Validity of Secretly Recorded Telophinic Talk
Validity of Secretly Recorded Telophinic Talk
Latest news April 30, 2020 603
Is secretly recorded Telephonic Talk between Wife & Friend in Breach of Privacy Right Admissible in Family Court?
Is the evidence in the form of an audio-video recording of a private telephonic conversation collected in violation of a person’s fundamental right to privacy (after the Supreme Court’s Privacy judgment) by planting a recorder in the bedroom of that person admissible in a Family Court?
A Delhi Family Court has answered the question in affirmative.
Family Court, held that a Family Court can receive any report, statement, document, information which, in its opinion, will assist it in effectually dealing with a dispute between the parties without going into the question of admissibility of the evidence collected by violating a person’s right to privacy. The court held “This Court is of the opinion that the conversation between the respondent wife and her friend wherein she has allegedly spoken about the petitioner husband and his family and the status of the matrimonial life would certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant. Therefore, in view of section 14 of the Family Courts Act, the evidence cannot be thrown out on the ground that the same is inadmissible,” he held.
The Court said so while deciding a plea of a man (the petitioner), who has been seeking a divorce from his wife (the respondent) on grounds of cruelty. To prove cruelty, the petitioner had relied upon an audio-video recording wherein the respondent is purportedly speaking to a friend on phone and is talking about petitioner and his family and the status of matrimonial life, which conversation the petitioner claims to be defamatory and constituting cruelty to him. He had moved the plea for the appointment of an expert to prove the contents of the CD containing the said recorded telephonic conversation to rule out any possibility of tampering while the estranged wife objected to it being admitted as evidence. During the arguments stretching over three weeks, petitioner’s counsel submitted that the contents of the CD is the prime evidence which the petitioner wants to rely upon and since the respondent is disputing its contents, the court should appoint an expert to report about the correctness of the contents of the CD. The counsel for the respondent, however, opposed the application saying the CD as an evidence is hit by Articles 19 and 21 of the Constitution as the conversation was recorded by planting an audio-video recorder in the bedroom of the respondent for recording her conversation with her friend which was made in private, thereby violating her right to privacy. Relying on the nine-judge bench Supreme Court’s verdict in ‘KS Puttuswamy & Anr. vs. Union of India’ (better known as the Privacy judgment), the respondent said a communication made between her and her friend with the belief that the same is being made in private cannot be permitted to be brought on record. He argued that the petitioner’s act of secretly recording the conversation is in violation of respondent’s fundamental right to privacy and therefore, such recording is illegal and not admissible in evidence. She further argued that Section 14 of the Family Courts Act permits evidence which is inadmissible under the Indian Evidence Act but does not allow evidence which is inadmissible as per the Constitution of India. Advocate of petitioner strongly rebutted the argument as she submitted that right to privacy is subject to just exceptions and when juxtaposed with the right of the petitioner to establish cruelty in conduct of the respondent, respondent’s right to privacy shall have to give way to petitioner’s right to prove his case. She referred to the Supreme Court case titled ‘Sharda vs. Dharampal’ wherein it was held that matrimonial court has the power to order a person to undergo a medical test and such an order would not be in violation of personal liberty.
The Court held that “There can be no dispute to the law laid down in KS Puttuswamy’s case. The law as enunciated by a full bench of the Supreme Court is binding and sacrosanct. However, this court is of the opinion that the scope of K S Puttuswamy’s case is restricted to a stage prior to the violation of right to privacy. The Hon’ble Supreme Court has held that a person has a right to maintain his privacy. This right has been conferred the status of a fundamental right. The protection has been enunciated to be available against the state, as well as non-state entities. However, the consequences of such violation, on the admissibility/ inadmissibility of the evidence collected by such violation, have not been discussed in the judgment,” said Judge. Court went on to say, “Thus, in the present case, the act of petitioner husband of planting an audio-video recorder without the knowledge information of respondent certainly amounts to invasion of respondent’s right to privacy. Petitioner had no right to plant such a device. Having planted the said recorder and made a recording therein, legally permissible consequences would follow in appropriate proceedings. Petitioner can be held liable for violating the respondent’s fundamental right to privacy. The question that needs to be answered by this court in the present application is from the next stage onwards that is whether the evidence so collected in violation of respondent’s fundamental right to privacy is admissible or not?” “This Court is of the opinion that KS Puttuswamy case is silent on this question”. The court said that in X versus Hospital Z’s case it was held by the Supreme Court that dissemination of information about a person being infected with HIV is not hit by right of privacy as the prospective spouse has a right to protect herself from being infected.
