Terrorist and Disruptive Activities (Prevention) Act, 1987 – s.15 – Conviction of appellant on the basis of confession – Plea of appellant that the alleged confession was not recorded in a free atmosphere and prescribed procedure under the Act and rules were not followed while recording confession and, therefore, the confession was not admissible in evidence as it was not voluntary – Held: In the instant case, confession was recorded by the Superintendent of Police (PW-28) – In the evidence of PW-28, there was nothing to show that the appellant-accused was warned as required u/s.15 of the Act and r.15(3) of TADA Rules – Complying with these rules is not an empty formality or a mere technicality as these provisions serve a statutory purpose to ensure a fair trial as guaranteed u/Art.21 of the Constitution of India – The entire proceedings on record should reflect application of mind into various surrounding circumstances including questions and answers elicited from the accused – Mere recording in a certificate will only amount to technical observance of the rule but that will not prove the voluntariness of the statement – It is evident that from out of the questions put by PW-28 and the answers elicited and the manner in which the appellant has made the statement are all the foundations upon which it is to be found out as to whether the statement was made voluntarily or not – PW-28 merely explained to him that he had been produced only to record the statement – He did not explain to the appellant that he had been produced to record the confession – Thus, there is nothing on record to prove the voluntariness of the statement – Confessional statement of appellant rejected – Code of Criminal Procedure, 1973 – s.164 – Constitution of India – Art.21 – Terrorist and Disruptive Activities Rules – r.15(3).
Terrorist and Disruptive Activities (Prevention) Act, 1987: s.15 – Confessional statement of co-accused made in separate trial – Admissibility of, in case of appellant – Held: Not admissible – s.15 specifically provides that the confession recorded shall be admissible in trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession – If for any reason, a joint trial is not held, the confession of a co-accused cannot be held to be admissible in evidence against another accused who would face trial at a later point of time in the same case – Since the trial of the other two accused persons was separate, their confessional statements were not admissible in evidence and the same cannot be taken as evidence against the appellant – Designated Court was not justified in convicting the appellant.
Allowing the appeal, the Court
HELD: 1.1 It is well-settled that a confession which is not free from doubt about its voluntariness, is not admissible in evidence. A confession caused by inducement, threat or promise cannot be termed as voluntary confession. Whether a confession is voluntary or not is essentially a question of fact. [Para 16] [1121-B]
Pakala Narayana Swami v. Emperor 1939 PC 47 ; State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
600 : [2005] 2 Suppl. SCR 79 – relied on.
1.2 Section 15(1) of the TADA Act is a self-contained scheme for recording the confession of an accused charged with an offence under the said Act. This provision of law is a departure from the provisions of Sections 25 to 30 of the Evidence Act. Section 15 of the TADA Act operates independently of the Evidence Act and the Criminal Procedure Code. In Kartar Singh, a Constitution Bench of this Court, while upholding the validity of the said provision, issued certain guidelines to be followed while recording confession. These guidelines were issued to ensure that the confession obtained in the pre-indictment interrogation by a police officer not lower in rank than a Superintendent of Police is not tainted with any vice but is in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness. [Para 17] [1121-H; 1122-A-B]
2.1 The appellant (DW-1) in his evidence stated that he was arrested on 19.05.2007 and was allegedly tortured by the police. On 22.05.2007, he was produced before the Judicial Magistrate and was remanded by the court till 25.07.2007. PW27 made an application requesting for police custody of the accused for five days and obtained police custody from 25.07.2007 to 27.07.2007. On 25.07.2007, when the appellant was sitting in the police vehicle, Inspector, told him that he should sign certain papers, otherwise he would be killed in police custody. When he was brought before the Designated Court, on the same day, he informed the same to the Judge and gave a petition stating that he was tortured by the police and that he had nothing to do with the alleged incident. When he was again produced before the Designated Court, after recording the confession statement, he gave another petition stating that he has not made any incriminating statement before PW-28. [Para 19] [1124-G-H; 1125-A-B]
