Admissibility of Recorded Evidence vis-à-vis R. M. Malkani v. State of Maharashtra

Admissibility of Recorded Evidence vis-à-vis R. M. Malkani v. State of Maharashtra

Author: Tushitta Murali, Tamil Nadu National Law University. 


The appellant in this case Coroner of Bombay. The prosecution claimed that Jagdish Prasad Ram- Narayan Khandelwal was admitted to the nursing home of Dr. Adatia on 3 May 1964 and diagnosed with acute appendicitis. The patient was kept under observation. After 24 hours he was advised to conduct the immediate operation. Dr. Adatia performed the operation. The appendix had become gangrenous and the patient had developed paralysis of the ilium. He was moved to Bombay Hospital on after six days so that he may be under the treatment of Dr. Motwani. The patient died in three days and the Hospital issued a Death Intimation Card with the cause of death as “paralytic ileus and peritonitis following an operation, for acute appendicitis”.

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 as it was a case of post-operation death in a hospital. The Coroner’s Court registered the inquest on 13 May, 1964. It was the practice of the Coroner’s Court to send letters to the professionals that were mentioned or had a connection to the inquest so that they may obtain the statements of the doctor who treated or operated upon the patient. The appellant had told Dr. Adatia that he will be called to Court, he said that although his operation was satisfactory the context in which his death occurred will show negligence prima facie in his duties as a doctor. 

Facts of the Case

Dr. Adatia was asked to meet Dr. Motwani upon the orders of the appellant to get the technical issues surrounding the case sorted out. He asked Dr. Motwani to ask Dr. Adatia to pay a sum of Rs. 20,000. Dr. Adatia refused to pay any illegal gratification to the appellant who later reduced the demand to 10,000 which was refused by Dr. Adatia again. The appellant spoke to Dr. Jadhav who was the Superintendent of the Bombay Hospital to understand for himself if the claim given by the hospital in the death intimation card could be substantiated. Dr. Jadhav had that afternoon heard from Dr. Motwani that, the incorrect cause of death that had been given created a false image against the reputation of Dr. Adatia and that injustice was done to him.

Dr. Motwani registered a complaint with the Anti Corruption Bureau on On 5th October as Dr. adatia was receiving many calls from the Coroner who is the appellant in this case to pay the sum of money. The harassment reached a high when Dr. Adatia was forced to decide between having to pay and not before 10:00 ma on 7th October after Dr. Motwani received a call asking him to convey this message to Dr. Adatia. Dr. Motwani rang up Mugwe, Director of the Anti Corruption Branch and complained that a higher Government official was demanding a heavy bribe from a Doctor. Staff was arranged to be outside Dr. Motwani’s house on 7th October with recording equipment so that they may be able to tape the conversation.

On 7th October Mugwe and the Assistant Commissioner of Police, Sawant went to Dr. Motwani’s residence where they met Dr. Motwani and Dr. Adatia. When they began recording the First Information Report of Dr. Motwani, Dr. Adatia left for his Nursing Home. Mugwe then arranged for the tape recording equipment to be attached to the telephone of Dr. Motwani who was asked by Mugwe to ring up the appellant in the presence of Mugwe and other Police Officers about the appellant’s demand. Dr. Motwani spoke to the appellant and reported the gist of the talk to Mugwe. Mugwe asked him to discuss certain specifics with Dr. Adatia and then ask the appellant if they could discuss the matter further. An appointment was arranged with the appellant at noon on the same day. Dr. Adatia and Dr. Motwani met the appellant at his chambers who raised his demand to Rs. 15,000 to include the opinion of the Coroner’s surgeon in favour of Dr. Adatia. After a brief discussion between the doctors, Dr. Adaria agreed to pay the required amount on 9th October.

