KSHITIJBHAI MANUBHAI PATEL vs DILIPBHAI LAXMANBHAI KANANI
- Court
- Gujarat High Court
C/SCA/120/2023 CAV JUDGMENT DATED: 08/05/2026
Reserved On : 30/04/2026
Pronounced On : 08/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 120 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for Reporting Yes No
No
=====================================================
KSHITIJBHAI MANUBHAI PATEL & ORS.
Versus
DILIPBHAI LAXMANBHAI KANANI & ANR.
=====================================================
Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/
REPRESTENTATIVES for the Petitioner(s) No. 2
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 2.3
SR. ADV. MR. SHALIN MEHTA for SHASHVATA U
SHUKLA(8069) for the Petitioner(s) No. 1,2.1,2.2,3,4
MR. YOGESH THAKKAR for MR NAYAN Y RAVANI(10696) for the
Respondent(s) No. 1,2
=====================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Invoking Article 227 of the Constitution of India, the
petitioners prayed for the following reliefs:-
“(A) YOUR LORDSHIPS may be pleased to pass an order
quashing and setting aside the impugned order dated
30.12.2022 passed below application Exh.119 in Special
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nd
Civil Suit No.187 of 2006 in Annex-A, by the Learned 2
Additional Senior Civil Judge, Ahmedabad (Rural) and YOUR
LORDSHIPS may be further pleased to reject the application
Exh.119 filed by the Respondents-original Plaintiffs in
Special Civil Suit No.187 of 2006,
(B) During the pendency and until the final disposal of the
present Special Civil Application, YOUR LORDSHIPS may be
pleased to stay the execution, implementation and operation
of the impugned order dated 30.12.2022 passed below
application Exh 119 in Special Civil Suit No. 187 of 2006 in
Annex-A, by the Learned 2nd Additional Senior Civil Judge,
Ahmedabad (Rural),
(C) YOUR LORDSHIPS may be pleased to grant ex-parte
ad-interim relief in terms of Paragraph No. (B) above;
(D) Pass any such other and/or further orders that may
be thought just and proper, in the facts and circumstances of
the present case;”
2. The brief facts of the case are that, the respondents -
original plaintiffs have instituted a Special Civil Suit No.187 of
2016 against the petitioners – defendants claiming, specific
performance of oral agreement alleged to have been entered into
with the petitioners for the sale of the immovable property
consisting of bungalow situated in Muni Hemchandra Acharya
Co-operative Housing Society, known as ‘Bhikhubhai
Bungalows’.
2.1 The petitioners, having been served, resisted the suit
of the plaintiffs by filing the written statement denying execution
of the oral agreement with the clarification that the negotiation
between the petitioner and the respondent No.1 remained
inconclusive and did not yield into any concluded contract.
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2.2 The respondents – plaintiffs claim that they recorded
the talks between the parties, which establish that the
concluded contract was executed. The transcripts of the alleged
oral talk was placed on record, which has been denied by the
petitioners.
2.3 The multiple documents were produced by the
respondents – plaintiffs and the proceeding taken place,
including the filing of petition before this Court for exhibiting
those documents. An Appeal from Order was also filed, which
was disposed of later on passing of the order in proceedings in
the suit, pursuant to which the petitioners have preferred
Special Civil Application No.743 of 2016 before this Court. Vide
order dated 03.10.2016, this Court was pleased to direct the
learned trial Court to decide the application Exhibit-104 afresh
and to pass appropriate order after examining each of the
evidence as admissible evidence.
2.4 Meanwhile, the plaintiffs preferred an application
Exhibit-119 seeking a direction to appoint the Director, Forensic
Science Laboratory (FSL, for short) or any other authorized
expert or technical officer as a Commissioner/Receiver to record
the voice of petitioner Nos.1 and 2 and further, to record the
voice before the Honourable Court through such Receiver and
compare the same with the cassette (tape) relied upon by the
respondents – plaintiffs to give a scientific technical opinion
whether the cassette (tape) relied upon, contains the voice of the
petitioner Nos.1 and 2 and to produce report before the learned
trial Court and further to issue summons to Director, Forensic
Science Laboratory as a witness in the interest of justice. This
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application was filed on 26.04.2016. Meanwhile, on 28.11.2016,
pursuant to the order passed by this Court, the learned trial
Court was pleased to partly allow the application Exhibit-104
directing that the document produced at Mark-35/3, Mark-
35/4, Mark-35/5 and Mark-37/1 to be exhibited. The learned
trial Court also passed an order to exhibit the original audio
cassette relied upon by the respondents – plaintiffs.
