Dilip Takhtani vs State

Shri R.K. Nanhorya, Advocate for the Petitioner.

Shri Vikram Singh, Standing Counsel appearing on behalf of the Respondent-CBI.

Arguments heard.

This revision is directed against the order dated 25-11-2010 passed by Special Judge under the Prevention of Corruption Act (for CBI cases) at Jabalpur in Special Case No. 12/2009, rejecting Petitioner''s prayer for grant of permission to contradict the evidence given by complainant Sanjay Tekchandani in the Court with reference to his previous statement recorded on a Compact Disk during an interview taken by a local corRespondent of Raj News immediately after the trap proceedings.

The Petitioner and the co-accused namely Brijendra Nath Bala alias B. N. Bala have been facing trial upon the charges of the offences punishable under Sections 7 and 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short the ''Act''). Allegations, in substance, are that they had demanded an amount of Rs. 1,000/- as illegal gratification for not registering income tax case against the complainant and, thereafter, had also received the bribe money.

A bare perusal of the impugned order would reveal that learned trial Judge refused to allow the Petitioner to confront the complainant with his video recorded statement primarily on the ground that the statement could not be treated as previous statement for the purposed cross-examination u/s 145 of the Indian Evidence Act, 1872 (for brevity the ''Evidence Act''). To fortify this view, he also quoted the following observations without disclosing the source.

Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement u/s 145.

However, these observations were made by the Apex Court in Mohanlal Gangaram Gehani Vs. State of Maharashtra, while laying down the proposition that Section 145 of the Evidence Act is not attracted where statement made by a person or witness is sought to be contradicted not by his own statement but by the statement of another witness. Thus, the reliance on Mohanlal''s case was apparently misplaced.

The tape, itself, is primary and direct evidence admissible as to what has been said and picked up by the recorder (N.N. Sri Rama Reddy v. V.V. Giri AIR 1972 SC 1162 . It is a document as defined in Section 3 of the Evidence Act and stands on no different footing than photograph ( Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and Others, However, such evidence must be received with caution ( Yusufalli Esmail Nagree Vs. The State of Maharashtra, . The conditions for admissibility of a tape recorded statement are:

(1) The voice of the speaker must be duly identified by the maker of the record or by other who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

( Ram Singh and Others Vs. Ram Singh,

It is relevant to note that in N. Sri Rama Reddy''s case (supra), the following observations made by the House of Lords in R. v. Maqsud Ali (1965) 2 All ER 464 were quoted with approval:

It would be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

Accordingly, we are of the view that learned trial Judge committed a serious error of jurisdiction in declining the permission to confront the complainant, u/s 145 of the Evidence Act, with his tape-recorded statement. However, it is needless to emphasize that the CD. to be used for the purpose must fulfill the necessary requirements of being a primary evidence.

Consequently, the revision stands allowed and the impugned order dated 25-11-2010 is hereby set aside. Instead, the permission is granted to impeach credit of the complainant with reference to his tape-recorded statement subject to the provisions of the Evidence Act, particularly those contained in Chapter v. thereof.

C.C. as per rules.

Revision allowed.