It would be of immense significance to note that none other than the Allahabad High Court itself has in a most learned, laudable, landmark and latest judgment titled Mahant Prasad Ram Tripathi @ MPR Tripathi vs State of UP Thru CBI/ACB, Lucknow And Another in Criminal Revision No. – 935 of 2023 and in Neutral Citation No. – 2023:AHC-LKO:56067 that was pronounced as recently as on August 23, 2023 has minced just no words to hold that even if the telephonic conversation between the two accused persons was secured illegally, the same would not affect the admissibility of the recorded conversation in evidence against such accused. It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice Subhash Vidyarthi made this most crucial observation while rejecting a revision plea that had been filed challenging the order of a Trial Court refusing to discharge an accused (Mahant Prasad Ram Tripathi) in a case lodged under the Prevention of Corruption Act. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Subhash Vidyarthi sets the ball rolling by first and foremost putting forth in para 2 that, “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.”
To put things in perspective, the Bench envisages in para 3 that, “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.”
As we see, the Bench then discloses in para 4 that, “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.”
As it turned out, the Bench then lays bare in para 5 that, “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.”
As an inevitable fallout, the Bench then observes in para 20 that, “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’.”
Resultantly, the Bench holds in para 21 that, “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.”
While citing the most relevant case law, the Bench points out in para 24 that, “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 419-A 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 not per se affect the admissibility. The legal position regarding the question of admissibility of the tape-recorded conversation illegally collected or obtained is no longer res integra in view of the decision of this Court in R. M. Malkani v. 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 as res gestae under 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 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. See Jones v. Owens [(1870) 34 JP 759] . The Judicial Committee in Kuruma v. 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 in Kuruma 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 in State v. N.M.T. Joy Immaculate, (2004) 5 SCC 729. It may be mentioned that Pooran Mal case was distinguished by this Court in Ali Mustaffa Abdul Rahman Moosa v. 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 in Ram Singh v. 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.”
Do note, the Bench notes in para 25 that, “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 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.”
Most significantly, the Bench then clearly states in para 26 propounding that, “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.”
It cannot be glossed over that the Bench then further points out in para 27 that, “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.”
While citing the relevant case law, the Bench then hastens to add in para 28 stating that, “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.””
In addition, the Bench then hastens to add in para 29 holding that, “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.”
Finally, the Bench then concludes by holding in para 30 that, “The revision lacks merit and the same is, accordingly, dismissed.”
In sum, we thus see that the Allahabad High Court has very clearly, cogently and convincingly held that recorded telephonic conversations between accused persons is admissible as evidence even if obtained illegally. So there should certainly be no doubt lingering in our mind on this vexed issue any longer. No denying it!
Sanjeev Sirohi
