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SUPREME COURT OF INDIA
P. Sathasivam, Jagdish Singh Khehar, JJ.
State of Maharashtra – Appellant
Versus
Kamal Ahmed Mohammed Vakil - Ansari & Ors. – Respondents
CRIMINAL APPEAL NO.___445______OF 2013
(Arising out of SLP (Crl.) No. 9707 of 2012)
Decided On : 14-03-2013
(b) Indian Evidence Act, 1872 - Sections 24 to 26 - Confessional statement - Made before Police is inadmissible - Further, such statement can be used against the accused and none else - Accused in special case no. 4 of 2009 making confessional statement before Police - Said accused not accused in special case no. 21 of 2006 - Said confessional statement not admissible in special case no. 21. (Paras 19 and 22)
(c) Indian Evidence Act, 1872 - Section 30 - Persons accused in special case no. 4/2009 and not special case no. 21/2006 - Making confessional statement before Police - Neither being tried with special case no. 21 nor implicating any accused thereof - Such statement not admissible in special case no. 21/2006. (Paras 20 and 21)
AIR 1998 SC 1686 - Distinguished
(d) Indian Evidence Act, 1872 - Section 6 - Confessional statement - Recorded two years after the occurrence - Not part of "facts in issue", i.e., bomb blasts in 2006 - Not admissible. (Para 29)
1997 Cr.LJ 3854 - Cited with approval
(e) Indian Evidence Act, 1872 - Sections 11 and 32 - "Existence of facts" and "a statement as to such existence" - Confessional statement - Is a statement as to existence of fact. (Para 32)
(f) Indian Evidence Act, 1872 - Sections 11 - Relevance - Confessional statement made by accused in case no. 4/2009 - Would be relevant inasmuch as it would show culpability of accused in case no. 21/2006 highly improbable. (Para 33)
AIR 1929 Oudh 113; AIR 1934 Allahabad 406; AIR 1940 Madras 273; (1907) 9 Bombay Law Reporter 1047; AIR 1923 Calcutta 290 - Cited with approval
(g) Indian Evidence Act, 1872 - Section 60 r/w section 11 - Confessional statement - Constitutes "a statement as to the existence of such fact" - Cannot be proved by persons before whom made - Must be proved by the persons making it. (Para 35)
(h) Indian Evidence Act, 1872 - Section 32 - Persons making confessional statements in Special Case no. 4 of 2009 available and their presence can be procured to be presented as defence witnesses - Section 32 cannot be invoked to prove said confessional statement by persons recording the same. (Para 37)
(i) Indian Evidence Act, 1872 - Section 132 - Confessional statements made by accused cannot be proved in evidence through the statements of persons who recorded the same - Article 20 of the Constitution not applicable. (Para 39)
(j) Maharashtra Control of Organised Crime Act, 1999 - Section 18 - Overrides sections 24 and 25 of Evidence Act, 1872 - Confessional statements admissible in evidence - But for the accused himself or co-accused persons - Such statement will not be admissible in a case in which the maker is not an accused or co-accused. (Para 40)
(k) Indian Evidence Act, 1872 - Sections 35 and 80 - Truthfulness of confessional statement - Can be proved by the maker only - Person recording the same can only prove existence of such statement but not its truthfulness. (Para 43)
Facts of the case:
This case relates to the serial seven bomb blasts in local trains in Mumbai on 11.7.2006.
During course of trial the accused persons wanted to examine officials who recorded their confessional statements and who granted sanction for prosecution under MCOCA. This prayer was declined by the trial court but allowed by the High Court.
The Union of India has assailed this order.
Finding of the Court:
The accused-respondents cannot be permitted to summon the witnesses at serial nos. 63 to 66 as defence witnesses, for the specific objective sought to be achieved by them.
Result : Appeal allowed.
JUDGMENT
Jagdish Singh Khehar, J.
