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Yusufalli Esmail Nagree Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1968SC147; (1968)70BOMLR76; 1968CriLJ103; [1967]3SCR720
ActsIndian Penal Code (IPC), 1860 - Sections 165-A; Code of Criminal Procedure (CrPC) , 1898 - Sections 162 and 342; ;Evidence Act - Sections 7, 8 and 155(3)
AppellantYusufalli Esmail Nagree
RespondentThe State of Maharashtra
Cases ReferredRamkishan Mithanlal Sharma v. The
Excerpt:
.....for the reviewing this conclusion and the concurrent finding of the courts below that the charge of the offer of a bribe by the appellants to shaikh on july 18, 1960 was proved. like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. the court must be satisfied beyond reasonable doubt that the record has not been tampered with......behind books. mahajan, a radio mechanic and other members of his party remained in the inner room. shaikh stayed in the outer room. the outer room and the person of shaikh were searched and no cash was found. at the appointed hour, the appellant came to shaikh's residence and was received by shaikh in the outer room. shaikh and the appellant had an intimate conversation. the appellant offered a bride to shaikh, produced ten currency notes of rs. 10 each and gave them to shaikh. when shaikh gave the pre-arranged signal 'salim pan lao'. mahajan and other member of his party entered the outer room and found the currency notes in shaikh's short pocket. the tape recorder was switched on as soon as the appellant arrived and was switched off after the signal was given. the conversation.....
Judgment:

Bachawat, J.

1. In this appeal, the appellant challenges the legality of his conviction under s. 165-A of the Indian Penal Code. His wife Rukhanbai was the owner of the two house properties in 'F' ward of the Bombay Municipal Corporation, The building were in a ruinous condition. and she was served with notices under s. 354 of the Bombay Municipal Corporation Act requiring her to repair and secure them. The notices were not complied with and prosecution under s. 471 of the Act were started against her in the Presidency Magistrate Court. The summonses issued to her were served by affixation and on her failure to appear in court a bailable warrant for her arrest was issued. One Munir Ahmed Shaikh a notice clerk attached to 'F' ward building department of the Bombay Municipal Corporation, was entrusted with the duty of serving the warrant. The charge against the appellant was that he offered to Shaikh on July 18, 1960, a sum of Rs. 25 and on August 2, 1960 a sum of Rs. 100 as a bribe for not executing the warrant. The appellant started making approaches to Shaikh from July, 1, 1960. Shaikh reported the matter to the municipal commissioner who directed N. W. Naik to investigate into the matter. Naik was the administrative Officer of the corporation in charge of investigation of complaints regarding corruption, bribery and other malpractices. Over the telephone Shaikh arranges a meeting with the appellant in the evening of July 18, 1960. At the officer of the India Metal Co., of which one A.M. Karachiwala was the proprietor. Naik under the assumed name of C.J. Mehta went with Shaikh to the office of the India Metal Co. In the presence of Naik, the appellant offered a bribe of the Rs. 25 to Shaikh on July, 18, 1960. but Shaikh did not accept the bribe.

2. On August 2, 1960 the appellant had a telephone talk with Shaikh and fixed a appointment at Shaikh 's residence in the evening. Shaikh lodged a complaint with the anti-corruption Bureau reporting the offer of a bribe of Rs. 25 on July 18 and the appointment at his residence in the evening. Of August 2, After the complaint was recorded. S. G. S. I. Mahajan obtained the necessary permission from the Chief Presidency magistrate to investigate into the offence. Mahajan decided to lay a trap. On a sofa in the outer room of Shaikh's residence he set up a microphone which was connected to a tape recorder in the inner room. The microphone was concealed behind books. Mahajan, a radio mechanic and other members of his party remained in the inner room. Shaikh stayed in the outer room. The outer room and the person of Shaikh were searched and no cash was found. At the appointed hour, the appellant came to Shaikh's residence and was received by Shaikh in the outer room. Shaikh and the appellant had an intimate conversation. The appellant offered a bride to shaikh, produced ten currency notes of Rs. 10 each and gave them to Shaikh. When Shaikh gave the pre-arranged signal 'Salim pan lao'. Mahajan and other member of his party entered the outer room and found the currency notes in Shaikh's short pocket. The tape recorder was switched on as soon as the appellant arrived and was switched off after the signal was given. The conversation between Shaikh and the appellant was recorded in the tape recorder. The tape remained in the custody of Mahajan. From, the shorthand notes made after the tape was replayed one Yakub prepared a transcription of the conversation. The accuracy of the transcription is admitted. At the trail of the case, the tape recorder was played in court.

