1999 Supreme(SC) 1069

1999(8) Supreme 641
Supreme Court of India
(From Karkardooma Court, Delhi)
K.T. Thomas & A.P. Misra, JJ.
Gurdeep Singh @ Deep -Appellant
versus
The State (Delhi Admn.) -Respondent
Criminal Appeal No. 604 of 1997
Decided on 17-9-1999
Counsel for the Parties :
For the Appellant : P.P. Singh, Advocate (A.C.).
For the Respondent : V.N. Sharaf, Sr. Advocate, (A.S. Rawat), Advocate for Mrs. Sushma Suri, Advocate.

Important Point
Handcuffing, presence of a police­man holding chain of handcuff or even keeping armed guard outside the room which being parts of the security measure by itself cannot penetrate into the realm as to make a confessional state­ment not to be volunt­arily made under Section 15 of TADA Act.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 324-Explosive Sub­stance Act, 1908-Section 5(a) (b)-Conviction on basis of confes­sional statement recorded under Section 15 of TADA during inves­tigation of another case-Truth­fulness of confessional statement not assailed - Confessional statement was challenged as not vo­luntary since accused was handcuffed and a policeman was holding chain of handcuff during recording of confessional statement and further armed guards were outside room-Procedural aspects u/s 15 of TADA and u/r 15 of TADA Rules followed -No threat or induce­ment to accused to make confessional statement-Mere presence of a subordinate police officer could not make confessional state­ment involuntary-Confessional statement required no corrobora­tion-Convic­tion warranted no interference.

       (ii) TADA Act, 1987-Section 15-TADA Rules-Rule 15-Con­fession­al statement-Plea that confessional statement not voluntary since accused was handcuffed and a policeman was holding chain of handcuff in room where statement was being recorded and further armed guards were outside room-Initial burden is on prosecution to prove that all requirements under Section 15 of TADA Act and Rule 15 of TADA Rules complied with-Then burden shifts to ac­cused-In instant case truthfulness of confessional statement not challenged-Merely because a subordinate police officer was present holding chain and armed guards were outside room no ground to hold confessional statement was involuntary in absence of threat, inducement or promise to accused to make statement.

       Held : The legislature has conferred a different standard of admis­sibility of a confessional statement made by an accused made under the TADA Act, from those made in other criminal proceed­ings. While under Section 15 of the TADA Act a confessional state­ment by an accused is admissible even when made to a police officer not below the rank of Superintendent of Police, in other cri­minal proceedings it is not admissible unless made to a Magistrate. Section 25 of the Indian Evidence Act debars from evidence a confession of an accused to a police officer, except what is permitted under Section 27. (Para 15)

       There is one common feature, both in Section 15 of the TADA Act and Section 24 of the Indian Evidence Act that the confession has to be voluntary. Section 24 of Evidence Act interdicts a confession, if it appears to the Court to be the result of any inducement, threat or promise in certain condi­tions. The principle therein is that confession must be voluntary. Section 15 of the TADA Act also requires the confession to be voluntary. Voluntary means that one who makes it out of his own free will inspired by the sound of his own con­science to speak nothing but the truth. (Para 17)

       The crux of making statement voluntarily is, what is intentional, intended, unimpelled by other influences, acting on one’s own will, through his own conscience. Such confessional statements are made mostly out of a thirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart. (Para 19)

       Whenever an accused challenges that his confessional statement is not voluntary, the initial burden is on the prosecution for that it has to prove that all requirements under Section 15 and Rule 15 under TADA Act and Rules has been complied with. Once this is done prosecution discharges its initial burden and then the burden shifts on the accused person. Then it is for him to prove through facts that the confessional state­ment was not made voluntarily. If such fact was pleaded and brought on record during trial the court must test its veracity, whether such fact constitutes to be such as to make his confessional statement not voluntarily made. (Para 22)

