Sri. Raghavendra T C Vs Central Bureau of Investigation

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET FILED BY THE RESPONDENT BEFORE THE LEARNED XXI ADDL.CITY CIVIL AND SESSIONS JUDGE AND PRL.SPL.JUDGE FOR CBI CASES, AT BENGALURU FOR THE OFFENCE P/U/S 120B R/W 201 OF IPC AND SEC.7 OF THE P.C ACT, 1988 AGAINST THE PETITIONER / ACCUSED NO.2 AND ETC.,

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.01.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CAV ORDER

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The petitioner/accused No.2 is knocking at the doors of this Court calling in question proceedings in Spl.C.C.No.2647 of 2022 registered for offences punishable under Sections 120B and 201 of the IPC and under Section 7 of the Prevention of Corruption Act, 1988 (‘PC Act’ for short).

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Facts in brief, germane, are as follows:

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The petitioner is a constable in the Railway Protection Force and was at the relevant point in time working at Byappanahalli. On 17-02-2022 a report emerges from the Competent Authority

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communicated to the accused No.1 regarding damage caused to the optical fiber cable, which was cut by usage of the JCB, which effected important communication circuit and also observed that the loss caused as a penalty was assessed at Rs.1.5 lakhs. The next day, the Control Room of the RPF directed the accused No.1 to investigate the matter, on which the accused No.1 Inspector and the Assistant Sub-Inspector makes an occurrence report and conducts spot inspection, issues summons to the Managing Director of Athreya Hospital, since it was while digging the construction of the said hospital, damage was caused to the cables which was railway property. A case was then registered against an employee of the hospital for illegal trespass. The Maintenance Manager of Athreya Hospital then complains to the CBI against the RPF Officials, here comes the petitioner into the picture.

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The complaint was regarding demand of illegal gratification by accused Nos.1 and 2 threatening that they would not only proceed against the accused in the aforesaid crime, but would also proceed against several others. The commander of the RPF then issues summons to the Managing Director of the hospital to appear

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before him. It is on all these circumstances, the Managing Director records the conversation that happens between him, the accused No.1 and the petitioner. It is this recording that depicts demand of bribe of Rs.1.5 lakhs along with fine of Rs.25,000/-. The recording then is handed over to the CBI by way of a complaint on 02-03-2002. The complaint then becomes a crime in R.C.04(A)/2022, lodged by the Anti-Corruption Bureau for offences punishable under Section 7 of the PC Act and Sections 120B and 201 of the IPC. The police conduct investigation and file a charge sheet for the afore-quoted offences. The allegations in the charge sheet was that the petitioner and accused No.1 demanded and accepted the bribe amount of Rs.1 lakh from Manjunath, the Maintenance Manager of Athreya Hospital. After the filing of the charge sheet, the Court of Sessions for the CBI cases, takes cognizance for the afore-quoted offences against accused No.1 and petitioner/accused No.2 and registers Spl.C.C.2647 of 2022. Taking of cognizance and issuance of summons has driven the petitioner to this Court in the subject petition.

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Heard Sri Shivaji H Mane, learned counsel appearing for petitioner and Sri P Prasanna Kumar, learned Special Public Prosecutor appearing for respondent.

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The learned counsel appearing for the petitioner would contend that no bribe amount was recovered from the petitioner to establish a case of demand and acceptance of illegal gratification; the two wheeler in which the petitioner travelled was not subjected to any test nor the ownership details were verified, as the allegation was that the bribe amount was received and directed to be kept in the scooter. Official voice recorder was not used, instead an apple watch was used to record the conversation during the trap proceedings. It is a case of illegal phone recording infringing the privacy of the petitioner. Therefore, the proceedings should be quashed, is the submission of the learned counsel representing the petitioner.

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Per-contra, the learned Special Public Prosecutor Sri P. Prasanna Kumar representing the CBI would vehemently refute the submission contending that no money could be recovered

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from the petitioner, as he ran away with the cash at the time when the scooter was intercepted and destroyed the said money, therefore, an offence of destruction of evidence is to be laid against the petitioner. The conversation of demand of bribe recorded in the complainant’s phone and the conversation subsequent to trap proceedings recorded on the apple watch worn by the complainant is evidence enough to pin down the petitioner. The statement of two witnesses clearly draws down acceptance of the bribe amount. There was no necessity to use an official voice recorder, as it is not a case of wire tapping or telephone tapping, it is a case of recording of the conversation which clearly depicts demand and acceptance of illegal gratification.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute, they would not require any reiteration. It would suffice if the consideration would

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commence from the registration of a complaint. The complaint reads as follows:

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“From Manjunath. M, Maintenance Manager, Athreya Hospital, No.6/2 B, Opposite Suryanagara, Phase-1. Anekal Main Road, Chandapura.

