2000 Supreme(SC) 80

2000(1) Supreme 163
Supreme Court of India
(From Designated Court, Pune)
G.T. Nanavati & S.P. Kurdukar, JJ.
S.N. Dube etc. —Appellants
versus
N.B. Bhoir & Ors. —Respondents
Criminal Appeal No. 678 of 1997
With
Criminal Appeal Nos. 709-710 of 1997
Decided on 12-1-2000
Counsel for the Parties :
For the Appearing Parties : Sushil Kumar, I.G. Shah, Rajendra Singh, S.R. Chitnis, Bhim Rao Naik, M.S. Ganesh, B.S. Kotwal, A.S. Nambiar, R.K. Jain, R.D. Ovelkar, B.M. Naik, V.N. Ganpule, T.S. Arunachalam, Sr. Advocates, Sanjay Jain, Atul Sharma, U.U. Lalit, S.S. Shinde, D.M. Nargolkar, T.A. Khan, P. Parmeshwaran, Manoj Goel, Shrikant Shivade, G.B. Sathe, Brij Bhushan, Ms. Hemantika Wahi, Ms. Sumita Hazarika, P.N. Gupta, Rajeev Sharma, Kishan Datta, T.C. Sharma, Ajay Sharma, Ms. Neelam Sharma, Rupesh Kumar, P.H. Parekh, Rahul Roy, D.K. Garg, A.K. Gupta, Ms. Rekha Palli, Nischal Niraj, Manoj Mohite, Ms. Lata Krishnamurthy, P.N. Gupta, S.M. Garg, Kishan Dutta, R.P. Wadhwni, S.M. Jadhay, Advocates.

Important Points
1. Confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co-accused also otherwise held to be admissible, voluntary and believable.
2. Merely because confessional statement u/s 15 of TADA Act was recorded by the Superintendent of police who was also supervising investigation of crime, confessional statement could not be said to be vitiated.
3. Section 15 of TADA Act nor Rule 15 of TADA Rules contemplate recording of confessional statement in two parts giving time gap to person making confession time to think over after statutory warning; if time gap is given after statutory warning no question again need to be put to person making confession as to whether he is making confession voluntarily.
4. Certificate and memorandum about giving statutory warning and satisfaction that confession was voluntary need not necessarily be written in the same form or terms as stated in Rule 15 of the TADA Rules; merely because certificate and memorandum are not separately written but are mixed up or different words conveying something as required are used, sanctity of confessions would not get adversely affected.
5. Guidelines framed by High Courts u/s 164 Cr.P.C. do not by themselves apply to recording of confession u/s 15 of TADA Act.

Headnote:(i) Indian Penal Code, 1860—Section 302—TADA Act—Section 3(3)—Murder and terrorist activities—Appeal against acquittal—A1 shooting dead victim in broad day light at railway platform—Several eye-witnesses—None disclosing names of accused—In first FIR relatives of deceased not doubting anybody—Accused persons named in FIR shown absconding and trial not progressing—Railway police with permission of Sessions Court reinvestigating case—On basis of complaint of PW2, brother of deceased fresh charge sheet against members of two gangs engaged in terrorist activities and also against police officers who first investigated case—Confessional statements of A1 to A-6 that they shot dead victim on account of property dispute—Motive for crime stood proved—Eyewitnesses identified accused who fired shots at victim—Trial Court disbelieving evidences of eyewitnesses on ground of contradictions and material improvements—Trial Court holding that there was no ground for reinvestigation and it was with oblique motive and TADA Act was invoked unnecessarily—Trial Court acquitting all accused persons—Held : Trial Court not justified in its action—On facts it was clear that earlier investigation was dishonest—Reinvestigation was justified—Out of fear none came forward during first investigation to complain against accused persons—Previous investigation was not honest and hence no importance could have been given to omissions and contradictions in earlier statements—Confessional statements of A1 to A6 could not be discarded—Confessional statement properly recorded—Confessional statement stood corroborated as regards other illegal activities committed by them from evidence of witnesses—A1 to A6 convicted u/s 302 IPC and u/s 3(3) of TADA.

       (ii) Criminal Procedure Code, 1973—Section 173(8)—Reinvestigation—Whether in application for reinvestigation/further investigation it need to be alleged that earlier investigation was not honest—Whether failure to indicate that earlier investigation was not honest would be ground to hold that reinvestigation was done with oblique motive. (Paras 8 to 11)

       (iii) TADA Act—Section 15—TADA Rules—Rules 15(2) and 15(3)—Confession—Superintendent of police who was supervising investigation recording confessional statement—No other Superintendent of police was available for recording confession and some others declined to oblige him—Held: No illegality or impropreity in recording confessions even though he was supervising investigation. (Para 28)

       (iv) TADA Act—Section 15—Confessional statement—It is substantive piece of evidence—Can be used against co-accused also.

       Held : Section 15 of the TADA Act makes certain confessions made to police officers admissible in the trial of such person or co-accused, abettor or conspirator for an offence under the Act or rules made thereunder. Section 15 is thus an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it. Confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co-accused also otherwise held to be admissible, voluntary and believable. (Para 27)

       (v) TADA Act—Section 15—TADA Rules—Rule 15(2)—Confession—Procedure for recording—No time gap need to be given after giving statutory warning—Neither Section 15 nor Rule 15 contemplate recording of confessional statement in two parts giving time to person making confession time to think over—If time gap is given after statutory warning no question again need to be put as to whether he is making confession voluntarily.

