# Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Criminal Revision No. 935 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahant-prasad-ram-tripathi-m-p-r-tripathi-revisionist-v-state-of-u-p-anr-50569
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 27 - Discharge ,
Prevention of Corruption Act, 1988 -
Section 7 - Offence relating to public
servant
being
bribed
,
The
Indian
Telegraph Act, 1885 - Section 5 - Power
for Government to take possession of
licensed
telegraphs
and
to
order
interception
of
messages,
Indian
Telegraph Rules, 1951 - Rule 419 - Any
evidence cannot be refused to be admitted
by the Court on the ground that it had
been obtained illegally.(Para - 25)

(B) Words and Phrases - 'intercept' - 'to
stop and catch something or someone
before that thing or person is able to
reach a particular place' - 'to stop, seize or
interrupt in progress or before arrival,
receive
(a
communication
or
signal
directed elsewhere) usually secretly' - 'to
stop, deflect or seize on the way from one
place to another, prevent from arriving or
proceeding.(Para -19)

Conversation made between accused persons
through their mobile phone - co-accused was
directed by CBI officials to make phone call to
applicant - make a conversation with him
regarding the payment of bribe - communication
received by putting mobile phone of co-accused
on speaker mode - recorded in another device
called 'digital voice recorder' - applicant sought
discharge under Section 227 of Cr.P.C. - digital
voice recorder conversation was inadmissible in
evidence - trial court rejected the application -
hence revision.(Para -17)

HELD:- No illegality in the order rejecting the
discharge application filed by the revisionist.
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.
(Para -21,29)

Revision dismissed. (E-7)

List of Cases cited:-

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES
the
concerned
court
below
for
its
compliance.

4. No order as to cost(s).
----------
(2023) 8 ILRA 162
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 935 of 2023

Mahant Prasad Ram Tripathi @ M.P.R.
Tripathi ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Prateek Tewari

Counsel for the Opposite Parties:
Shiv P. Shukla

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 27 - Discharge ,
Prevention of Corruption Act, 1988 -
Section 7 - Offence relating to public
servant
being
bribed
,
The
Indian
Telegraph Act, 1885 - Section 5 - Power
for Government to take possession of
licensed
telegraphs
and
to
order
interception
of
messages,
Indian
Telegraph Rules, 1951 - Rule 419 - Any
evidence cannot be refused to be admitted
by the Court on the ground that it had
been obtained illegally.(Para - 25)

(B) Words and Phrases - 'intercept' - 'to
stop and catch something or someone
before that thing or person is able to
reach a particular place' - 'to stop, seize or
interrupt in progress or before arrival,
receive
(a
communication
or
signal
directed elsewhere) usually secretly' - 'to
stop, deflect or seize on the way from one
place to another, prevent from arriving or
proceeding.(Para -19)

Conversation made between accused persons
through their mobile phone - co-accused was
directed by CBI officials to make phone call to
applicant - make a conversation with him
regarding the payment of bribe - communication
received by putting mobile phone of co-accused
on speaker mode - recorded in another device
called 'digital voice recorder' - applicant sought
discharge under Section 227 of Cr.P.C. - digital
voice recorder conversation was inadmissible in
evidence - trial court rejected the application -
hence revision.(Para -17)

HELD:- No illegality in the order rejecting the
discharge application filed by the revisionist.
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.
(Para -21,29)

Revision dismissed. (E-7)

List of Cases cited:-

1. People's Union for Civil Liberties (PUCL) Vs.
U.O.I. & anr. , (1997) 1 SCC 301

2.
Sanjay
Pandey
Vs
Directorate
of
Enforcement, 2022 SCC OnLine Del 4299

3. Rayala M. Bhuvaneswari Vs Nagaphanender
Rayala, AIR 2008 AP 98

4. St. Vs N.M.T. Joy Immaculate, (2004) 5 SCC
729

5. St. (NCT of Delhi) Vs Navjot Sandhu, (2005)
11 SCC 600

6. Sanjay Pandey Vs D.O.E., 2022 SCC OnLine
Del 4299

7. Rayala M. Bhuvaneswari Vs. Nagaphanender
Rayala, AIR 2008 AP 98

8. Gayatri Prasad Prajapati Vs D.O.E. 2023 SCC
OnLine All 376
8 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State of U.P. & Anr.
163
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Prateek Tewari Advocate,
the learned counsel for the revisionist and
Sri Shiv P. Shukla, the learned counsel for
the Central Bureau of Investigation and
perused the records.