       While a confession recorded under the TADA Act before a police officer not below the rank of Superintendent of Police even under police custody is admissible but not under other criminal trials. Keep­ing an accused under police custody in what manner with what precautions is a matter for the police administration to decide. It is for them to decide what essential measures is to be taken in a given case for the purpose of security. What security, in which manner are all in the realm of administrative exigencies and would depend on the class of accused, his antecedents and other information etc., The security is also necessary for the police personnel keeping him in custody or other personnel of the police administration including the public at large. Thus what measure has to be taken is for the police administration to decide and if they feel greater security is required in a case of trial under the TADA Act, it is for them to decide accordingly. The preamble of the TADA Act itself reveals that this Act makes special provisions for the prevention of and forthwith keeping with terrorists and disruptive activities. In fact earlier TADA Act of 1985 was repealled to bring in the present Act to strengthen the prosecution to bring to the books those involved under it without their filtering out, by bringing in more stringent measures under it. In this background, we do not find the handcuffing of the appellant or another police man being present in the room with the chain of his handcuff or armed guards present outside the room to be such to constitute that the appellant confessional statement was not made voluntary. It has to be kept in mind that Section 15 and Rule 15 of the TADA Act and the Rules have taken full precaution to see that confessional statement is only recorded when he makes it voluntarily. First, confession could only be recorded by a police officer to the rank of Superintendent of Police or above. Such police officer has to record in his own hand writing, he has to clearly tell such accused person that such confession made by him shall be used against him and if such police officer after questioning comes to the conclusion that it is not going to be voluntarily he shall not record the same. (Para 22)

       In the instant case the appellant accused contended that the confessional statement was involuntary on grounds :

        (a) The confessional statement was made when the appellant was under hand cuffs;

        (b) While recording the confession another police man in the room at some distance was present who was holding the chain of his hand cuffs; and

        (c) Outside the room where his confession was recorded it was surrounded by armed guards.

       (Para 20)

       Held : The police officer who recorded the confessional statement had not recorded anywhere it was not being made voluntarily, officer could only record such confession when he has reasons to believe that it is being made voluntary. In other words, it puts an obligation on such officer, who on questioning felt that he was not going to give the confession voluntarily, not to record such confession. But when he recorded the confession the presumption is he was satisfied that the accused was going to make his confession voluntarily. (Para 14)

       No other, as a fact, threat, inducement or promise by any other word or deed is said to have been made to the appellant, in any other form nor it was contended at any stage of the proceed­ings culminating into his conviction. The only ground that the confessional statement was not voluntary are the three factual situation, as aforesaid. (Para 21)

       The prosecution has proved to the hilt the initial burden of compliance of both Section 15 and Rule 15 under the TADA Act and Rules. Keeping the administrative exigencies under which an accused is kept under handcuff with armed guards etc. which may be for the antecedents activities of the appellant as terrorist, for the purpose of security, then this could in no way be constituted to be a threat or coercion to the accused for making his confessional statement. The policeman holding his chain of his handcuff was only a constable and the person recording his confession was of the rank of Superintendent of Police. The Superintendent of Police conveyed confidence to the appellant and made it clear to the appellant as aforesaid. After all this, if the appellant was still ready and made his confessional statement, then merely presence of a constable a subordinate of Superintendent of Police, who was holding chain cannot be constituted to be such to be a threat which could induce him not to make any voluntary statement. Hence, we have no hesitation to hold that the presence of a constable in a room could in fact or law to be constituted to be such to hold that such confessional statement was not made voluntarily. Mere handcuffing and presence of a policeman we fail to understand in what way could it be said to be a threat to the accused appel­lant. It is not the case that before making confessional statement any inducement, threat or promise by any other word or deed was made to him by any person which resulted into his making the said confessional statement. Firstly, we find total absence of inducement, threat or promise in the present case as against the appellant and as we have said handcuffing, presence of a police­man holding chain of handcuff or even keeping armed guard outside the room which being parts of the security measure by itself cannot penetrate into the realm as to make a confessional state­ment not to be voluntary made. (Para 22)