Back
CHHATTISGARH HIGH COURT
Rakesh Mohan Pandey, J.
Aasha Lata Soni W/o Shri Durgesh Soni – Petitioner
versus
Durgesh Soni S/o Shri Chhabilal Soni – Respondent
CRMP No.2112 of 2022
Decided on 5.10.2023
Criminal Procedure Code, 1973 – Section 311 – Constitution of India – Article 21 – Recall of witness for further cross-examination – Proceeding under Section 125 of Cr.P.C. – Respondent has recorded conversation of petitioner-wife without her knowledge behind her back which amounts to violation of her right to privacy and also right of petitioner guaranteed under Article 21 of Constitution of India – Right of Privacy is an essential component of right to life envisaged by Article 21 of Constitution – Family Court has committed error of law in allowing application under Section 311 of Cr.P.C. along with certificate issued under Section 65-B of Evidence Act – Order passed by Family Court set aside. (Para 11)
Result: Petition allowed.
Certainly. Based on the provided legal document, here are the key legal points:
The recording of conversations without the knowledge or consent of the individual involved constitutes a violation of their right to privacy, which is an essential component of the right to life under Article 21 of the Constitution of India (!) (!) .
The right to privacy extends to telephone conversations and other forms of communication that are of an intimate or confidential nature, and such privacy can only be lawfully infringed upon under procedures established by law (!) (!) .
Recording conversations secretly, without the consent of the person involved, is considered an infringement of privacy rights and is not permissible unless explicitly permitted by law, which in this context, the Court found was not satisfied (!) .
Evidence obtained through illegal or unlawful means, such as secret recording without consent, is inadmissible in court and cannot be used as evidence (!) (!) .
The Court emphasized that rights under Article 21 are fundamental and that any violation, such as unauthorized recording, can lead to the setting aside of orders that rely on such evidence (!) .
The Court clarified that while the right to privacy is not absolute and can be restricted for certain reasons such as prevention of crime or protection of others' rights, such restrictions must follow lawful procedures; otherwise, evidence obtained in violation of privacy rights is inadmissible (!) .
In this case, the respondent’s act of recording the petitioner’s conversation without her knowledge was deemed unlawful, leading to the conclusion that the evidence derived from such recording could not be admitted in court (!) .
The order allowing the application to recall the witness for further cross-examination, based on evidence obtained unlawfully, was found to be legally erroneous and was accordingly set aside (!) .
The petition was allowed, and the order passed by the Family Court permitting the re-examination of the petitioner was reversed to uphold the constitutional right to privacy (!) .
The earlier interim order was vacated, reaffirming the importance of lawful procedures and respecting individual privacy rights in judicial proceedings (!) .
Please let me know if you need further analysis or specific legal advice related to this case.
ORDER ON BOARD
The petitioner has challenged the order dated 21.10.2021 passed by the learned Family Court, Mahasamund, District Mahasamund, Chhattisgarh in Miscellaneous Criminal Case No.F-118/2019, whereby the application filed by respondent under Section 311 of the CrPC to summon the witness for further cross-examination has been allowed.
2. The application under Section 125 of the CrPC was moved by the petitioner for the grant of maintenance and the same is pending before the concerned Family Court since 2019. The petitioner led her evidence, thereafter, the case was fixed for examination of the witnesses and production of documents. Respondent/husband moved an application under Section 311 of the CrPC along with certificate under Section 65-B of the Indian Evidence Act for re-examination of the petitioner on the ground that certain conversation was recorded on the mobile phone and he wants to cross-examine the petitioner confronting with the conversation recorded on the mobile, and the learned trial Court vide order dated 21.10.2021 allowed the said application.
3. Learned counsel for the petitioner would submit that the learned Court below has committed an error of law by allowing the application as it infringes the right of privacy of the petitioner and without her knowledge conversation was recorded by respondent and the same cannot be used against her. He has placed reliance on the judgments passed by the Hon’ble Supreme Court in the matters of R.M. Malkani v. State of Maharashtra reported in AIR 1973 SC 157 and Mr. ‘X’ v. Hospital ‘Z’ reported in AIR 1999 SC 495, and the judgment passed by the High Court of Madhya Pradesh in the matter of Anurima alias Abha Mehta v. Sunil Mehta reported in AIR 2016 Madhya Pradesh 112.
4. On the other hand, learned counsel for the respondent would submit that respondent/husband wanted to produce certain evidence to prove some allegations against the petitioner. He has the right to confront the petitioner with the conversation which was recorded on his mobile phone. He would further submit that learned Family Court has rightly allowed the application.
5. I have heard learned counsel for the parties and perused the documents.
6. In the proceeding under Section 125 of the CrPC after examination of the petitioner, an application moved by the respondent under Section 311 of the CrPC for reexamination of the petitioner/wife was allowed by the learned Family Court on the ground that certain conversation was recorded by the respondent on his mobile and he wants to prove the same against the petitioner, therefore, the piece of the evidence is necessary for just decision of the case.
7. The Hon’ble Supreme Court in the matter of R.M. Malkani (supra) in para-30 held as under:—
“30. There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellants conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation.”
8. While dealing with a similar issue it was held in the matter of People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 301 in para 18 as under:—
“18. The right to privacy-by itself-has not been identified under the Cons
Privacy is an essential component of right to life envisaged by Article 21.
The right to privacy, as guaranteed under Article 21 of the Constitution, includes the protection of conversations held in private, and evidence obtained through recording conversations without the k....
Electronic evidence – Right to holding telephone conversation in privacy of one’s home/office without interference can be claimed as a “Right to Privacy”—Telephone tapping/illegal means of collecting....
The right to privacy in matrimonial cases is not absolute and must yield to the right to present relevant evidence for a fair trial.
The right to privacy in matrimonial disputes is not absolute and must balance with the right to fair trial, allowing relevant evidence to be admitted even if obtained through means that raise questio....
Tape recordings made without the knowledge of one party infringe their right to privacy and violate constitutional rights, rendering them inadmissible in evidence for deciding divorce petitions under....
The Family Courts Act permits lenient admissibility of evidence, allowing for tape-recorded conversations without the other party's consent, while upholding privacy rights.
Right to privacy – Section 122 of Evidence Act does not touch upon aspect of right to privacy as envisaged under Article 21 of Constitution – Section 122 of Evidence Act recognises right to a fair tr....
The fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest. The admissibility of memory card evidence without certification under Section 65-B of....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
