025 (0) AIJEL-HC 251133.
5. Chottalal Bhaichandbhai Panchal since deceased through LHS V Chetan Krishnakant Shah HUF, Its general manager and karta Chetan Krishnakant shah reported in 2022 (0) AIJEL-HC 244533 Judgment for Recall of witness
1. State of Gujarat v Kamlesh Barot Since deceased, reported in 1999 (0) AIJEL-HC 212051 Judgments for Article 20 and 21
1. State of UP v Sunil, reported in (2017) 14 SCC 516
2. Vibhor Garg vs Neha reported in 2025 (0) AIJEL SC 75540
3. Jil w/o Priyank Manubhai Choksi v State of Gujarat, reported in 2024 (0) AIJEL HC 249292
4. R.M. Malkani v State of Maharashtra, reported in 1972 (0) AIJEL SC 22055
5. Pravinsingh Nrupatsingh Chuhan v State of Gujarat, reported in 2023 (2) GLR 1381 Page 8 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined
6. Pravinsingh Nrupatsingh Chuhan v State of Gujarat, reported in 2023 (0) AIJEL-SC 72866."
4.1 He would mainly submit that Order XXVI Rule 10A of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') empowers Civil Court to appoint the FSL as a Court Commissioner, which rightly has been done by the learned trial Court 4.2 He would further submit that, by such order, the petitioners herein would not be prejudiced as petitioners would get a chance to cross-examine the Commissioner appointed under Order XXVI Rule 10A of 'the Code' and can challenge the veracity of the statement made by such Court Commissioner.
4.3 He would further submit that recall of the witness is permissible even under the provision of 'the Code' and further, in view of Articles 20 and 21 of the Constitution of India, directing the defendants to give the voice sample would not prejudice their personal liberty. Therefore, learned advocate Mr. Thakkar has submitted that the learned trial Court has not committed any patent error, which permits this Court to interfere under the supervisory jurisdiction.
4.4 Making aforesaid submission, learned advocate Mr. Thakkar submits to dismiss this petition.
5. Having heard learned advocates for both the sides and considering the facts and circumstances of the case parties as well as the two orders reproduced hereinabove passed by the Page 9 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined coordinate Bench, at the outset, what could be noticeable is that, in the impugned order the fact missing is that respondents
- plaintiffs trying to prove the electronic evidence i.e. tape record, whether have averred that this document is a primary document or is a secondary document.
6. What could be inferred from the impugned order that the plaintiffs have filed a suit for specific performance alleging that the oral agreement executed between the parties and the plaintiffs have recorded the telephonic conversation alleged to have taken place between the plaintiff and defendant, constituting concluded contract.
7. Plaintiffs have not produced the telephone instrument in which alleged telephonic conversation is recorded.
Plaintiff has produced a tape record containing alleged conversation/talk between the party. This tape recorded is copy made from the telephone instrument which has recorded alleged talks, between the party. Thereby, such tape records falls in the definition of 'secondary evidence'. Before admitting the electronic evidence, the certificate under Section 65B(4) is necessary, essential and mandatory. However, the impugned order misses this vital issue that whether the tape recorder produced by the plaintiffs is a primary document or secondary document.
8. If it is a primary document, it has to be produced along with the hash value and if it is a secondary evidence, it can be admitted only if the certificate under Section 65B(4) of the 'Evidence Act' or now, Section 63(4) of the 'BSA' is produced and proved.
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9. The Division Bench of this Court in Parulben W/o Mahendrabhai Rameshbhai Godhani v. State of Gujarat, reported in 2026 (0) JX(Guj) 73, in para 17 and 18 of the judgment, held that production and proving of certificate under Section 65B(4) of the 'Evidence Act' would be a prerequisite for the Court to consider the electronic evidence as an admissible information.
10. The Supreme Court in case of Rahil v. State (Govt. of N.C.T. Of Delhi), reported in 2025 (0) INSC 858 in para 32 to 36 reads as under:-
"32. Section 65-B(4) requires issuance of a certificate by a person-in-charge or responsible officer in relation to operations of the relevant computer network in question stating as per his knowledge or belief that during the relevant period:-
(a) computer(s) were carrying out regular activities, and were working properly; and
(b) the relevant information was regularly fed into the computer in ordinary course of business, as proof of the facts stated therein.
33. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 this Court held computer printouts are secondary evidence and may be admitted on mere production. Production of certificate under section 65-B(4) was not mandatory for admission of such secondary evidence. However, in Anvar PV v. PK Basheer (2014) 10 SCC 473 this Court took a different view and held Section 65-B laid down a special procedure for admissibility of electronic records which mandatorily requires production of certificate under 65-B(4) for admissibility of secondary evidence i.e. computer printouts. This view was doubted in Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801. In Sonu v. State of Haryana (2017) 8 SCC 57, another bench of this Page 11 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined Court, held the ratio in Anvar PV (supra) shall apply prospectively unless the defence during trial raised objection to admission of computer printouts. Finally, the issue was settled by a three-judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, wherein the bench overruling Navjot Sandhu (supra) and Shafhi Mohd. (supra) upheld the ratio in Anvar PV (supra) and held issuance of certificate under section 65-B(4) is a condition precedent for admissibility of computer-generated secondary evidence. It cannot be supplemented through oral evidence.
34. It would be argued that Navjot Sandhu (supra) which did not insist on production of certificate for admissibility of computer-generated printouts was prevailing at the time when the case was decided by the Trial Court and the Appellate Court. The judgement in Anvar PV (supra) was delivered subsequently and cannot be a ground to render the CDRs inadmissible. It is also brought to our notice that issue of retrospective application of the ratio in PV Anvar (supra) is pending for consideration before this Court M.A. No. 1563/2017 in C.A. No. 4226/2012.
35. Be that as it may, it is relevant to note the larger bench in Khotkar (supra) while reiterating PV Anvar (supra) did not hold that its ratio shall apply prospectively. Furthermore, in Mohd. Arif @ Ashfaq v. State (NCT of Delhi) (2023) 3 SCC 654 this Court while hearing a review petition in a death penalty case retrospectively applied the ratio in Anvar PV to cases decided earlier and eschewed secondary electronic evidence dehors certificate under section 65-B(4), holding as follows:-
"23. Navjot Sandhu was decided on 4-8-2005 i.e. before the judgment was rendered by the trial court in the instant matter. The subsequent judgments of the High Court and this Court were passed on 13-9-2007 and 10- 8-2011 respectively affirming the award of death sentence. These two judgments were delivered prior to the decision of this Court in Anvar P.V. which was given on 18-9-2014. The judgments by the trial court, High Court and this Court were thus well before the decision in Anvar P.V. and were essentially in the backdrop of law laid down in Navjot Sandhu. If we go by the principle Page 12 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined accepted in para 32 of the decision in Sonu, the matter may stand on a completely different footing. It is for this reason that reliance has been placed on certain decisions of this Court to submit that the matter need not be reopened on issues which were dealt with in accordance with the law then prevailing. However, since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P.V. and Arjun Panditrao Khotkar.
24. Consequently, we must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65-B(4) of the Evidence Act."
Similar view was taken in Sundar @ Sundarrajan v. State by Inspector of Police 2023 SCC Online SC 310.
36. Though the present case does not involve death penalty, it is undeniable that appellants were facing a criminal trial and the prosecutor was required to prove a fact beyond reasonable doubt strictly in accordance with law. Appellants during trial raised objections to admissibility of the secondary electronic evidence relating to Rahil which was marked as exhibit PW23/B-D. Thereby the prosecutor was put on due notice and had opportunity to fill the lacuna by producing the requisite certificate under Section 65-B(4) but did not do so.
In Sonu (supra), this court held if an objection is taken to CDRs being marked without a certificate and the same was not cured by the prosecutor at relevant stage the document shall be inadmissible in law.
In these circumstances we are inclined to apply the ratio in PV Anvar and Khotkar to the case and hold that the exhibits are inadmissible in law being secondary evidence without certification."
11. Therefore, in absence of the certificate under Section 65B(4) of the 'Evidence Act' or Section 63(4) of the 'BSA', the Page 13 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined Court cannot take decision in regards to admissibility of electronic evidence, the tape record in the present case.
12. Moreover, the Supreme Court in Nilesh Dinkar Paradkar v. State Of Maharashtra, reported in 2011 (4) SCC 143, after surveying the precedent and the various necessary conditions for admissibility of the tape recorded statement, has examined the duty of the Court while evidence of voice identification is produced. Para 31 to 39 thereof reads as under:-
"31. In our opinion, 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. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.
32. In the case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors., this Court made following observations:-
"19. 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 Page 14 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined 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."
33. In the case of Ram Singh & Ors. Vs. Col. Ram Singh, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:-
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise 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 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 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 disturbances."
34. In Ram Singh's case (supra), this Court also notices with approval the observations made by the Court of Appeal Page 15 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined in England in the case of R. Vs. Maqsud Ali. In the aforesaid case, Marshall, J. observed thus:-
"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 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."