2. This revision under Section
397/401 Cr.P.C. has been filed by the
revisionist challenging the validity of an
order dated 25.05.2023, passed by the
learned Special Judge, C.B.I. Court No.4,
Lucknow, whereby the application under
Section 227 Cr.P.C. praying for discharge
of the applicant has been rejected.

3. Briefly stated, facts of the case are
that one Haider Ali @ Mantu had filed a
complaint against one Shashi Mohan,
Member, Fatehgarh Cantonment Board, on
the
basis
whereof
Case
No.RC0062015A0009 under Section 7 of
Prevention of Corruption Act, 1988 was
registered
by
the
Central
Bureau
of
Investigation
on
09.05.2015.
The
complainant had alleged that Shashi Mohan
had demanded Rs.1,56,000/- as bribe on
behalf of the applicant Mahant Prasad
Tripathi, who was the C.E.O. of Cantonment
Board Fatehgarh, for payment of certain bills,
at the rate of 6% of the bill amount.

4. The C.B.I. has 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
Shashi
Mohan
tried
to
carry
the
conversation forward, the applicant forbade
him to talk on the issue and asked him to
talk in the office.

5. The applicant had sought his
discharge under Section 227 of Cr.P.C. on
the ground that the telephonic conversation
recorded on the digital voice recorder was
not admissible in evidence, but the learned
trial court has rejected the application.

6. Sri Prateek Tewari Advocate, the
learned counsel for the revisionist has
drawn attention of the Court towards the
provisions contained in Section 5 of Indian
Telegraph Act, which provide as follows: -

"5. Power for Government to
take possession of licensed telegraphs and
to order interception of messages.-

(1) On the occurrence of any
public emergency, or in the interest of the
public safety, the Central Government or a
State Government, or any officer specially
authorised in this behalf by the Central
Government or a State Government, may, if
satisfied that it is necessary or expedient so
to do, take temporary possession (for so
long as the public emergency exists or the
interest of the public safety requires the
taking of such action) of any telegraph
established, maintained or worked by any
person licensed under this Act.

(2) On the occurrence of any
public emergency, or in the interest of the
public safety, the Central Government or a
State Government or any officer specially
authorised in this behalf by the Central
Government or a State Government may, if
satisfied that it is necessary or expedient so
to do in the interests of the sovereignty and
integrity of India, the security of the State,
friendly relations with foreign states or
public order or for preventing incitement to
the commission of an offence, for reasons
to be recorded in writing, by order, direct
that any message or class of messages to or
from any person or class of persons, or
relating to any particular subject, brought
164 INDIAN LAW REPORTS ALLAHABAD SERIES
for transmission by or transmitted or
received by any telegraph, shall not be
transmitted, or shall be intercepted or
detained, or shall be disclosed to the
Government making the order or an officer
thereof mentioned in the order:

Provided that the press messages
intended to be published in India of
correspondents accredited to the Central
Government or a State Government shall
not be intercepted or detained, unless their
transmission has been prohibited under this
sub-section."

7. The learned counsel for the
revisionist drawn attention of the Court
towards Rule 419 of Indian Telegraph
Rules, 1951, which provides as follows: -

"419. Interception or monitoring
of telephone messages. - It shall be lawful
for the Telegraph Authority to monitor or
intercept a message transmitted through
telephone, for the purpose of verification of
any violation of these rules or for the
maintenance of the equipment."