2.2 On 26.07.2007, PW-29 produced the appellant before PW-28, the Superintendent of Police. PW-28 during his crossexamination stated that until the accused was produced on 26.07.2007, the accused was in police custody. On 26.07.2007, though it has been recorded that a number of questions were put to the accused and the answers were elicited, there is no record to show that the appellant-accused was warned as required under Section 15 of the TADA Act and Rule 15(3) of the TADA Rules. During his cross-examination, PW-28 has stated that he gave warning to the accused which was not supported by any contemporary record. As it is seen in Ex. P57, only two questions were asked to the appellant and answers elicited, which do not reflect any warning as required under the TADA Act and the TADA Rules. The evidence of PW-28 is that he gave the same warning which he had given on 26.07.2007. There are no contemporary records to show that the warning was made on 26.07.2007 or 27.07.2007. The second question asked per Ex. P-57 assumes much importance. In this question, PW-28 has only explained to the accused that he had been produced only to record his statement. He did not explain to the accused that he had been produced to record the confession. Complying with the rules is not an empty formality or a mere technicality as these provisions serve a statutory purpose to ensure a fair trial as guaranteed under Article 21 of the Constitution of India. In law, it is not the technical observance of the rules but it is the real satisfaction about the voluntariness of the confession is sine qua non. [Paras 20, 21] [1125-C-H; 1126-A]
3.1 The confession recorded by the police officer is undoubtedly equated to a confession recorded by a Judicial Magistrate under Section 164 Cr.P.C. Thus, the said confession is a substantive piece of evidence. Therefore, all the safeguards which are to be followed by a Magistrate should have been followed by the police officer also. It is well-settled that the satisfaction arrived at by the Magistrate under Section 164 Cr.P.C. is, if doubtful, then, the entire confession should be rejected. [Para 22] [1126-B-C]
3.2 In the instant case, it is evident that from out of the questions put by PW-28 and the answers elicited and the manner in which the accused has made the statement are all the foundations upon which it is to be found out as to whether the statement was made voluntarily or not. If the certificate is not supported by any of the above inputs, then the certificate needs to be rejected. The police officer cannot record such a certificate out of his own imagination and the entire proceedings should reflect that the certificate was rightly given based on the materials. In the instant case, there is nothing on record to prove the voluntariness of the statement. Ex. D-1 and D-2 and other circumstances would go to show that the appellant could not have made the statement voluntarily. Therefore, the confession statement of the appellant requires to be rejected. [Para 23] [1126-C-E]
4.1 The second question for consideration is whether the statement of two other co-accused is admissible in evidence. Section 30 of the Indian Evidence Act mandates that to make the confession of a co-accused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a co-accused is not at all admissible in evidence and, therefore, the same cannot be taken as evidence against the other coaccused. The Constitution Bench of this Court in Kartar Singh while considering the inter-play between Section 30 of the Indian Evidence Act and Section 15 of the TADA Act held that as per Section 15 of the TADA Act, after the amendment of the year 1993, the confession of the co-accused, is also a substantive piece of evidence provided that there is a joint trial. [Paras 24, 28] [1126-F-H; 1127-A-C]
Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375 – followed.
State v. Nalini and Others (1999) 5 SCC 253 : [1999]
3 SCR 1 ; Jameel Ahmad v. State of Rajasthan (2003)
9 SCC 673 – held inapplicable.
4.2 In the instant case, no doubt, the appellant was absconding. That is why, joint trial of the appellant with the other two accused persons could not be held. Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession. If for any reason, a joint trial is not held, the confession of a co-accused cannot be held to be admissible in evidence against another accused who would face trial at a later point of time in the same case. Since the trial of the other two accused persons was separate, their confession statements are not admissible in evidence and the same cannot be taken as evidence against the appellant. The Designated Court was not justified in convicting the appellant. [Paras 31, 33, 34] [1128-EG; 1129-E-F] Ananta Dixit v. The State 1984 Crl. L.J. 1126 – approved.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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