2.5 The petitioners herein challenging the order dated
27.11.2016 passed below Exhibit-104 by filing Special Civil
Application No.20425 of 2016. Meanwhile, the learned trial
Court was pleased to reject the application Exhibit-119 filed by
the respondents – plaintiffs. Being aggrieved, respondents –
plaintiffs filed Special Civil Application No.5954 of 2018 before
this Court.
2.6 This Court disposed of Special Civil Application
No.5954 of 2018 and Special Civil Application No.20425 of 2016.
2.7 In Special Civil Application No.20425 of 2016, para 3
of the order passed by the coordinate Bench reads as under:-
“3. Having heard learned advocates for the respective
parties and on overall consideration of the matter, so far as
exhibition of the document as referred to in operative portion
of the judgment is concerned, there appears no dispute in
exhibiting and considering its evidentiary value in
accordance with law. But, so far as exhibition of audio
cassette lastly referred to in the operative portion is
concerned, it is required to be proved by affording
reasonable opportunity to the rival parties in accordance
with the provisions of law. If the plaintiffs are able to prove
the aforesaid audio cassette, it shall be exhibited and shall
be accordingly considered as evidence.”
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2.8 In Special Civil Application No.5954 of 2018, para 3
& 4 of order passed by the coordinate Bench reads as under:-
“3. Having heard learned advocates for the respective
parties and having perused the impugned order, it appears
that the aforesaid application is not considered by the
learned trial court on its own merits and due to pendency of
other petition and direction issued by this Court, the
application came to be dismissed without entering into the
merits or demerits of the application.
4. In view of aforesaid factual position, the learned trial
court is directed to consider application Exh. 119 afresh. The
learned trial court shall afford reasonable opportunity to
both the parties and shall decide the application afresh on
its own merits without being influenced by previous order
passed by this Court or even in the present proceedings and
taking into consideration the order of even date passed by
this Court in Special Civil Application No. 20425 of 2016.”
2.9 Pursuant to the aforesaid order, the application at
Exhibit-119 was again decided by the order dated 30.12.2022.
nd
The 2 Additional Senior Civil Judge, Ahmedabad Rural, passed
the following order:-
“It is ordered that the audio tape submitted in the
current suit shall be sealed in the presence of the Registrar
and sent through a Special Bailiff to the F.S.L. (Forensic
Science Laboratory), Gandhinagar for examination.
The F.S.L. officer is ordered to examine and provide an
opinion on whether any tampering or alterations have been
made to the said audio tape.
If it becomes necessary to record the voices of the
Plaintiff, Defendant No. 1, and Defendant No. 2 for the F.S.L.
examination of the audio cassette/tape, the Plaintiff,
Defendant No. 1, and Defendant No. 2 shall provide their
speech/voice samples at the F.S.L. office in Gandhinagar
under the instructions and guidance of the F.S.L. officer.
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For the aforementioned proceedings, the Plaintiff is
ordered to deposit 20,000/- (Rupees Twenty Thousand ₹*
Only) in this court within 3 days from the date of this order.
If any additional expenses occur in the future, all such costs
shall be borne by the Plaintiff.
The Plaintiff shall separately deposit 500/- (Rupees ₹*
Five Hundred Only) towards the allowance of the Special*
Bailiff.
The costs of the present application shall follow the
final outcome of the case.
A copy of this order be forwarded to the authorized
officer of F.S.L., Gandhinagar. ”
(Translated from Gujarati to English, for better
understanding.)
2.10 It is in aforesaid background, the petitioners have
filed this petition.
3. Learned Senior Counsel Mr. Shalin Mehta for Mr.
Shashvata U. Shukla, referred to the judgment of the Supreme
Court in Tukaram S. Dighole v. Manikrao Shivaji Kokate ,
reported in (2010) 4 SCC 329 , more particularly para 23
thereof, and submitted that the tape record of any conversation
are ‘document’, as defined in Section 3 of the Evidence Act, 1872
(hereinafter referred to as the ‘Evidence Act’) and stand on no
different footing than photograph.
3.1 He further submitted that the documents are
required to be proved as per the provision of the ‘Evidence Act’.
