R. M.

Malkani
vs
State Of Maharashtra
22 September, 1972
1973 AIR 157

The case of R.M. Malkani v. State of Maharashtra revolved around the question of whether criminal
prosecution could be initiated against a person on the basis of certain incriminating portions of a
telephone conversation that he had with another individual, the conversation having been recorded
by the police.

PROCEDURAL HISTORY

This is an appeal by certificate from the judgment dated 8 and 9 October, 1969 of the High Court at
Bombay convicting the appellant Under Sections 161 and 385 of he Indian Penal Code. The High
Court confirmed the substantive sentence to simple imprisonment for six months 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 on the appellant a fine of Rs. 10,000 and in
default of payment of fine, further simple imprisonment for six months.

FACTS

The appellant was the Coroner of Mumbai and was trying to obtain illegal gratification to the tune
of Rs. 15,000 from an honest doctor, whom he planned to implicate in a case involving the
negligent death of a patient. The doctor was not interested in paying the bribe and instead contacted
the Anti-Corruption Bureau of the Police. On the directions of the police officials, he proceeded to
have a phone conversation with the appellant where they discussed the amount of money to be paid,
the place of delivery, etc. The conversation was recorded without the knowledge of Malkani and
charges were filed against him on the basis of the incriminating statements that he had made.

ISSUES

1. Whether evidence was illegally obtained. Is it admissible and does it contravene Section 25 of
the Indian Telegraph Act?

2. Whether the conversation between Dr. Motwani and the appellant admissible Under Section
162 of the CrPC?

3. Whether the admissibility of the tape recorded evidence offends Articles 20(3) and 21 of the
Constitution?

RULE
 Section 25 of the Indian Telegraph Act 1885
-Any person intending (b) 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 or in the working thereof he shall be
punished with imprisonment for a term which may extend to three years, or with fine, or with both.
"Telegraph" is defined in the Indian Telegraph Act in Section 3 to mean any appliance, instrument,
material or apparatus used or capable of use for transmission or reception of signs, signals, writing,
images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions,
radio waves or Hertzian waves,galvanie, electric or magnetic means.

Section 162 of the CrPC

-Statements to police not to be signed: Use of statements in evidence.
No statement made by any person to a police officer in the course of an investigation under this
Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement
or any record thereof, whether in a police diary or otherwise, or any part of such statement or
record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of
any offence under investigation at the time when such statement was made: Provided that when any
witness is called for the prosecution in such inquiry or trial whose statement has been reduced into
writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with
the permission of the Court, by the prosecution, to contradict such witness in the manner provided
by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement
is so used, any part thereof may also be used in the re- examination of such witness, but for the
purpose only of explaining any matter referred to in his cross- examination.

Article 20(3) in The Constitution Of India 1949

-No person accused of any offence shall be compelled to be a witness against himself.

Article 21 in The Constitution Of India 1949

-Protection of life and personal liberty No person shall be deprived of his life or personal liberty
except according to procedure established by law.

ANALYSIS

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 Act. There
is no violation of Section 25 of the Telegraph Act in the facts and circumstances of the present case.
The recording of the conversation between Dr. Motwani and the appellant cannot be said to be
illegal because Dr. Motwani allowed the tape recording instrument to be attached to his instrument.
In fact, Dr.Motwani permitted the Police Officers to hear the conversation. If the conversation were
relayed on a microphone or an amplifier from the telephone and the police officers 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 they recorded as a result of voluntary
permission granted by Dr. Motwani. Where a person talking on the telephone allows another person
to record it or to hear it it cannot be said that the other person who is allowed to do so is damaging,
removing, tampering, touching machinery battery line or post for intercepting or acquainting
himself with the contents of any message. The tape recorded conversation is contemporaneous
relevant evidence and therefore it is admissible.

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 started talking with
the appellant and Dr. Adatia. Therefore, it was said that the tape recording was in the course of
investigation. Sections 161 and 162 of the Criminal Procedure Code indicate that there is
investigation when the Police Officer orally examines a person. The telephonic conversation 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 Section 162.

The submission was that the manner of acquiring the tape recorded conversation was not procedure
established by law and the appellant was incriminated. The appellant's conversation was voluntary.
There was no compulsion. The attaching of the tape recording instrument was unknown to the
appellant. That fact does not render the evidence of conversation inadmissible. The appellant's
conversation was not extracted under duress or compulsion. If the conversation was recorded on the
tape it was a mechanical contrivance to play the role of an eavesdropper. 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 so Article 20(3) is not
applicable.

Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded.
Article 21 contemplates procedure established by law with regard to deprivation of life or personal
liberty. The telephonic conversation of an innocent citizen will be protected by Courts against
wrongful or high handed' interference by tapping the conversation. The protection is not for the
guilty citizen against the efforts of the police to vindicate 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.

CONCLUSION

The appeal was dismissed as the evidence obtained was not illegal and admissible.