Indian Kanoon - Validity of phone call recording as evidence - LawRato

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The phenomenon of tendering tape recorded conversation before law courts as evidence, particularly in cases arising under the Prevention of Corruption Act, where such conversation is recorded by sending the complainant with a recording device to the person demanding or offering bribe has almost become a common practice now. In civil cases also parties may rely upon tape records of relevant conversation to support their version. In such cases the court has to face various questions regarding admissibility, nature and evidentiary value of such a tape- recorded conversation. The Indian Evidence Act, prior to its being amended by the Information Technology Act, 2000, mainly dealt with evidence, which was in oral or documentary form. Nothing was there to point out about the admissibility, nature and evidentiary value of a conversation or statement recorded in an electro-magnetic device. Being confronted with the question of this nature and called upon to decide the same, the law courts in India as well as in England devised and developed principles so that such evidence, mat be received in law courts and acted upon.

The Apex Court after examining the entire issue in the light of various pronouncements laid down 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. Such a statement was not in fact a statement made to police during investigation and, therefore, cannot be held to be inadmissible under section 162 of the Criminal Procedure Code.
d. Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of the article 20(3) was not available.
e. 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.

Conditions of Admissibility:
The tape recorded conversation can be erased with ease by subsequent recording and insertion could be superimposed.

However, this factor would have a bearing on the weight to be attached to the evidence and not on its admissibility. Ultimately, if in a particular case, there is a well grounded suspicion not even say proof, that the tape recording has been tampered with that would be a good ground for the court to discount wholly its evidentiary value as in Pratap Singh v. State of Punjab. In the case of Ram Singh v. Col. Ram Singh, following conditions were pointed out by the Apex Court for admissibility of tape recorded conversation:
a. the voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b. The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c. Every possibility of tempering 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.
d. The statement must be relevant according to the rules of Evidence Act.
e. The recorded cassette must be carefully sealed and kept in safe or official custody.
f. The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.

Advocate Anuj Aggarwal can be consulted for further information at https://goo.gl/DGkpVH or by calling at +91-9599000555