DR.

RAM MANOHAR LOHIYA NATIONAL UNIVERSITY, LUCKNOW

LAW OF EVIDENCE

2022-23

ADMISSIBILITY OF EVIDENCE OBTAINED THROUGH PHONE TAPPING OR AS

CLANDESTINE PHONE RECORDING

SUBMITTED TO: SUBMITTED BY:

Dr. Vipul Vinod Prachi Jain

Associate Professor (Law) Enrol. No: 200101098

Dr. RMLNLU, Lucknow Sem V, B.A.LL.B. (Hons)

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 TABLE OF CONTENTS

Table of Contents .......................................................................................................................2

List of Abbreviations .................................................................................................................3

Index of Authorities ...................................................................................................................4

Introduction ................................................................................................................................1

The Indian Telegraph Act, 1885 ................................................................................................1

The Information Technology Act, 2000 ....................................................................................3

Action in Tort .............................................................................................................................4

Use of a Clandestine phone-recording for the purpose of instituting a court case and its
admissibility in evidence............................................................................................................5

Admissibility of Evidence obtained through illegal phone tapping ...........................................7

Way Forward vis-a via Data Protection Legislation ..................................................................9

Conclusion .................................................................................................................................9

2
 LIST OF ABBREVIATIONS

Abbreviations Full Form

V Versus
AC Appeal Cases
AP Andhra Pradesh
AIR All India Reporter
ALD Andhra Legal Decisions
Del Delhi
Edn. Edition
Guj Gujarat
Lah Lahore
Ltd Limited
QB Queen’s Bench
Raj Rajasthan
S Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter

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 INDEX OF AUTHORITIES

Supreme Court

Anvar PV v PK Basheer (2014) 10 SCC 473. ..................................................................................... 6, 7

KS Puttaswamy v Union of India, (2017) 10 SCC 1. ............................................................................. 4
Ram Singh v Col Ram Singh 1985 Supp SCC 611. ................................................................................ 7
RM Malkani v State of Maharashtra (1973) 1 SCC 471............................................................. 2, 4, 7
State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600. ................................................................ 7
State of MP v Paltan Mallah (2005) 3 SCC 169. .................................................................................... 7

High Courts

Anurag Singh v State (Through NCT of Delhi) 2006 SCC OnLine Del 427. ................................. 2
Court on its Own Motion v State, 2007 SCC OnLine Del 1662. ........................................................ 5
Smt Rayala M Bhuvaneswari v Nagaphanender Rayala 2007 SCC OnLine AP 892. ................. 3
Vishal Kaushik v Family Court & Anr 2015 SCC OnLine Raj 7851 ................................................ 4
Vishal Kaushik v Family Court & Anr 2015 SCC OnLine Raj 7851. .......................................... 3, 4

Statutes

Indian Evidence Act 1882, s 65A................................................................................................................. 6

Indian Evidence Act 1882, s 65B. ................................................................................................................ 6
Indian Telegraph Act 1885, s 25. ................................................................................................................. 1
Indian Telegraph Act 1885, s 3(3). .............................................................................................................. 1
Information Technology Act 2000, s 2(1)(t). ............................................................................................ 5
Information Technology Act 2000, s 43. ................................................................................................... 3
Information Technology Act 2000, s 43A. ................................................................................................ 3
Information Technology Act 2000, s 66. ................................................................................................... 3
Information Technology Act 2000, s 66E. ................................................................................................ 4

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 INTRODUCTION

The sheer number of court trials where a telephone recording is sought to be used by either
party as evidence, suggest that private thoughts are not private anymore. Use of such
recordings in court cases has risen enormously in the recent past. In this background, the
Author will examine the very legality of the act of recording of a phone conversation by a
private party to the conversation, without the knowledge of the other party. The Author also
examine as to whether such a phone conversation can be used as legally admissible evidence,
and if yes, what is the evidentiary weight that is to be attached to it.

At present, there is no specific statutory regime for data protection in India which would
govern the clandestine recording of a phone call. In light of this rather gaping legislative
void, the law applicable to situations such as recording of a phone call without knowledge is
often not direct, or fully tested by judicial interpretation. This is particularly true in case of
such recording being conducted by a private person as opposed to
recording/tapping/interception by a governmental authority or agency of the State.

