S.S Sandhawalia, J.:— An interesting question of law regarding the mode of proof and the admissibility of a tape-recording arises in these two connected petitions which will be disposed of by this order.
2. The facts giving rise to the petitions are that during the trial of the respondent Raj Pal and others on a charge under Sections 324, 325, 148 and 149. Indian Penal Code, two witnesses Ujagar Singh and Ram Lal were examined on behalf of the prosecution. It was alleged on behalf of the defence that the voices of both these witnesses had been earlier tape-recorded and the same were played in the Court and put to the witnesses when they gave their evidence. Both the witnesses, however, denied that the voices were theirs. Rattan Chand and Raj Pal, respondents, on the 16th of January, 1968, then moved two applications in the Court for the recording of the voices of the witnesses so that it could be used for the purpose of comparison. Both these applications were allowed in a short order by R.D Singla, a Judicial Magistrate on the ground that the same was in the interest of justice on 15th January, 1968. The present petitioner Dial Singh who is the complainant in the said case then challenged the orders granting the application before the Court of Session at Amritsar, but his revisions were declined by the orders of Shri J.S Chatha dated the 25th of June, 1968, on identical grounds. The petitioner now challenges the orders of the Courts below by way of revision.
3. Mr. V.K Ranade, the learned counsel for the petitioner has challenged the impugned orders on the ground that there exists no express provision of law in the Indian Evidence Act regarding the admissibility of a tape-recording and he, therefore, argues that they are inadmissible and cannot be brought on the record. In the alternative it has been argued that in the statute there exists no provision for the comparison of two tape-recorded voices and in any case the trial Court cannot embark upon such a comparison.
4. It is too late in the day to challenge the admissibility of a conversation which has been tape-recorded earlier if the same is relevant. As early as 1956, Bhandari, C.J in Rup Chand v. Mahabir Parshad . A.I.R 1956 Punj. 173., had categorically laid down that such a tape-recording was clearly admissible. The learned Chief Justice had relied on a number of American and English cases in support of his decision. In S. Partap Singh v. State Of Punjab. . A.I.R 1964 S.C 72., the learned Judges of the Supreme Court relied heavily on the tape-recording which had been put on the record by the petitioner. In fact the admissibility of the same was considered self-evident. Their Lordships expressly adverted to the admissibility and the evidentiary value of the tape-recorded talk which had been produced as part of the supporting evidence produced by Dr. Partap Singh, the petitioner in that case. A clear and unequivocal enunciation of that law is made, however, by the Court of Criminal Appeal in Rex v. Maqsud Ali and Ashiq Hussain . 1965 2 All. E.R 464., in the following terms:—
“We think that the time has come when this Court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting, and recording, conversations. 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.”
Lastly in Yusufalli Esmail Nagree v. State Of Maharashtra. . A.I.R 1968 S.C 147., the learned Judges of the Supreme Court in expressly considering this case have observed as follows:—
“The process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 of the Indian Evidence Act.”
Their Lordships in this case noticed the reasoning of Rup Chand's case with approval. In this context it is futile now to argue that a tape-recording is not admissible in evidence.
5. Once it is held that a tape-recording is admissible, the manner and mode of its proof and the use thereof in a trial is a matter of detail. That it can be used for the purpose of confronting a witness with his earlier tape-recorded statements admits hardly of any doubt. That it may also be legitimately used for the purpose of shaking the credit of a witness was laid down in clear terms by Bhandari, C.J in Rup Chand's case in the following terms:—
“I am aware of no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements, from deposing that while he was engaged in conversation with the witness a tape-recorder was in operation, or from producing the said tape-recorder in support of the assertion that a certain statement was made in his presence.”
That being so, for a use of an earlier tape-recorded statement, the identification of the taped voices is hence a crucial matter and indeed such proper identification is the sine-qua non for the use of the earlier tape-recording. The relevant authorities are all unanimous on the necessity of such proper identification of the taped voice. In Yusufalli Esmail Nagree's case it was observed as follows:—
“If a statement is relevant an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified.”
6. The cases where the taped voice is admitted thus present no difficulty. However, where the voice is denied by the alleged maker thereof, a comparison of the same becomes inevitable. As observed by the Supreme Court the proper identification must be proved by a competent witness. Learned counsel has been unable to point out anything in the relevant statute which expressly or impliedly may tend to prohibit such a comparison. At the present stage the nature of the evidence that would be brought forward for this purpose, and whether the Court can itself compare the admitted and the disputed tape recording is not yet in issue. I am, therefore, inclined to the view that the orders of the Courts below are thus clearly sustainable.
7. Mr. Gandhi on behalf of the respondents points out that no patent illegality or impropriety in the impugned orders has been pointed out which would merit interference by way of revision even at an inter locutary stage. I thus see no force in these petitions which fail and are dismissed.
Petition dismissed.