8. The learned counsel for the
applicant has submitted that Section 5 of
the Telegraph Act permits interception of
telegraph
messages
only
in
certain
contingencies only, and that too under the
orders
of
the
Government.
He
has
submitted that in the present case there was
no such order and therefore interception of
telephonic
conversation
between
the
accused persons was wholly illegal and the
telephone conversation recorded in an
illegal manner cannot be admitted in
evidence in support of the prosecution case.

9. In support of his contention,
learned counsel for the applicant has relied
upon a judgment of Hon'ble the Apex
Court in the case of People's Union for
Civil Liberties (PUCL) Vs. Union of
India and another: (1997) 1 SCC 301.

10. PUCL (Supra) was a public
interest Writ Petition filed under Article 32
of the Constitution of India in the wake of a
report on "Tapping of politicians' phones"
by the Central Bureau of Investigation
(CBI). It was mentioned in the C.B.I. report
that the Director Intelligence Bureau,
Director General Narcotics Control Bureau,
Revenue
Intelligence
and
Central
Economic Intelligence Bureau and the
Director Enforcement Directorate had been
authorised by the Central Government to
do interception for the purposes mentioned
in Section 5 of the Telegraph Act. In
addition, the State Governments generally
give authorisation to the Police/Intelligence
agencies to exercise the powers under the
Act. The petitioner had challenged the
constitutional validity of Section 5(2) of the
Indian Telegraph Act, 1885 (the Act), in the
alternative it was contended that the said
provisions be suitably read down to include
procedural
safeguards
to
rule
out
arbitrariness
and
to
prevent
the
indiscriminate
telephone-tapping.
The
Hon'ble Supreme Court took note of
Section 7 (2) (b) of the Telegraph Act,
which gives rule-making power to the
Central Government is as under: -

"7. Power to make rules for the
conduct of telegraphs.-(1) The Central
Government may, from time to time, by
notification in the Official Gazette, make
rules consistent with this Act for the
conduct
of
all
or
any
telegraphs
established, maintained or worked by the
Government or by the persons licensed
under this Act.

(2) Rules under this section may
provide for all or any of the following
among other matters, that is to say:
8 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State of U.P. & Anr.
165

(a) * * *

(b) the precautions to be taken for
preventing the improper interception or
disclosure of messages."

11. The Hon'ble Supreme Court noted
that: -

"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."

12. In the aforesaid background, the
Hon'ble
Supreme
Court
issued
the
following directions: -

"1. An order for telephonetapping in terms of Section 5 (2) of the Act
shall not be issued except by the Home
Secretary, Government of India (Central
Government) and Home Secretaries of the
State Governments. In an urgent case the
power may be delegated to an officer of the
Home Department of the Government of
India and the State Governments not below
the rank of Joint Secretary. Copy of the
order shall be sent to the Review
Committee concerned within one week of
the passing of the order.

2. The order shall require the
person to whom it is addressed to intercept
in the course of their transmission by
means a public telecommunication system,
such communications as are described in
the order. The order may also require the
person to whom it is addressed to disclose
the intercepted material to such persons
and in such manner as are described in the
order.

3. The matters to be taken into
account in considering whether an order is
necessary under Section 5 (2) of the Act
shall include whether the information
which is considered necessary to acquire
could reasonably be acquired by other
means.

4.
The
interception
required
under Section 5 (2) of the Act shall be the
interception of such communications as are
sent to or from one or more addresses,
specified in the order, being an address or
addresses likely to be used for the
transmission of communications to or from,
from one particular person specified or
described in the order or one particular set
of premises specified or described in the
order.

5. The order under Section 5 (2)
of the Act shall, unless renewed, cease to
have effect at the end of the period of two
months from the date of issue. The
authority which issued the order may, at.
any time before the end of two month
period renew the order if it considers that it
is necessary to continue the order in terms
166 INDIAN LAW REPORTS ALLAHABAD SERIES
of Section 5 (2) of the Act. The total period
for the operation of the order shall not
exceed six months.

6. The authority which issued the
order shall maintain the following records:

(a)
the
intercepted
communications,

(b) the extent to which the
material is disclosed,

(c) the number of persons and
their identity to whom any of the material is
disclosed.