THE INDIAN TELEGRAPH ACT, 1885

In absence of a specific law governing the issue, the law most frequently applied to such cases is
the Indian Telegraph Act which was passed way back in 1885 (“Telegraph Act”). Section 25 of
the Telegraph Act criminalizes the offence of damaging or tampering with a telegraph. 1 The
offence includes the act of tampering a telegraph or the working of a telegraph with the intention
of intercepting or acquainting oneself with the contents of any message and the message is
defined under section 3(3) of Telegraph Act and means any communication sent by telegraph, or
given to a telegraph officer to be sent by telegraph or to be delivered2. However, precedent
reveals that this section has mostly been pressed into service only for the prosecution of third
parties intercepting a call, and not the parties to the conversation.

The tenor of the section also appears to suggest that criminality is attachable only to a third party,
who somehow breaks into the conversation. The phrase ‘Interception’/‘Acquainting oneself with
the contents of a message’ do not appear to cover a situation of a person recording their own
telephone conversation with another. A person recording his/her own conversation with someone
cannot be said to have ‘intercepted’ his own conversation, or damaged/tampered

1
Indian Telegraph Act 1885, s 25.
2 Indian Telegraph Act 1885, s 3(3).

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a device with a view ‘to acquaint himself with the contents of (his own)
message/conversation’. Therefore, strictly speaking, an act of clandestinely recording one’s
own conversation with someone does not appear to be culpable under this section.

This is further hammered-in by the principle of strict construction which mandates that a penal
statute has to be construed strictly, and only if an act clearly and squarely falls within the
definition of a penal section – should criminality be attracted. Therefore, on an overall analysis, it
does not appear that a party recording its own conversation may fall within this section.

Having said that, there is no direct judicial decision on this point, and this is a position of law
that remains to be tested. It cannot be commented with certainty at this stage how the courts
may interpret it. However, the courts are not likely to hold such an act criminal under the
present legislative scheme of things.

The leading decision on Section 25 of the Telegraph Act is one rendered by the Supreme
Court of India way back in 1972, in the case of R.M. Malkani v State of Maharashtra3,
wherein the appellant had been convicted by the lower courts for corrupt practices, on the
basis of evidence that included a telephone conversation recorded on tape. A challenge was
made to the conviction inter alia on the ground that the police, by recording the telephone
conversation, had contravened Section 25 of the Telegraph Act. The Supreme Court turned
down this contention based on the fact that this was a case where a person who was allegedly
being extorted over the telephone, had allowed the police to listen-in to the conversation and
record the same. It was not a case of someone breaking into the conversation to acquaint
themselves with the conversation. In the absence of any such fact, this was held not to be a
criminal offence on the part of the policemen who tapped the conversation.

Though the decision is old, and Section 25 is most often used for the prosecution of theft, or
illegal utilization of telephonic lines, data circuits, etc., there have been cases in the recent
past where the provision has been attracted in the context of criminal prosecution against
non-consensual/unauthorized tapping of phone calls by third parties.4

There is hardly any prosecutions initiated under Section 25 against a party to a conversation for
recording it clandestinely. The above prosecutions have been initiated with respect to a third
party recording a conversation without knowledge/consent of the parties to the conversation.

3
RM Malkani v State of Maharashtra (1973) 1 SCC 471.
4 Anurag Singh v State (Through NCT of Delhi) 2006 SCC OnLine Del 427.

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What can be understood from relevant judicial decisions on the issue, is that if a third party
intercepts the telephonic conversation between two parties, then it is a violation of the right to
privacy of the parties conversing on phone.5 However, there does not appear to be judicial
consensus on the question of a party to the conversation recording the same without consent:
While courts have held such a recording to be a violation of the other party’s right to privacy,
and therefore, not admissible in evidence, a contrary view has also been taken.6

THE INFORMATION TECHNOLOGY ACT, 2000

The other statute that may be relevant to the present discussion is the Information
Technology Act, 2000 (“the IT Act”). However, the applicability of this statute to the
specific situation under discussion appears to be quite limited.

Section 43A of the IT Act7 provides for compensation by a body corporate to any person whose
sensitive personal information or data such body corporate possesses, deals with or handles, in a
computer resource that it owns, controls or operates, if, on account of the negligence of such
body corporate, wrongful loss or gain is caused to any person. ‘Sensitive personal data or
information’ has been defined in an executive notification passed under the said Section 43A,
and includes, inter alia, information in relation to a person’s finances, sexual orientation,
biometrics, etc.