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To Head of the Branch, CBI, ACB, Ganganagar, Bellary Road, Bangalore-32

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Sir,

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Sub:- Complaint against RPF officials -o0o-

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With respect to the above subject I wish to state that I am working in Athreya hospital as a Maintenance Manager since December 2016, On 27-02- 2022 there was a function at our hospital as my owner Shri Dr Narayanswamy was getting the hospital renovated from 60 bed capacity to 110 bed capacity with an ICU. I wish to state that the adjoining property to my hospital belongs to the Railways. As the premises were unclean, I got it cleared with the help of manual labour prior to the function. A few days prior to the function, a person called Shri Mohammed, who introduced himself as a writer from Bayyappanahalli RPF along with Shri Umesh Dakar, RPF Inspector came near our hospital and complained that we had cut off some of their cables lying on the railway property and littered on their property. He asked me to get the matter settled with his boss and pay one and half lakhs. I told him that I would inform this to my owner and come back to him. After this he telephoned me several times and I told him that we would solve the issue after the function. On 26-02-2022, a day before the function the RPF people came and seized the Chimney from our hospital whose exhaust was pointing towards their property. They also emotionally detained one of our security guards and threatened us with dire consequences to make us as accused in

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the alleged case. Subsequently on 26.02.2022, the post Commander RPF, Bayyappanahalli has issued summons in the name of MD, Athreya Hospital to appear before him on 02.03.2022 at 1000 hrs. Today morning when I went to Byappanahalli to meet Shri Umesh on behalf of my owner, I was confronted by Shri Raghavendra, Police Constable and Shri Umesh RPF Inspector. They re- iterated their demand of bribe by paying Rs. 1.5 lakhs in cash in addition to the fine amount of Rs. 25,000/. They further threatened to make all of us accused, if the amount is not paid. I got the same thing recorded in my mobile. As such I along with my owner have come to the CBI, ACE office to lodge a complaint against Shri Umesh Dakar, RPF Inspector and Shri Raghavendra, Police Constable as we were not willing to pay the bribe amount. It is requested to kindly take legal action as per the law.

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Yours faithfully,

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Sd/- 02/03/22 Manjunath. M. Maintenance Manager, Athreya Hospital, Bangalore.

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MOB:-903621884”

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The complainant is the Maintenance Manager of Athreya Hospital who is alleged to have destroyed the property belonging to the Railways. Vivid details are narrated in the complaint as to how the demand was made by the petitioner and accused No.1. This results in registration of a crime for the afore-quoted offences. The CBI, after investigation, seek to file their final report. Since both the accused were public servants, sanction was sought from the hands of the Competent Authority and on receiving the sanction, the

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concerned Court, by a detailed order, takes cognizance of the offence and registers Spl. Case No.2647 of 2022. The order of cognizance captures the entire gamut of circumstances which drew the petitioner along with another into the web of crime. Therefore, it becomes necessary to notice the order of cognizance and it reads as follows:

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“Perused the charge sheet and the allied documents submitted by the I.O.

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Brief facts of the Prosecution case are: That CBI, ACB, Bengaluru has registered a criminal case vide RC 04(A)/2022 on 02.03.2022 against Sri. Umesh Dhakar, Inspector, PF, Byappanahalli, Bengaluru and Sri. Raghavendra, ASI, RPF, Byappanahalli, Bengaluru for the offences punishable under section 120-B of IPC & Section 7 of Prevention of Corruption Act 1988 (as amended in 2018) based on a written complaint given by Sri. Manjunath M. Maintenance Manager, Athreya Hospital, No.6/2 B, Opposite Suryanagara, Phase-1, Anekal Main Road, Chandrapura.

