# • R. M. MALKANI v. STATE OF MAHARASHTR,A - **Citation:** [1973] 2 S.C.R. 417 - **Court:** Supreme Court of India - **Decided:** 1972-09-22 - **Bench:** A. N. Ray, I. D. Dua - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-m-malkani-v-state-of-maharashtr-a-5861 - **Pages:** 12 ## Headnote 417 /11dia11 Penal Code--Ss. 161, 385, 420 iead u·l~h s. 5 l 1-Appcl/ant charged for atte111pted bribtry along with other charges-Con\'ersation h<•t~ 11·,•e11 appellant und u·ittu::i:s tap~ recorded-Whether l1d111issihle i11 r1·idc11ce -Indian Te/egraplr Act-S. 25--Scope. The appellant. the ·Corner of Bombay, was charged under s. 161, 385 anu 4W re:iu with s. 5 l l of the I.P.C., 'ior the alleged offences incluuing attcm"pting to obtain a bribe from n. doctor \\'ho pcrforn1cJ an operation but thi: patient died subsequently. The High Court convicted the appellant under s. l6l anu 385 of the l.P.C. and sentenced him accordingly. Four questions "·ere canvassct.1 before thi:s ('ourt: ( l) The TriaLCourL 1.1nJ the High Court erred in admitting the cvidi:ncc of the telephonic con- \\.!rsation bet\\·ecn Dr. M. a \\'itncss an under section 161 of the Indian Penal Code and simple imprisonment for three months under section 385 of the Indian Penal Code. In addition. the High Court imposed o.n the appellant" a fine of Rs. 10,000 and in default of payment of fine, further ·simple imprisonment for six months. F c; H B D E F G H R .. M. MALKA!'il v. MAHARASHTRA (Ray, }.) 419 The appellant was at the crucial time the Coroner of Bombay. The prosecution case was as follows. Jagdishprasad Ramnarayan Khandelwal Wll;S admitted to the nursing .ho~e of. a Gynaecologist Dr. Adatia on 3 Mz.y, 1964. Dr. Adatra diagnosed the case as acute appendicitis. Dr. Adatia kept the patient under observation. After 24 hours the condition of ~e patient became serious. Dr. Shantilal J. Mehta was called. His diagnosis was acute appendicitis. with "generalised peritonitis" and he advised immediate operation. Dr. Adalia performed the operation. The appendix, accordin!! to Dr. Adatia had bel;ome gangrenous. The patient developed paralysis of the ileum. He was removed 'lo Bombay Hospital on LO May. 1964 to be under the treatment of Dr. Motwani. The patient died on 13 May, 1964. The Hospital issued a Death 'Intimation Card as "paralytic ileus and peritonitis following ~111 operation for acute appendici1is'". The appellant allowed the disposal of the dead body without ordering· post-mortem. There was however a request for an inquest from the Police Station. The cause for the inquest was that his was a case of post operation death in a hospital. The Coroner's Court registered the inquest on 13 May. 1964. The dates for inquest were in the months of June, July, September and October, 1964. The appellant was on leave for some time in the months of June. and July, 1964. This.is said to delay the inquest. lt wJs the practice of the Coroner"s Court 10 send letters 1o professional people concerned in inquest to get the explanation of the Doctor who treatecj or operated upon the pa'licnt. The "ppellant on 3 October, 1964 made an order that Mr. Adatia be called. It is alleged that the appellant )lad told Dr. Adatia a few days earlier that though he might have operated satisfactorily the cause of death given by the hospital would\give rise to a presumption of negligence on his part. Dr. Adn1ia was a·,J(ed l::iy the appellant to meet Dr: Motwani, so that the latter could ge·t in touch with the appellant to resolve the technical difficulties. Dr. Molwani met tlie appellant on 3 October. 1904. The appclbn! told Dr. Motwani that Dr. Adatia was at fault but he mioht be cleared of the charge in the inquest. The appellant asked for ~I sum of Rs. 20,000. Or; Motwani said that he would consult Dr. Adatia. Dr. Motwani conveyed the proposal to Dr. Adatia. Th~ latter refused to pay any illegal gratification. Dr. Motw:mi mtnnated the same to the appellant. The appellant then reducl!ll the demand to Rs. J 0,000. Dr. Adatia alsc'l refused to pay the same. "O!J.- 4 October the appellant got in touch with Dr. Jadhav. Superintendent of the Bombay Hospital to find out if the cause of 420 SUPREME COURT REPORTS [1973] 2 S.C.R. death given in the Hospital Card could be substantiated, Dr. A Motwani told Dr. Jadhav on the same day that incorrect cause of death was shown and great injustice was done to Dr. Adatia: Or. Jadhav said that he would send an amended depasftion to the Coroner, the appellant. On 5 October, 1964 Dr. Motwani and Dr A'Ciatia decided tu lodge a complaint with the Anti Corruption Bureau. Dr. Adatia's B Nursing Home got messages on the telephone to get in touch with the appellant. Dr. Adatia complained to. Dr. Motwani of th.: harassment on the telephone. Dr. Motwani rang up the aμpellant. The appellant asked Dr. Motwani