Therefore, Section 43A of the IT Act may be applicable to the present situation in the very
narrow factual context where hypothetically, a company intercepts a telephonic conversation
taking place on a device which the company owns, and negligently allows unauthorized
access or disclosure of a person’s sensitive personal information, and such negligence results
in wrongful loss to that person or wrongful gain to another.

Apart from Section 43A of the IT Act, the applicability of other provisions of the IT Act is as
follows: Section 668 read with Section 439 is applicable if a person, without permission of the
owner of a telephonic device, gains access to such device or downloads data from it. However,
merely recording a telephone conversation with someone with the help of a recording

5
Smt Rayala M Bhuvaneswari v Nagaphanender Rayala 2007 SCC OnLine AP 892.
6 Vishal Kaushik v Family Court & Anr 2015 SCC OnLine Raj 7851.
7
Information Technology Act 2000, s 43A.
8 Information Technology Act 2000, s 66.
9 Information Technology Act 2000, s 43.

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equipment/software at the recorder’s end of things might not qualify the test of this Section
and may not be considered ‘culpable’.

Further, Section 66E10 that punishes violation of privacy only applies to images and not
voice recordings. In its remaining scheme, the IT Act only regulates interception of electronic
records when made by governmental or government-authorized agencies or persons. It does
not talk of such interception or storage when made by a private person.

Therefore, the Telegraph Act as well as the IT Act do not appear to criminalize the act of
clandestine recording of telephone conversation by a party to the conversation.

ACTION IN TORT

Notwithstanding the above, a person aggrieved by such secretive recording of conversation

may make a claim in tort for violation of her privacy. Tort law in India is uncodified, and
therefore, a court would look to common law for guidance in case of such a legal action, if
brought.

In recent times, Courts, in at least two reported decisions, have held clandestine phone
recordings to be a violation of right to privacy11. Further, in view of the verdict in Justice

K.S. Puttaswamy (Retd.) v Union of India12 (“Puttaswamy”), it is now settled law that the
right to privacy is a fundamental right emerging primarily from Article 21 of the Constitution
of India. Freedom from unwarranted stimuli and freedom of thought appear to have been read
as falling within the meaning of the fundamental right to privacy. Privacy itself was held to
have a negative aspect (the right to be let alone) and a positive aspect (the right to self-
development). However, even in the cases aforementioned13, the court stopped at holding
clandestine phone recordings to be a violation of ‘privacy’ and no civil or criminal
consequences followed.

In the context of sting operations by private persons, the Delhi High Court has observed that “a
sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a
civilized society,’ and ‘normally, if a private person or agency unilaterally conducts a sting

10
Information Technology Act 2000, s 66E.
11 Vishal Kaushik v Family Court & Anr 2015 SCC OnLine Raj 7851.
12
KS Puttaswamy v Union of India, (2017) 10 SCC 1.
13
Vishal Kaushik v Family Court & Anr 2015 SCC OnLine Raj 7851; RM Malkani v State of Maharashtra
(1973) 1 SCC 471.

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operation, it would be violating the privacy of another person and would make itself liable
for action at law.”14

Nonetheless, in practice, courts have adopted an approach where they weigh public interest
against the right to privacy, on a case to case basis. In Court on its Own Motion v. State15, it
was held that: “Sting operations showing acts and facts as they are truly and actually
happening may be necessary in public interest and as a tool for justice, but a hidden camera
cannot be allowed to depict something which is not true, correct and is not happening but has
happened because of inducement by entrapping a person.” It remains to be seen how future
rulings in this context are affected by the decision in Puttaswamy.

There does not appear to be any precedent where damages have been awarded for clandestine
phone recording by a party and consequent violation of right to privacy of the other party to
the phone conversation.

USE OF A CLANDESTINE PHONE-RECORDING FOR THE PURPOSE OF INSTITUTING A COURT

CASE AND ITS ADMISSIBILITY IN EVIDENCE

There is no bar on institution of a suit/claim/complaint based on a phone conversation

recorded by a party without the knowledge of the other party. In order to examine the
possible use of a phone conversation as evidence, the statutory regime relating to
admissibility of electronic evidence may briefly be alluded to.

