2003(4) Crimes 29 (SC)
Supreme Court of India
(From Designated Court, TADA, New Delhi)
Doraiswamy Raju & Arijit Pasayat, JJ.
Nazir Khan & Ors. - Appellants
versus
State of Delhi - Respondent
Criminal Appeal No. 734 of 2003
With
Death Reference (Crl.) No. 1 of 2003
And
Criminal Appeal No..... (D-14990 of 2002)
Decided on 22-8-2003

Important Point
In order to bring the offences within the parameters of Section 3(2)(i) of TADA Act, the death sentence is permissible to be imposed when the terrorist act has resulted in the death of any person and death of two police officials when terrorists successfully escaped by firing at the police, such an act is not covered by the provision justifying the death sentence.

Headnote:(i) Indian Penal Code, 1860 - Sections 364A, 121A, 122, 124A rw/s 120B - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3 and 4 - Foreigners Act, 1946 - Section 14 - Agreement for mission to perpetrate terrorist activities in India - Umar Shaikh, a British national was advised to organize kidnapping of foreign nationals visiting India and to pressurize Indian Government to release some dreaded militants confined in jails of India - Incidents of kidnapping and abduction of foreign nationals - Umar was arrested when police raided their hide outs - Arrest of other accused from other hide outs - On interrogation, all accused persons claimed to be members of Harkut-ul-Ansar, a terrorist ­organisation - Before completion of trial, Umar Sheikh was allowed to leave the country along with other militants in exchange of passengers who had been made hostages in Indian Air Lines hijacked flight - Other accused convicted for offences under Sections 121A, 122, 124A, IPC - Convictions of A1, A3 and A8 under Section 3(1)(i) of TADA Act altered to Section 3(1)(ii) of TADA Act - Conviction under Section 364A rw/s 120B maintained - Con­viction of concerned accused under Section 3(4) TADA Act and Section 14, Foreigners Act also sustained.

       Held : The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence that reflect more sublet considerations of culpability that are raised by the special facts of each case, Punishment ought always to fit with the crime. In the case at hand, the entire planning for commission of offence punishable under Section 364A was masterminded and executed by Umar Sheikh who has managed presently to go out of net of law. In his case. death sentence may have been appropriate. But in case of the co-conspirators (the present six accused appellants) similar approach is not warranted on the peculiar facts found/established. No distinctive feature has been indicated to impose two different sentences i.e. death sentence for three and life sentence for three others. There is no appeal by the prosecution to enhance the sentence in those cases where life sentence has been imposed. It would be therefore appropriate to impose life sentence on all the six accused appellants. In the ultimate, convictions of A-1, A-3 and A-8 under Section 3(1)(i) of TADA Act is altered to Section 3(1)(ii) of TADA Act. Their convictions under Sections 121A, 122 and 124 IPC and sentences imposed are maintained. The conviction under Section 364-A read with Section 120B IPC is maintained, as it is the conviction under Section 3(4) of the TADA Act and Section 14 of the Foreigners Act for the concerned accused appellant along with sentence imposed. (Paras 42 to 44)

       (ii) Indian Penal Code, 1860 - Sections 120B and 120A - Criminal conspiracy, offence of - Essential ingre­dient - Agreement to commit an offence - Failure to prove overt act, not fatal.

       Held : The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in section 120B. (Para 20)

       (iii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 15 - Confessional statement - Admissibility - Confession must be voluntary - Question whether a confession is voluntary or not is always a question of fact - It is for accused to show and satisfy the Court that confessional statement was not made voluntarily - Confessional statement of accused can be relied upon for purpose of conviction - No further corroboration is necessary if it relates to the accused himself - Court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence - Evidence Act, 1872 - Sections 24 to 27.

