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Yusufalli Esmail Nagree Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1243 of 1962
Judge
Reported inAIR1965Bom3; (1964)66BOMLR62; 1965CriLJ12; ILR1964Bom240
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 162; Indian Penal Code (IPC), 1860 - Sections 165A
AppellantYusufalli Esmail Nagree
RespondentThe State
Appellant AdvocateA.S.R. Chari, ;V.D. Mengde and ;M.R. Kotwal, Advs.
Respondent AdvocateV.S. Deshpande, Asst. Goveronment Pleader
Excerpt:
.....another room of house--accused not aware of presence of police officer and that his conversation tape-recorded-whether conversation recorded by machine hit by section 162.;any conversation which is not a narration and is not addressed to the police officer and regarding which there is no animus on the part of the maker of the statement that he is making it to the police officer cannot be a statement for the purposes of section 162 of the criminal procedure code, 1898.;in the course of the trial of the accused for an offence under section 165a of the indian penal code, the prosecution sought to rely upon certain conversation alleged to have taken place between the accused and the complainant and recorded on a tape with the help of a tape-recording machine. according to the prosecution..........of the complainant and the accused, recorded on the tape are in the nature of statements made to a police officer, and if these are statements made to a police officer, mr. chari contends that the ban imposed by s.162 of cri p.c. would operate and the court cannot make use of this record for corroborating the complainant. before examining the validity of this contention, it is necessary to refer to a few circumstances about which there is hardly any dispute. the first circumstance is that s.i. mahajan was admittedly present in the inner room in shaikh's house when the tape-recording machine was installed and when the alleged conversation between the complainant and the accused was recorded on the tape-recording machine. the second circumstance is that, admittedly, it was pre-arranged.....
Judgment:

(1-18) ( His Lordship stated the facts as indicated in the Head-note and considered the evidence and then proceeded).

(19) The first contention made by Mr. Chari was that the conversation alleged to have taken place between the accused and the complainant and recorded on the tape with the help of the tape recording machine is not admissible as it is hit by S.162 of the Criminal Procedure Code. According to Mr. Chari, the circumstances in which the conversation was recorded would clearly establish that the statements, both of the complainant and the accused, recorded on the tape are in the nature of statements made to a police officer, and if these are statements made to a police officer, Mr. Chari contends that the ban imposed by S.162 of Cri P.C. would operate and the court cannot make use of this record for corroborating the complainant. Before examining the validity of this contention, it is necessary to refer to a few circumstances about which there is hardly any dispute. The first circumstance is that S.I. Mahajan was admittedly present in the inner room in Shaikh's house when the tape-recording machine was installed and when the alleged conversation between the complainant and the accused was recorded on the tape-recording machine. The second circumstance is that, admittedly, it was pre-arranged that when the accused would visit the house of the complainant, the tape-recording machine would be put to use to record the conversation which would take place between the complainant and the accused. Dhaymonkar in his evidence admits that it was only after the pre-arranged signal was given that the machine was stopped. The third circumstance is that the complainant in this case had also the knowledge that whatever would be spoken when the accused arrived would be recorded on the tape-recording machine and he was also a party to the trap. The fourth and the more important circumstance is that the accused was not aware that his conversation with the complainant was being recorded on the tape-recording machine.