The legal regime in this regard becomes apparent from a conjoint reading of the IT Act and
the Indian Evidence Act, 1872 (“Evidence Act”). A voice recording would fall within the
definition of “electronic record” provided in the IT Act. Electronic record means data, record
or data generated, image or sound stored, received or sent in an electronic form or micro film
or computer generated micro fiche.16

The output of an electronic record (which in this case is a phone conversation, which may be
saved in the form of an audio file, and then the output produced on a CD/DVD, or any other
medium) is deemed to be documentary evidence, provided the conditions relating to
admissibility of electronic evidence are satisfied.

14
Court on its Own Motion v State, 2007 SCC OnLine Del 1662.
15 Court on its Own Motion v State, 2007 SCC OnLine Del 1662.
16 Information Technology Act 2000, s 2(1)(t).

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Section 65A of the Evidence Act provides that the contents of electronic records may be
proved in accordance with the provisions of Section 65B of the Evidence Act. 17 Section 65B,
in turn, lays down the requirements for admissibility of electronic evidence.18

The Supreme Court of India has laid down that in order for an electronic evidence (including
a voice recording) to be admissible, the certificate provided for under Section 65B(4) of the
Evidence Act is mandatory.19 Therefore, as long as the certificate fulfilling the requirements
of Section 65B(4) is filed with a court, a voice recording is admissible.

The entire idea behind the certificate is to ensure the integrity of data and computer system;
the manner of production of output of electronic record, identity and particulars of device
used (including the original device). The court needs the certificate to be assured of the
integrity of source and authenticity of data, so as to place reliance on it.

This is insisted upon since electronic data is more prone to tampering and alteration.
However, admissibility is not the be all and end all. It is not that once the electronic evidence
(recorded phone conversation, in this case) is held admissible in evidence, it would
necessarily be relied upon by the judge for a decision in the case. Even after admissibility, a
judge would still have to consider its logical relevance to the matter at hand, its probative
worth, reliability and credibility.

Applying the above principle, the output of the phone recording can be led in evidence in a
civil or criminal case in order to establish facts. For the output on CD/DVD or any other
medium, to be admissible, it has to be accompanied by the above certificate certifying the
integrity of information, computer/mobile and the process of production of the output.

If, however, the computer resource/medium on which a voice recording is stored (a flash drive,
compact disk, etc.) is directly tendered into evidence, there would be no requirement of a
certificate under Section 65B. This is because the voice recording, being a deemed document, is
itself being produced for the inspection of the Court, and thus becomes primary evidence.

The certificate under Section 65B would only be necessary in case, for instance, an output of
such computer resource is being sought to be tendered into evidence, since in that case, the

17
Indian Evidence Act 1882, s 65A.
18 Indian Evidence Act 1882, s 65B.
19 Anvar PV v PK Basheer (2014) 10 SCC 473.

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same would become secondary evidence. This is the law laid down by the Supreme Court of
India.20

ADMISSIBILITY OF EVIDENCE OBTAINED THROUGH ILLEGAL PHONE TAPPING

The doctrine of ‘fruits of the poisonous tree’ has largely been held to be not applicable in the
Indian context. In American jurisprudence, illegally collected evidence, which is best
described as fruit of the poisonous tree, is frowned upon by the American courts.

In India, the 94th Law Commission Report suggested to the Parliament to bring in similar
provisions into our legal system, which was not accepted by the Parliament. The Supreme
Court has discussed the 94th Law Commission Report, distinguished therefrom and has
categorically held that the evidence collected illegally or in violation of the procedural law
will not become inadmissible unless serious prejudice is caused to the accused.21

Indian courts have taken the view that there is no law in force that excludes relevant evidence on
the ground that it was obtained under an illegal search or seizure, or was otherwise illegally

obtained.22 The Indian Courts have had no problem in accepting a fruit, no matter how
poisonous, tainted or rotten the tree may be. This attitude of looking the other way, or of
prioritizing pragmatism and expedience over legal principle, has left the police with no incentive
to improve the quality of their investigations, or comply with the letter of the law concerning
search and seizure. Be that as it may, the Courts continue to accept tainted evidence.

