Recorded phone conversation admissible as evidence even if obtained illegally: Allahabad High Court

The Allahabad High Court recently said that a telephone conversation between two accused persons cannot be excluded from evidence on the ground that it had been obtained illegally. [Mahant Prasad Ram Tripathi @ M.P.R. Tripathi vs State Of U.P. Thru. C.B.I. / A.C.B., Lucknow And Another].Justice Subhash Vidyarthi made the observation while upholding a trial court's decision not to discharge an accused in a bribery case, who was implicated in the case on the basis of a recorded phone conversation. The accused had questioned the admissibility of the phone conversation on the ground that it was illegally obtained. The Court, however, dismissed his plea.."Whether the telephonic conversation between the two accused persons was intercepted or not and whether it was done legally or not, would not affect the admissibility of the recorded conversation in evidence against the applicant," the Court observed. .The Court also held that the contrary judgments of the Delhi High Court in Sanjay Pandey v, Directorate of Enforcement and of the Andhra Pradesh High Court in Rayala M. Bhuvaneswari v. Nagaphanender Rayala cannot be relied upon.In Sanjay Pandey’s case, the Delhi High Court had said that “tapping phone lines or recording calls of individuals without their consent is "breach of privacy." Similarly, the Andhra Pradesh High Court had held that a husband's act of tapping his wife’s conversation was illegal and cannot be admissible in evidence. The Allahabad High Court, however, reasoned that these judgments did not take into consideration the law laid down by the Supreme Court in case of State (NCT of Delhi) v. Navjot Sandhu (the 2001 Parliamentary attack case)..Justice Vidyarthi proceeded to note that the only test applicable when it comes to the admissibility of evidence in India, is the test of relevance. “The law is clear that any evidence cannot be refused to be admitted by the Court on the ground that it had been obtained illegally,” the judge held. .The bench was dealing with a criminal revision plea trial court order rejecting a discharge application by one, Mahant Prasad Ram Tripathi, the former CEO of a Cantonment Board, who was accused of corruption.Tripathi was accused of demanding ₹1.65 lakh as a bribe through Shashi Mohan, a member of the board. The Central Bureau of Investigation (CBI) had recorded a telephonic conversation between the two accused persons on a digital voice recorder, after one of the accused put the phone on speakerphone. During this conversation, the co-accused allegedly told Tripathi that 6 percent of the amount had been paid. According to the CBI, Tripathi had responded by saying ‘yes’ and when Mohan tried to carry the conversation forward, the former forbade him to talk on the issue and asked him to talk in the office.Tripathi sought discharge from this corruption case on the ground that the telephonic conversation was not admissible as evidence. His counsel argued that Section 5 of the Indian Telegraph Act permits interception of communication only in certain contingencies, and that too under the orders of the government..However, the Court opined that in this case, the recorded phone conversation would not amount to an interception. “It appears that the communication made by one accused person to the other reached him and it was thereafter that it was recorded on another device called digital voice recorder. Can it be said in these circumstances that the communication between the two accused persons was ‘intercepted’? ... From the plain meaning of the word ‘intercept’ it appears that the communication was not ‘intercepted'," the Court said. .The Court proceeded to uphold the trial court's order and dismissed the revision application, after also noting that the phone conversation recording was not the solitary evidence cited against the accused. .Advocate Prateek Tewari represented accused Mahant Prasad Ram Tripathi. Advocate Shiv P Shukla represented the CBI.