3.2 He further submitted that, in the present case, the
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trial Court completely ignored the law laid down by the supreme
Court in Tukaram (Supra) and appointed the FSL officer to
verify whether the audio tape recorder is tampered or not and
call his opinion.
3.3 He has further submitted that the troubling order
passed by the learned trial Court for the defendant Nos.1 and 2,
who are contesting defendants that they have been directed to
provide their voice samples to be verified with the voice
appearing in the tape recorded. Thereby, the learned trial Court
has exceeded its jurisdiction. Learned Senior Counsel submits
that in reality, the defendants are directed to give the evidence to
prove the case of the plaintiffs.
3.4 He would further submit that, even otherwise, the
evidence of the tape recorded is not conclusive evidence. The
Court, therefore, was not required to pass any such directions
until the tape record produced by the plaintiff is proved like a
document to be proved under the provision of the ‘Evidence Act’
or now, the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter
referred to as the ‘BSA, 2023’).
3.5 Mainly upon aforesaid submissions, learned Senior
Counsel Mr. Shalin Mehta submitted to allow this petition.
4. Per contra, learned advocate Mr Yogesh Thakkar for
learned advocate Mr Nayan Y. Ravani representing the
respondents, referred to and relied upon the series of the
following authorities:-
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“ Judgments under Order XXVI Rule 10A
1. Committee of Management of Anjuman Intezamia
Masajid, Varansi v. Rakhi Singh, reported in 2023 (0)
AIJEL-SC 73064.
2. Rama Avtar Soni v. Mahanta Laxmidhar Das,
reported in 2018 (0) AIEJEL-SC 62970.
3. Cryogas Equiptment pvt ltd v. Inox India Pvt Ltd.,
reported in 2026 (0) AIJEL-HC 253077.
4. Meenaben Rajendra Kumar v. Shreenand
Rajchandra Adhyatmik Satsang Sadhana Kedra
reported in 2025 (0) AIJEL-HC 251133.
5. Chottalal Bhaichandbhai Panchal since deceased
through LHS V Chetan Krishnakant Shah HUF, Its
general manager and karta Chetan Krishnakant shah
reported in 2022 (0) AIJEL-HC 244533
Judgment for Recall of witness
1. State of Gujarat v Kamlesh Barot Since deceased,
reported in 1999 (0) AIJEL-HC 212051
Judgments for Article 20 and 21
1. State of UP v Sunil, reported in (2017) 14 SCC
516
2. Vibhor Garg vs Neha reported in 2025 (0) AIJEL
SC 75540
3. Jil w/o Priyank Manubhai Choksi v State of
Gujarat, reported in 2024 (0) AIJEL HC 249292
4. R.M. Malkani v State of Maharashtra, reported in
1972 (0) AIJEL SC 22055
5. Pravinsingh Nrupatsingh Chuhan v State of
Gujarat, reported in 2023 (2) GLR 1381
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6. Pravinsingh Nrupatsingh Chuhan v State of
Gujarat, reported in 2023 (0) AIJEL-SC 72866.”
4.1 He would mainly submit that Order XXVI Rule 10A of
the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the
Code’) empowers Civil Court to appoint the FSL as a Court
Commissioner, which rightly has been done by the learned trial
Court
4.2 He would further submit that, by such order, the
petitioners herein would not be prejudiced as petitioners would
get a chance to cross-examine the Commissioner appointed
under Order XXVI Rule 10A of ‘the Code’ and can challenge the
veracity of the statement made by such Court Commissioner.
4.3 He would further submit that recall of the witness is
permissible even under the provision of ‘the Code’ and further, in
view of Articles 20 and 21 of the Constitution of India, directing
the defendants to give the voice sample would not prejudice their
personal liberty. Therefore, learned advocate Mr. Thakkar has
submitted that the learned trial Court has not committed any
patent error, which permits this Court to interfere under the
supervisory jurisdiction.
4.4 Making aforesaid submission, learned advocate Mr.
Thakkar submits to dismiss this petition.
5. Having heard learned advocates for both the sides
and considering the facts and circumstances of the case parties
as well as the two orders reproduced hereinabove passed by the
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coordinate Bench, at the outset, what could be noticeable is
that, in the impugned order the fact missing is that respondents
– plaintiffs trying to prove the electronic evidence i.e. tape record,
whether have averred that this document is a primary document
or is a secondary document.
