Is voice recording of conversation or call recording admissible in evidence?

Question: Someone has threatened me of filing an FIR against me for an offence of cheating and forgery. He claims that he has recorded my conversation with him in a tape recorder. He also claims that he has recorded my phone conversations with him through his Android phone. Otherwise, he does not have any evidence to support his claim. His only piece of evidence is call recordings and voice recordings. Are such voice recordings admissible in evidence?

Answer: Voice recorded in a tape recorder or phone is admissible in evidence, subject to certain conditions. Similarly, a recorded phone conversation is also admissible in evidence. How much value can be attached to such evidence, of course, would depend on the facts of each individual case.

In the case of R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 (at page 477) : AIR 1973 SC 157 : (1973) 2 SCR 417 : 1973 Cri LJ 228, the Supreme Court held as under:

“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.”

In fact, in the above R.M. Malkani case, the Supreme Court also observed that there is warrant for proposition that even if such evidence is illegally obtained, it is admissible.

In the case of Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 (at page 623) : AIR 1986 SC 3, Justice S. Murtaza Fazal Ali held that the conditions for admissibility of a tape-recorded statement may be stated 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.”

In the same case (Ram Singh v. Col. Ram Singh), Justice A. Varadarajan held that tape-recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt. Likewise, Justice Sabyasachi Mukharji held that about the acceptance and reliability of evidence on tape-recording, one should proceed very cautiously, and that in this connection on the analogy of mutilated document if the tape-recording is not coherent or distinct or clear, this should not be relied upon.

Other relevant cases in this regard are: (1) N. Sri Rama Reddy v. V.V. Giri, (1970) 2 SCC 340 : (1971) 1 SCR 399; (2) Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 : (1967) 3 SCR 720; (3) S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 : (1964) 4 SCR 733, in which the Supreme Court had accepted conversation or dialogue recorded on a tape recording machine as admissible evidence.

It may be pointed out that a voice recording or a call recording may now be termed as “electronic records” and their admissibility in evidence is now governed by Section 65-A and Section 65-B of the Evidence Act, which are reproduced as under:

“65-A. Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of Section 65-B.

65-B. Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”