(d) the extent to which the
material is copied and

(e) the number of copies made of
any of the material.

7. The use of the intercepted
material shall be limited to the minimum
that is necessary in terms of Section 5 (2) of
the Act.

8. Each copy made of any of the
intercepted material shall be destroyed as
soon as its retention is no longer necessary
in terms of Section 5 (2) of the Act.

9.There
shall
be
a
Review
Committee consisting of Cabinet Secretary,
the Law Secretary and the Secretary,
Telecommunication at the level of the
Central
Government.
The
Review
Committee at the State level shall consist of
Chief Secretary, Law Secretary and another
member, other than the Home Secretary,
appointed by the State Government.

(a) The Committee shall on its
own, within two months of the passing of
the order by the authority concerned,
investigate whether there is or has been a
relevant order under Section 5 (2) of the
Act. Where there is or has been an order
whether there has been any contravention
of the provisions of Section 5 (2) of the Act.

(b) If on an investigation the
Committee concludes that there has been a
contravention of the provisions of Section 5
(2) of the Act, it shall set aside the order
under scrutiny of the Committee. It shall
further direct the destruction of the copies
of the intercepted material.

(c)
If
on
investigation,
the
Committee comes to the conclusion that
there has been no contravention of the
provisions of Section 5 (2) of the Act, it
shall record the finding to that effect."

13. However, the question of
admissibility of an intercepted telephonic
conversation in evidence was not raised
before the Hon'ble Supreme Court and this
question was not decided in PUCL case.
Therefore, PUCL case (Supra) is not an
authority for adjudging the admissibility of
a
telephonic
conversation
allegedly
intercepted without following the due
process of law.

14. The learned Counsel for the
applicant has placed reliance upon a
judgment in the case of Sanjay Pandey
versus Directorate of Enforcement, 2022
SCC OnLine Del 4299, wherein while
deciding a bail application, an Hon'ble
Single Judge of the Delhi High Court
recorded his prima facieof the view that
"tapping phone lines or recording calls
without consent is a breach of privacy. The
right
to
privacy
enshrined
under
Article21of theConstitutionsdemands that
phone calls not be recorded. Only with
consent of the individuals concerned, can
such activity be carried out otherwise it
will amount to breach of the fundamental
right to privacy".

15. The learned Counsel for the
applicant has relied upon the following
passage from the judgment in the case of
Rayala
M.
Bhuvaneswari
Versus
Nagaphanender Rayala, AIR 2008 AP 98,
wherein an Hon'ble Single Judge of the
8 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State of U.P. & Anr.
167
Andhra Pradesh High Court expressed the
following belief: -

"13. For all these reasons, I
believe that the act of tapping itself by the
husband of the conversation of his wife
with others was illegal and it infringed the
right of privacy of the wife. Therefore, these
tapes, even if true, cannot be admissible in
evidence. Hence, Ex.P-18 itself is not
admissible in evidence and there is no
question of forcing the wife to undergo a
voice test and then ask the expert to
compare the portions denied by her with
her admitted voice."

16. Per contra, Sri Shiv P. Shukla, the
learned counsel for the respondent has
opposed the revision and he has submitted
that recording of conversation between two
persons
without
interfering
in
the
communication system will not amount to
interception of the messages. He has further
submitted that the recording of telephonic
conversation between two accused persons
is not the sole evidence relied upon by the
prosecution against the applicant and there
are some other evidences also including the
statement of co-accused person and some
independent persons.

17. The conversation in question was
made between the accused persons through
their mobile phone. The co-accused Shashi
Mohan was directed by the Central Bureau of
Investigation officials to make phone call to
the applicant and make a conversation with
him regarding the payment of bribe. The
communication between the mobile phone
devices of the two accused persons was
received by putting the mobile phone of the
co-accused on speaker mode and it was
recorded in another device called 'digital
voice recorder'.