1. On 11.7.2006 there were seven bomb blasts in seven different first class compartments of local trains of Mumbai Suburban Railways. These bomb blasts resulted in the death of 187 persons. Severe injuries on account of the said bomb blasts were caused to 829 persons. These blasts led to the registration of following seven criminal reports:
i) CR No.77 of 2006 at Mumbai Central Police Station.
ii) CR No.78 of 2006 at Mumbai Central Police Station.
iii) CR No.86 of 2006 at Bandra Railway Police Station
iv) CR No.87 of 2006 at Bandra Railway Police Station
v) CR No.41 of 2006 at Andheri Railway Police Station.
vi) CR No.59 of 2006 at Vasai Road Railway Police Station
vii) CR No.156 of 2006 at Borivli Railway Police Station.
In all these cases investigation was transferred to the Anti Terrorists Squad, Mumbai (hereinafter referred to as “the ATS”), wherein the matter was registered as CR No.5 of 2006.
2. In all 13 accused were arrested in connection with the bomb blasts of 11.7.2006. The accused-respondents herein are the accused in the controversy. Initially the accused-respondents were charged with offences punishable under Sections 302, 307, 326, 427, 436, 20A, 120B, 123 and 124 of the Indian Penal Code, 1860 read with Section 34 of the Indian Penal Code. The accused-respondents were also charged with offences under the Indian Explosives Act, the Prevention of Damage to Public Property Act, the offences under the Indian Railways Act and the offences punishable under the Unlawful Activities (Prevention) Act, 1967. Later, the provisions of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as “the MCOCA”) were applied to the case. Thereupon, the accused-respondents were charged under Sections 3(1)(i), 3(2) and 3(4) of the MCOCA. On 30.11.2006 the charge-sheet in CR no.5 of 2006 came to be filed as MCOCA Special Case no.21 of 2006 (hereinafter referred to as Special Case No.21 of 2006) for offences punishable under Sections 302, 307, 324, 325, 326, 327, 427, 436, 120B, 121-A, 122, 123, 124A, 201, 212 Indian Penal Code, 1860, read with Sections 3(1)(i), 3(2), 3(3), 3(4), 3(5), the MCOCA, read with Sections 10, 13, 16, 17, 18, 19, 20, 40 of Unlawful Activities (Prevention) Act, 1967, read with Sections 6, 9B of the Explosives Act, 1884, read with Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908, read with Sections 3, 4 of the Prevention of Damage to Public Property Act, 1984, read with Sections 151, 152, 153, 154 of the Railways Act, 1989, read with Section 12(1)(c) of the Passports Act, 1967.
3. The prosecution case (in Special Case No.21 of 2006) in brief is, that bombs were planted on 11.7.2006 in seven different first class compartments of local trains of Mumbai Suburban Railways by the Students Islamic Movement of India (hereinafter referred to as “the SIMI”). SIMI is a terrorist organization, the accused-respondents are allegedly its members. According to the prosecution, the accused-respondents had conspired to plant bombs at Mumbai’s local trains to create panic in furtherance of terrorist activities being carried out by the SIMI in India.
4. Having examined its witnesses, and having placed on the record of Special Case No.21 of 2006, the necessary exhibits, the prosecution closed its evidence on 4.4.2012. Thereafter, witnesses were examined in defence by the accused-respondents. On 19.7.2012, accused Nos.2, 6, 7 and 13 filed an application (at Exhibit 2891) praying for issuance of summons to 79 witnesses named therein. On 24.7.2012, the accused-respondents filed
another application (at Exhibit 2914), again for summoning defence witness.
The application filed by the accused-respondents, inter alia, included the
names of the following witnesses :
(i) Witness at serial No.63 - Chitkala Zutshi, Additional
Chief Secretary (Home Department)
(ii) Witness at serial No.64 - Vishwas Nangre Patil,
Deputy Commissioner of Police
(iii) witness at serial No.65 - Milind Bharambe,
Deputy Commissi
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