1996 JTR(SC) 1991
1997 1 AICLR 351 ; 1997 34 AllCriC 206 ; 1997 CriLR 118 ; 1996 4 Crimes(SC) 224 ; 1998 1 GLR 164 ; 1996 10 JT 704 ; 1996 8 Scale 433 ; 1996 11 SCC 62 ; 1997 SCC(Cri) 48 ; 1996 Supp9 SCR 86 ; 1996 KHC 1415 ; 1996 8 Supreme 361
1996(8) Supreme 361
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
Mr. Sharafathussain Abdulrahaman Shaikh & Ors. -Appellants
versus
State of Gujarat & Anr. -Respondents
Criminal Appeal No. 473 of 1996
Decided on 22-11-1996
Counsel for the Parties :
For the Appellants : U.R. Lalit, Sr. Advocate, Ms. Kamini Jaiswal, Advocate.
For the Respondents : Dr. N.M. Ghatate, Sr. Advocate, (Ms. Rekha Pandey) Advocate for Ms. Hemantika Wahi, Advocate.
IMPORTANT POINT
In absence of certificate recorded by Superintendent of Police about voluntariness of confession of accused recorded by him under Section 15 of TADA Act, confession is inadmissible against accused.
Act Referred :TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT : S.15(2), S.6, S.15(3), S.4
(A) The Terrorist and Disruptive Activities Prevention Act, 1987, Sections 15(2), 15(3), 4, and 6, read with Rule 15, governs the admissibility and recording of confessions before a Police Officer not below the rank of Superintendent of Police, mandating a memorandum certifying the voluntariness of the confession. The Explosive Substances Act, 1908, Sections 4 and 6, provides for offences relating to explosive substances, while Sections 120-B and 307 of the Indian Penal Code address criminal conspiracy and attempt to murder, respectively. In this appeal under Section 19 of TADA, the Designated Court relied on confessional statements recorded under TADA, but the absence of the mandatory memorandum under Rule 15(3)(b) and the failure of the recording officer to testify about voluntariness rendered those confessions inadmissible.
(B) A confession recorded by a Police Officer must be accompanied by a memorandum certifying the officer's satisfaction as to its voluntariness; otherwise, it is inadmissible. The testimony of the officer is essential to validate the confession, and the lack of such evidence constitutes a fatal defect.
Facts of the case:
Four appellants and eight others were tried for conspiracy to commit terrorist acts, including hurling bombs at a Hindu locality, leading to injuries. The prosecution primarily relied on four confessional statements recorded by the Superintendent of Police, none of which contained the required memorandum, and the officer did not testify regarding voluntariness.
Findings of Court:
The Designated Court erred in admitting the confessions, as the mandatory memorandum under Rule 15(3)(b) was absent, and the recording officer did not appear to testify about the belief in voluntariness, making the confessions inadmissible under the referenced statutory provisions.
Issues:
Whether confessional statements recorded without the mandatory memorandum and without oral testimony of the recording officer are admissible as evidence; whether the conviction can be sustained on other evidence.
Ratio Decidendi:
In the absence of the mandatory certificate under Rule 15(3)(b) and without the recording officer's testimony, the confessions cannot be used, and the prosecution failed to provide other evidence to support the charges, necessitating acquittal.
Result:
The appeal is allowed, convictions and sentences are set aside, and the appellants are directed to be released unless required in connection with any other case.
(A) The Terrorist and Disruptive Activities Prevention Act, 1987, Sections 15(2), 15(3), 4, and 6, read with Rule 15, governs the admissibility and recording of confessions before a Police Officer not below the rank of Superintendent of Police, mandating a memorandum certifying the voluntariness of the confession. The Explosive Substances Act, 1908, Sections 4 and 6, provides for offences relating to explosive substances, while Sections 120-B and 307 of the Indian Penal Code address criminal conspiracy and attempt to murder, respectively. In this appeal under Section 19 of TADA, the Designated Court relied on confessional statements recorded under TADA, but the absence of the mandatory memorandum under Rule 15(3)(b) and the failure of the recording officer to testify about voluntariness rendered those confessions inadmissible.
(B) A confession recorded by a Police Officer must be accompanied by a memorandum certifying the officer's satisfaction as to its voluntariness; otherwise, it is inadmissible. The testimony of the officer is essential to validate the confession, and the lack of such evidence constitutes a fatal defect.
Facts of the case:
Four appellants and eight others were tried for conspiracy to commit terrorist acts, including hurling bombs at a Hindu locality, leading to injuries. The prosecution primarily relied on four confessional statements recorded by the Superintendent of Police, none of which contained the required memorandum, and the officer did not testify regarding voluntariness.