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2. It is alleged in the complaint that on 27.02.2022, there was a function at Athreya Hospital for renovation of hospital from 60 beds to 110 beds with an ICU. The adjoining property of the hospital belongs to the Railways. As the land was unclean, Sri.Manjunath M, the complainant got it cleared with the help of manual labour prior to the function. A few days prior to the function, Sri. Umesh Dhakar, RPF Inspector along with other RPF officials came to hospital and alleged that the complainant and others had cut off some of the railway communication cables lying on the railway property and littered on their property.

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It is further alleged that Sri. Umesh Dhakar asked Sri.Manjunath M to get the matter settled with his boss and

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demanded one and half lakhs rupees from him. On 26.02.2022, a day before the function, the RPF people again came and seized the chimney from hospital whose exhaust was pointing towards the railway property. They also detained one of their security guards and threatened them that they will be made accused in the alleged case.

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It is further alleged that on 26.02.2022, the post commander RPF, Byappanahali also issued summons in the name of MD, Athreya Hospital to appear before him on 02.03.2022 at 10-00 hrs. On 02.03.2022, Sri. Manjunath M went to RPF, Byappanahalli to meet Sri. Umesh Dhakar on behalf of his MD where he met with Sri. Raghavendra, ASI and Sri.Umesh Dhakar, RPF Inspector. They reiterated their demand of bribe by paying Rs.1.5 lakhs in cash in addition to the fine amount of Rs.25,000/-. They further threatened to make all of them accused, if the amount was not paid.

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Sri. Manjunath M got the same conversation recorded in his mobile phone and visited CBI office along with his employer to lodge a complaint against Sri. Umesh Dhakar, RPF Inspector and Sri. Raghavendra, ASI as they were not willing to pay the bribe amount. Therefore, CBI, ACB, Bengaluru registered FIR vide RC 04(A)2022 based on the said complaint.

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That after registering the FIR, a trap was laid by the Trap laying officer Sri.Harish Babu, Inspector in the RPF Byappanahalli Post premises and the accused Sri. Umesh Dhakar, the then Inspector and Post Commander, RPF, Byappanahalli and Sri. Raghavendra TC, ASI, RPFB Byappanahalli demanded and accepted bribe amount of Rs.1.00 lakhs from the complainant Sri. Manjunath M, the Maintenance Manager, Athreya Hospital on 03.03.2022.

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7. The materials in the charge sheet reveal that, these accused working in tandern have seized the exhaust fan which belong to the canteen of Athreya Hospital, which fell within the railway premises and also registered a criminal case against one Nagaraja of said hospital. The accused No.1 had also summoned the Managing Director of Athreya Hospital to appear before him. Thereupon, a trap was laid and when Sri.Manjunath M. met accused No.1 in the RPF post. The accused No.1 demanded

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a sum of Rs.1,00,000/- as bribe and asked him to bring remaining Rs.50,000/-. Thereafter, he met accused No.2, who also instructed the complainant to keep the bribe amount in his pocket and to give the same, when asked. Said conversation was recorded by the complainant.

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8. The prosecution papers reveal that, the accused had instructed the complainant to handover the bribe money to one Avinash Kumar Mishra, who was supplying mineral water to the RPF post and to keep the balance ready. That, said Avinash Kumar Mishra while he was counting the bribe money, the accused No.2 came there and took the same from him. At that time, the CBI Team intercepted. Then, the accused No.2 had pushed away the CBI Team and escaped from the spot. On hearing this, even the accused No.1 also escaped from the spot. These accused were nabbed subsequently.

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The prosecution papers clearly make out a prima facie case against the accused No.1 & 2. There is also the complaint, which corroborates the case of prosecution. The statement of witnesses that is 1 to 18 support the case of prosecution. The I.O. has obtained sanction orders dated 27.10.2022 and 28.10.2022 against accused No.1 & 2 have also been obtained and furnished along with charge sheet.

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10. The charge sheet and accompanying prosecution papers reflect prima facie that, the accused have entered into criminal conspiracy and have demanded illegal gratification from the complainant for settlement of the cases registered by them against the Institution and the employer of the complainant. Further, reflect that the accused have accepted undue advantage from the complainant and have fled from the spot on being intercepted by the CBI and in the process have destroyed the evidence in the form of tainted currency with an intention to escape from the law. In view of the clear prima facie case, it is necessary to take cognizance and summon the accused. Accordingly:

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O R D E R

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Cognizance is taken for the offences punishable U/Sec. 120-B r/w.201 of IPC and Section 7 of Prevention of Corruption Act (as amended in 2018) against accused No.1 and 2.

