LAW ON PHONE-TAPPING AND ITS EVIDENTIARY VALUE

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Introduction

Article 21 of the Constitution of India guarantees everyone right to life and personal liberty. The personal liberty of an individual also takes into its ambit the implied fundamental right of right to privacy which has also been recognized by the judiciary. It is being guaranteed that no one shall undergo any arbitrary or unlawful intervention to one’s privacy or any kind of unlawful attack on one’s reputation.

The present issue of Phone tapping or Wire-tapping as called in many countries is an arrangement where the activities of telephonic conversation is in a very clandestine way recorded or listened to tap the activities of a person to gain some information. Though for some obvious reasons pertaining to security, phone-tapping are imperative but it must be done in an authorized manner otherwise it can easily breach the fundamental right of right to privacy. This topic is a never ending debate which remained in the legal system for quite long and it is pertinent to discuss the current legal standing and its evidentiary value for a better understanding as no clear trend has been come into picture till now.

Phone tapping in India

The telephonic and other communication devices come under the Union list in the entry 31 of Constitution of India. However, the Indian Telegraphic Act, 1885 provides power to both State and Central government to tap the phones of people by virtue of Section 5(2) of the Act. It prescribes that any investigation where a person under investigation is under suspicion, then the conversation of that person can be tapped by the authorities. However, the authorities are subject to permission to be taken from the Home Ministry before tapping any phone call. The permission is granted only after valid reasons and needs specified by the authority.

In the current scenario, no statute has been made till now for protecting data which can govern the secret recording of the phone calls. Thus, due to statutory void in this matter there is no fully tested principle laid down by the judiciary which happens mostly in tapping done by private person as contrary to the tapping by the government authority. The Indian Telegraph Act, 1885 in absence of any specific legislation in this matter is still addressing the issue. Section 25 of this Act criminalizes any offence which damages or tampers a telegraph with an intention to intercept or acquaint with the message content. However, this provision only criminalizes the act of the third party and not the parties of the conversation who are recording the conversation of each other.

Though, no direct precedent or judicial decision is there on this aspect which needs to be tested. One leading judgment on this line is of Hon’ble Supreme Court where the appellant was convicted by the Court on evidence of recorded telephonic conversation. This conviction was challenged on the basis that police being a third party cannot record the telephonic conversation hence, not admissible evidence. The Hon’ble Supreme Court without accepting this contention held that police being allowed to listen the conversation can record the conversation which is not a case where one of the party is tapping the other in order to acquaint themselves with the information. Hence, it is not a criminal offence where police tapped the conversation.

Hence, any third party if clandestinely tap the conversation which is not consensual or authorized then it can lead to criminal prosecution and at the same time violating right to privacy of the parties in conversion.  However, there is still no tested statutory regime or judicial decision has come yet which can say that parties recording without consent is a criminal offence and its admissibility as an evidence in Court.

The Information Technology Act, 2000 is another statute which can be discussed though it doesn’t deal with this matter in a comprehensive manner. It prescribes in Section 43A that any sensitive personal information if accessed unauthorized by the corporate body which can lead to wrongful loss or gain to the parties, then it should be duly compensated by the body corporate.

Section 66 on the other hand prohibits and penalizes any access to the device or data of any person in telephonic conversation. However, the Information Act, 2000 in none of its provision regulates the interception by the private person, it only regulates the interception done by the Government or its agencies.

Under tort law, the person aggrieved can file a claim for violation of right to privacy but since the tort law in India is uncodified, the Courts would look into the common law in taking any legal action of this kind.  

Right to Privacy has already been held as fundamental right under Article 21 of the Constitution of India vide judgment in Justice K.S. Puttaswamy (Retd.) v Union of India[1].  In sting operations done by private people, the Courts have observed that it is unacceptable in the society. In the matter of on its Own Motion v. State[2], it was held that: “Sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person.”

Thus, the judgment of Puttaswamy is considered as a precedent for any interpretation of such interception when violating the right to privacy. However, there is no precedent where any damages has been awarded by the secret taping of telephonic conversation by any party and consequently leads to breach of right to privacy.

No bar has been prescribed by the law for instituting any suit or complaint for such interception by one of the party without taking consent from the other party. There is no bar on institution of a suit/claim/complaint based on a phone conversation recorded by a party without the knowledge of the other party. The evidentiary value and its admissibility is the main issue which needs to be addressed here. If we read the Information Technology Act, 2000 and the Indian Evidence Act, 1872, the voice recording comes within “electronic record” as per the IT Act, 2000. The output of such record is an audio file, CD or DVD which can be considered as Documentary evidence subject to it qualifies as an electronic record.

Whether taped conversation can be considered as evidence is discussed in the leading case of  R M Malkani vs. State of Maharashtra[3], where the issue was initiating a criminal prosecution when the telephonic conversation if self incriminating in nature. It was held that:-

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 tape-recorder to the telephone.”