In fact, specifically in the context of telephone recordings, the Supreme Court of India has
held23 that even if a document or tape recording is illegally obtained, it would still be
admissible as evidence, provided it fulfills certain criteria of genuineness and relevance. The
said criteria with respect to admissibility of voice recordings were thereafter crystallized in
another decision of the Supreme Court of India.24 Though this was a decision delivered in
the context of recordings made on tape by a government official, it is still an authority for the
general conditions under which a voice recording may be admitted into evidence. It laid
down the following conditions for admissibility of a tape-recorded statement:

20
Anvar PV v PK Basheer (2014) 10 SCC 473.
21 State of MP v Paltan Mallah (2005) 3 SCC 169.
22
State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600.
23 RM Malkani v State of Maharashtra (1973) 1 SCC 471.
24 Ram Singh v Col Ram Singh 1985 Supp SCC 611.

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 1. The voice of the speaker must be duly identified by the maker of the record or by
others who recognise his voice. In other words, 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 a 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 the Evidence Act.

5. The recorded cassette must be carefully sealed and kept in safe or official custody.[31]

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

The requirements of admissibility were also imported from American jurisprudence, which
requires, as a condition of reception into evidence:

1. a showing that the recording device was capable of taking testimony;

2. a showing that the operator of the device was competent;

3. establishment of the authenticity and correctness of the recording;

4. a showing that changes, additions, or deletions have not been made;

5. a showing of the manner of the preservation of the recording;

6. identification of the speakers;

7. a showing that the testimony elicited was voluntarily made without any kind of
inducement.

• Therefore, if the above criteria are met, even the product of an illegal phone tapping
would be admissible in evidence.

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 WAY FORWARD VIS-A-VIA NEW DATA PROTECTION LEGISLATION

The Draft Personal Data Protection Bill (“DPP Bill”) which has been keenly anticipated by
all for its repercussions on data privacy, has been introduced. Another updated draft was
again introduced on December 11, 2019. The decision in Puttaswamy laid much of the
groundwork for privacy legislation in India. India’s push to build a sturdy data privacy
regime is at a critical juncture now with the coming of the DPP Bill.

The DPP Bill changes the paradigm of the relationship between service providers and users.
This law which brings in constitutional precepts, viz the constitutional right to privacy, raises
this relationship to a fiduciary level which is premised upon the fundamental expectation of
trust. The terminology has been revisited to mitigate the inequality in bargaining power. The
individual whose data is being collected as the “data subject” is now the “data principal”, and
the entity that collects the data as the “data controller” is the “data fiduciary”.

Coming back to the issue at hand, the tenor of the DPP Bill (in its present shape) does not
make it clear as to whether it would cover the clandestine recording of phone conversation by
one party, without the knowledge of the other. It is not clear as to whether the dynamics of
‘data fiduciary’ and ‘data principal’ were intended to apply to private conversations between
two parties, which are at arm’s length. Be that as it may, even if parties to such a
conversation were to fall within the definitions of ‘data fiduciary’ and ‘data principal’, the
exemption of ‘Processing for the purpose of legal proceedings’ envisaged under Section 44 of
the DPP Bill may squarely apply to it, and permit the recording and use of phone
conversations in legal proceedings, as evidence.

It is hoped that future modifications to the DPP Bill would bring in clarity on the legality /
criminality associated with recording of telephone calls. A possible guideline could be the
‘one party consent’ rule followed by the federal law of the Unites States, which permits
recording of a phone conversation if one party to the conversation (including the recording
party) consents.

CONCLUSION

There does not appear to be any reported prosecutions initiated against a party to the
conversation for having committed an offence under the Telegraph Act. However, there have
been cases of criminal prosecutions against third parties intercepting and tapping calls
unauthorizedly. Therefore, the better judicial opinion is that it may not be a criminal offence

9
for one party to a conversation to record the conversation without the knowledge of the
opposite party.

However, the same may be construed as a violation of right to privacy – presently, a tortuous
wrong, though such civil actions appear to be extremely rare. We are not aware of any case where
compensation/damages have been awarded for violation of privacy caused by clandestine
recording of phone conversation by one party, without the knowledge of the other.

Phone conversation inter se parties are extremely commonplace, and frequently relied upon
by courts in India to decide facts and issues. As per the Supreme Court, even an illegally
recorded conversation can be admissible in evidence subject to production of a certificate
under Section 65B of the Evidence Act, and a satisfaction of conditions relating to
genuineness and relevance as listed above.

The present legal regime appears to be insufficient to deal with recording of telephone
conversations, and the issue remains unregulated. It is hoped that the new DPP Bill may be
tweaked with a view to regulate these situations.

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