Right to privacy limits use of secretly recorded phone conversations for witness recall and cross-examination

A secretly recorded mobile-phone conversation, made without the witness's knowledge, was treated as an intrusion into privacy and examined against Article 21 protection of private telephone conversations. The HC reiterated that the right to privacy is part of the right to life, though not absolute and subject to restriction according to law. On the facts, it held that the Family Court had erred in allowing recall and further cross-examination under Section 311 CrPC on the basis of that recording, with reliance on Section 65-B of the Evidence Act not curing the legal defect. The impugned order was set aside.

---

---

Issues: Whether an application under Section 311 of the Code of Criminal Procedure, 1973 could be allowed to recall and further cross-examine a witness on the basis of a conversation secretly recorded on a mobile phone, when such recording was made without the witness's knowledge and was alleged to infringe the right to privacy under Article 21 of the Constitution of India.

Analysis: The recorded conversation was made without the petitioner's knowledge and behind her back. The Court treated such recording as an intrusion into privacy and examined the issue in the light of the constitutional protection of private telephone conversations. It relied on the principle that the right to privacy is an essential component of the right to life under Article 21, while also noting that privacy is not absolute and may be restricted only in accordance with law. On the facts before it, the Court found that the Family Court had allowed the recall application on an erroneous view of law, despite the privacy concern arising from the secret recording and the reliance placed on Section 65-B of the Indian Evidence Act, 1872.

Conclusion: The application under Section 311 of the Code of Criminal Procedure, 1973 ought not to have been allowed on the basis of the secretly recorded conversation, and the impugned order was set aside in favour of the petitioner.

---