(20) Mr. Chari emphasises that on the evidence of the prosecution itself, the arrangement of recording the conversation between the complainant and the accused was made by the police officer. According to him, the fact that the recording of the conversation was not done when the complainant and the accused were in the physical presence of the police officer would make no difference. He said that it was not necessary that the statement, in order that it may come under the ban of S.162, Cr. P.C. should have been recorded by the police officer in writing. He points out that S. 162 Cr. P.C. includes any statement or any record thereof. According to his contention, the reproduction of the conversation on the tape was a record of the statements made by the complainant and the accused. It is not necessary, according to him, that the persons making the statements should be conscious that they are making the statements to a police officer or that the police officer is making a record of their statements. He submits that for purposes of S.162 Cr. P.C., what is important is that the statement should in fact be a statement to a police officer or a record thereof, and the fact that the person is unaware of that fact is unimportant. In this case, there is no doubt that when the accused carried on his conversation with the complainant he was not aware that the police officer was sitting in the rear room and that whatever he would speak would be recorded by the tape-recording machine. At the same time, there is no doubt also that the complainant was aware that whatever he would be speak would be recorded on the tape-recording machine. In order to appreciate this argument, it is necessary to understand the main ingredients of S. 162, Cr. P.C. Section 162 refers to a statement made to a police officer. It must be made by any person who may ultimately be the accused. If the statement is reduced into writing, it should not have been signed by the person making it. It should have been recorded in the course of an investigation under Chapter XIV. If it is a statement, which satisfies these conditions, it would come under the ban of Section 162, and the latter part of the section provides that any such statement or any record thereof, whether in a police dairy or otherwise, or any part of such statement or record shall not be used for any purpose save as provided in the proviso to that section at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso to the section lays down the circumstances, in which and the purposes for which such a statement can be used. We have, therefore, to consider whether the words uttered by the complainant and the accused during the conversation would be such statement as are contemplated by Section 162. Even though the conversation in this case was not reduced into writing by the police officer himself, we may assume that the reproduction of the conversation on the tape-record was a record made by the police officer with the aid of mechanical means. The section itself says that it would apply to any record whether in a police dairy or otherwise. We may even assume that inasmuch as the complaint of the complainant had been recorded earlier in the day, the investigation had commenced under Chapter XIV. But the main question to be decided is whether the words uttered by the complainant and the accused during the conversation were 'statements' within the meaning of S.162. Mr. Chari, says that they are statements made by the complainant and the accused to each other and which were recorded by the police officer on the tape-record machine. I do not think that it is possible to accept this contention. In order to appreciate this argument, it is necessary to bear in mind the intention underlying S. 162, Cr. P.C. If S. 162 had not been there some of these statements would have been admissible under the Indian Evidence Act. To that extent, this section makes certain statements inadmissible even though they may be admissible under the Indian Evidence Act, provided the conditions laid down in S.162 are satisfied. The police officer recording the statement is aware that investigation is afoot at the time when the position to influence the maker of the statement. The section also takes into account the possibility that persons, who know that the investigation is afoot, may be prepared to tell untruths. The section is, therefore, intended to protect the accused both against over-zealous police officer and untruthful witnesses. Moreover, the section also recognises the danger of placing implicit confidence in a record made more or less imperfectly by a police officer, who may not be necessarily competent to make an exactly correct record of the statement of a witness, with due regard to the provisions of the law of evidence. The police officer may also be inclined, consciously or unconsciously, to record the statements in such a way that the statements may more definitely and precisely implicate the accused than what the person making the statement had intended. The possibility that the police officer may bring to bear on the person making the statement, pressure or influence is also recognised in the protection given to the accused. The possibility that the police officer may over-zealously record the statement in a manner in which the person making the statement himself did not intend it to be recorded would not arise when the record is by mechanical reproduction of what the person actually spoke, as in the case of a tape-recorder. In such a case, the police officer cannot import his bias in the statement when the statement is actually being recorded on the machine. Similarly, when the person is not aware that he is making the statement to a police officer, the question of his being influenced by the police officer cannot arise. Moreover, a statement is a narration, and it connotes the idea that the narration is addressed to some person and, therefore, it implies an animus on the part of the author of the statement. It presupposes an intention to communicate the subject-matter of the statement to the person to whom it is made or addressed. Any conversation which is not a narration and is not addressed to the police officer and regarding which there is no animus on the part of the maker of the statement that he is making it to the police officer cannot, in my view, be a statement for the purposes of S.162 Cr. P.C. In Tahesildar Singh v. State of U.P. : 1959CriLJ1231 it was held the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object. The intention was stated by the Supreme Court as follows :-

'It was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence.' The Supreme Court in that case laid down that there was a general bar against the use of such statements subject to a limited exception, which is provided for in the section itself and which exception is in the interest of the accused. Mr. Chari, however, says that the section does not lay down that the maker of the statement must be conscious or must have an animus that the statement is being made to a police officer. He urges that it would not be in the interest of the accused to important something in the section which is not there. He invited my attention to a decision of the Supreme Court in Shiv Bahadur Singh v. State of Vindh. Pra. : 1954CriLJ910 . The question which arose in that case was whether statements made to persons assisting police officers were hit by S. 162 or S. 164 of the Cr. P.C. In carrying out a police raid for trapping one of the accused in that case the services of an Additional District Magistrate were requisitioned. The Additional District Magistrate had taken considerable part in laying the trap. The Additional District Magistrate not only recorded the statement of the complainant prior to the actual raid but also searched his person, prepared a memorandum of the currency notes which were handed over to him and actually accompanied the raiding part to the room in which the accused was staying. The Additional District Magistrate was made a member of the raiding party itself and was reduced to the position of a witness. When the raiding party entered the room, the accused made a certain statement with regard to which the Additional District Magistrate gave evidence. It was argued on behalf of the accused that the Additional District Magistrate knew the statement which was made to him was not recorded under the provisions of S. 164 of the Cr. P.C. The Additional District Magistrate had asked the accused to repeat certain statements which the accused had made before two witnesses, who were panch witnesses in the raiding party. It was contended that these were only tactics adopted to avoid the bar of S. 164. Rejecting these arguments, the Supreme Court observed that every statement made to a person assisting the police during the investigation cannot be said to be a statement made to the police or to the Magistrate and as such excluded by S. 162 or S. 164 of the Cr. P.C. The Supreme Court then observed as follows :- 'The question is one of fact and has got to be determined having regard to the circumstances of each case. On a scrutiny of the evidence of these two witnesses and the circumstances under which the statements came to be made by the Appellant No. 1 (the accused) to them, we are of the opinion that the Appellant No. 1 was asked by Shantilal Ahuja, the Additional District Magistrate, to make the statements to these two witnesses not with a view to avoid the bar of Section 164 of the Criminal Procedure Code or by way of colourable pretence but by way of greater caution particularly having regard to the fact that the Appellant No. 1 occupied the position of a Minister of Industries in the State of Vindhya Pradesh.'