6. What could be inferred from the impugned order that
the plaintiffs have filed a suit for specific performance alleging
that the oral agreement executed between the parties and the
plaintiffs have recorded the telephonic conversation alleged to
have taken place between the plaintiff and defendant,
constituting concluded contract.
7. Plaintiffs have not produced the telephone
instrument in which alleged telephonic conversation is recorded.
Plaintiff has produced a tape record containing alleged
conversation/talk between the party. This tape recorded is copy
made from the telephone instrument which has recorded alleged
talks, between the party. Thereby, such tape records falls in the
definition of ‘secondary evidence’. Before admitting the electronic
evidence, the certificate under Section 65B(4) is necessary,
essential and mandatory. However, the impugned order misses
this vital issue that whether the tape recorder produced by the
plaintiffs is a primary document or secondary document.
8. If it is a primary document, it has to be produced
along with the hash value and if it is a secondary evidence, it
can be admitted only if the certificate under Section 65B(4) of the
‘Evidence Act’ or now, Section 63(4) of the ‘BSA’ is produced and
proved.
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9. The Division Bench of this Court in Parulben W/o
Mahendrabhai Rameshbhai Godhani v. State of Gujarat ,
reported in 2026 (0) JX(Guj) 73, in para 17 and 18 of the
judgment, held that production and proving of certificate under
Section 65B(4) of the ‘Evidence Act’ would be a prerequisite for
the Court to consider the electronic evidence as an admissible
information.
10. The Supreme Court in case of Rahil v. State (Govt.
of N.C.T. Of Delhi), reported in 2025 (0) INSC 858 in para 32
to 36 reads as under:-
“32. Section 65-B(4) requires issuance of a certificate by a
person-in-charge or responsible officer in relation to
operations of the relevant computer network in question
stating as per his knowledge or belief that during the
relevant period:-
(a) computer(s) were carrying out regular activities, and were
working properly; and
(b) the relevant information was regularly fed into the
computer in ordinary course of business, as proof of the
facts stated therein.
33. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
600 this Court held computer printouts are secondary
evidence and may be admitted on mere production.
Production of certificate under section 65-B(4) was not
mandatory for admission of such secondary evidence.
However, in Anvar PV v. PK Basheer (2014) 10 SCC 473 this
Court took a different view and held Section 65-B laid down
a special procedure for admissibility of electronic records
which mandatorily requires production of certificate under
65-B(4) for admissibility of secondary evidence i.e. computer
printouts. This view was doubted in Shafhi Mohammad v.
State of Himachal Pradesh (2018) 2 SCC 801. In Sonu v.
State of Haryana (2017) 8 SCC 57, another bench of this
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Court, held the ratio in Anvar PV (supra) shall apply
prospectively unless the defence during trial raised objection
to admission of computer printouts. Finally, the issue was
settled by a three-judge bench in Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal (2020) 7 SCC 1, wherein the
bench overruling Navjot Sandhu (supra) and Shafhi Mohd.
(supra) upheld the ratio in Anvar PV (supra) and held
issuance of certificate under section 65-B(4) is a condition
precedent for admissibility of computer-generated secondary
evidence. It cannot be supplemented through oral evidence.
34. It would be argued that Navjot Sandhu (supra) which
did not insist on production of certificate for admissibility of
computer-generated printouts was prevailing at the time
when the case was decided by the Trial Court and the
Appellate Court. The judgement in Anvar PV (supra) was
delivered subsequently and cannot be a ground to render
the CDRs inadmissible. It is also brought to our notice that
issue of retrospective application of the ratio in PV Anvar
(supra) is pending for consideration before this Court M.A.
No. 1563/2017 in C.A. No. 4226/2012.