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Office is directed to register a criminal case as Special CC. in the register No.3 against accused No.1 and 2 for the above said offences.

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Issue summons to accused No.1 and 2 for their appearance before this court returnable by 19.12.2022.

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(Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 7^th day of November, 2022)

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Sd/(K.LASHOK), 7/1/22 XXI Addl. City Civil & Sessions Judge & Prl.Spl. Judge for CBI Cases, Bengaluru.”

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(Emphasis added)

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The concerned Court takes cognizance of the offences as quoted supra and issues of summons to accused Nos.1 and 2. The petitioner being accused No.2, is at the doors of this Court in the subject petition.

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The issue now would be, whether, on the grounds

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projected by the petitioner, the proceedings should be obliterated or otherwise?

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The primary ground is that the offence under Section 7 of the PC Act is not made out, as there was no recovery from the hands of the petitioner and therefore, the proceedings should be quashed. The first ground noted is only to be rejected, as the demand and acceptance is clearly captured on two circumstances, one while conversing with Manjunath, the complainant, at the time when he was summoned and the transcript of the said audio recording, which is appended to the charge sheet. The conversation happens on the date of registration of the complaint. The time stamps of certain conversation, as found in the transcript

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is germane to be noticed. It reads as follows:

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“Raghavendra	Ee case u niv	This case	F P	ÉÃ¸ï	G ¤ÃªÀÅÉ
23.18 minutes	heng nadkotira adra mele depend u, bari pleading guilty li mugiyutte illandre nanen madtini gotta	depends on how you behave. The case can be closed by pleading guilty, if not you don’t know what I am going to do?	ºÉAUÉ CzÀgÀ G, V°Ö° CAzÀ ªÀiÁqÀ	£ÉÆ ªÉÄÃ §jÃ ªÀÄÄV gÉ ÄwÛÃ¤	ÃrPÉÆwÛÃgÁ ¯É r¥ÉÃqï ¦Ã°rAUï AiÀÄÄvÉÛ E®è £Á£ÉÃ£ÀÄ UÉÆvÁÛ”

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“Raghavendra 39.06	Statement tegitini,	astu	We the	will sta	record tement,	¸ÉÖÃmïªÉÄAmï CµÀÄÖ ¸ÀÄ®¨sÀªÁV æ	vÉVwÛÃ¤ ©qÀ¯Áè æ
minutes	sulbhavagi		we	will	not let	E¯ÁèAzÉæ ¤£ÀUÉ	æ DUÀ¯Áè

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	bidalla, ninage andre bidu eeg	illandre agalla hortog lene	you off so easily, if it is not possible by you please leave immediately.	CAzÉæ ©qÀÄ	ºÉÆÃgÀmÉ EUÉèÃ£É.”	ÆÃAUÀÄ
“Manjunath 39.38 minutes	Adke helidnall matadko saar ok madona	…. … nan a, aden ndu, ay andre …. …. …	. …. If sir tells okay we will finish it. . ….	CzÀPÉÌ CzÉÃ ªÀiÁvÀ N.PÉ ªÀiÁq	£Á£ÀÄ ºÉÃ½ £ÀÄ £ÁrPÉÆAqÀÄ ÉÆÃuÁ.”	zÀ£À¯Áè ¸Ágï CAzÉæ

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“Raghavendra 40.10 minutes	Nan heltirodu madirodu andre, cost ready annodadr JCB en adrudu kodbeku	ade ninge, sathya damage kattoke idira e, ond bandittu number	I am telling you the same thing, if it is true that you have cut the cables and if you are ready to pay the damage cost you bring one JCB and give its number.	£Á£ÀÄ ºÉÃ¼ÀÄwÛgÉÆÃzÀÄ ªÀiÁrgÉÆAzÀÄ æ qÁåªÉÄeï PÁ¸ gÉr C£ÉÆßÃzÁzÀgÉ eÉ¹© J£ï CzÀgÀzÀÄÝ PÉÆqÀ¨ÉÃPÀÄ.”	CzÉÃ ¤¤ßUÉ ¸ÀvÀå CAzÉæ ïÖ PÀmÉÆÖÃPÉ E¢ÝgÁ MAzÀÄ §AzÀÄ©lÄÖ £ÀA§gï