Findings of Court:
The Designated Court erred in admitting the confessions, as the mandatory memorandum under Rule 15(3)(b) was absent, and the recording officer did not appear to testify about the belief in voluntariness, making the confessions inadmissible under the referenced statutory provisions.
Issues:
Whether confessional statements recorded without the mandatory memorandum and without oral testimony of the recording officer are admissible as evidence; whether the conviction can be sustained on other evidence.
Ratio Decidendi:
In the absence of the mandatory certificate under Rule 15(3)(b) and without the recording officer's testimony, the confessions cannot be used, and the prosecution failed to provide other evidence to support the charges, necessitating acquittal.
Result:
The appeal is allowed, convictions and sentences are set aside, and the appellants are directed to be released unless required in connection with any other case.
JUDGMENT
M.K. Mukherjee, J.-The four appellants along with eight others were tried by the Designated Court, Ahmedabad for offences punishable under Sections 120-B and 307 IPC, Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ( TADA for short) and Sections 4 and 6 of the Explosive Substances Act, 1908. The allegations against them were that they hatched a criminal conspiracy to let loose a reign of terror in the city of Ahmedabad by hurling bombs on the people of the Hindu community and that pursuant to the said conspiracy they hurled bombs near Sarangpur bus stand on January 29, 1993 as a result of which some members of the public sustained injuries. The trial ended in an order of conviction and sentence recorded against all the appellants under Sections 120B IPC and 3 and 5 of TADA, two of the appellants under Sections 307 IPC and 4 of the Explosive Substances Act and the other two appellants under Section 6 of the Explosive Substances Act and of acquittal of the other eight. Aggrieved by their convictions and sentences the appellants have filed this appeal under Section 19 of TADA.
2. To sustain the charges levelled against the appellants, the prosecution rested its case primarily upon the confessional statements made by each of the above four appellants before Shri D.B. Patel, (P.W.6) Superintendent of Police, C.I.D. Crime Branch, Ahmedabad which were purportedly recorded under Section 15 of TADA. The Designated Court found the confessions voluntary and true and, as they corroborated each other, passed the impugned judgment against the appellants.
3. Under sub-section (1) of Section 15 of TADA a confession made by a person before a Police Officer not lower in rent than a Superintendent of Police is admissible notwithstanding the provisions contained in the Code of Criminal Procedure or Indian Evidence Act. Sub-Section (2) thereof, read with Rule 15 of the Rules framed under TADA, lays down the procedure to be followed for recording such confession. Sub-rule (3) (b) of Rule 15 enjoins the Police Officer, who records the confession, to make a memorandum at the end of the confession to the following effect :-
"I have explained to (name) that he is not bound to make a confession and that, if he does, so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account or the statement made by him."
4. Admittedly, in none of the four confessions (Ext. 72, 73, 75 and 76), with which we are concerned in this appeal, such a memorandum finds place. The question, therefore, that falls for our consideration is what is the value of such a memorandum and, for that matter, the effect of absence thereof. The answer to this question has been given by this Court in Chandran v. State of Madras1 while dealing with sub-section (4) of Section 164 Cr.P.C., which lays down the procedure to be followed by a Magistrate in recording a confession and is pari materia with the above quoted Rule 15(3), with the following words :
"But the law does peremptorily require that after recording the confession of the accused, the Magistrate must append at the foot of the record a memorandum certifying that he believes that the confession was voluntarily made. The reason for requiring compliance with this mandatory requirement at the close of the recording of the confession, appear to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite memorandum certifying the voluntariness of the confession made before him. If the Magistrate recording a confession of an accused person produced before him in the course of police investigation, does not, on the face of the record, certify in clear, categorical terms his satisfaction or relief as to the voluntary nature of the confession recorded by him, nor testifies orally, as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial."
(emphasis supplied)
5. Apart from the fact that P.W.6 did not give any certificate, in accordance with the earlier quoted Rule 15(3) of his satisfaction or belief about the voluntariness of the confessions after the some were recorded, it is also an admitted fact that while being examined as a witness he did not testify about his such satisfaction on belief. Resultantly, in view of the above quoted observations of this Court, with which we are in complete agreement, the confessions allegedly made by the four appellants cannot be pressed into service to prove the charges levelled against them. Since there is no other evidence on record from which it could be said that the appellants are guilty of the offences for which they were charged and convicted the appeal must succeed.
6. In the result we allow this appeal, set aside the convictions and sentences of the appellants and direct that they be released forthwith, unless wanted in connection with some other case.
Appeal allowed.
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