35. Be that as it may, it is relevant to note the larger bench
in Khotkar (supra) while reiterating PV Anvar (supra) did not
hold that its ratio shall apply prospectively. Furthermore, in
Mohd. Arif @ Ashfaq v. State (NCT of Delhi) (2023) 3 SCC
654 this Court while hearing a review petition in a death
penalty case retrospectively applied the ratio in Anvar PV to
cases decided earlier and eschewed secondary electronic
evidence dehors certificate under section 65-B(4), holding as
follows:-
“23. Navjot Sandhu was decided on 4-8-2005 i.e. before
the judgment was rendered by the trial court in the
instant matter. The subsequent judgments of the High
Court and this Court were passed on 13-9-2007 and 10-
8-2011 respectively affirming the award of death
sentence. These two judgments were delivered prior to
the decision of this Court in Anvar P.V. which was given
on 18-9-2014. The judgments by the trial court, High
Court and this Court were thus well before the decision in
Anvar P.V. and were essentially in the backdrop of law
laid down in Navjot Sandhu. If we go by the principle
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accepted in para 32 of the decision in Sonu, the matter
may stand on a completely different footing. It is for this
reason that reliance has been placed on certain decisions
of this Court to submit that the matter need not be
reopened on issues which were dealt with in accordance
with the law then prevailing. However, since the instant
matter pertains to award of death sentence, this review
petition must be considered in light of the decisions made
by this Court in Anvar P.V. and Arjun Panditrao Khotkar.
24. Consequently, we must eschew, for the present
purposes, the electronic evidence in the form of CDRs
which was without any appropriate certificate under
Section 65-B(4) of the Evidence Act.”
Similar view was taken in Sundar @ Sundarrajan v. State
by Inspector of Police 2023 SCC Online SC 310.
36. Though the present case does not involve death penalty,
it is undeniable that appellants were facing a criminal trial
and the prosecutor was required to prove a fact beyond
reasonable doubt strictly in accordance with law. Appellants
during trial raised objections to admissibility of the
secondary electronic evidence relating to Rahil which was
marked as exhibit PW23/B-D. Thereby the prosecutor was
put on due notice and had opportunity to fill the lacuna by
producing the requisite certificate under Section 65-B(4) but
did not do so.
In Sonu (supra), this court held if an objection is taken to
CDRs being marked without a certificate and the same was
not cured by the prosecutor at relevant stage the document
shall be inadmissible in law.
In these circumstances we are inclined to apply the ratio in
PV Anvar and Khotkar to the case and hold that the exhibits
are inadmissible in law being secondary evidence without
certification.”
11. Therefore, in absence of the certificate under Section
65B(4) of the ‘Evidence Act’ or Section 63(4) of the ‘BSA’, the
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Court cannot take decision in regards to admissibility of
electronic evidence, the tape record in the present case.
12. Moreover, the Supreme Court in Nilesh Dinkar
Paradkar v. State Of Maharashtra , reported in 2011 (4) SCC
143 , after surveying the precedent and the various necessary
conditions for admissibility of the tape recorded statement, has
examined the duty of the Court while evidence of voice
identification is produced. Para 31 to 39 thereof reads as under:-
“31. In our opinion, the evidence of voice identification is at
best suspect, if not, wholly unreliable. Accurate voice
identification is much more difficult than visual
identification. It is prone to such extensive and sophisticated
tampering, doctoring and editing that the reality can be
completely replaced by fiction. Therefore, the Courts have to
be extremely cautious in basing a conviction purely on the
evidence of voice identification. This Court, in a number of
judgments emphasised the importance of the precautions,
which are necessary to be taken in placing any reliance on
the evidence of voice identification.
32. In the case of Ziyauddin Burhanuddin Bukhari Vs.
Brijmohan Ramdass Mehra & Ors., this Court made
following observations:-
"19. We think that the High Court was quite right in
holding that the tape-records of speeches were
"documents", as defined by Section 3 of the Evidence Act,
which stood on no different footing than photographs,
and that they were admissible in evidence on satisfying
the following conditions:
"(a) The voice of the person alleged to be speaking
must be duly identified by the maker of the record or
by others who know it.
(b) Accuracy of what was actually recorded had to be
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proved by the maker of the record and satisfactory
evidence, direct or circumstantial, had to be there so
as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be
relevant according to rules of relevancy found in the
Evidence Act."
33. In the case of Ram Singh & Ors. Vs. Col. Ram Singh,
again this Court stated some of the conditions necessary for
admissibility of tape recorded statements, as follows:-
"(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, it manifestly follows as a logical
corollary that the first condition for the admissibility of
such a statement is to identify the voice of the speaker.
Where the voice has been denied by the maker it will
require very strict proof to determine whether or not it
was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to
be proved by the maker of the record by satisfactory
evidence --direct or circumstantial.
(3) Every possibility of tampering with or erasure of a
part of 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 Evidence Act.
(5) The recorded cassette must be carefully sealed and
kept in safe or official custody.
