Recording of Voice Calls or Video Recording – A Valid Evidence or a Breach of Privacy ?
In a court, there are scenarios where different types of evidence are presented before the court to prove and disapprove the fact. There is evidence that is per se available with the parties and others which are not easily available due to many reasons for example the evidence to support the case might be a confession which will prove the commission of a crime or unlawful activity or it might be a conversation between two parties which might be a conspiracy for commission of an offense. There is evidence that acts as primary evidence and can be easily proved by the parties by presenting the evidence in documentary evidence or by a primary witness.
Table of Contents
- Tape Recorded Evidence
- Right to Privacy and Tape Recorded Evidence
- Role of Information and Technology Act, 2000
- Evidence – Amended Definition
Where the cases are mentioned above which include evidences which are not easily obtained and is extracted in a subtle way without actually informing the person or without his knowledge it becomes another challenge. There are several questions that arise as to the validity and legality of the evidence acquired by such means. Further, can a person be punished to trespass into the privacy of another person in the name of gathering evidence? This article will deal with tape recording conversations and it also what will be the fate of the evidence if such evidence is produced by a person.
TAPE RECORDED EVIDENCE
Tape-recorded evidence is not limited in nature and includes a wide range of incidences that are recorded and used to produce before court. From secret sting operation on several renowned people to disclosing various corruption matters, tape recorders have opened various secrets which were hidden under various layers of protection. The most common use of tape recorders was to prevent corruption and was prominently used during the cases under the Prevention of Corruption Act. Under this act, the tape-recorded conversation of the person seeking the bribe was sent along with other necessary supporting documents to file a complaint. And not just in complaints there are several civil cases where the tape-recorded conversation has turned the dice 360 degrees and change the outcome of the case. In a summarized way we can assume that their recording holds a lot of value if they are not tampered with or tricked by any technology and can surely change the outcome of the case. The Evidence Act 1872 does not talk about the admissibility of tape-recorded evidence and only talked about the admissibility of documentary evidence.
RIGHT TO PRIVACY AND TAPE-RECORDED EVIDENCE
There is controversies related right to privacy and admissibility of tape-recorded evidence in Indian Law. The controversy is against the fact that this tape-recorded evidence is not obtained in a rightful manner and sometimes even private conversations of two people are recorded which are contrary to what the Indian Constitution safeguards under its umbrella.
Right to Privacy under Article 21 of the Indian Constitution guarantees the right to privacy and this also means a conversation between two people should not be trespassed by any third person. However, in Deepti Kapur v. Kunal Jhulka, the matter was raised in question when the husband filed a divorce petition and supported the same with CD evidence which contained the recording of the wife with one of her lady friend talking about her husband and in-law in a derogatory manner. On objection raised by the wife, the court stated that evidence acquired by the breach of the fundamental right will not lead to the inadmissibility of the evidence in the court of law it further observed that “right to privacy must yield the right to a fair trial”.
CASE LAW:- In Yusufalli Esmail Nagree v. State of Maharashtra 1968 the Hon’ble Supreme Court observed the facts of the case as the offense was related to Section 165-A of the Indian Penal Code which deals with a public servant dealing with the valuable thing in no return of consideration the matter involved bribe and the prosecution insisted to use the tape-recorded conversation between the accused as evidence against him. It was argued that the same is hit Article 20(3) of the constitution which deals with Self-incriminating evidence. The Hon’ble Court in this landmark decision laid down in an unequivocal manner that the tape recording process gives an accurate method of reproducing sounds later in time by producing it and by storing it and the imprint present on the magnetic tape shows the direct effect of the actual and relevant sounds. A contemporaneous tape record of a relevant and actual conversation between the party is a relevant fact and hence will be admissible under section 7 of the Indian Evidence Act.
The Hon’ble Supreme Court laid down the important principles after considering all the prominent judgments as under;
a) The contemporaneous conversation, which is tape recorded, will form part of res-gestae and consequently will be relevant as well as admissible under Section 7 and 8 of the Indian Evidence Act.
b) The abovementioned statement was not a statement made to the police officer during the investigation, therefore it cannot be considered to be inadmissible under section 162 of the Criminal Procedure Code.
c) Even though a recorded conversation is obtained without the knowledge of the person but the same is not obtained by coercion (duress), compulsion, or by any means of compulsion or threat to the accused person or to his life or property. Hence the defense of protection under Article 20(3) cannot be availed.
d) The magnetic tape recording can easily be tampered with by erasing and re-use the recording medium. Hence, the court must use its prudent mind and caution while receiving the evidence further the court must be satisfied with the genuineness of the evidence beyond all reasonable doubt of recording being tampered
CONDITIONS FOR ADMISSIBILITY OF EVIDENCE:
In Ram Singh v. Col. Ram Singh,1986 the Hon’ble Supreme Court followed the below-mentioned conditions which the court have to look at before admissibility of a tape-recorded statement
a) The voice of the person in question must be identified by the person who made the recording or by another person who recognizes the voice.
b) The Burden of proving the accuracy of the tape-recorded conversation is on the person who is presenting it.
c) The probability of tempering the tape-recorded evidence will lead to rejection of the tape-recorded evidence.
d) The tape recording device containing the conversation shall be sealed and be carefully kept in a vault or official custody.
e) The voice of the person in question shall be clear, audible, and shall not be distorted by other sounds.
In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta,1975 The Hon’ble Supreme Court stated that the value of transcript cannot be undervalued and the transcript can what transcriber has recorded at the time of conversation and what is present before the court to corroborate this was if there is any tampering with the document the court can catch it there and then. Further, the Court also stated that the transcript can also be used under Section 159 of the Indian Evidence Act to refresh the memory of the person.
ROLE OF INFORMATION AND TECHNOLOGY ACT 2000
The Information Technology Act, 2000 evolved the concept of evidence by it Section 2(r). Section 2(r) of the before mentioned Act, defines information received in electronic form as sent, received kept in stored media, magnetic, microfilm, computer memory optical computer, etc.
Under Section 2 (t) of the Act, the term ‘electronic record’ means record or data generated, images and sound stored which are received or sent in any electronic form or microfilm or computer generated microfiche.
Further, Section 92 of the Information and Technology Act read with Schedule (2) has evolved/ amended the definition of the term ‘evidence’ as mentioned in Section 3 of the Indian Evidence Act.
“Evidence:- ‘Evidence’ means and includes–
(1) all statements which the court permits or requires to be made before it by a witness, in relation to matters of fact under inquiry; such statement is called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
The admissibility of tape-recorded evidence are overlapping the right to privacy as the right to privacy is not absolute. The admissibility further depends upon the tempering and genuineness of the produced by the party. Tape recorders have not been replaced with mobile phone recordings and phone recording and with the upgraded technology the tempering issues in respect of evidence are also to be considered.