2002 Supreme(SC) 996

2002(7) Supreme 46
SUPREME COURT OF INDIA
(From Ahmedabad High Court)
Y.K. Sabharwal & H.K. Sema, JJ.
Bharatbhai @ Jimi Premchandbhai -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 594 of 2002
With
(Criminal Appeal Nos. 720, 721, 731 and 828 of 2002)
Decided on 3-10-2002
Counsel for the Parties :
For the Appearing Parties : Yashank Adhyaru, Ranjit Kumar, V.S. Kotwal, U.R. Lalit, Sushil Kumar, Mahendra Anand, Sr. Advocates, Ashish Wad, Mrs. J. Wad, Ms. Niharika Bahl, Bharat Joshi, Sudeep Pasbola, Sushil Karanjkar, Venkateswara Rao Anumolu, Sanjay Jain, Adolf Mathew, Ms. Hemantika Wahi, Ms. Anu Sawhney, Advocates.

VERY IMPORTANT POINT
Where confession u/s 15 of TADA did not comply with Rule 15(3)(b) of TADA Rules relating to writing the certificate and making the memorandum at the end of confession nor there was any contemporaneous record to show its compliance, oral evidence could not be led to show compliance of Rule 15(3)(b). Such confession is not admissible in evidence and no conviction can be based on it.

Headnote:Terrorist and Disruptive Activities (Prevention) Act, 1987-Section 15-Terrorist and Disruptive Activities (Prevention) Rules, 1987-Rule 15(3)(b)-Recording of confession made to police officer-Requirement of certificate and memorandum at the end of confession-Whether mandatory? (Yes)-Effect of non-compliance-It is not admissible in evidence-Oral evidence of compliance is no compliance-Result-Acquittal, as conviction was based solely on it-Case law discussed (Evidence Act, 1872-Sections 24, 25 and 26-Constitution of India-Article 20(1)-And Exception in TADA).

       Held : The confessional statement recorded under Section 15 of TADA Act by a Police Officer authorized therein is admissible in evidence. It is also no more res integra that a confession recorded under Section 15 is a substantive piece of evidence [State through Superintendent of Police, CBI / SIT v. Nalini & Ors. - (1999) 5 SCC 253]; [Devender Pal Singh v. State of NCT of Delhi & Anr. - (2002) 5 SCC 234] and Ravinder Singh @ Bittu v. The State of Maharashtra - JT 2002(4) SC 470]. The maker of a confessional statement can be convicted solely on the basis of his confessional statement made under Section. 15 of the TADA Act. That statement is also substantive evidence against his co-accused. Against the co-accused, though taken as substantive evidence as a rule of prudence, to get support, the Court would look upon corroborative evidence as well. Thus, the fate of not only the accused but the co-accused as well hinges on the confessional statement recorded by a Police officer under Section 15 of the TADA Act. Such a statement cannot be recorded in a mechanical manner. All the safeguard provided in the Act and the Rules have to be strictly adhered to. There can be no room for any latitude in the matter and manner of recording of a confessional statement. Any material discrepancy will be fatal unless satisfactorily explained by the prosecution. The burden of proving confessional statements always remains on the prosecution. It is for the prosecution to prove that the confessional statement that is being relied upon was voluntary, truthful and all safeguards were complied with while recording it. The burden of proving such confessional statement on the prosecution cannot be lightened by urging that the confession was not retracted or challenged except in the cross-examination of the witnesses. Undoubtedly, when the confession is duly recorded and is proved to be voluntary and truthful, then it can be taken to be the most reliable piece of evidence coming from the accused himself and made sole basis of conviction in the manner stated earlier, confession being an admission of the guilt. The conviction in the present case is based mainly, if not entirely, on the strength of what is stated in the confessional statements made by accused Nos. 7 and 8. The confessional statements have been recorded by a police officer. It was not contended for the State that the conviction could be supported even if the confessions were inadmissible. (Paras 18, 19, 20 and 21)

       Held after referring (2000) 2 SCC 254 : Thus, what has been laid in the aforesaid case is that the writing of certificate and making the memorandum are mandatory and these matters are not left to be proved by oral evidence alone. The requirement of the Rule is preparation of contemporaneous record regarding the manner of recording the confession in the presence of the person making it. This Court, while holding that making of the memorandum is a mandatory requirement of the Rule, further held that what was, not mandatory was the form and words of the certificate and memorandum. Thus, the making of certificate and memorandum was held to be mandatory but not form thereof. In the present case, admittedly no such memorandum has been prepared. That mandatory requirement is sought to be fulfilled by oral deposition of PW18. (Paras 35 and 36)

       Held thereafter : The making of certificate and memorandum is not an empty formality of the Rule. It is required to be made at the end of the confession. The officer certifies the manner in which the statement was given by the accused and was recorded. The satisfaction as per Rule 15(3)(b) of recording officer has substantial relevance on the aspect of voluntary nature of confession, which is the heart of confession for it being made the basis of conviction. (Para 39)

       Held after review of case law : In view of aforesaid discussion, our conclusions are as follows :

        A. Writing the certificate and making the memorandum under Rule 15 (3)(b) is mandatory.

        B. The language of the certificate and the memorandum is not mandatory.

        C. In case the certificate and memorandum is not prepared but the contemporaneous record shows substantial compliance of what is required to be contained therein, the discrepancy can be cured if there is oral evidence of recording officer based on such contemporaneous record.

        D. In absence of contemporaneous record, discrepancy cannot be cured by oral evidence based on memory of the recording officer.

       In the present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession has been voluntarily made. The confession of accused No. 7 does not even state that it was read over to him. Thus, confessional statements are inadmissible and cannot be made basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained. Further, in view of the above, oral evidence could not be led to show compliance of Rule 15(3)(b). That apart, as earlier noticed, in fact, even oral evidence of PW18 does not satisfy the requirement of the Rule. For the reasons aforesaid, we set aside the impugned judgment of the Designated Court, allow the appeals and direct the appellants to be set free forthwith, if not required in any other case. (Paras 46, 47, 48 and 49)