(6) The voice of the speaker should be clearly audible
and not lost or distorted by other sounds or
disturbances."
34. In Ram Singh's case (supra), this Court also notices
with approval the observations made by the Court of Appeal
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in England in the case of R. Vs. Maqsud Ali. In the aforesaid
case, Marshall, J. observed thus:-
"We can see no difference in principle between a tape-
recording and a photograph. In saying this we must
not be taken as saying that such recordings are
admissible whatever the circumstances, but it does
appear to this Court wrong to deny to the law of
evidence advantages to be gained by new techniques
and new devices, provided the accuracy of the
recording can be proved and the voices recorded
properly identified; provided also that the evidence is
relevant and otherwise admissible, we are satisfied
that a tape- recording is admissible in evidence. Such
evidence should always be regarded with some
caution and assessed in the light of all the
circumstances of each case. There can be no question
of laying down any exhaustive set of rules by which
the admissibility of such evidence should be judged."
35. To the same effect is the judgment in the case of R. Vs.
Robson , which has also been approved by this Court in
Ram Singh's case (supra). In this judgment, Shaw, J.
delivering the judgment of the Central Criminal Court
observed as follows:-
"The determination of the question is rendered more
difficult because tape-recordings may be altered by the
transposition, excision and insertion of words or
phrases and such alterations may escape detection
and even elude it on examination by technical experts.
36. Chapter 14 of Archbold Criminal Pleading, Evidence and
Practice discuss the law in England with regard to Evidence
of Identification. Section 1 of this Chapter deals with Visual
Identification and Section II relates to Voice Identification.
Here again, it is emphasised that voice identification is more
difficult than visual identification. Therefore, the precautions
to be observed should be even more stringent than the
precautions which ought to be taken in relation to visual
identification. Speaking of lay listeners (including police
officers), it enumerates the factors which would be relevant
to judge the ability of such lay listener to correctly identify
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the voices. These factors include:-
"(a) the quality of the recording of the disputed voice,
(b) the gap in time between the listener hearing the
known voice and his attempt to recognize the
disputed voice,
(c) the ability of the individual to identify voices in
general (research showing that this varies from
person to person), 8 2010 edition at pg: 1590-91
(d) the nature and duration of the speech which is
sought to be identified and
(e) the familiarity of the listener with the known voice;
and even a confident recognition of a familiar voice
by a way listener may nevertheless be wrong."
37. The Court of Appeal in England in R Vs. Chenia and R.
Vs. Flynn and St. John has reiterated the minimum
safeguards which are required to be observed before a Court
can place any reliance on the voice identification evidence,
as follows:-
"(a) the voice recognition exercise should be carried
out by someone other than the officer investigating
the offence;
(b) proper records should be kept of the amount of
time spent in contact with the suspect by any officer
giving voice recognition evidence, of the date and
time spent by any such officer in compiling any
transcript of a covert recording, and of any
annotations on a transcript made by a listening
officer as to his views as to the identify of a speaker;
and
(c) any officer attempting a voice recognition exercise
should not be provided with a transcript bearing the
annotations of any other officer."
38. In America, similar safeguards have been evolved
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through a series of judgments of different Courts. The
principles evolved have been summed up in American
Jurisprudence 2d (Vol. 29) in regard to the admissibility of
tape recorded statements, which are stated as under:-
"The cases are in general agreement as to what
constitutes a proper foundation for the admission of a
sound recording, and indicate a reasonably strict
adherence to the rules prescribed for testing the
admissibility of recordings, which have been outlined
as follows:
(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; and (7) a
showing that the testimony elicited was voluntarily
made without any kind of inducement. ... However,
the recording may be rejected if it is so inaudible and
indistinct that the jury must speculate as to what
was said. (emphasis supplied)"
39. This apart, in the case of Mahabir Prasad Verma Vs. Dr.
Surinder Kaur , this Court has laid down that tape recorded
evidence can only be used as 11 (1982) 2 SCC 258
corroboration evidence in paragraph 22, it is observed as
follows:-
"Tape-recorded conversation can only be relied upon
as corroborative evidence of conversation deposed by
any of the parties to the conversation and in the
absence of evidence of any such conversation, the
tape-recorded conversation is indeed no proper
evidence and cannot be relied upon. In the instant
case, there was no evidence of any such
conversation between the tenant and the husband of
the landlady; and in the absence of any such
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conversation, the tape-recorded conversation could be
no proper evidence." ”
13. Recently, the Supreme Court in Tukaram (Supra), in
para 23 to 27 held as under:-
“23. The second issue, in our opinion, is of greater
importance than the first one. It is well settled that tape-
records of speeches are "documents" as defined in Section 3
of the Evidence Act and stand on no different footing than
photographs. (See: Ziyauddin Burhanuddin Bukhari Vs.