35. To the same effect is the judgment in the case of R. Vs. Robson , which has also been approved by this Court in Ram Singh's case (supra). In this judgment, Shaw, J. delivering the judgment of the Central Criminal Court observed as follows:-
"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.
36. Chapter 14 of Archbold Criminal Pleading, Evidence and Practice discuss the law in England with regard to Evidence of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners (including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify Page 16 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined the voices. These factors include:-
"(a) the quality of the recording of the disputed voice,
(b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice,
(c) the ability of the individual to identify voices in general (research showing that this varies from person to person), 8 2010 edition at pg: 1590-91
(d) the nature and duration of the speech which is sought to be identified and
(e) the familiarity of the listener with the known voice;
and even a confident recognition of a familiar voice by a way listener may nevertheless be wrong."
37. The Court of Appeal in England in R Vs. Chenia and R. Vs. Flynn and St. John has reiterated the minimum safeguards which are required to be observed before a Court can place any reliance on the voice identification evidence, as follows:-
"(a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;
(b) proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a listening officer as to his views as to the identify of a speaker;
and
(c) any officer attempting a voice recognition exercise should not be provided with a transcript bearing the annotations of any other officer."
38. In America, similar safeguards have been evolved Page 17 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined through a series of judgments of different Courts. The principles evolved have been summed up in American Jurisprudence 2d (Vol. 29) in regard to the admissibility of tape recorded statements, which are stated as under:-
"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. ... However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said. (emphasis supplied)"
39. This apart, in the case of Mahabir Prasad Verma Vs. Dr. Surinder Kaur , this Court has laid down that tape recorded evidence can only be used as 11 (1982) 2 SCC 258 corroboration evidence in paragraph 22, it is observed as follows:-
"Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such Page 18 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined conversation, the tape-recorded conversation could be no proper evidence." "
13. Recently, the Supreme Court in Tukaram (Supra), in para 23 to 27 held as under:-
"23. The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape- records of speeches are "documents" as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See: Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors. (1976) 2 SCC 17 SCC p.26 para 19). There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.
24. In Yusufalli Esmail Nagree Vs. State of Maharashtra AIR 1968 SC 147, this Court observed that since the tape- records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.
25. In R. Vs. Maqsud Ali (1966) 1 QB 688, it was said that it would be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided Page 19 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026 NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with (1967) 3 SCR 720 (1965) 2 ALL E.R. 464 some caution and assessed in the light of all the circumstances of each case.
26. In Ziyauddin Burhanuddin Bukhari (supra), relying on R. Vs. Maqsud Ali (supra), a Bench of three judges of this Court held that the tape-records of speeches 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.' Similar conditions for admissibility of a tape-recorded statement were reiterated in Ram Singh & Ors. Vs. Col. Ram Singh 1985 Supp SCC 611 and recently in R.K. Anand Vs. Registrar, Delhi High Court (2009) 8 SCC 106.
27. Tested on the touchstone of the tests and safeguards, enumerated above, we are of the opinion that in the instant case the appellant has miserably failed to prove the authenticity of the cassette as well as the accuracy of the speeches purportedly made by the respondent. Admittedly, the appellant did not lead any evidence to prove that the cassette produced on record was a true reproduction of the original speeches by the respondent or his agent. On a careful consideration of the evidence and circumstances of the case, we are convinced that the appellant has failed to prove his case that the respondent was guilty of indulging in corrupt practices."
Page 20 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026NEUTRAL CITATION C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026 undefined
14. In exposition of above legal situation, in the considered opinion of this Court, the impugned order passed by the trial Court, ignoring the aforesaid provision having the value of a binding precedent, dehors the same and is a patent illegality, and therefore, without entering further merits of the case, the impugned order is required to be set aside and the application is required to be remanded back to the learned trial Court to decide the same afresh, after following the aforesaid binding precedent.
15. In so far as the various judgments relied upon by learned advocate Mr. Yogesh Thakkar for the respondent in support of his argument are concerned, they render no assistance at this juncture in view of the aforesaid finding.
16. Consequently, the petition is allowed. The impugned order is quashed and set aside and application at Exhibit-119 in Special Civil Suit No.187 of 2016 is remanded back to the learned trial Court to be decided afresh.
17. Civil Application, if any, do not survive.
Sd/-
(J.C. DOSHI, J.) Raj Page 21 of 21 Uploaded by Raj Subhash Dhobi(HC01779) on Wed May 13 2026 Downloaded on : Wed May 13 20:58:01 IST 2026