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“Manjunath	Saar ivaga	Sir should I get	¸Àj EªÁUÀ	qÁåªÉÄÃeï
40.55 minutes	damage kasella tagond court ge	the damage money and come	PÁ¸É¯Áè PÉÆÃmïðUÉ	vÀUÉÆÃAqÀÄ §gÀ¨ÉÃPÁ
	barbeka saar?	to the court?	¸Ágï”

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“Raghavendra 49.24 minutes	Nivestu co operate madtira	How you co-	much will operate.	¤ÃªÉµÀÄÖ ªÀiÁqÀwÛÃgÁ	PÉÆÃC¥ÀgÉÃmï
Manjunath	Adukkoskarane, adastu bega close madko	That’s have please fast.	why I come, close it	CzÀPÉÆÌÃ¸ÀÌgÀ ¨ÉÃUÀ PÉÆèÃ¸	£ÉÃ DzÀµÀÄÖ ï ªÀiÁqÀPÉÆÃ”

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Raghavendra	Nivestu co	I you co-operate	¤ÃªÉµÀÄÖ	PÉÆÃC	¥ÀgÉÃmï
49.30 minutes	operate madtira ast bega agutte	it will be done fast	ªÀiÁrÛÃgÁ DUÀÄvÉÛ.”	CµÀÄÖ	¨ÉÃUÁ

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“Conversation with others

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Raghavendra 1.04.25 minutes	Inspector bartha idare, bega adre ivagle clear madana, sarina? Clear aagalla adu, ondina barlebeku, thilitha nane barthini, bega mugskodtini, alli matadoku illi mathadoku estu vyathyasa aytha eega? alli estu argue madidre, aa argue na nenskondre nimmanna hange bidbardu, tagondu jail ge kalsbeku.	The inspector is coming. We will clear it now itself. If not u have to come one more day. I will finish it fast. You have unnecessarily argued the other day. If we think about that we should not leave you just like that, we should send you to jail.	E£ïì¥ÉPÀÖgï §gÀÄvÁÛ EzÁÝgÉ ¨ÉÃUÁ CAzÉæ EªÁUÉèÃè QèÃAiÀÄgï ªÀiÁqÉÆÃuÁ ¸Àj£Á? QèÃAiÀÄgï DUÉÆÃ¯Áè CzÀÄ MA¢£Á §gÀ¯ÉÃ¨ÉÃPÀÄ w½vÁ £Á£ÉÃ §gÀÄwÛÃ¤. ¨ÉÃUÁ ªÀÄÄV¹PÉÆrÛÃ¤ C°è ªÀiÁvÀqÉÆÃPÀÄ E°è ªÀiÁvÀqÉÆÃPÀÄ JµÀÄÖ ªÁåvÁå¸À D¬ÄvÁ FUÀ? C°è JµÀÄÖ DgïUÀÆå £Á £É£À¹PÉÆAqÉæ ¤ªÀÄä£Àß ºÀAUÉ ©qÀ¨ÁgÀzÀÄ, vÀUÉÆAqÀÄ eÉÊ°UÉ PÀ½¸À¨ÉÃPÀÄ.
Manjunath 1.04.33 minutes	Naviro paristitili olgade inda eeche baralla saar, elli gotta avattu, gottagidre enadru madhabahudittu.	our situation is different sir, if we are inside the hospital we cannot come out. Otherwise if we had come out that day we could have sorted out the matter then itself.	¤Ã«gÉÆÃ ¥Àj¹ÜwAiÀÄ°è M¼ÀUÀqÉ¬ÄAzÀ FZÉ §gÀ®è ¸Àj J°è UÉÆvÁÛ CªÀvÀÄÛ UÉÆvÁÛVzÀÝgÉ K£ÁzÀÆæ ªÀiÁqÀ§ºÀÄ¢vÀÄÛ.”

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There is further evidence by way of transcript which seals the transaction. Quoting further and considering the same would undoubtedly prejudice the case of the petitioner before the concerned Court.