18. It appears that the communication
made by one accused person to the other
reached him and it was thereafter that it
was recorded by on another device called
digital voice recorder. Can it be said in
these
circumstances
that
the
communication between the two accused
persons was 'intercepted'?

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'. MerriamWebster 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.

20. From the aforesaid facts, it
appears the communication between the
two accused persons reached its destination
and it was not stopped while it was in the
process of reaching the other person, before
reaching the other person. Therefore, from
the plane meaning of the word 'intercept' it
appears that the communication was not
'intercepted'.

21. Therefore, I am of the view that
the provisions of law regarding interception
of telephonic communication would not
apply to the facts of the present case.

22.

However,
as
elaborate
submissions have been made by the learned
Counsel for the revisionist on the issue of
admissibility of the recorded conversation,
I proceed to examine the same.
168 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In State v. N.M.T. Joy
Immaculate, (2004) 5 SCC 729, the
Hon'ble Court was deciding an appeal
passed by the High Court of Madras
holding that the order granting custody of
the accused to police was illegal and the
recovery made consequent to confession
made during the illegal custody has no
evidentiary value. A question arose whether
the High Court was right in making the
aforesaid observations, even if it is
assumed that the order dated 6-11-2001
granting
police
custody
was
illegal.
Answering the aforesaid question, the
Hon'ble Supreme Court held that: -

"The admissibility or otherwise
of a piece of evidence has to be judged
having regard to the provisions of the
Evidence Act. The Evidence Act or the
Code of Criminal Procedure or for that
matter any other law in India does not
exclude relevant evidence on the ground
that it was obtained under an illegal
search and seizure.

15.The law of evidence in our
country is modelled on the rules of
evidence which prevailed in English law.
InKurumav.R.,1955 AC 197, an accused
was found in unlawful possession of some
ammunition in a search conducted by two
police officers who were not authorised
under the law to carry out the search. The
question was whether the evidence with
regard to the unlawful possession of
ammunition could be excluded on the
ground that the evidence had been obtained
on an unlawful search. The Privy Council
stated the principle as under:

The test to be applied, both in
civil and in criminal cases, in considering
whether evidence is admissible is whether
it is relevant to the matters in issue. If it is,
it is admissible and the court is not
concerned with how it was obtained.

15.1.This
question
has
been
examined threadbare by a Constitution
Bench
inPooran
Malv.Director
of
Inspection (Investigation),(1974) 1 SCC
345, and the principle enunciated therein is
as under:

If
the
Evidence Act,
1872
permits relevancy as the only test of
admissibility of evidence, and, secondly,
that Act or any other similar law in force
does not exclude relevant evidence on the
ground that it was obtained under an
illegal search or seizure, it will be wrong
to invoke the supposed spirit of our
Constitution for excluding such evidence.
Nor is it open to us to strain the language
of the Constitution, because some American
Judges of the American Supreme Court
have
spelt
out
certain
constitutional
protections from the provisions of the
American Constitution. So, neither by
invoking the spirit of our Constitution nor
by a strained construction of any of the
fundamental rights can we spell out the
exclusion of evidence obtained on an
illegal search.

So far as India is concerned its
law of evidence is modelled on the rules of
evidence which prevailed in English law,
and courts in India and in England have
consistently refused to exclude relevant
evidence merely on the ground that it is
obtained by illegal search or seizure.
Where the test of admissibility of evidence
lies in relevancy, unless there is an
express or necessarily implied prohibition
in the Constitution or other law evidence
obtained as a result of illegal search or
seizure is not liable to be shut out.

15.2.This being the law, Direction
(b) given by the High Court that the
confession and alleged recovery has no
evidentiary value is clearly illegal and has
to be set aside. The effect of the confession
and also the recovery of the incriminating
8 All. Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Vs. State of U.P. & Anr.
169
article at the pointing out of the accused
has to be examined strictly in accordance
with the provisions of the Evidence Act."

