# YUSUFALLI ESMAIL NAGREE v. THE STATE OF MAHARASHTRA

- **Citation:** [1967] 3 S.C.R. 720
- **Court:** Supreme Court of India
- **Decided:** 1967-04-19
- **Case number:** Criminal Appeal No. 213 of 1963
- **Bench:** M. Hidayatullah, R. S. Bachawat, C. A. VAIDiALINGAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yusufalli-esmail-nagree-v-the-state-of-maharashtra-4015
- **Pages:** 7

## Headnote

Indian Evidence Act, 1872 (Act 1 of 1872) ss. 7 ·and 8-Tape re•
cording-Value-Code of Criminal Procedure, 1898 ( Act 5 of 1898)
s. 162-Talk recorded on tape in seclusion with police decoy,-Pollce
Officer in another room-If statement made to the police.
Constitution of India, Art. 20(3)-Police laid
trap-Person makes
incriminating statement not knowing the trap-If protected,
On report of S, that the appellant had offered a bribe to him, which
S did not accept, the Police laid' a· trap. S called the appellant at his
residence and in the room where they alone were present, the appellant
handed over the bribe to S.
In the room a microphone of a tape re·
corder was concealed and their conversation recorded. The Poliee offi·
cers and the radio mechanic kept concealed in another room. S was
tho only eye-witness to the offer of the bribe and the tape was kept in
the custody of the police inspector but was not sealed. The appellant
was convicted under s. 165A I.P.C., which the High Court upheld. In
appeal, this Court :-
HELD : The conviction must be upheld.
The contemporaneous dialogue bet.ween the appellant and S formed
part of the res gestae and is relevant and admissible under s. 8 of the
Indian Evidence Act. The dialogue is proved by S.
The tape record
of the dialogue corroborates his testimony. The process of tape record·
ing 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 cont.:mporaneous
tape record of a relevant conversation is a relevant fact and is admissible
under s. 7 of the Indian Evidence Act. The time and place and accuracy
of the recording must be proved by a 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. [723 H-724 B, DJ
Rup Chand v. Mahabir Parshad and Anr. A.I.R. 1956 Punj. 173;
Mahindra Nath v. Biswanath Kundu, 61 C.W.N. 191; approved.
S. Pratap Singh v. The Slate of Punjab,', (1964] 4 S.C.R, 733
and
R. v. Maqs11d Ali, [1965] 2 All E.R. 464; .followed.
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There. was other evidence showing
thRt · the tape recording w~s not
tamp~red with. The fact that the defence did not sugant any tamper·
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in~ lends assurance to the credibility of the other evidence. The courts
below rightly held that the tape recorder faithfully recorded and repro·
duced the actual conversation. The use of the stateme11ts of both S and
the appellant when the trap was laid. was not barred by s, 162 of the
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YUSUFALLI v. MAHARASHTRA (Bachawat, J.)
72 L
Code of Criminal Procedure. The appellant was not making a state·
ment to the sub-inspector of police or to any other police officer. He was
not even aware that any police officer was listening to him. He was talking to S.
No doubt S was a police decoy assisting the police in their
investigation, but the statement of the appellant to S while making another offer of a bribe cannot be regarded as a statement ·by him to the
police. Nor can the words uttered by S be regarded as a statement to·
the police.
S 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
S and the appellant took part, Each spoke to the other. but neither made·
a statement to a police officer. [724 H; 725 D·FJ
Ramkisha11 Mitlzan/al Sharma v.
The State of Bombay,
[1955) I
S.C.R. 903, 922-23; referred to.
·
The appellant was not right in claiming protection under Art. 20(3)
of·the Constitution against the use of the statement made by him on the
ground that by the active deception of the police, he was compelled to
be a . witness ag

## Text

YUSUFALLI ESMAIL NAGREE
v.
THE STATE OF MAHARASHTRA
April 19, 1967
[M. HIDAYATULLAH, R. S. BACHAWAT
AND C. A. VAIDiALINGAM, JJ.]