       Neither Section 15 nor Rule 15 contemplates recording of confessional statement in two parts or giving time to the person making a confession to think over and reconsider whether he still wants to make it in spite of being told that he his not bound to make it and that it can be used against him. If in order to be assured that the person concerned makes the confession willingly and voluntarily the recording officer gives him some time to think over and for that reason records the confessional statement in two parts, then they cannot be regarded as two independent and separate statements.The second part being in continuation of the first part both the parts have to be treated as one confessional statement. If the recording police officer feels assured after giving the statutory warning that the person who wants to make a confession is doing so voluntarily he may not give any time for reconsideration and in that case there would be only one continuous statement. Therefore, the contention that when the confession is recorded in two parts, only the second part can be regarded as the confession and while recording the second part the police officer should give the statutory warning and then ascertain if the person concerned is making it voluntarily, cannot be accepted. The requirement of law is that before recording the confession the police officer should ascertain by putting questions to the maker of it that he is making the confession voluntarily and he should also explain to him that he is not bound to make the confession and that if he makes it that can be used against him as evidence. (Para 30)

       In this case DSP Shinde had put questions to each of the accused who was brought before him to ascertain if he was willing to make a confession voluntarily and had also given the statutory warning to him on that day. Even after the accused had shown his willingness to make a confession Shinde had given him time not exceeding 48 hours to think over his readiness to make the confession. When the accused was brought to him again he had again ascertained if he was still ready and willing to give a statement. He had also asked him if he was making it under any pressure or coercion or threat. Only after the accused had replied in negative he had told the accused to say whatever he wanted to state about Suresh Dube’s murder. In view of these facts and circumstances it is not possible to uphold the finding recorded by the trial Court and to accept the contention raised on behalf of the respondents that while recording the confessions of the accused Shinde had committed a breach of Rule 15(2). (Para 30)

       (vi) TADA Act—Section 15—TADA Rules—Rules 15(3)—Confession—Procedure for recording of—Certificate and memorandum of about giving statutory warning and satisfaction that confession was voluntary need not necessarily be written in same form or terms as stated in Rule 15—Merely because certificate and memorandum are not separately written but are mixed up or different words conveying something as is required are used sanctity of confession would not get adversely affected.

       Held : What Rule 15(3)(b) requires is that the police officer should certify under his own hand that "such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person". According to that rule the memorandum should be to the following effect :

       "I have explained to (name) that he is not bound to make a confession and that, it 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 of the statement made by him."

       Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it can be used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral evidence alone. The requirement of rule is preparation of contemporaneous record regarding the manner of recording the confession in presence of the person making it. Though giving of the statutory warning ascertaining voluntariness of the confession and preparation of a contemporaneous record in presence of the person making the confession are mandatory requirements of that rule, we see no good reason why the form and the words of the certificate and memorandum should also be held mandatory. What are the mandatory requirements of a provision cannot be decided by overlooking the object of that provision, they need not go beyond the purpose sought to be achieved. The purpose of the provision is to see that all formalities are performed by the recording officer himself and by others to ensure full compliance of the procedure and seriousness of recording a confession. We fail to appreciate how any departure from the form or the words can adversely affect the object of the provision or the person making the confession so long as the court is able to conclude that the requirements have been substantially complied with. No public purpose is likely to be achieved by holding that the certificate and memorandum should be in the same form and also in the same terms as are to be found in Rule 15(3)(b). We fail to appreciate how sanctity of the confession would get adversely affected merely because the certificate and memorandum are not separately written but are mixed up or because different words conveying the something as is required are used by the recording officer. We hold that the trial Court committed an error of law in holding that because the certificates and memorandums are not in the same form and words they must be regarded as inadmissible. Having gone through the certificates and the memorandums made by Shinde at the end of the confessions what we find is that he had mixed up what is required to be stated in the certificate and what is required to be stated in the memorandum. (Para 31)

       Thus, while writing the certificate and the memorandum what Shinde has done is to mix up the two and use his own words to state what he had done. Only thing that we find missing therein is a statement to the effect that he had explained to the accused that he was not bound to make a confession and that if he did so the confession might be used as evidence against him. Such a statement instead of appearing at the end of the confession in the memorandum appears in the earlier part of the confession in the question and answer form. Each of the accused making the confession was explained about his right not to make the confession and the danger of its being used against him as evidence. That statement appears in the body of the confession but not at the end of it. Can the confession be regarded as not in-conformity with Rule 15(3)(b) only for that reason? We find no good reason to hold like that. We hold that the trial Court was wrong in holding that there was a breach of Rule 15(3) and, therefore, the confessions were inadmissible and bad. (Para 31)

       (vii) TADA Act—Section 15—TADA Rules—Rule 15—Code of Criminal Procedure, 1973—Section 164—Confession—Procedure for recording of—Guidelines framed by High Court for recording confession u/s 164 Cr.P.C. do not by themselve apply to recording of confession u/s 15 of TADA Act—Confessional statement recorded under TADA would not be vitiated for not following guidelines prescribed u/s 164 Cr.P.C.

       The police officer recording a confession under Section 15 is really not bound to follow any other procedure. The rules or the guidelines framed by the Bombay High Court for recording a confession by a Magistrate under Section 164 Cr.P.C. do not by themselves apply to recording of a confession under Section 15 of the TADA Act. Therefore, merely because some of those guidelines were not followed while recording the confessions it cannot for that reason be held that the said confessions have lost their evidentiary value. (Para 32)

       (viii) Indian Penal Code, 1860—Sections 201, 217 and 218 r/w 120—TADA Act—Sections 3(3), 3(4)—Charge that as part of criminal conspiracy accused investigating officers caused evidence of Commission of offence to disappear—Allegation that by dishonest investigation they tried to screen real offenders—Except confessional statements of co-accused persons who stood convicted there was no other independent evidence—Role which accused police officers played created a strong suspicion regarding their connection with terrorist gangs—However, conviction unsafe only on basis of confession of co-accused. (Para 37)