2020 Supreme(SC) 288

SUPREME COURT OF INDIA
S. Abdul Nazeer, Deepak Gupta, JJ.
RAJA @ AYYAPPAN – APPELLANT
Versus
STATE OF TAMIL NADU – RESPONDENT
Criminal Appeal No. 1120 of 2010
Decided on : 01-04-2020

IMPORTANT POINT
(1) Confession which is not free from doubt about its voluntariness, is not admissible in evidence.
(2) If for any reason, a joint trial is not held, confession of a co-accused cannot be held to be admissible in evidence against another accused who would face trial at a later point of time in same case.

Headnote:

(A) Indian Evidence Act, 1872 – Sections 24 to 30 – Confession – Evidentiary value – Confession which is not free from doubt about its voluntariness, is not admissible in evidence – A confession caused by inducement, threat or promise cannot be termed as voluntary confession – Whether a confession is voluntary or not is essentially a question of fact – Section 15(1) of TADA Act is a self-contained scheme for recording confession of an accused charged with an offence under said Act – This provision of law is a departure from provisions of Sections 25 to 30 of Evidence Act – Section 15 of TADA Act operates independently of Evidence Act and Criminal Procedure Code. (Paras 16 and 17)

(B) Terrorist and Disruptive Activities (Prevention) Act, 1987 – Sections 3(3), 4(1), 15 and 19 – Indian Penal Code, 1860 – Section 120B read with Section 5 of Explosive Substances Act, 1908 – Criminal conspiracy to blast Central and State Government buildings with bombs with a view to overawe Government established by law – Conviction and sentence – Though a number of questions were put to accused and answers were elicited, there is no record to show that appellant-accused was warned as required under Section 15 of TADA Act and Rule 15(3) of TADA Rules – Complying with these rules is not an empty formality or a mere technicality as these provisions serve a statutory purpose to ensure a fair trial as guaranteed under Article 21 of Constitution of India – Entire proceedings on record should reflect application of mind into various surrounding circumstances including questions and answers elicited from accused – Mere recording in a certificate will only amount to technical observance of rule but that will not prove voluntariness of statement. In law, it is not technical observance of rules but it is real satisfaction about voluntariness of confession is sine qua non – Confession recorded by police officer is equated to a confession recorded by a Judicial Magistrate under Section 164 Cr.P.C. – Said confession is a substantive piece of evidence – All safeguards which are to be followed by a Magistrate should have been followed by police officer also – Satisfaction arrived at by Magistrate under Section 164 Cr.P.C. is, if doubtful, then, entire confession should be rejected – Questions put by Police Officer and answers elicited and manner in which accused has made statement are all foundations upon which it is to be found out as to whether statement was made voluntarily or not – If certificate is not supported by any of above inputs, then certificate needs to be rejected – There is nothing on record to prove voluntariness of statement – If for any reason, a joint trial is not held, confession of a co-accused cannot be held to be admissible in evidence against another accused who would face trial at a later point of time in same case – Designated Court was not justified in convicting appellant – Judgment and order passed by Presiding Judge, Designated Court set aside and appellant-accused acquitted. (Paras 20, 21, 22, 23, 31 and 34)

Facts of the Case:

Present criminal appeal filed under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 is directed against the judgment and order dated 04.12.2009 passed by the Presiding Judge, Designated Court No.2, Chennai, in Calendar Case No.1/2007, whereby the Designated Court has convicted the appellant and sentenced him to undergo rigorous imprisonment for 2 years under Section 120B IPC and 5 years each under Section 120B IPC read with Section 3(3) and 4(1) of the TADA Act and under Section 120B IPC read with Section 5 of Explosive Substances Act, 1908 and all the sentences imposed were ordered to be run concurrently.

Findings of the Court:

Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession. If for any reason, a joint trial is not held, the confession of a co-accused cannot be held to be admissible in evidence against another accused who would face trial at a later point of time in the same case. We are of the further opinion that if we are to accept the argument of the learned counsel for the respondent State, it is as good as rewriting scope of Section 15 of the TADA Act as amended in the year 1993.

Result : Appeal allowed.