to intimate by I 0 a.ni. on 7 October whether Dr. Adatia was willing to pay Rs. 10,000. Dr. Motwani rang up Mugwc, Director of the Anti Corruption t Branch and complained that a higher Government official was demanding a heavy bribe from a Doctor. Mugwe then arrnnged · for his staff to be present near Dr. Motwani's residence on the morning of 7 October with the tape recording equipment to record on the tape the telephonic conversation. On 7 Octuber 1964 Mugwe and the Assistant Commissioner of Police Sawant went to D~" Motwani's residence. They met Dr. Motwani and Dr. Adatia. When they commenced recmdin~ the First Information Report of Dr. Motwani, Dr. Adatia left for his Nursing Home. Mugwe t11en arranged Tm the tape recording equipment to be attached to the telephone of Dr. Motwuni. Or. Motwani was asked by Mugwc to ring up the appellttnt in the presence of Mugwe and other Police Ollicers about the appellant', demand for the money. Dr. M,1twani rnng up the appellant and spoke with him. Dr. Motwani reported the giq of the talk to Mugwe. Mugwc then asked Dr. Motwani to ring up Dr. Adatia to speak on certain special points. After the talk with Dr. Adatia Dr. Motwani was asked by Mugwe to ring up the appelbnt and ask for an appointment to discuss the matter further. Dr. Motwt1ni rang up the appellant and an appointment was made to meet the appellant at 12 noon the same dav. The conv·~rsation between Dr. Motwani and the appellant and the com·ersation bcl\vecn Dr. Motwani and Dr. Adatia arc all recorded on the tape. The two Doctors Motwani and Adatia met the appell1:~t in the Coroner's ·Chamber at 12 noon. The appellant raised the demand to Rs. 15.000 and said that Rs. 5,00El was to he paid to Coroner's Smgeon for giving an opinion in favour of Dr. Adatia. The ap~ellan.t ~aid that if the. amount was not paid . the police Surgeons op1111on ·would be rncorporated in the case. The two Doctors went out of the Cham bee for a while. Dr. Adatia then told the appellant ihat he would pay the appellant Rs. 15.000 on 9 October. 1964. D F G H A 8 c D E F G H R. M. MALKANI v. MAHARASHTRA (Ray, J.) 421 Dr. Adatia paid R.s. 15,000 to Dr. Motwani. Dr. Motwani took the amount to his house. Dr. Motwani informed the appellant on the telephone that he had received the money from Dr. Adatia. The appellant· asked Dr. :\\fotwani to keep it. The appellant also told Dr. Motwani to bring the money to the appellant's house on 10 October, · 1964. · On 10 October the Assistant Commissioner Sawant came to Dt. Motwani's residence and asked him to go to the appellant's residence to fix up an appointment for payment of money. Dr. Motwani went to the appellant's house on 10 October, 1964 at 10 a.m. The appellant was not in the house. The appellant's wife was there. Dr. Motwani told her that he had come to pay the money .. The appellant's wife said that he could pay her. Dr. Motwani said t_hat he had no instructions to pay. As Dr. Motwani was leaving the building Sawant the Assistant Commissioner met him: Sawant asked Dr. Motwa~i to come to Dr. Adatia to ring up the appellant from there. The Police Officers and Dr. Motwani met at the residence of Dr. Adatia at about 4 p.m. The raiding party connected tlle tape recorder to the telephone mechanism of Dr. Motwani. Dr. Motwani dialled the appellant's residence and spoke with the appellant in the presence of the Police Officers. The conversation was also recorded o,n the tape. It was arrimged ut the talk that Dr. Motwani would pay the amount to the appellant's wife on 12 October 1964. Dr. Motwani was asked to take a letter addressed to th~ appellant stating that h~ was retur.ning a loan of Rs, 15,000 which he had taken at the time of buying a Hat. On 11 October, 1964 Dr. Motwani received a telephorte cull from the appellant asking Dr.· Motwani to come to his residence to meet the person io whom the money was to. be paid. Dr. Motwani declined to go then. On 12 October ~ 964 the appellant told Dr. Motwani that the 'appointment was cancelled be- . cause he had not come to .the appellant's residence on 11 October. Dr. Motwani conveyed the news to the Assistant Commi-;- sione1-. Mugwe then ordered an open investigation into the case. The appellant was charged under sections 161 385 and 420 read with section 511 of the Indian Penal Code. Broadly stated. the ~harges against the appellant we~ e these. He attempted · to ·obt.am from Dr. Adatia through Dr. Motwani a sum of Rs. 20,000 which was later reduced to Rs. 10,000 and which was then raised !? Rs. 15,000 as gratification for doing or forbearing to do official ac~s. He put Dr. Ada~a in fear of injury in body, mind. reputation and atte1.1pted dishonestly to induce Dr. Adatia and Dr. Motwani to pay the sum of money. The appellant was also 422. SllPREME COURT REPORTS [1973] 2 s.c.R. .charged