The court also referred to ‘Sharda versus Dharampal’ case where it was held that Family Court’s power to direct a person to undergo medical test is not violative of Article 21 of the Constitution of India. The judge said that the judgment relied upon by the counsel based on Articles 19 and 21 of the Constitution of India do not answer the question which this court is required to answer (about the admissibility of evidence collected in breach of right to privacy). Section 14 Family Courts Act has the answer Court said it is Section 14 of the Family Courts Act which squarely and clearly answers the question posed. Sagarika Devatha’s case elucidates the object of Section 14 of the family courts Act. The legislative wisdom to keep the procedure in legal aspect of a family court to be simple and non-complicated have been held to be the object of section 14 which says that a family court may receive as evidence any report, statement, document, information on matter that may in its opinion assist it to deal effectively with a dispute whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. “It is, therefore, evident that the family court is within its right to receive any report, statement, document, information which in its opinion will assist it in effectually dealing with a dispute between the parties whether such evidence is relevant or admissible or not. Therefore, the question of admissibility of the evidence collected by violating the respondent's right to privacy would not be gone in to by a family court and the evidence shall be taken on record if the court is of the opinion that such evidence will assist it in dealing with the dispute effectively,” said the judge. “This Court is of the opinion that the conversation between the respondent and her friend wherein she has allegedly spoken about the petitioner and his family and the status of the matrimonial life would certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant. Therefore, in view of section 14 of the Family Courts Act, the evidence cannot be thrown out on the ground that the same is inadmissible,” he held.
The Court was not impressed with the argument of respondent’s counsel that the admissibility mentioned in Section 14 of the Family Courts Act pertains to admissibility under the Indian Evidence Act and not under the Constitution of India. “The question of admissibility has been defined only under the Indian Evidence Act and there is no way that appreciation of admissibility of evidence can be carried out under the Constitution of India. Therefore, Court is of the opinion that the audio-video recording as contained in the CD is certainly permissible to be taken on record and considered for effectively adjudicating the dispute between the parties,” he said.
The court also referred to the Supreme Court decisions in State vs Navjot Sandhu to say that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. “Thus, the consistent view of the Hon’ble Supreme Court of India has been that an evidence which is relevant, though, illegally collected shall not be rejected on the grounds of admissibility,” said the court. “Thus, holding that the recorded conversation contained in CD is admissible the application is allowed,” concluded the court.
It then directed that the CD and audio-video recorder be sent to FSL Rohini for evaluating the genuineness of the recordings contained therein and directed SHO Police Station Vasant Vihar to collect CD as well as original recording device from the petitioner and send it to the FSL Rohini by a special messenger. The court ordered that the FSL shall report in one month whether the contents of the CD and the original recording in the recording device are at variance; whether the original recording has been tampered with and; whether the transcript relied upon by the petitioner is correct as per the original recording.
Let us trace history of Law in India on Admissibility of Evidence Obtained Illegally Or Improperly?
The admissibility of evidence in Courts in India is dependent on its relevancy as per the provisions of Indian Evidence Act. Illegality or impropriety in obtaining the evidence will not affect its admissibility, if it is otherwise relevant. Test of admissibility of evidence lies in its relevancy and not on how it was obtained.
In ‘Kuruma versus The Queen’  AC 197 the Privy Council laid down that if the evidence is admissible, the court is not concerned how it was obtained. The privy council observed:"...the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained". In this case, evidence obtained by illegal search of body of a person was not eschewed by the court.
These observations of the privy council were quoted with approval by the Supreme Court in ‘Pooran Mal versus Director of Inspection’ AIR 1974 SC 348. After quoting the above observations of the Privy Council, the SC observed as follows: "It would be thus seen that in India, as in English, where the test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out". That was a case dealing with a challenge that a search and seizure were in contravention of the provisions of Section 132 of the Income Tax Act. Rejecting the challenge, the Supreme Court held that even assuming that the search and seizure were illegal, still the material seized was liable to be used in evidence.
In an earlier decision in ‘Magraj Patodia versus R K Birla and others’ AIR 1971 SC 1295, the Supreme Court held that the fact that a document was procured by illegal means will not bar its admissibility, if it is relevant otherwise. It was held that provisions in Code of Criminal Procedure relating to search and seizure are to be treated as guidelines and even if there is any violation, the Court can accept the evidence.
The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained was discussed in “R.M. Malkani versus State of Maharashtra” (1973) 1 SCC 471. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestaeunder Section 7 of the Evidence Act, even if it is recorded illegally. The Court observed in Malkani: "There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. [See Jones v. Owens (1870 (34) JP 759)]. The Judicial Committee in ‘Kuruma versus R.’ (1955 (1) All ER 236) dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence."
The Supreme Court has repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India (‘Yusufalli Esmail Nagree versus The State of Maharashtra’, AIR 1968 SC 147).
In ‘Umesh Kumar versus State of AP’ AIR 2014 SC 1106, the SC was dealing with a prayer to quash a charge sheet in a corruption case, which was registered on the basis of few sale deeds showing acquisition of disproportionate assets. The accused contended that the case was registered on the basis of a forged letter, to which the sale deeds were annexed. The Court held that even if the letter was forged, the sale deeds annexed to it can be looked into.