I do not think that this case can support the contention of Mr. Chari. Even when the Supreme Court itself observed that the Additional District Magistrate was reduced to the position of a witness by being included as a member of the raiding party, it was held that the question whether or not a statement recorded by him would be hit by S.162, or S.164 Cr. P.C. would depend on the answer to the question whether the intention was to avoid the bar of these two sections or whether the statements were recorded as a colourable pretence, but, on the other hand, if the statements were recorded by way of greater caution, they could not be hit by S.162 or S.164 Cr. P.C. In the present case also, I do not think that the tape-recording was done to avoid the bar of S. 162 or as a colourable pretence, but was by way of additional caution. Another case, to which Mr. Chari made reference was Ramkishan v. Bombay State, (S) : 1955CriLJ196 . In this case the question was whether the statements made by identifying witnesses during an identification parade identifying property or person were hit by S.162 Cr. P.C. It was held that where the test identification is carried out by the police in their presence, a distinction could not be made between statements made to police officers and statements made to panch witnesses called by the police officers for conducting the test identification parade; but in the case of a test identification parade arranged by the police and held in the presence of panch witnesses, the statements involved in the process of identification would be statements made by the identifying witnesses to the panch witnesses and would be outside the purview of S.162 Cr. P.C., provided the process of identification is carried out under the exclusive direction and supervision of the panch witnesses and the police had completely obliterated themselves from the parade. The Supreme Court in that case held that where the whole of the identification parade was directed and supervised by the police officers and the panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to holding of identification parades were satisfied, it could not be held that the statements, if any, involved in the process of identification were statements made by the identifiers to the panch witnesses and not to the police officers. I am of the view that far from supporting Mr. Chari's contention this case lays down that if the statements were made in the presence of the police officers they will be hit by S. 162; but if the statements were made to panch witnesses when the police had obliterated themselves, they would not be hit by S.162. Implicit in this is the principle that the persons making the statements should not have the animus of the consciousness that they are making the statements in the presence of the police or to police officers. If they make statements to panch witnesses, S. 162 will not operate, because then they would be statements made to panch witnesses. The question fell directly for consideration in Shyamlal Sharma v. King Emperor : AIR1949All483 . It was observed as follows :

'It seems desirable to have a clear grasp of the consent denoted by the expression 'statement made by one person to another', before attempting an answer to the second question set out above.

The word 'statement' has several meanings. Having regard to the context in which it occurs in S.162, Criminal P.C., it means a narration. A statement made to one person connotes the idea that the narration is addressed to that person and implies an animus on the part of the author of the statement, namely, an intention to communicate the subject matter of the statement to the person to whom it is made or addressed. A statement is , therefore, made to such person or persons only as are intended to be addressed i.e., for whom the communication is meant and not to all these who may happen to overhear it, if it is an oral statement, or to all those who may happen to read it, if it is a written statement'.

In the present case, the words uttered were not addressed to the police officer. The accused was not aware and therefore had not the animus to communicate those words to the police officer. His intention was not to address them to the police officer. His intention was to address them to the complainant. Moreover, I do not think that there was any idea of avoiding the operation of S.162 Cr. P.C. The installation of the tape-recording machine was by way of additional caution. The mere fact that the words were recorded on the tape-recording machine installed by the police officer would not, in my view, attract the applicability of S. 162 Cr. P. C. This question was argued before the learned Special Judge, and I am of the opinion that he rightly came to the conclusion that the record on the tape-recording machine was not hit by S.162 Cr. P.C.

(Rest of the judgment is not material for the purposes of this Report. Accused convicted under S.165-A on both counts of the charge separately and sentenced for rigorous imprisonment for one year on each count, sentences to run concurrently and to pay fine of Rs. 250/- on two counts or in default rigorous imprisonment for three months. - Ed.)

(21) Order accordinly.


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