The contents of an electronic record can be proved by Section 65 B of Evidence Act which prescribes the conditions of an electronic record to be fulfilled to check the admissibility. The Supreme Court has also affirmed that certificate under Section 65 B is mandatory to admit the electronic record. Hence, if the certificate is filed in the court fulfilling the conditions under Section 65 B, it is admissible in the court. The certificate ensures the integrity, authenticity and validity of the data so that reliance can be placed by the court on such evidence as electronic records are more affected by tampering/ alteration. It is pertinent to mention here that admissibility of any electronic record in court doesn’t mean the judge would completely rely on that evidence as still its credibility and reliability would be questioned by the judge. The voice recording without any certificate can be directly tendered as evidence as it is primary evidence which is produced before the court for inspection even without certificate attached to it. The Supreme Court has laid down that certificate under Section 65B is necessary only when the electronic record is sought to be produced as evidence and then it would be considered as secondary evidence.

Section 5(2) though not held unconstitutional, there is no procedural safeguard provided for substantive provisions. The remedy available for unauthorized taping or when violating the right to privacy is that one can file a complaint with the National Human Rights Commission. An FIR can also be filed against unauthorized tapping. The aggrieved can also invoke jurisdiction of Court when any unauthorized act under Section 26 (b) of the Indian Telegraphic Act is done. However, there is no proper remedy available for victims for such interception or tapping which needs to be addressed by legislature.  

Whether taped conversation can be considered as evidence is discussed in the leading case of  R M Malkani vs. State of Maharashtra[4], where the issue was initiating a criminal prosecution when the telephonic conversation if self incriminating in nature.

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-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.

Supreme Court in S Pratap Singh v State of Punjab[5], dealing with admissibility of evidence of a telephonic conversation between wife of a Chief Minister and a Doctor held that it is admissible evidence.

Rendering of the tape recorded conversation can be legal  evidence by way of corroborating the statements of  a person who deposes that the other speaker and he carried  on that  conversation or even of the statement of a person            who may  depose that he overheard the conversation between the two persons  and what they actually stated  bad  been tape recorded.   Weight to be given to such evidence will depend on the other factors which may be established in   a particular case.”

The Supreme Court admitted a tape recorded telephonic conversation which took place between the Chief Minister’s wife and a doctor. In the case of Yusufalli Esmail Nagree v State of Maharashtra[6], it was held that

“a tape record of a conversation was admitted in evidence, though the         only witness     who overheard it was not conversant with           the language and could not make out what was said. 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”[7].

The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra[8], in this landmark decision, the court emphatically laid down in unequivocal terms the following principles:

a) The contemporaneous dialogue, which was tape recorded, formed part of res gestae and is relevant and admissible under Section 8 of the Indian Evidence Act.

b) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 of the Indian Evidence Act.

c) Since such a statement was made to police during investigation and, therefore, cannot be held to be inadmissible under Section 162 of the Criminal Procedure Code.

d) One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.

As regards the conditions of admissibility, the most prominent is the case of Ram Singh v. Col. Ram Singh[9], where the issue was whether the recorded statements could be used as      evidence. It was observed that –

“..As regards, the 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  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.”

In the recent case of  Tukaram S. Dighole v Manikrao Shivaji Kokate[10], the Supreme Court held that tape records are “Documents” under Section 3 of the Indian Evidence Act as it can also tampered with, which may not be easily detected and its standard of proof of its authenticity should be more stricter.

In R.M. Malkani v. State of Maharashtra[11], it was held that-

“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 thetape recorded conversation is proved by eliminating the possibility of erasing the tape record.”

In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors.[12], Beg,J. made the following observations:

“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 knew it.

(b) Accuracy    of what was actually recorded had to be proved by the          maker  of the   record and satisfactory evidence,  direct or circumstances, had to be there 80 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.”

Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated 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 con text 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.

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[13],Justice Marshall, 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.

The Supreme Court in the case of Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors[14] held that,

In this case, Court, while laying down requirements of admissibility of tape records as evidence, also pointed out that the case with which the recording on a tape could be erased by subsequent recording, so that insertion could be superimposed, made it necessary to receive    such evidence with caution, and it said that the Court should be satisfied, beyond reasonable doubt, that the record had not been tampered with “

It had given three grounds for considering the tape records to be reliable and authentic: firstly, the tape records had been prepared and preserved safely by an independent authority, the police, and not by a party to the case, second, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control, very soon afterwards, made subsequent tempering with the cassettes.

The Draft Personal Data Protection Bill, 2018 has been introduced which has build a privacy regime and try to focus more on the service provider and user relationship. It confers the right to privacy as a constitutional right. However, it still doesn’t make it clear that one person in the conversation can record the other’s conversation without his knowledge. The bill is still its reformative stage needs more future modifications which are very much needed to provide clarity on the legality aspect of the tapping of telephonic calls. Therefore, at the end we can say only the above judicial precedent are only the guiding principles in the present scenario to resove the dispute and litigation in the area of phone tapping and its legality.


[1] MANU/SC/1054/2018

[2] 146 (2008) DLT 429

[3] AIR 1973 SC 157

[4] AIR 1973 SC 157

[5] AIR 1964 SC 72

[6] 1967 SCR (3) 720

[7] R.v. Maqsud Ali, [1965] All. E.R. 464

[8] 1967 SCR (3) 720

[9] 1985 SCR Supl. (2) 399

[10] MANU/SC/0086/2010

[11] AIR 1973 SC 157

[12] [19751 Supp. S.C.R. 281

[13] [1965] All. E.R. 464

[14] 1975 SCR 453 [24]

Article by:

K.Ramakanth Reddy Advocate,

Telangana High Court & Supreme Court


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