Brijmohan Ramdass Mehra & Ors. (1976) 2 SCC 17 SCC
p.26 para 19). There is also no doubt that the new
techniques and devices are the order of the day. Audio and
video tape technology has emerged as a powerful medium
through which a first hand information about an event can
be gathered and in a given situation may prove to be a
crucial piece of evidence. At the same time, with fast
development in the electronic techniques, the
tapes/cassettes are more susceptible to tampering and
alterations by transposition, excision, etc. which may be
difficult to detect and, therefore, such evidence has to be
received with caution. Though it would neither be feasible
nor advisable to lay down any exhaustive set of rules by
which the admissibility of such evidence may be judged but
it needs to be emphasised that to rule out the possibility of
any kind of tampering with the tape, the standard of proof
about its authenticity and accuracy has to be more stringent
as compared to other documentary evidence.
24. In Yusufalli Esmail Nagree Vs. State of Maharashtra
AIR 1968 SC 147, this Court observed that since the tape-
records are prone to tampering, the time, place and accuracy
of the recording must be proved by a competent witness. It is
necessary that such evidence must be received with caution.
The Court must be satisfied, beyond reasonable doubt that
the record has not been tampered with.
25. In R. Vs. Maqsud Ali (1966) 1 QB 688, it was said that
it would be wrong to deny to the law of evidence advantages
to be gained by new techniques and new devices, provided
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the accuracy of the recording can be proved and the voices
recorded are properly identified. Such evidence should
always be regarded with (1967) 3 SCR 720 (1965) 2 ALL
E.R. 464 some caution and assessed in the light of all the
circumstances of each case.
26. In Ziyauddin Burhanuddin Bukhari (supra), relying on R.
Vs. Maqsud Ali (supra), a Bench of three judges of this Court
held that the tape-records of speeches were admissible in
evidence on satisfying the following conditions:
‘(a) The voice of the person alleged to be speaking
must be duly identified by the maker of the record or
by others who know it.
(b) Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory
evidence, direct or circumstantial, had to be there so
as to rule out possibilities of tampering with the
record.
(c) The subject-matter recorded had to be shown to be
relevant according to rules of relevancy found in the
Evidence Act.’
Similar conditions for admissibility of a tape-recorded
statement were reiterated in Ram Singh & Ors. Vs. Col. Ram
Singh 1985 Supp SCC 611 and recently in R.K. Anand Vs.
Registrar, Delhi High Court (2009) 8 SCC 106.
27. Tested on the touchstone of the tests and safeguards,
enumerated above, we are of the opinion that in the instant
case the appellant has miserably failed to prove the
authenticity of the cassette as well as the accuracy of the
speeches purportedly made by the respondent. Admittedly,
the appellant did not lead any evidence to prove that the
cassette produced on record was a true reproduction of the
original speeches by the respondent or his agent. On a
careful consideration of the evidence and circumstances of
the case, we are convinced that the appellant has failed to
prove his case that the respondent was guilty of indulging in
corrupt practices.”
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14. In exposition of above legal situation, in the
considered opinion of this Court, the impugned order passed by
the trial Court, ignoring the aforesaid provision having the value
of a binding precedent, dehors the same and is a patent
illegality, and therefore, without entering further merits of the
case, the impugned order is required to be set aside and the
application is required to be remanded back to the learned trial
Court to decide the same afresh, after following the aforesaid
binding precedent.
15. In so far as the various judgments relied upon by
learned advocate Mr. Yogesh Thakkar for the respondent in
support of his argument are concerned, they render no
assistance at this juncture in view of the aforesaid finding.
16. Consequently, the petition is allowed. The impugned
order is quashed and set aside and application at Exhibit-119 in
Special Civil Suit No.187 of 2016 is remanded back to the
learned trial Court to be decided afresh.
17. Civil Application, if any, do not survive.
Sd/-
(J.C. DOSHI, J.)
Raj
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