24. In State (NCT of Delhi) v.
Navjot Sandhu, (2005) 11 SCC 600, a
question arose regarding the legality and
admissibility of intercepted telephone calls
in the context of telephone conversation
between accused Shaukat and his wife
Afsan Guru and the conversation between
accused Gilani and his brother Shah Faizal.
The Hon'ble Supreme Court dealt with the
question in the following words: -

"153. ... On the relevant day, the
interception of messages was governed by
Section 5(2) of the Telegraph Act, 1885
read with Rule 419-A of the Telegraph
Rules, 1951. The substantive power of
interception by the Government or the
authorised officer is conferred by Section 5.
The
modalities
and
procedure
for
interception is governed by the said Rules.
It is contended by the learned Senior
Counsel appearing for the two accused
Shaukat and Gilani, that even Rule 419-A,
has not been complied with in the instant
case, and, therefore, the tape-recorded
conversation obtained by such interception
cannot be utilised by the prosecution to
incriminate the said accused. It is the
contention of the learned counsel for the
State Mr Gopal Subramanium, that there
was substantial compliance with Rule 419A and, in any case, even if the interception
did not take place in strict conformity with
the Rule, that does not affect the
admissibility of the communications so
recorded. In other words, his submission is
that the illegality or irregularity in the
interception does not affect its admissibility
in evidence there being no specific embargo
against the admissibility in the Telegraph
Act or in the Rules. Irrespective of the merit
in the first contention of Mr Gopal
Subramanium, we find force in the
alternative contention advanced by him.

154.In regard to the first aspect,
two infirmities are pointed out in the
relevant orders authorising and confirming
the interception in respect of specified
telephone numbers. It is not shown by the
prosecution
that
the
Joint
Director,
Intelligence Bureau who authorised the
interception, holds the rank of Joint
Secretary to the Government of India.
Secondly, the confirmation orders passed
by the Home Secretary (contained in Vol. 7
of the lower court record, p. 447, etc.)
would indicate that the confirmation was
prospective. We are distressed to note that
the confirmation orders should be passed
by a senior officer of the Government of
India in such a careless manner, that too, in
an important case of this nature. However,
these deficiencies or inadequacies do not,
in our view, preclude the admission of
intercepted telephonic communication in
evidence. It is to be noted that unlike the
proviso to Section 45 of POTA, Section
5(2) of the Telegraph Act or Rule 419-A
does not deal with any rule of evidence.
The
non-compliance
or
inadequate
compliance with the provisions of the
Telegraph Act does notper seaffect the
admissibility. The legal position regarding
the question of admissibility of the taperecorded conversation illegally collected or
obtained is no longer res integra in view of
the decision of this Court inR. M.
Malkaniv.State of Maharashtra,(1973) 1
SCC 471. In that case, the Court clarified
that a contemporaneous tape record of a
relevant conversation is a relevant fact and
is admissible asres gestaeunder Section 7
of the Evidence Act. Adverting to the
argument that Section 25 of the Telegraph
Act, 1885 was contravened the learned
Judges held that there was no violation. At
170 INDIAN LAW REPORTS ALLAHABAD SERIES
the same time, the question of admissibility
of
evidence
illegally
obtained
was
discussed. The law was laid down as
follows: (SCC p. 477, para 24)

"There
is
warrant
for
the
proposition that even if evidence is
illegally obtained it is admissible. Over a
century ago it was said in an English case
where a constable searched the appellant
illegally and found a quantity of offending
article in his pocket that it would be a
dangerous obstacle to the administration of
justice if it were held, because evidence
was obtained by illegal means, it could not
be used against a party charged with an
offence. SeeJonesv.Owens[(1870) 34 JP
759]
.
The
Judicial
Committee
inKurumav.R.[(1955) 1 All ER 236 : 1955
AC 197 : (1955) 2 WLR 223 (PC)] dealt
with the conviction of an accused of being
in unlawful possession of ammunition
which had been discovered in consequence
of a search of his person by a police officer
below the rank of those who were permitted
to make such searches. The Judicial
Committee held that the evidence was
rightly admitted. The reason given was that
if evidence was admissible it matters not
how it was obtained. There is of course
always a word of caution. It is that the
judge has a discretion to disallow evidence
in a criminal case if the strict rules of
admissibility
would
operate
unfairly
against the accused. That caution is the
golden rule in criminal jurisprudence."