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The issue that is projected before this Court is whether the demand and acceptance is proved or otherwise. The transcript quoted supra would leave none in doubt, albeit, prima facie , that the petitioner has demanded and accepted the amount of bribe, as in particular transcripts the petitioner tells the complainant that 1.25 lakhs is the damage caused plus the lawyer fee and other expenses and demands the said amount. The amount was asked to be delivered to one Avinash Kumar and Rs.1 lakh was received from the said Avinash on behalf of the accused and the same was handed over to this petitioner and the petitioner kept it in his right side blue jeans pant packet and left in the scooty. The entire conversation between Avinash, complainant/Manjunath and the accused is recorded in the Apple Watch worn by the complainant on obtaining permission from the Trap Laying Officer. The chemical

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examination of the jeans of petitioner/accused No.2 results positive for phenolphthalein test. All these form a part of the documents appended to the charge sheet. With the evidence being so copious, it is undoubtedly a matter for trial, as demand and acceptance are prima facie proved in the case at hand.

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It is a settled principle of law that if there is no demand, but acceptance, it would not amount to an offence under Section 7(a) of the Act; if there is demand and no acceptance, it would not amount to an offence; if the trap laid is failed and even to its prima facie sense demand and acceptance is not proved, it does not amount to an offence. In the case at hand, the audio transcripts between the petitioner and the complainant not once, but twice, not only prima facie proves demand and acceptance, it prima facie proves the modus operandi as well. Therefore, these are matters which undoubtedly require a full blown trial and the petitioner to come out clean in the said trial.

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The learned counsel for the petitioner has projected that the subject case is a case of wire tapping/telephone tapping and is

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contrary to the provisions of the Indian Telegraph Act, which is again a ground that is noted only to be rejected. This is not a case where the telephone of the petitioner is tapped. The conversation between the petitioner and the complainant is recorded by usage of an external device, which course is undoubtedly permissible in law, as the Apex Court way back in the year 1973, in the case of R.M.

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MALKANI v. STATE OF MAHARASHTRA¹ has held as follows:

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“…. …. ….

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20. The police officer in the present case fixed the tape recording instrument to the telephone instrument with the authority of Dr Motwani. The police officer could not be said to intercept any message or damage or tamper or remove or touch any machinery within the meaning of Section 25 of the Indian Telegraph Act. The reason is that the police officer instead of hearing directly the oral conversation between Dr Motwani and the appellant recorded the conversation with the device of the tape recorder. The substance of the offence under Section 25 of the Indian Telegraph Act is damaging, removing, tampering, touching machinery battery line or post for interception or acquainting oneself with the contents of any message. Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act. The High Court is in error on that point.

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1 (1973)1 SCC 471

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21. This Court in N. Sri Rama Reddy, Shri etc . v. V.V. Giri [(1970) 2 SCC 340 : (1971) 1 SCR 399] Yusufalli Esmail Nagree v. State of Maharashtra [AIR 1968 SC 147 : (1967) 3 SCR 720 : (1968) 1 SCJ 511] , and S. Pratap Singh v. State of Punjab [AIR 1964 SC 72 : (1964) 4 SCR 733] accepted conversation or dialogue recorded on a tape recording machine as admissible evidence. In Nagree case the conversation was between Nagree and Sheikh Nagree was accused of offering bribe to Sheikh.

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22. In Presidential Election case , questions were put to a witness Jagat Narain that he had tried to dissuade the petitioner from filing an election petition. The witness denied those suggestions. The election petitioner had recorded on tape the conversation that had taken place between the witness and the petitioner. Objection was taken to admissibility of tape recorded conversation. The Court admitted the tape recorded conversation. In Presidential Election case , the denial of the witness was being controverted, challenged and confronted with his earlier statement. Under Section 146 of the Evidence Act questions might be put to the witness to test the veracity of the witness. Again under Section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. This is because the previous statement is furnished by the tape recorded conversation. The tape itself becomes the primary and direct evidence of what has been said and recorded.

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23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. The conversation between Dr Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about

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any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence.

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24. It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of Section 25 of the Indian Telegraph Act. There is no violation of Section 25 of the Telagraph Act in the facts and circumstances of the present case. There is warrant for 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. Owen [(1870) 34 JP 759] . The Judicial Committee in Kuruma, Son of Kanju v. R. [1955 AC 197] 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.

