2004 Supreme(SC) 1196

2004(7) Supreme 461
SUPREME COURT OF INDIA
(From Additional Judge, Designated Court, District Jail, Nabha, District Patiala at Punjab)
K.G. Balakrishnan and Dr. AR. Lakshmanan, JJ.
Hardeep Singh Sohal etc. -Appellants
versus
State of Punjab through CBI -Respondent
Criminal Appeal No. 531 of 2004
With
Criminal Appeal No. 577 of 2004
Decided on 28-9-2004
Counsel for the Parties :
For the Appellants : Sushil Kumar, Sr. Advocate, Adolf Mathew, R.P. Wadhwani, Vinay Arora, Sanjay Jain, Advocates.
For the Respondents : P.P. Malhotra, Additional Solicitor General, Sudhir Walia, Addl. Advocate General for State, Ms. Naresh Bakshi, Ajit Bhasme, Rajeev Sharma, Vineet Malhotra, S. Sharma, B.V. Balram Das and P. Parmeswaran, Advocates.

IMPORTANT POINT
Confession recorded u/s 15 of TADA Act against co-accused is admissible only if the confessor was charged and tried in the same case together with co-accused.

Headnote:(i) Indian Penal Code, 1860-Sections 120B r/w 302 and Section 3(3) of TADA Act-Appellants two doctors entered into conspiracy with third accused absconding to kill deceased and deceased was killed by absconding accused by fire-arm shots-Special Judge found appellants guilty on basis of evidence of confession of absconding accused recorded by PW34, Superintendent of Police and extra judicial confession of absconding accused before PW42, wife of deceased-Appeal-Extra judicial confession made by absconding accused could be considered u/s 30 of Evidence Act-It could not be used against appellants when absconding accused had not been tried along with appellants-Confession of absconding accused recorded u/s 15 of TADA Act by PW 34 could be admissible only if conferror was charged and tried in same case together with co-accused-Trial Court erred in making use of such confession against appellants-Conviction of appellants was liable to be set aside. (Paras 4, 5, 12, 13 and 19 to 21)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987-Section 15-Confession of co-accused-Admissibility-It could be used provided co-accused who made confession was charged and tried in same case together with accused.

       Held : Prior to the Amendment Act 43 of 1993, if a confession had been made by a co-accused that he had committed the offence, the Designated Court could draw a presumption that the accused had committed such offence, unless the contrary was proved. This provision was completely taken away and instead of that the confession of a co-accused recorded under Section 15 of the TADA Act was made admissible subject to certain conditions. One major change that was brought into effect was that such confession recorded under Section 15 of the TADA Act by a co-accused could be made use of against that accused provided the co-accused is charged and tried in the same case together with the accused. The scope and ambit of the confession recorded under Section 15 of the TADA Act was considered elaborately by a 3-Judge Bench of this Court in State vs. Nalini (1999) 5 SCC 253. The majority decision in that case was that the confession recorded under Section 15 of TADA Act is a substantive evidence, although Thomas, J., relying on the earlier decision of this Court in Kalpnath Rai vs. State (Through CBI), (1997) 8 SCC 732 held that even if confession of an accused is admissible under Section 15 of TADA Act, it is not a substantive piece of evidence and cannot be used against a co-accused unless corroborated by other evidence. However, the majority consisting of Wadhwa and Quadri, JJ held that Section 15 of the TADA Act starts with a non obstante clause as it says that neither the Evidence Act nor the Code of Criminal Procedure will apply and this was certainly a departure from the ordinary law and when the legislature enacted that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30 and, therefore, confession recorded under Section 15 of the TADA Act is admissible against the co-accused as a substantive evidence. However, it was clarified that substantive evidence does not necessarily mean substantial evidence. It is the quality of the evidence that matters. (Para 11)

       (iii) TADA Act, 1987-Section 15 r/w Rule 15 of Rules, 1987-Confession of an accused-Admissible-Constitutional validity upheld as sufficient safe guards made in rules as to manner in which confession is to be recorded.

       Held : The constitutional validity of Section 15 of the TADA Act was challenged. A Constitution Bench of this Court in Kartar Singh vs. State of Punjab (1994) 3 SCC 569 upheld the constitutional validity of the said provision. The contention urged in Kartar Singh s case (supra) was that the procedure in the TADA Act is the antithesis of a just, fair and reasonable procedure and this power could be abused to extort confession by unlawful means by using third-degree methods. This plea was rejected on the ground that sufficient safeguards have been made in the rules as to the manner in which the confession is to be recorded. Rule 15 extracted above would show that confession shall be in writing and signed by the person who makes the confession. The police officer shall also 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 and such police officer shall make a memorandum at the end of the confession and the proforma of such certificate also is appended to Rule 15. (Para 15)