       Held : It is to be noted that the legislature has set different standards of admissibility of a confessional statement made by an accused under TADA Act from those made in other criminal proceedings. A confessional statement recorded by a police officer not below the rank of Superintendent of Police under Section 15 of TADA Act is admissible, while it is not so admissible unless made to the Magistrate under Section 25 of the Evidence Act. It appears, consideration of a confessional statement of an accused to a police officer except to the extent permitted under Section 27 of the Evidence Act is not permissible. There is one common feature, both in Section 15 of TADA Act and Section 24 of the Evidence Act that the confession has to be voluntary. Section 24 of the Evidence Act interdicts a confession, if it appears to the Court to be the result of any inducement, threat or promise in certain conditions. The principle therein is that confession must be voluntary. Section 15 of TADA Act also requires the confession to be voluntary. Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak nothing but the truth. (Para 23)

       The crux of making a statement voluntarily is, what is intentional, intended, unimpelled by other influences, acting on one's own will, through his own conscience. Such confessional statements are made mostly out of a thirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart. As was observed in Nalini's case (supra) TADA Act was enacted to meet any extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Section 24 of the Evidence Act deals with confession caused by inducements, threat or promise, which is irrelevant in criminal proceedings. The expression 'confession' has not been defined in the Evidence Act. Broadly speaking, it is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. Law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898 (for short 'the old Code') corresponding to identical provisions of the Code. Confession is a species of admission. A confession or admission is evidence against its maker, if its admissibility is not excluded by some provision of law. Law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary. At that stage, the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. The question whether a confession is voluntary or not is always a question of fact. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. (Paras 23 & 24)

       (iv) Terrorist and Disruptive Activities (Prevention) Act - Section 15 - Indian Penal Code, 1860 - Section 120B - Criminal conspiracy to kidnap foreign nationals in India - Confession made u/s 15 TADA Act reveals meticulous planning done by Umar Sheikh - He organised all activities for making arrangements for the accused and other terrorists - Confession held admissible.

       Held : The trial Court was justified in its conclusions by holding the accused appellants guilty. When an accused is a participant in a big game planned, he cannot took the advantage of being ignorant about the finer details applied to give effect to the conspiracy hatched, for example, A-7 is stated to be ignorant of the conspiracy and the kidnapping. But the factual scenario described by the co-accused in the statements recorded under Section 15 of the TADA Act shows his deep involvement in the meticulous planning done by Umar Sheikh. He organized all the activities for making arrangements for the accused and other terrorists. Confessional statement of A-2 shows how he got acquainted with bigger players like Shahji and Mohmood @ Ayub (A-7) and others who used to visit Farooque. His presence when Umar Sheikh showed photographs of Americans kidnapped has also been established by confessional statement. The officials who were of the requisite rank recorded the confessional statements after meticulously following the procedural requirements of the TADA Act and Terrorist and Disruptive Activities (Prevention) Rules, 1987 (in short the 'TADA Rules'). Though a faint attempt was made to say that the statement was not voluntary, the fact that there was no retraction at any point of time and particularly, when they were brought before the concerned Magistrate for confirmation of the fact that the statement had been recorded by the police officials, the stand appears to be afterthought. The object and the purpose for which the conspiracy was hatched is clear from the fact that messages were sent to Embassies, government officials, high dignitaries and the medias indicating the nature of the ransom, and the consequences if demanded ransom was not fulfilled. The circumstances clearly show the role played by each of the accused in the conspiracy. (Paras 27 & 28)

       (v) Indian Penal Code, 1860 - Sections 121A, 122 and 124 - Offences against State - Preaching disaffection towards the Government - Accused persons, Pakistani nationals trying to overawe Government of India by criminal force - Right to propagate legitimate political activities, scope of - Expression ‘waging war’ - Sedition - Meanings.