with cheating· for having falsely represented to Dr. Adatia · A and Dr. Motwani that Rs. 5,000 out of the amount of Rs. I 0,000 was required to be paid to the Police Surgeon for obtaining his favourable opinion. • ·· The app7llan.t denied th~t he demanded any amount through Dr. Motwam. He also denied that he threatened Dr. Adatia of the consequence of an inquest. Four questions were c,\'a'li and the appellant which was recorded on the tape. The evidence was illegally obtained in contravention of section 25 of the Indian Telegraph Act and therefore the evidence was inadmissible. Secondly, the conversatim~ between Dr. Motwani and the appellant which was recorded on the tape took place during investigation inasmuch as Mugwe asked Dr. Motwani to talk and therefore the conversation ·was not admissible ul)der section 162 of the Code of Criminal Procedure. The third contention was that the appellant did not attempt to obtain gratification. Fourthly; it was said that the sentence of six months imprisonent should be interfered with because th•.' appellant has already paid Rs. 10,000 as fine. The appellant suffered heart attacks and therefore the sentence should be modified. The trial Court as well as the High Court found that the evidence of Dr. Motwani and Dr. Adatia needed corroboration. The High Court found that the conversation reconjed on ~fie, tape corroborated their evidence · The evidence of Dr. Motwani is that on 7 October, 1964 Mugwe accompanied by Sawant and members of the Police staff went to the residence of Dr. Motwani. Mugwc directed Sawant to record Dr. Motwani's statement. Mugwe had instructed his staff to bring a tape recording machine. After the statement of Dr. Motwani Mugwc ·connected the tape recording n•achine to Dr. Motwanis phone and asked Dr. Motwani to talk to any one he' liked in order to test whether the. tape record.ing machine was in order. Motwani was then asked to talk to the appellant. Motwani talked with the appellant. Tlmt conversation was recorded on the tape. This tare reconkd conversation is chnllcne.ed by counsel for the apoellant to be iudmis- 'il>le because it infringes Articles 20(3) and 21 of the Constitution and i' an oft'cnce under section 25 of the Indian Telegraph Act.. Section 25 of the 1 ndian Telegraph Act 1885 stat&.-s that if 1!icr elc.:tro-ma).'.11ctic en,;ssions. rndio waves or Hcrtzian \\'avL~s, g:ilvanic. «!Icct1ii: or m~:- ncti1..: ,1ueans. Coun~d f»r the al'p~llant submitted that attaching the . tape .recording instrument tu the ·telephone instrumcqt_of Dr. Motwani was ao offence under section 25 of the tndian 1 cfe"graph ... Act. It was also said that if a Police Officer i.1rcnding to acquaint himself with the contents of any message to! . .:hcd machinery or /1rraf' J and S. Pratap Singh v. The-Stale of Punjab(°) accepted conversation or dialogue recorded on a tape recording machine as admissible evidence. In Nagree's case the conversation was between · Nagrec and Sheikh. Nagree was accused of offering 'bribe to Sheikh. In the Presidential Election case (supra) questions we·r~ put to a witness Jaga·t Narain that he had tried to dissuade, th~ petitioner from tiling an election petition. The witness denied 'thC1>~ suggestions', The election petitioner had recorded on tape the conversation that had taken place between the witness and the petitioner. Objection was taken to admissibility of tape recorded conversation. The Court admitted the tape recorded conversation. In the Pre.iidential Election(') case the denial of the witness was being controverted, challenged and confronted with his earlier· statement. Under section 146 ·of -the Evidence Act questions might be put to the witness ·to test the veracity o( the witness. Again under section 153 of the Evidence Act·a wi'tness might be contradicted when he denied any question tending to impeach bis impartiality. This is bec~use the previous statement is .furnished by the tape recorded conversation. The tape itself becomes the primary and direct evidence of what has been said and recorded. Tape recorded conversation is admissible provided first th~ conversation is relev;rnt to the matters in issue; secondly, there is identitkation of the voice; and. thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissibk under section 7 of the Evidence' Act. The conversation between Dr. Motwani and the appellant in the present case is 'relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of lhe conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence. (I) [1971] TSC.R .. 199. (cl [1%7]) S.C.R. DI. Ol [ 1964] 4 S.C.R. 7)3. A B IJ [ F G II _.\ B c D E F G Ii R. M. MALKANI v. MAHARASHTRA (Ray, J.) 425 It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of section 25 of the Indian Telegraph Acl. There is no violation of section 25 of the Telegraph Act in ihc facts and circumstances of the present case. There is warrant '!:pr proposition that even if evidence is ille.gal!Y obt~in~d it is admissible. Over a century ago ii was said m an Enghsh case where a conslabl.