JUDGMENT - (1-18) ( His Lordship stated the facts as indicated in the Head-note and considered the evidence and then proceeded).

(19) The first contention made by Mr. Chari was that the conversation alleged to have taken place between the accused and the complainant and recorded on the tape with the help of the tape recording machine is not admissible as it is hit by S.162 of the Criminal Procedure Code. According to Mr. Chari, the circumstances in which the conversation was recorded would clearly establish that the statements, both of the complainant and the accused, recorded on the tape are in the nature of statements made to a police officer, and if these are statements made to a police officer, Mr. Chari contends that the ban imposed by S.162 of Cri P.C. would operate and the court cannot make use of this record for corroborating the complainant. Before examining the validity of this contention, it is necessary to refer to a few circumstances about which there is hardly any dispute. The first circumstance is that S.I. Mahajan was admittedly present in the inner room in Shaikhs house when the tape-recording machine was installed and when the alleged conversation between the complainant and the accused was recorded on the tape-recording machine. The second circumstance is that, admittedly, it was pre-arranged that when the accused would visit the house of the complainant, the tape-recording machine would be put to use to record the conversation which would take place between the complainant and the accused. Dhaymonkar in his evidence admits that it was only after the pre-arranged signal was given that the machine was stopped. The third circumstance is that the complainant in this case had also the knowledge that whatever would be spoken when the accused arrived would be recorded on the tape-recording machine and he was also a party to the trap. The fourth and the more important circumstance is that the accused was not aware that his conversation with the complainant was being recorded on the tape-recording machine.

(20) Mr. Chari emphasises that on the evidence of the prosecution itself, the arrangement of recording the conversation between the complainant and the accused was made by the police officer. According to him, the fact that the recording of the conversation was not done when the complainant and the accused were in the physical presence of the police officer would make no difference. He said that it was not necessary that the statement, in order that it may come under the ban of S.162, Cr. P.C. should have been recorded by the police officer in writing. He points out that S. 162 Cr. P.C. includes any statement or any record thereof. According to his contention, the reproduction of the conversation on the tape was a record of the statements made by the complainant and the accused. It is not necessary, according to him, that the persons making the statements should be conscious that they are making the statements to a police officer or that the police officer is making a record of their statements. He submits that for purposes of S.162 Cr. P.C., what is important is that the statement should in fact be a statement to a police officer or a record thereof, and the fact that the person is unaware of that fact is unimportant. In this case, there is no doubt that when the accused carried on his conversation with the complainant he was not aware that the police officer was sitting in the rear room and that whatever he would speak would be recorded by the tape-recording machine. At the same time, there is no doubt also that the complainant was aware that whatever he would be speak would be recorded on the tape-recording machine. In order to appreciate this argument, it is necessary to understand the main ingredients of S. 162, Cr. P.C. Section 162 refers to a statement made to a police officer. It must be made by any person who may ultimately be the accused. If the statement is reduced into writing, it should not have been si

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