Indian Evidence Act, 1872 (Act 1 of 1872) ss. 7 ·and 8-Tape re•
cording-Value-Code of Criminal Procedure, 1898 ( Act 5 of 1898)
s. 162-Talk recorded on tape in seclusion with police decoy,-Pollce
Officer in another room-If statement made to the police.
Constitution of India, Art. 20(3)-Police laid
trap-Person makes
incriminating statement not knowing the trap-If protected,
On report of S, that the appellant had offered a bribe to him, which
S did not accept, the Police laid' a· trap. S called the appellant at his
residence and in the room where they alone were present, the appellant
handed over the bribe to S.
In the room a microphone of a tape re·
corder was concealed and their conversation recorded. The Poliee offi·
cers and the radio mechanic kept concealed in another room. S was
tho only eye-witness to the offer of the bribe and the tape was kept in
the custody of the police inspector but was not sealed. The appellant
was convicted under s. 165A I.P.C., which the High Court upheld. In
appeal, this Court :-
HELD : The conviction must be upheld.
The contemporaneous dialogue bet.ween the appellant and S formed
part of the res gestae and is relevant and admissible under s. 8 of the
Indian Evidence Act. The dialogue is proved by S.
The tape record
of the dialogue corroborates his testimony. The process of tape record·
ing 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 cont.:mporaneous
tape record of a relevant conversation is a relevant fact and is admissible
under s. 7 of the Indian Evidence Act. The time and place and accuracy
of the recording must be proved by a 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. [723 H-724 B, DJ
Rup Chand v. Mahabir Parshad and Anr. A.I.R. 1956 Punj. 173;
Mahindra Nath v. Biswanath Kundu, 61 C.W.N. 191; approved.
S. Pratap Singh v. The Slate of Punjab,', (1964] 4 S.C.R, 733
and
R. v. Maqs11d Ali, [1965] 2 All E.R. 464; .followed.
A
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F
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There. was other evidence showing
thRt · the tape recording w~s not
tamp~red with. The fact that the defence did not sugant any tamper·
H
in~ lends assurance to the credibility of the other evidence. The courts
below rightly held that the tape recorder faithfully recorded and repro·
duced the actual conversation. The use of the stateme11ts of both S and
the appellant when the trap was laid. was not barred by s, 162 of the
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YUSUFALLI v. MAHARASHTRA (Bachawat, J.)
72 L
Code of Criminal Procedure. The appellant was not making a state·
ment to the sub-inspector of police or to any other police officer. He was
not even aware that any police officer was listening to him. He was talking to S.
No doubt S was a police decoy assisting the police in their
investigation, but the statement of the appellant to S while making another offer of a bribe cannot be regarded as a statement ·by him to the
police. Nor can the words uttered by S be regarded as a statement to·
the police.
S 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
S and the appellant took part, Each spoke to the other. but neither made·
a statement to a police officer. [724 H; 725 D·FJ
Ramkisha11 Mitlzan/al Sharma v.
The State of Bombay,
[1955) I
S.C.R. 903, 922-23; referred to.
·
The appellant was not right in claiming protection under Art. 20(3)
of·the Constitution against the use of the statement made by him on the
ground that by the active deception of the police, he was compelled to
be a . witness against himself. The appellant was not compelled to be a
witness against himself. He was free to talk or not to talk. His conversation with S was voluntary.
There was no element of duress, coer4
cion or compulsion. His statements were not extracted from him in an
oppressive manner or by force or against his wishes. The fact that the
tape recording was done without his knowledge is not of itself an objection to its admissibility in evidence. [726 B·D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
213 of 1963.
Appeal by special leave from the judgment and order dated
July 2, 3, 1963 of the Bombay High Court in Criminal Appeal
No. 1243 of 1962.
B. M. Mistry, Jatendra Mahajan, and J. B. Dadachanji, for
the appeUant.
S. G. Patwardhan, R. N. Sachthey, S. 1'. Nayyar for R. H.
Dhebar, for the respondent.