~ searched the appellant illegally and found a tiuantity of offending article. in his pocket that it would be a dan- ~crous obstacle to the administration of justice if it were held, be· ~•1use evidence was obtained by illegal means, it could not be used against ~ party charged with an offence. See Jones v. Owen( 1). The Judicial Committee in Krmmw, Son of Kanj11 v. R.(') 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 Commitlce held that the evidence was rightly admilted. The reason ~iven 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. This Court in Magraj Patodia v. R. K. Bir/a & Ors.(") dealt with the admissibility in evidence of two files con1aining numerous documents produced on behalf of the election petitioner. Those files contained correspondence relating to the election of respondent No. I. The correspondence was. between respondent No. 1 the elected candidate and various other persons. The "!itness who produced the file said that respondent No. 1 handed over .the file to him for safe custody. The candidate had aoprehcndcd i'aid at his residence in connection with the evasion of taxes or duties. The version of the witness as to how he came to know about the file was not believed by this Court. · This Court said that a documen.t which was procured by improper or even by illegal means could not bar its admissibility provided its relernnce and genuineness were proved. In Nagree's case (supra) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh i~formed the Police. The Police laid a trap. - Sheikh called Nagree at the residence. The Police kept _a tape recorder concealed in ·another room. The tape was kept rn the custody of the police inspector. Sheikh gave evidence ~th:_~rn~~----The tape record corroborated his testimony. Just (II [1870] 14 .J.P. 759. (2) [1955] A.C. 197. (3). A.LR. [1971] S.C. !295. 426 SUPREME COURT REPORTS [1973] 2 s.c.R. as a photograph taken without the knowledge of the person photographed can become relevant and admissible so d~ a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from. tampering· or mutilation. Secondly. the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is . B that the Polii:e Otlicer is more likely to behave properly if improperly obtain:d evidence .is liable to be viewed with care and caution by the Judge. In every case the position of the accused. the nature of the· investigation and the grnvity of the offence must be ju<;lged in the light of the material facts and the surrounding circumstances. · The admissibility of evidence procured in consequence of illegal searches and other unlawful acts was applied in a recent Engfoh decision in R. v. Maqs11d Ali('). Jn that case two. persons suspected of murder went voluntarily with the Police Officers to a room in which, unknown to them, there was a microphone connected with a tape-recorder in another room. They were left alone in the room. They proceeded to have a conv.ersation in which incriminating remarks were made. The conversaticn was recorded on the tape. The Court of Criminal Appeal held that the trial Judge had correctly admitted the tape-reoording of the incriminating conversation in evidence. It was said "that the method of the informer and of the eavesdropper is commonly used in the detection of crime. T)lc only difference here was that a mechanical device was the eavesdropper". The Courts often say that detection by deception is a form of police procedure to be directed and used sparingly and with circumspection. · When a Court pennits a tape recording to be played over it is acting on real evidence ii it treats the intonation of the words to be relevant and genuine. The· foct that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence. In the present- case the recording of the conversation between Dr. Motwani and the appellant cannot .be said to be iliegal becau'c Dr. Motw:mi allowed the tape recordi.ng instrument to be attached to his instrument. In fact, Dr. Motwani permitted the Police Otliccrs to hear the conversation. If the conversation were relayed on :1 microphone or an amplifier from the telephone and the police otlicers heard the same they would be able to give direct evidence of what. they heard. Here the police officers gave direct evidence of what they saw and what they did and what the\ (I) [ 1965] " All. E.R. -16-1. ( D E f G H A :_:.1 B c D E F G H R. M. MALKANI V. MAHARASHTRA (Ray, /.) 