3. The special judge for greater Bombay found the appellant guilty of the offence under s. 165-A of the Indian Penal Code and sentenced him to simple imprisonment for 18 months and a fine of Rs. 500 in default further imprisonment for six months with the recommendation that he should be treated as class 1 prisoner. Karachiwalla, the proprietor of India Metal Co., at whose office the bribe of Rs. 25 was offered was charged at the trial with aiding and abetting the commission of the offence under s. 165-A but was acquitted. The appellant preferred an appeal to the High Court. At the commencement of the appeal he waived formal notice for enhancement of the sentence. The High Court convicted the appellant under s. 165-A on both counts of the charge separately and sentenced him to rigorous imprisonment for one year on each count, the sentences to run concurrently, and a fine of Rs. 250 or in default rigorous imprisonment for three months on each count. The High Court declined to recommend class 1 to the appellant. Subject to this modification of the sentence, the appeal High Court was dismissed. The appellant has filed this appeal by special leave.

4. With regard to the incident of July, 18, 1960 the High Court was no inclined to accept the evidence of Shaikh without independent corroboration. The High Court found that Shaikh was substantially corroborated by Naik who had played the role of the detective. Mr. Mistry argued that Naik was an accomplice and his evidence should not be accepted without the corrboration. It is not right to say that Naik was an accomplice. He did not provoke or participate in any crime. The defence counsel conceded in the High Court that Naik had no animus for the giving false evidence. The High Court found Naik to be a reliable witness and worthy of the credit and we see no ground for the reviewing this conclusion and the concurrent finding of the courts below that the charge of the offer of a bribe by the appellants to Shaikh on July 18, 1960 was proved.

5. Shaikh was the only eye-witness to the offer of the bribe on August 2, 1960. Mahajan, the radio mechanic and other persons who kept themselves concealed in the inner room of the Shaikh's residence did not witness the offer of the bribe, nor did they hear the conversation between Shaikh and the appellant, The High Court was not inclined to accept the evidence of Shaikh without corroboration. But the High Court found that his evidence was sufficiently corroborated by the tape recorder. The appellant handed over Rs. 100 to Shaikh on August 2, 1960. The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under s. 8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.

6. The Rup Chand v. Mahabir Prashad and another a tape record of a former statement of a witness was admitted in evidence to shake the credit of the witness under s. 155(3) of the Indian Evidence Act. The case was followed in Manindra Nath v. Biswanath Kundu 67 C.W.N. 191. In S. Pratap Singh v. The State of Punjab : (1966)ILLJ458SC , the tape record of a conversation was admitted in evidence to corroborate the evidence of witness who had stated that such a conversation had taken place. In R. v. Maqsud Ali (1965) 2 All E.R. 464 a tape record of a conversation was admitted in evidence. though the only withness who overheard it was not conversant with the language and could not make out that 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 the 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 radio mechanic did not hear the conversation but the proved that the tape recorded all the sounds produced in the room where only Shaikh and the appellant were present. The voices of the appellant and Shaikh were properly identified. The tape was not sealed and was kept in the custody of Mahajan. The absence of sealing naturally gives rise to the argument that the recording medium might have been tampered with before it was replayed. However, it was not suggested either in the cross examination of the prosecution witness or in the answers under s., 342 Criminal Procedure Code, that any tampering had taken place with the recording. While admitting the accuracy of material parts of the conversation reproduced by the tape recorder the appellant in his examination under s. 342 attempted to explain the conversation of the object of the his visit and said that the he had gone to Shaikh's residence for obtaining repayment of a loan of the Rs. 100 which he had advanced to Shaikh on July 19, 1960. The High court rejected the appellant's explanations. Mr. Mistry was right in saying that the High Court could not accept the inculpatory part and reject the exculpatory part of the appellant 's answers under s. 342. But there was other evidence showing that the tape recording was not tampered with. The fact that the defence did not suggest any tampering lends assurance to the credibility of the other evidence. The courts below rightly held that the tape recorder faithfully recorded and reproduced the actual conversation.