Dr. Adatia paid Rs. 15,000 to Dr. Motwani who took the amount to his house and informed the appellant on the telephone that he had received the money from Dr. Adatia who asked Dr. Motwani to keep it. The appellant also told him to bring the money to his house on 10th October, 1964. On 10th October the Assistant Commissioner Sawant came to Dr. 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 at 10 a.m. The appellant was not in the house so he met the appellant’s wife was there and told her that he had come to pay the money. The appellant’s wife said that he could pay her to which he remarked that he had no instructions to pay. As Dr. Motwani was leaving the building Sawant, the Assistant Commissioner met him. Sawant asked Dr. Motwani to come to Dr. Adatia’s house and call the appellant from there.The Police Officers and Dr. Motwani met  Dr. Adatia at his residence around 4:00 p.m. The raiding party connected the tape recorder to the telephone of Dr. Motwani who dialled the, appellant’s residence and spoke with the appellant in the presence of the Police Officers. This conversation just like the previous ones was also recorded. It was arranged 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 the appellant stating that he was returning a loan of Rs. 15,000 which he had taken at the time of buying a flat so as to not arouse suspicions.

On 11 October 1964 Dr. Motwani received a telephone call from the appellant asking Dr. Motwani to come to his residence to meet the person to whom the money was to be paid. On 12 October 1964, the appellant told Dr. Motwani that the appointment was canceled because he had not come to the appellant’s residence on 11 October. Dr. Motwani conveyed the news to the Assistant Commissioner.

Identification of Issues and Analysis of Arguments

  • section 162 of the Code of Criminal Procedure.

Section 25 of the Indian Telegraph Act 1885 states that if any person intending to intercept or to acquaint himself with the contents of any message damages, removes, tampers with, or touches any battery, machinery. telegraph line, post, or other thin whatever, being part of or used in or about any telegraph shall be punished.

“Telegraph” is defined in the Indian Telegraph Act to mean any apparatus used or capable of use for transmission or reception of messages. Counsel for the appellant submitted that the tape recording was an offence under section 25 of the Indian Telegraph Act. It was also said that if a Police Officer intending to acquaint himself with the contents of any message or touched machinery he was guilty of an offence under the Telegraph Act. Reliance was placed on rule 149 which was referred to for establishing that only the Telegraph Authorities could intercept message under the Act and Rules and a Police Officer could not.

It was said that the admissibility of the evidence offended Articles 20(3) and 21 of the Constitution. The submission made before the court was that the manner of acquiring the conversation was not procedure established by law and that the appellant was incriminated. It was held that the appellant’s conversation was voluntary and without compulsion. The mere attaching of the tape recording instrument which was unknown to the appellant did not render the evidence of conversation inadmissible. The appellant’s conversation was not extracted under duress or compulsion and the mechanical contrivance to play the role of an eavesdropper which was the principle applied in the case of recorded conversations. In R. v. Leatham the court held that the manner of obtaining evidence was immaterial as long as it was not tainted by an inadmissible confession such as that was given under coercion. There is no evidence that goes to show that the appellant was made to incriminate himself. At the time of the conversation, there was no case against the appellant and he was not compelled to speak or confess.

Article 21 was invoked and the contention was that the privacy of the appellant’s conversation was invaded.  In all cases, the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high-handed interference of authorities by tapping the conversation. The protection did not extend to citizens who were found guilty of an offence. This was so that, it did not go against the efforts of the police to vindicate the law and prevent corruption of public servants. In the present case, there is no unlawful or irregular method that was used in obtaining a 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. Mugwe said that it was under his advice and instruction that Dr. Motwani started talking with the appellant and Dr. Adatia and the court held that the tape recording was in the course of investigation based on the fact that it was done under instructions that had come from a police officer. Sections 161 and 162 of the Criminal Procedure Code indicate that there is investigation when the Police Officer orally examines a person and in this case, it was a telephonic conversation was between Dr. Motwani and the appellant which the police officer was examining. Neither made a statement to the Police Officer. There is no mischief of section 162.