The Delhi High Court in “Dharambir Khattar v Union of India” 2013 CriLJ 2011 held that telephonic conversations intercepted by authorities in violation of the Telegraph Act and the principles laid down by SC for phone-tapping in PUCL case are admissible in evidence.
Law Commission's suggestion:
It may also be noted that the Law Commission of India in its 94th Report suggested to give Court's discretionary power to exclude illegally obtained evidence. The Law Commission observed that there are no absolutes in the debate regarding exclusion of illegally evidence. It acknowledged that an absolute rule of exclusion might result in grave injustice in certain cases. At the same time, it added that there could be cases were the breach is so blatant and shocking that admitting such evidence will cause disrepute to administration of justice. Therefore, the Commission suggested that "there is need for conferring on the court a discretion to exclude evidence obtained illegally or improperly if, in the circumstances of the case, the admission of such evidence would bring the administration of justice into disrepute" The Commission suggested incorporation of Section 166A of the Indian Evidence Act for giving courts the discretionary power to exclude illegally or improperly obtained evidence. The following parameters were enlisted in the proposed Section to determine whether the admission of such evidence will bring administration of justice into disrepute :(i) the extent to which human dignity and social values were violated in obtaining the evidence; (ii) the seriousness of the case; (iii) the importance of the evidence;(iv) the question whether any harm to an accused or others was inflicted wilfully or not; (v) the question whether there were circumstances justifying the action, such as a situation of urgency requiring action to prevent the destruction or loss of evidence. But the suggestion of Law Commission has not been accepted.
Exception in cases of illegally recovered contraband:
This rule cannot be applied to use illegally recovered contraband as evidence of possession. Statutes like Narcotic Drugs and Psychotropic Substances Act, Abkari Act etc., raise a presumption of guilt if possession of illegal article is established. Such laws have stringent provisions for search and seizure, as the mere possession of the article can lead to punishment. "Unlawful possession" of the contraband is necessary for recording conviction under the NDPS Act. In such cases, deviations from procedure of search and seizure will materially affect the prosecution case in relation to proving possession. This has been clarified by the Constitution Bench in ‘State of Punjab versus Baldev Singh’ (1999) 6 SCC 172 by explaining the dictum in Pooran Mal. "The judgment in Pooran Mals case (supra), therefore, cannot be understood to have laid down that an illicit article seized during the search of person, on prior information, conducted in violation of the provisions of Section 50 of the Act can be used as evidence of unlawful possession of the illicit article on the person from whom that contraband had been seized during an illegal search", said the Court in Baldev Singh. The issue reached Constitution Bench in view of conflicting decisions regarding the impact of breach of Section 50 of NDPS Act. Few decisions held that even in cases of breach of Section 50 NDPS Act, evidence can be admitting, by applying the dictum in Pooran Mal. The Constitution Bench held that the dictum in Pooran Mal cannot be applied in cases of unlawful seizure of contraband. "the illicit drug or psychotropic substance seized in an illegal search cannot by itself be used as proof of unlawful conscious possession of the contraband by the accused. An illegal search cannot also entitle the prosecution to raise a presumption under Section 54 of the Act because presumption, is an inference of fact drawn from the facts which are known as proved. A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50". The Court held that hat an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. It was clarified that any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case. This dictum is based on the principle in criminal jurisprudence that when a safeguard or right is provided favouring the accused, it has to be strictly followed (State of Delhi v Ram Avtar @ Rama AIR 2011 SC 2699).
'Fruits of a poisonous tree' doctrine of US:
The law in United States of America is however different. The US Courts follow the doctrine of 'fruits of a poisonous tree', which excludes illegally obtained materials from evidence. The term's first use was by Justice Felix Frankfurter in ‘Nardone v. United States’. The doctrine is based on fourth amendment to US Constitution, which guarantees privacy rights to citizens. The US Supreme Court has held that allowing evidence gathered as an indirect result of an unconstitutional search and seizure "reduces the Fourth Amendment to a form of words". "the primary purpose of the exclusionary rule is to deter future unlawful police conduct and thereby effectuate the guarantees of the Fourth Amendment against unreasonable search and seizure"., the US SC held in ‘US v Calendra’. However, this rule has attracted criticism as well. Justice Benjamin Cardozo, stated that under the rule, "The criminal is to go free because the constable has blundered." A major criticism of the Fourth Amendment exclusionary rule is that the text of the Fourth Amendment does not indicate that illegally seized evidence must be excluded. The argument is that the person obtaining illegal evidence must be made to face legal consequences; but the evidence should not be excluded, as the concern of the court is to be factually correct. This rule of excluding 'fruits of a poisonous tree' has a limited application in India under Sections 24, 25 and 26 of the Indian Evidence Act which bar the admissibility of confessions made to police officers, custodial confessions etc.
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