8. The appellant had walked into a pre-arranged trap. Mahajan and other police officers had hidden themselves in the inner room. Shaikh knew that the police officers were recording the conversation and was naturally on his guard while taking to the appellant. The appellant was not aware of the presence of the police officers. He was lulled into a sense of the security and was off his guard. The offence of the attempt to bribe Shaikh on July 18, 1960 had already been committed and reported to the police and was under investigation on August 2, 1960 when the Shaikh and the appellant met and talked. The evidence of When conversation was tendered at the trial of the offence committed on July 18, 1960 and of the connected offence committed on August 2, 1960. Mr. Mistry argued that in these circumstances the use of the statement of the both Shaikh and the appellant on August 2, 1960. was barred by s. 162 of the Code of the Criminal Procedure. We are not impressed with this argument. The appellant was not making a statement to Mahajan or to any other police officer. He was not even aware that any police officer was listening to him. He was taking to Shaikh. No doubt Shaikh was a police decoy assisting the police in their investigation, but the statement of the appellant to Shaikh while making another offer of a bribe cannot be regarded as a statement by him to the police. Nor can the words uttered by Shaikh be regarded as a statement to the police. Shaikh was talking to the appellant. He knew that what he said was being recorded for subsequent use by the police officers. But he was not speaking to any police officer. There was a dialogue in which Shaikh and the appellant took part. Each spoke to the other, but neither made a statement to a police officer. The case of the Ramkishan Mithanlal Sharma v. The state of Bombay : 1955CriLJ196 shows that where identification parades are directed and supervised by police officers and held in their presence and panch witnesses take a minor part in the matter, the statement of the identifiers may be regarded as statement to the police officers. In the present case, the police officers set the stage for the drama in the which the actor were Shaikh and the appellant. The officer hid themselves in the inner room and took no part of the drama. Neither of them can be regarded as having made a statement to a police officer as contemplated by s. 162.

9. Counsel claimed protection under Art. 20(3) of the Constitution against the use of the statement made by the appellant on August 2, 1960. He argued that by the active deception of the police the appellant was compelled to be a witness against himself. Had the appellant known that the police had arranged a trap, he would not have talked as he did. Compulsion may take many forms. A person accused of an offence may be subject to the physical or mental torture. He may be starved or beaten and a confession may be extorted from him. By deceitful means he may be induced to believe that his son is being tortured in an adjoining room and by such inducement he may be compelled to make in incriminating statement. But we cannot say that in this case the appellant was compelled to be a witness against himself. He was free to talk or not to talk. His conversation with the Shaikh was voluntary. There was no element of duress, coercion or compulsion, His statement were not extracted from him in an oppressive manner or by force or against his wishes. He cannot claim the protection of Art. 20(3). The fact that the tape recording was done without his knowledge is not of itself an objection to its admissibility in evidence. In saying so the Court does not lend its approval to the police practice of tapping telephone wires and setting up hidden microphones for the purpose of tape recording.

10. The High Court rightly convicted the appellant of the offence under s. 165A of the Indian Penal Code. Counsel pleaded for the reduction of the sentence. The appellant is sixty years old. He is suffering from cardiac troubles. He was removed to jail from the hospital in an ambulance on July 29, 1963. He remained in the jail until December 12, 1963 when he was released on bail. Having regard to these and other circumstances we reduced the substantive sentence of imprisonment to the period of imprisonment already undergone by him. With this modification of the sentence, the appeal is dismissed.

11. Y. P. Appeal dismissed.


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