       Held : The Trial Court has convicted the accused under Sections 121A, 122 and 124 IPC. For convicting the accused persons under the aforesaid provisions, the trial Court has relied on the fact that the accused persons were trying to overawe the Government of India by criminal force and to bring out hatred and contempt in the people of India and to arouse dissatisfaction in a section of people in India against the Government of India established by laws and collected materials and arms for the aforesaid offences. The line dividing preaching disaffection towards the Government and legitimate political activity in a democratic set up cannot be neatly drawn. Where legitimate political criticism of the Government in power ends and disaffection begins, cannot be ascertained with precision. The demarcating line is thin and wavy. (Paras 29 & 30)

       It is the fundamental right of every citizen to have his own political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene any provision of law. Thus where the pledge of a Society amounted only to an undertaking to propagate the political faith that capitalism and private ownership are dangerous to the advancement of society and work to bring about the end of capitalism and private ownership and the establishment of a socialist State for which others are already working under the lead of the working classes, it was held that it was open to the members of the Society to achieve these objects by all peaceful means, ceaselessly fighting public opinion that might be against them and opposing those who desired the continuance of the existing order of society and the present Government; that it would also be legitimate to presume that they desired a change in the existing Government so that they could carry out their programme and policy; that the mere use of the words 'fight' and 'war' in their pledge did not necessarily mean that the Society planned to achieve its object by force and violence. (Para 33)

       The expression "waging war" means and can only mean waging war in the manner usual in war. In other words, in order to support a conviction on such a charge it is not enough to show that the persons charged have contrived to obtain possession of an armoury and have, when called upon to surrender it, used the rifles and ammunition so obtained against the Government troops. It must also be shown that the seizure of the armoury was part and parcel of a planned operation and that their intention in resisting the troops of the Government was to overwhelm and defeat these troops and then to go on and crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining the possession of the machinery of Government or until those in possession of it yielded to the demands of their leaders. (Para 34)

       Section 124A deals with 'Sedition'. Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert the Government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. ''Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. (Para 38)

        In the aforesaid analysis, the offences punishable under Sections 121A, 122, 124A are clearly established and sufficiently and properly stand substantiated, on the overwhelming materials available on record. (Para 39)

       (vi) Terrorist and Disruptive Activities (Prevention) Act - Section 3(2)(i) - Death sentence permissible when the act resulted in death of any person - Kidnapping and abduction of foreign nationals by accused, Pakistani nationals - Ransom letters and threats issued to concerned embassies - Death of two police officials when police surrounded their hideout and some terrorists wanted to escape - Imposition of death sentence - Whether justified - (No) - Imposition of life sentence.

       Held : In order to bring the offences within the parameters of Section 3(2)(i) of TADA Act, the death sentence is permissible to be imposed when the, act has resulted in the death of any person. Under Clause (ii) of sub-section (2) of Section 3, in any other case, the maximum sentence is imprisonment for life. In the case at hand except the killing of two police officials, no other death has resulted. The ransom letters and the threats had not resulted in any death. Further, the direct involvement of the present accused appellants in the killing of the two police officials has not been established by cogent evidence. There is no evidence that any of the accused was directly or indirectly involved in the killings. The deaths occurred when police surrounded the hideout and some terrorists wanted to escape. It is not the case of the prosecution that the accused-appellants were inside or that they escaped during the shoot out or that any of them fired any shot or that there was any conspiracy in those regards. The action of those terrorists who successfully ­escaped by firing at the police appears to be independent of the present conspiracy and not shown to be related in any manner. There is nothing on record to involve or connect them with the design, conspiracy or action for which the appellants are being now dealt with. Neither their names nor their identity or even their role in the conspiracy with which we are concerned has ever been placed on record to connect them or their actions with the present group of conspirators and their design. The punishment for terrorists act is provided in sub-section (2) of Section 3. For the purpose of bringing in application of Section 3(2)(i) of the TADA Act, the terrorist act should have resulted in the death of any person. In other cases clause (ii) operates. Sub-section (1) provides as to commission of which acts can be considered to be a terrorist act. Above being the position, we feel the imposition of death sentence is not at any rate a compulsion in this case and cannot be imposed and only life sentence can be imposed. (Para 40)

       Result : Death reference and appeals accordingly disposed of.