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25. This Court in Magraj Patodia v. R.K. Birla [AIR 1971 SC 1295] dealt with the admissibility in evidence of two files containing numerous documents produced on behalf of the election petitioner. Those files contained correspondence relating to the election of Respondent 1. The correspondence was between Respondent 1 the elected candidate and various other persons. The witness who produced the file said that Respondent 1 handed over the file to him for safe custody. The candidate had apprehended raid at his residence in connection with the evasion of taxes or duties. The version of the witness as to how he came to know about the file was not believed by

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this Court. This Court said that a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved.

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26. In Nagree case the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the police. The police laid a trap. Sheikh called Nagree at the residence. The police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector. Sheikh gave evidence of the talk. The tape record corroborated his testimony. Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the police. The reason is that the police officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the surrounding circumstances.

¶116

27. The admissibility of evidence procured in consequence of illegal seaRhes and other unlawful acts was applied in a recent English decision in R. v. Maqsud Ali [(1965) 2 All ER 464] In that case two persons suspected of murder went voluntarily with the police officers to a room in which, unknown to them, there was a microphone connected with a taperecorder in another room. They were left alone in the room. They proceeded to have a conversation in which incriminating remarks were made. The conversation was recorded on the tape. The court of criminal appeal held that the trial Judge had correctly admitted the tape-recording of the incriminating conversation in evidence. It was said “that the method of the informer and of the eavesdropper is commonly used in the detection of crime. The only difference here was that a mechanical device was the eavesdropper”. The courts often say

¶117

22

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that detention by deception is a form of police procedure to be directed and used sparingly and with circumspection.

¶119

28. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape-recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.

¶120

29. In the present case the recording of the conversation between Dr Motwani and the appellant cannot be said to be illegal because Dr Motwani allowed the tape-recording instrument to be attached to his instrument. In fact, Dr Motwani permitted the police officers to hear the conversation. If the conversation were relayed on a microphone or anamplifier from the telephone and the police officers heard the same they would be able to give direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they recorded as a result of voluntary permission granted by Dr Motwani. The tape-recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.

¶121

30. It was said that the admissibility of the tape recorded evidence offended Articles 20(3) and 21 of the Constitution. The submission was that the manner of acquiring the tape-recorded conversation was not procedure established by law and the appellant was incriminated. The appellant's conversation was voluntary. There was no compulsion. The attaching of the taperecording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. The appellant's conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham [(1961) 8 Cox CC 498] it was said “it matters not how you get it if you steal it even, it would be admissible in evidence”. As long as it is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible.

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31. There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or highhanded interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or even irregular method in obtaining the tape-recording of the conversation.”

¶124

(Emphasis supplied)

¶125

The Apex Court has held that tape recorded conversation by an external device will not infringe the fundamental right of any person, as it will not amount to breach of privacy. Therefore, the submission that the privacy of the petitioner is breached, is a figment of imagination of the petitioner. If it were to be a case of wire tapping/telephone tapping and that being the foundation of proceedings, it would become a ground for invalidation of the proceedings depending on the facts of each case.

¶126

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With such seriously disputed questions of facts and copious evidence, if this Court would exercise its jurisdiction under Section 482 of the Cr.P.C., it would run foul of the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH² ,

¶128

wherein it is held as follows:

¶129

“9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the

¶130

2 (2021) 9 SCC 35

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25

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material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

¶133

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet,

¶134

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(2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

¶136

9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

¶137

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 2710-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

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11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

¶140

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

¶141

13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the

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investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

¶144

In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed.”

¶145

(Emphasis supplied)

¶146

In the light of aforesaid reasons, finding no merit in the petition, the petition has to necessarily meet its dismissal and it is accordingly dismissed.

¶147

The observations made in the course of the order are only for the purpose of consideration of the case of the petitioner under

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Section 482 of the Cr.P.C. and the same would not bind any proceedings pending against the petitioner before any other fora.

¶150

Consequently, I.A.No.1 of 2023 also stands dismissed.

¶151

Sd/(M. NAGAPRASANNA) JUDGE

¶152

Bkp CT:MJ

Sri. Raghavendra T C v. Central Bureau of Investigation

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Sri. Raghavendra T C v. Central Bureau of Investigation

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