Criminal Law Videos - Validity of a phone call recording as evidence

The phenomenon of tendering tape recorded conversation before law courts as evidence, particularly in cases arising under the Prevention of Corruption Act, where such conversation is recorded by sending the complainant with a recording device to the person demanding or offering bribe has almost become a common practice now. In civil cases also parties may rely upon tape records of relevant conversation to support their version.

The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles:

1. The contemporaneous dialogue, which was tape recorded, formed part of res-gestae and is relevant and admissible under section 8 of the Indian Evidence Act.

2. The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act.

3. Such a statement was not in fact a statement made to police during investigation and, therefore, cannot be held to be inadmissible under section 162 of the Criminal Procedure Code.

4. Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of the article 20(3) was not available.

5. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.

 
The next question regarding evidence of the tape-recorded information, is about utility and evidentiary value. In this respect following points require consideration.

1. Whether such evidence is primary or secondary?

2. Whether such evidence is direct or hearsay?

3. Whether such evidence is corroborative or substantive?

The point whether such evidence is primary and direct was dealt with by the Apex Court in N. Sri Rama Reddy v. V.V. Giri. The court held that like any document the tape record itself was primary and direct evidence admissible of what has been said and picked up by the receiver. This view was reiterated by the Apex Court in R.K. Malkani v. State of Maharashtra. In this case the court ordained that when a court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. A three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, it could subject to the provisions of the Evidence Act, be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person’s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established.