The Judgment of the Court was delivered by
~chawa~, J.
I_n .this appeal, the appellant challenges the·
legahty of his conv1cuon under s. 165-A of the Indian Penal
Code. . H_is ~ife Rukhanbiri was the owner of the two house·
properu.es. m F wa~d of the Bombay Municipal Corporation.
T~e bml.dmgs were m a ruinous condi!ion and she was served
"Ith noti~~s under s. 354 .of the Bombay Municipal Corporation
Act requ1~mg ~er to repair and secure them. The notices were
not comphc:d with a!Jd prosecutions under s. 471 of the Act were
started aga1~st her 1n the Presidency magistrate's court.
The
su!11monses issued to her wl!re s.erved by affixation and on her
failure to
~ppear 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 Muni-
722
SUPREME COURT REPORTS
[1967) 3 S.C.R.
<:ipal 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 l, 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
.arranged a meeting with the appellant in the ·evening of July 18,
1960 at the office 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
Rs. 25 to Shaikh pn July 18, 1960 but Shaikh did not accept the
bribe.
On August 2, 1960 the appellant had a telephone talk with
.Shaikh and fixed an appointment at 'Shaikh's residep.ce 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 conce.aled behind books. Mahajan, a
radio mechanic. and other members of his party remained in the
inner room. Shaikh stayed in the outer room. Tlfe outer room
and the person of Shaikh were searched and no cash was found.
At the appoin'.ed hour, the appellant came to Slfaikh's residence
•and was received by Shaikh in the outer room. Shaikh and the
appellant had an intimate conversation.
The appellant offered
.a bribe to Shaikh, produced ten currency notes of Rs. 10 each
and gave them to Shaikh.
When Shaikh gave the pre-arrange?
·signal "Salim pan lao", Mahajan and oth:r members. of ~1s
party entered the outer room and found the curren!ly notes m
Shaikh's short pocket.
The tape recorder was switched on as
·soon as the appellant arrived and was switched <?ff after the
signal was
given.
'D!e conversation between Shaikh and. the
appellant was recorded m the tape recorder. The tape remamed
in the custody of Mahajan. From the shorthand notes _m~de
after the tape was replayed one Yakub prepared. a . tr~scnptt~n
of the conversation. The accuracy of the transcnption 1s adm~t
·ted.
At the trial of the case, the tape recorder was played m
-court.
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YUSUFALLl v, MAHARASHTRA (Bachawat, /.)
723
The special judge for greater Bombay found the appellant
guilty of the offence under s. 165-A of the Indian Peria! 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
prisonpr. 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
conourrently, and a fine of Rs. 250 or in default rigorous imprisonment for three months on each count. . Tli.e High Court
declined to recommend class 1 to the appellant. Subject to this
modification of the sentence, the appeal to the High Court was
dismissed. The appellant has filed this appeal by special leave.
With regard to the incident of July 18, 1960 the High Court
was not 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
a detective.
Mr. Mistry argued that Naik was an accomplice
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and his evidence should not be accepted without corroboration.
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 giving
false evidence.
The High Court found Naik to be a reliable
witness and worthy of credit and we see no ground for reviewing
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this conclusion and the concurrent finding of the courts below
that the charge of the offer of a bribe by the. appellant to Shaikh
on July 18, 1960 was proved.
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Shaikh was the only eye-witness to the offer of the bribe on
August. 2, 1960. Mahajan,, the radio mochanic and other persons who kept themselves concealed in the inner room of
Shaikh's residence did not witness the offer of the bribe, nor did
they h~ar the conversation, be!Ween Shaikh and the appellant.
The High Court was not mchned to accept the
evidence of
Shaikh without corroboration. But the High Court found that his
evidence was sufficiently corroborated by •he tape reoorder. 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 Indi!I!\
Evidence Act.
The dialogue is proved .by Shaikh.
The tape
record of th~.qla;logue corroborates his testimony.
The process
'1l
724
SUPREME COURT REPORTS
[1967] 3 s.c.R.
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 11
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.
