Surain Chand vs Suba Singh

Gokal Chand Mital, J.—The defendant made an application to the trial Court to call upon the plaintiff to give his voice for comparison with his voice in the tape recorded version. The trial Court dismissed that application by order dated 27th August, 1983 on the ground that there is no provisions in the Indian Evidence Act under which the plaintiff can be directed to give his voice for comparison and relied on Vinod Kumar and others v. The State (1981) 80 P.L.R. D. 154, The Court below distinguished the decision in Dial Singh v. Rajpal (and others) (1969) 71 P.L.R. 519, This is defendent''s revision in this Court.

After hearing the learned counsel for the parties, I am of the view that the order of the Court below suffers from illegality and with material irregularity in the exercise of its jurisdiction in dismissing the application, the tape-recorded version has been held to be admissible in evidence by the Supreme Court in R.M. Malkani Vs. State of Maharashtra, As early as in 1956, in Rup Chand Vs. Mahabir Parshad and Another, , Bhandari C. J. of this Court also held that a tape recorded version is relevant and admissible and the same view was reiterated by S. S. Sandhawalia J. in Dial Singh''s case (Supra). The Court below seriously erred in law in not following Dial Singh''s case (Supra) and in preferring Vinod Kumar''s case (Supra). On a reading of the Supreme Court judgment along with the two decisions of this Court, I find that the process of reasoning contained in the judgment of the Delhi High Court, in Vinod Kumar''s case (supra) does not lay down the correct law and cannot be relied upon. So far as the Court below was concerned, it was bound by the decision of this Court and when it was specifically brought to its notice, it could not prefer the judgment of the Delhi High Court specially when no distinguishing features were pointed out for not relying on this Court''s decision.

The counsel for the plaintiff has strenuously argued before me that the order of the Court below can be maintained for different reasons. In highlighting the arguments, he urged that the Court below had appointed a local Commissioner to find out whether the tape recorded version produced by the defendant in Court was correctly recorded from the taped version and the Local Commissioner reported that it was not correct and that there were many omissions, variations and differences and over--addings etc in the version supplied by the defendants. He submitted his separate version after playing the tape It is futher urged that the statement of the plaintiff was recorded on 28th August, 1963 and the plaintiff was not confronted with the tape by playing the same in Court and instead he was confronted merely with the tape recorded version which the defendant had produced to Court. For some other reasons also, he urges that it was not a case in which the tape or the tape-recorded version should have been accepted in evidence and specially when the ingredients which have been pointed out by the Supreme Court in R M Malkani''s case (supra) for making a tape-recorded version admissible or reliable, were missing in this case.

I am not at one with the counsel for the plaintiff for assuming jurisdiction of the trial Court at the revisional stage All the matters which has been raised before me, should now be raised before the trial Court and I have no doubt that after considering the same, it will be decided whether it is a fit case for permitting the tape-recorded version to be taken in evidence. In case the Court below comes to the conclusion that it deserves to be admitted in evidence, then of course, the Court below will have no option but to ask the plaintiff to give his voice and then the matter will be proceeded further.

For the reasons recorded above, this revision is allowed, the order of the Court below dated 27th August, 1983 is set aside and the Court below is directed to re-decide the application of the defendant afresh in accordance with law keeping in view the observations made above. The parties, through their counsel, are directed to appear before the trial Court on the date already fixed in the case. However, there will be no order as to costs.