4~7 recorded as a result of voluntary permission granted by Dr. Motwani. The tape recorded conversation is contemporaneous relevant evidehce and therefore it is admissible. It ·is not tainted by coercion or unfairness. There is no reason to exclude this evidea'ce. · It was said that the admissibility of the tape recorded evidence offen!led Articles 20 ( 3) and 21 of· the Constitution. The sub- . mission· was that the man.ner of !ICquiring the tape recorded con- . versation was not procedure established by law and the appelbnt was incriminated .. The !IPPellant's .conversation was voluntary. There was no compulsion. 'The attachir}g Of the tape recording instrument was unknown. to the appellant. • That fact does not render. the evidence of conversation inadmissible. The appellant\ conversation was not ex,tracted under duress or compulsion. If the conversation was recordeil on the tape it was a mechanical contrivance to play the role of· an · eavesdropper. In R. v. Leatliam(') it was said "It matters not how you get it if you steal it even. it would be admissible in evidence".- As long as it is not tainted by an inadmissible confession of guilt evidence eveft if it is illegally obtained is admissible. There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no. case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy Of the appellant's conversation was invaded. Article 21 contemplate; procedure established by law with regard' to deprivation of life or personal liberty. The telcphonk conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. Th~ protec- . ticn is not for the guilty citizen against the efforts of the police to vipdicate the law and prevent corruption of public servants. It must not be understood that the. Courts will tolerate safeguards for the protection of the. citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation. The second contention on behalf of the appellant was that the entire tape recorded conversation is within the vice of section 162 of the Criminal Procedure Code. In aid of that contention the oral evidence of Mugwe, the Director of Intelligence Bureau was relied on. Mugwe said that it was under his advice and instruction that Dr. Motwani starting talking with the appellant and Dr. Adatia. Therefore, it was said that the tape recording was (!) [ 1861] 8 Cox. CC. 4qs . . I O--L-198SupCI 7 .1 428 SUPREME COURT REPORTS [1973] 2 S.C.R. in the course of investigation. Sections 161 and 162 of tho Criminal Procedure Code indicate that' there is investigation whe·1 the Police Officer orally examines a person. The telephoni~ ponversation was between Dr. Motwani and the appellant. Each spoke to the other. Neither made a statement to the Police Officer. There is no mischief of ~ection 162. The third contention was that the appellant did not attempt an offence. The conversation was said t.o show bargain. The evidence is that the patient Jied on 13 May, 1964. Dr. Motwani saw the appellant on 3 October, 1964. The appellant demanded Rs. 20,000. The appellant asked for payment of. Rs. 20,000 in order that Dr. Adatia would avoid inconvenience and publicity in newspapers in case inquest was held. Dr. Motwani informed Dr. Adatia about the conversation with the appellant. On 4 October, 1964 the appellant rang up Dr. Motwani and said that he was willing to reduce the amount to Rs. 10,000. On 5 October, 1964 Dr. Adatia received calls from the appellant asking him to attend the Coroner's Court on 6 October, 1964. Dr. Adatia got in !Ouch with Dr. Motwani on 6 October and gave him that message. Dr. Adatia rang up the appellant on 6 October and asked for adjournment. The appellant granted the adjournment to 7 October. On 6 October there were two calls from the appellant asking Dr. Adatia to attend the Coroner's Court on 7 October and also that Dr. Adatia should contact the appellant on 6 October. Dr. Motwani rang up the appellant and told him that the telephonic conversation had upset Dr. Adatia. On 6 October Dr. Motwani conveyed to Mugwe, Director of Intelligence Bureau about the demand of bribe to the appellant. These are the facts found by the Court. These facts prove that the offence was committed. The last contention on behalf of the appellant was that . 'the sentence of imprisonment should be set aside in view of the fact that the appellant paid the fine of Rs. 10,000. In some cases the Courts have allowed the sentence undergone to be the sentence. That depends upon the fact as to what the teml of the sentence is and what the period of sentence undergone is. In the present case, it cannot be said that the appellant had undergone any period of sentence. Jf it is said that the appellant had heart attacks and therefore the Court should take a lenient view about the sentence the gravity of the offence and the position held by the appellant at the relevant time do not merit such consideration. For these reasons, the appeal is dismissed. The appellant will surrender t-0 his bail and serve out the sentence. s.c. Appeal dismissed. A B c D E F G H