In Rup Chand v. Mahabir Parshad and another('), a tape
record of a fonner statemPnt 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('). In S. Pratap Singh v;' The State of Pun·
jab ( 3), the tape re.cord of a conversation was admitted in evidence, to corroborate the evidence of witnesses who had stated
ihat such a conversation had taken place. In R. v. Maqsud Ali(')
a tape record of a conversation was admitted in evidence,
though the only witness who overheard it was not conversant
with the language and could not make out what 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 a competent witness and the
voices must be properly identified.
One of the features of magc
netic 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.
The radio mechanic did not hear the conversation but he
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 r.~played.
However, it was not suggested either in the cross examination of
the prosecution witnesses or in the answers under s. 342, Criminal
Procedure Code, that any tampering had ta!Cen place with the
r.ecording. While admitting the accuracy of material parts of t~e
·conversation reproduced by the tape recorder, th~ appellant m
his examination under s. 342 attempted to explain the conver·
sation and the object of his visit and ·said that he had go~e to
Shaikh's residence for obtaining repayment of a loan of Rs. 100
which he had advanced to Shaikh on JUiy 19, 1960. The High _
Court rejected the appellant's explan~tions. Mr. Mistir was right
in saying that the Htgh Court coulif not accept the mculpatory
part and reject the exculpatory part of the appellant's answers
fl) A.1.R.1956)'uni. I73.
<'i>>
1%~5J~~ii1l.~.464.
(3) [1964] 4 S.C:R. 733.
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YUSUFALLI v, MAHARASHTRA (Bachawat, J.)
725
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.
The appellant had walked into a pre-arranged trap. Mahajan
and other police officers had hidden themselves in the inner room.
Shaikh kiiew that the police officers were recording the conversation and was naturally on his guard while talking to the appellant.
The appellant was not aware of the presence of the police officers.
He was lulled into a sense of 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 Shaikh ,;md. the appellant
met and talked. The evidence of the conversation was tendered
at the trial of the offence ·committed on July 18, 1900 and of
the connected offence committed on August 2, 1960. Mr. Mistry
argued that in these circumstances, the use of the statements of
both Shaikh and the appellant on August 2, 1960, was barred
by s. 162 of the Code of 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
'talking 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 sta:tement to a police officer. The case of
Ramkishan Mithanlal Sharma v. The State of Bombay(') shows
tha~ where identification parades are directed and supervised . by
pohce o~cers and ~eld in their presence and the panch witnesses
take a mmor part m the matter, the statements of the identifiers
may be regarded .as statements to the police officers. In the present case, the pohce officers set the stage for the drama in which
the ac~ors we!e Shaikh and ,the appellant. The officers hid themselves 11! the mner room and took no part in the drama. Neither
of them can be regarded as having made a statement to a police
officer as contemplated by s. 162.
Counsel claimed protection under Art. 20 ( 3) of the Constitu-
(1) (1955] S.C.R._903, 922-23.
726
:strPREME COURT REPORTS
[1967] 3 S.C.R.
tion against the use of the· statements made· by the appellant on
August 2, 1960.
H~ 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 ~
trap, he would not have talked as h~ did. Compulsion may take
many forms. A person accused of an offence may be subject to
physical or mental torture. He may be starved or bJlllten 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 an 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 td talk. His. conversation with
Shaikh was voluntary. There was no element of duress, coercion
or compulsion. His statements were not extracted from him in
an oppressive manner or by force or against his wishes.. He catt·
not claim the protection of Art. 20(3 ). The fact that tho tape
recording was done without his knowledge is not of . itself . an
objpction 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.
The High Court rightly convicted the
appellant of the
offence under s. 165A of the Indian Penal Code. Counsel pleaded for 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
jail until December 12, 1963 when he was released on bail. Havmg r~ard to these and other circumstances, we reduce the substantive sentence of imprisonment to the period of imprisonment
already undergone by him.
With this modification of ~he sentence, the appeal is dismissed.
Y.P.
Appeal dismissed.
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