The third contention was that the appellant had not attempted an offence. The conversation was said to show a bargain. The evidence is that the patient died on 13 May 1964. Dr. Motwani saw the appellant on 3 October, 1964who demanded 20,000 to avoid publicity in the papers for Dr. Motwani in the event that an inquest is conducted. The details of this exchange were informed to Dr. Adatia. On 4 October 1964, the appellant said that he was willing to reduce the amount to Rs. 10,000. On 5 October 1964, Dr. Adatia was asked to attend the Coroner’s Court on the next day.Dr. Adatia after informing Dr. Motwani about the order from the court asking him to appear before it asked the appellant for an adjournment which was granted. On the same day, Dr. Adatia received two calls to remind him of his duty to appear in front of the court and to call the appellant on the same day. 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 told the appellant that the telephonic conversation had upset Dr. Adatia. On 6 October Dr. Motwani told the Director of Intelligence Bureau, Mr. Mugwe that there was a demand for a bribe that was made by 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 because the appellant had already paid the fine of Rs. 10,000. In certain cases, certain courts have not directed a second punishment if one of them has already been fulfilled. This depends upon facts such as what the term of the sentence is and what the period of sentence that has been fulfilled has been. In the present case, the appellant has not undergone any period of sentence. If it is said that the appellant is prone to heart attacks and therefore the Court should take a lenient view then the gravity of the offence and the position held by the appellant at the relevant time are not under consideration.


The counsel for the appellant claimed that the tape-recorded conversation was obtained by illegal means. It was held by the court that there was no violation of section 25 of the Telegraph Act in the facts and circumstances of the present case. The proposition that even if, the evidence is illegally obtained it is admissible is made applicable by the judges in various trials. In Jones v. Owen, a constable searched the appellant illegally and found a good amount of incriminating evidence in the form of offending articles in the appellant’s pocket. It was held that it would be a dangerous obstacle to the administration of justice if it were held admissible in court because the evidence was obtained by illegal means and was therefore not used against a party charged with an offense. The Judicial Committee in Kurma, Son of Kanju v. R. dealt with the conviction of an accused who was accused of being in unlawful possession of ammunition which had been discovered as a consequence of a search of his house and 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 by the court in these cases was that if the evidence was admissible, the manner in which it was obtained is irrelevant. The Judge has the discretion to disallow evidence in a criminal case if the rules of admissibility of evidence would operate unfairly against the accused. This is the golden rule in criminal jurisprudence.

Comment and Suggestion

The admissibility of evidence procured in consequence of illegal searches and other unlawful acts was applied in R. v. Maqsud Ali, where two persons suspected of murder voluntarily went with the Police Officers to a room in which, there was a microphone connected with a tape-recorder in another room which was unknown to them. They were left alone in the room and had a conversation with each other in which incriminating remarks were made which was recorded on the tape. The Court of Criminal Appeal held that the trial Judge had correctly admitted the tape-recording of the incriminating conversation in evidence. It was held that the method of the informer and of the eavesdropper is commonly used in the detection of crime and the only difference, in this case, was that the mechanical device was the eavesdropper which did not render it inadmissible because the principle was still applicable. The Courts often hold that detection by deception is a form of police procedure to be directed specifically and used sparingly.

The court has relied on the fact that such recording was not made under compulsion and therefore did not go against the right to self-determination. The principle that the court ash used in cases wherein they have had to deal with is that the idea of getting information like this is based on eavesdropping and can be done by a person or a piece of machinery.

The High Court held in the present case that the tape-recorded conversation was admissible in evidence in spite of the violation of the Telegraph Act. The Police Officer in the present case fixed the tape recording instrument to the telephone instrument with the authority of Dr. Motwani and could not be said to intercept any message or within the meaning of section 25 of the act. The substance of the offence under Section 25 of The Telegraph deals with damaging, tampering, or interfering with any machinery that leads to the evidence being tainted. Where a person talking on the telephone allows another person to record it or hear it there is no violation of the provision because there can be no conclusion that can be drawn between eavesdropping and tampering of the machinery. There exists no element of coercion or compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act. The High Court erred in its observation that there was a violation and albeit the violation the evidence should be admitted. That is false, there is no violation of the Act.