155.We may also refer to the
decision of a Constitution Bench of this
Court in Pooran Mal v. Director of
Inspection (Investigation), (1974) 1 SCC
345, in which the principle stated by the
Privy Council inKuruma case,(1955) 1 All
ER 236, was approvingly referred to while
testing the evidentiary status of illegally
obtained evidence. Another decision in
which the same approach was adopted is a
recent
judgment
inStatev.N.M.T.
Joy
Immaculate,(2004) 5 SCC 729. It may be
mentioned
thatPooran
Mal
casewas
distinguished by this Court inAli Mustaffa
Abdul
Rahman
Moosav.State
of
Kerala,(1994) 6 SCC 569, which is a case
arising under the NDPS Act on the ground
that contraband material seized as a result
of illegal search and seizure could by itself
be treated as evidence of possession of the
contraband which is the gist of the offence
under the said Act. In the instant case, the
tape-recorded conversation which has been
duly
proved
and
conforms
to
the
requirements laid down by this Court
inRam Singhv.Col. Ram Singh,1985 Supp
SCC 611, can be pressed into service
against the accused concerned in the joint
trial for the offences under the Penal Code
as well as POTA. Such evidence cannot be
shut out by applying the embargo contained
in Section 45 when on the date of
interception, the procedure under Chapter
V of POTA was not required to be complied
with. On the relevant date POTA was not in
the picture and the investigation did not
specifically relate to the offences under
POTA. The question of applying the proviso
to Section 45 of POTA does not, therefore,
arise as the proviso applies only in the
event of the communications being legally
required to be intercepted under the
provisions of POTA. The proviso to Section
45 cannot be so read as to exclude such
material in relation to the POTA offences if
it is otherwise admissible under the general
law of evidence.

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
8 All. Padam Prakash Gupta Vs. Chhotey Lal
171
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.

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 produces other
evidences as well during trial.

28. In Gayatri Prasad Prajapati vs.
Directorate of Enforcement 2023 SCC
OnLine All 376, this Court held that: -

"the law regarding the approach
to be adopted by the court while
considering an application for discharge of
the accused persons under Section 227 and
approach while framing charges under
Section 228 of the Code, is that while
considering an application for discharge of
the accused under Section 227 of the Code,
the Court has to form a definite opinion,
upon consideration of the record of the
case
and
the
documents
submitted
therewith, that there is not sufficient ground
for
proceeding
against
the
accused.
However, while framing charges, the Court
is not required to form a definite opinion
that the accused is guilty of committing an
offence. The truth of the matter will come
out when evidence is led during the trial.
Once the facts and ingredients of the
Section exist, the court would presume that
there is ground to proceed against the
accused and frame the charge accordingly
and the Court would not doubt the case of
the prosecution."

29. In the present case, no such
material or ground is present from which
the Court may form a definite opinion that
there no sufficient ground for proceeding
against the applicant. Therefore, I do not
find any illegality in the order rejecting the
discharge
application
filed
by
the
revisionist.

30. The revision lacks merit and the
same is, accordingly, dismissed.
----------
(2023) 8 ILRA 171
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 1555 of 1983

Padam Prakash Gupta ...Appellant
Versus
Chhotey Lal ...Respondent

Counsel for the Appellant:
Sri M.P. Bajpai, Sri A.K. Rai, Sri Amit
Sharma, Sri P.N. Saxena, Sri P.N. Saxena,
Sri Padmaker Pandey, Sri Suresh Chandra
Varma, Sri V.K. Singh, Sri Vishnu Kumar
Singh

Counsel for the Respondent:
Sri R.C. Shukla, Sri Lalji Sinha, Sri Pankaj
Bhatia, Sri Pankaj Bhattia, Sri R.K. Mishra

(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Section 100 - Second