Legality of Recorded Telephonic Conversation: Whether recorded illegally or not would not affect its admissibility in evidence

The Allahabad HC recently in ‘Mahant Prasad Ram Tripathi @ M.P.R. Tripathi vs. State of U.P. Thru C.B.I./ A.C.B. Lucknow’[1] has held that a telephonic conversation recorded between two accused, whether illegally obtained or not, would be admissible in evidence.

In this case C.B.I. recorded a telephonic communication between two accused persons on a digital voice recorder, wherein the co-accused told the Applicant on phone that ‘Haider had come, and he has paid the amount of 6%’, which was acknowledged by the Applicant by merely saying ‘yes’ and when the co-accused tried to carry the conversation forward, the Applicant forbade him to talk any further on the issue.

It was argued that section 5 of the Indian Telegraph Act and Rule 419 of the Indian Telegraph Rules, 1951 permits interception of telegraph messages only in certain contingencies and that too under the orders of the Government. It was further argued that there was no such order in the present case and therefore interception of telephonic conversation between the accused persons was illegal and the same cannot be admitted in evidence in support of the prosecution case.

The Supreme Court in the matter of ‘People’s Union of Civil Liberties v. Union of India & Anr.’[2] wherein, a Writ Petition was filed under Article 32 of the Constitution of India in the wake of a report on "Tapping of politician's phones" by the CBI, took note of Section 7 (2) (b) of the Telegraph Act, which gives rule-making power to the Central Government and held as follows: -

"It is for the Central Government to make rules under Section 7 of the Act. Section 7(2)(b) specifically provides that the Central Government may make rules laying down the precautions to be taken for preventing the improper interception or disclosure of messages. The Act was enacted in the year 1885. The power to make rules under Section 7 of the Act has been there for over a century but the Central Government has not thought it proper to frame the necessary rules despite severe criticism of the manner in which the power under Section 5(2) has been exercised. It is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded. In order to rule out arbitrariness in the exercise of power under Section 5(2) of the Act 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(2) of the Act so that the right to privacy of a person is protected."

In the aforesaid background, the Hon’ble Supreme Court issued certain guidelines/ directions so that the right to privacy of a person is protected. However, the Court refused to rely upon the same in the present case as the question of admissibility of an intercepted telephonic conversation in evidence was not raised in the said case. In the cases of ‘Sanjay Pandey v. Directorate of Enforcement’[3] and ‘Rayala M. Bhuvaneswari v. Nagaphanender Rayala’[4] it was held by the Delhi & Andhra Pradesh High Courts respectively that illegal tapping of phones is in violation of Article 21 of the Constitution of India and the same infringes the privacy of an individual.

Thereafter, it was argued before the Court that a recording of a conversation between two persons without interfering in the communication system will not amount to interception of the messages.

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The court relied upon the definition of the word ‘Intercept’ as follows: -

“19. The word ‘intercept’ has been defined in Cambridge dictionary as ‘to stop and catch something or someone before that thing or person is able to reach a particular place’. Merriam-Webster dictionary defines ‘intercept’ as ‘to stop, seize or interrupt in progress or before arrival, receive (a communication or signal directed elsewhere) usually secretly’. Collins dictionary defines ‘intercept’ as ‘to stop, deflect or seize on the way from one place to another, prevent from arriving or proceeding.”

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The Court was of the view that the provisions of law regarding interception of telephonic communication would not apply to the facts of the present case as the communication between the two accused persons reached its destination and it was not stopped and intercepted while it was in the process of reaching the other person, before reaching the other person.

The Court proceeded to settle the issue of admissibility of recorded conversation in the present case. That in the matter of ‘State (NCT of Delhi) v. Navjot Sandhu’[5], wherein a question arose regarding the legality and admissibility of intercepted telephone calls in the context of a telephone conversation between the accused and his wife and the conversation between another accused and his brother. The court was of the view that Section 5(2) of the Telegraph Act or Rule 419-A does not deal with any rule of evidence. It was held that non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. Based on the dictum of the aforementioned case, the court in the present case held as follows: -

“25. The law is clear that any evidence cannot be refused to be admitted by the Court on the ground that it had been obtained illegally. The judgment of Delhi High Court in the case of Sanjay Pandey versus Directorate of Enforcement, 2022 SCC OnLine Del 4299 and the judgment of Andhra Pradesh High Court in Rayala M. Bhuvaneswari Versus Nagaphanender Rayala, AIR 2008 AP 98 have not taken into consideration the above referred law laid down by the Hon’ble Supreme Court and, therefore, those are per incuriam judgments and those are not binding precedents.”

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“26. Therefore, whether the telephonic conversation between the two accused persons was intercepted or not and whether it was done legally or not, would not affect the admissibility of the recorded conversation in evidence against the applicant.”

“27. Moreover, the telephonic conversation recorded in the digital voice recorder is not the solitary evidence relied upon by the prosecution and it appears that the prosecution proposes to produce other evidence as well during trial.”

In the matter of ‘Gayatri Prasad Prajapati vs. Directorate of Enforcement’[6], the Allahabad HC held that in considering an application for discharge of an accused under section 227 the court has to form a definite opinion that there is no sufficient ground for proceeding against the accused.

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By

?Vijay Pal Dalmia, Advocate

?Supreme Court of India & Delhi High Court

?Email id: [email protected]

Mobile No.: +91 9810081079

?Linkedin: https://www.dhirubhai.net/in/vpdalmia/

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[1] MANU/UP/2470/2023

[2] MANU/SC/0149/1997

[3] MANU/DE/4984/2022

[4] MANU/AP/0907/2007

[5] MANU/SC/0465/2005

[6] MANU/UP/1679/2023