Important Point
When the confessional statement made u/s. 15 of TADA Act is voluntary no corroboration for the purpose of its acceptance is necessary.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987—Sections 3(2)(i), 4, 5—Indian Panel Code, 1860 —Sections 120-B rw/ss 302, 307, 326, 324, 323, 436, 427—Murder—Bomb blast killing nine persons—29 other persons sustained injuries—Criminal conspiracy of members of KLF, a terrorist organisation—Aim to assassinate Mr. Bitta—Appellant apprehended on Airport after about two years of the incident—Confessional statement was voluntary—Appellant’s retraction long after he was taken into judicial custody —Trial Court rightly held the appellant to be guilty—Sentence of death—Whether sustainable—Held, death sentence is the most appropriate sentence in the case—If motion is made in terms of sections 432, 433, 433-A Cr.P.C. and/or Art. 72 or 161 of the Constitution—It may be appropriately dealt with considering factors which weighed with Mr. Justice Shah.
       Majority Opinion [Mr. Justice Arijit Pasayat for himself and for Mr. Justice B.N. Agarwal]:
       Held : Once it is held that the confessional statement is voluntary, it would not be proper to hold that the police has incorporated certain aspects in the confessional statement which were gathered in the investigation conducted earlier. It is to be noted further that the appellant’s so called retraction was long after he was taken into judicial custody. While he was taken to judicial custody on 24.3.1995, after about a month, he made a grievance about the statement having been forcibly obtained. This is clearly a case of after-thought. Since the confessional statement was voluntary, no corroboration for the purpose of its acceptance is necessary. (Para 7)
       Admittedly, the accused was a fugitive and was on the run. At the Indira Gandhi International Airport he was arrested for travelling on a forged passport. It has been accepted by the accused in his statement recorded under Section 313 of the Code that he had sought asylum in Germany and was deported from there on refusal of asylum. As the records reveal Shri K.S. Bedi (PW130) brought to the notice of Shri B.S Bhola (PW121) that on 22.1.1995 the accused wanted his statement to be recorded under Section 15 of the TADA and requested Shri B.S. Bhola (PW121) to do the needful. Shri Bhola talked to the accused after sending everyone except his P.A. (PW131) out of the room, and asked him whether he was making a statement without any fear or duress etc. He was also intimated that the statement could be used in evidence against him. Despite that, the accused wanted his statement to be recorded. Shri Bhola had given time to the accused till 23.1.1995. The I.O. was directed to produce the accused on the next date at 2.00 p.m. On 23.1.1995 the accused was again produced in the office of Operation Cell, Lodhi Estate. He was asked whether the statement was voluntary or under pressure. After ensuring that all procedures and safeguards have been observed the statement was recorded. A mere statement that requisite procedures and safeguards were not observed or that statement was recorded under duress or coercion, is really of no consequence. Such a stand can be taken in every case by the accused after having given the confessional statement. It could not be shown as to why the officials would falsely implicate the accused. There is a statutory presumption under Section 114 of the Evidence Act that judicial and official acts have been regularly performed. The accepted meaning of Section 114(e) is that when an official act is proved to have been done, it will be presumed to have been regularly done. (Para 10)
       The plea that acquittal of co-accused has rendered prosecution version brittle, has no substance. Acquittal of co-accused was on the ground of non-corroboration. That principle as indicated above has no application to accused himself. (Para 28)
       As the factual scenario of the present case shows, at least nine persons died, several persons were injured, a number of vehicles caught fire and were destroyed on account of the perpetrated acts. The dastardly acts were diabolic in conception and cruel in execution. The “terrorists” who are sometimes described as “death merchants” have no respect for human life. Innocent persons lose their lives because of mindless killing by them. Any compassion for such persons would frustrate the purpose of enactment of TADA, and would amount to misplaced and unwarranted sympathy. Death sentence is the most appropriate sentence in the case at hand, and learned trial Judge has rightly awarded it. (Para 32)
       Minority Opinion [Mr. M. B. Shah, J.]:
       Without there being corroborative evidence, it would be difficult to solely rely upon the so-called confessional statement and convict the accused and that too when the confessional statement is recorded by the investigating officer. (Para 59)
       When rest of the accused who are named in the confessional statement are not convicted or tried, this would not be a fit case for convicting the appellant solely on the basis of so-called confessional statement recorded by the police officer. (Para 61)
       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 15—Terrorist and Disruptive Activities (Prevention) Rules, 1987—Confessional statement recorded by a police officer—Admissibility—Voluntariness of confession—Conviction based on confession without corroboration—Whether sustainable—(Yes). (Paras 5 to 7)
       (iii) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 15—Confessional statement—Manner of recording of statement—Confessional statement recorded in a computer—Whether a ground for holding that confessional statement was not voluntary—(No). (Para 10)

Judgment

Arijit Pasayat, J.—(Majority opinion)

Notwithstanding my profound respect for Brother Shah’s erudition, I am unable to agree with his conclusions. While dealing with an accused tried under the TADA, certain special features of the said Statute need to be focused. It is also necessary to find out the legislative intent for enacting it. It defines “terrorist acts” in Section 2(h) with reference to Section 3(1) and in that context defines a terrorist. It is not possible to define the expression ‘terrorism’ in precise terms. It is derived from the word ‘terror’. As the Statement of Objects and Reasons leading to enactment of the TADA is concerned, reference to The Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the ‘Old Act’) is necessary. It appears that the intended object of the said Act was to deal with persons responsible for escalation of terrorist activities in many parts of the country. It was expected that it would be possible to control the menace within a period of two years, and life of the Act was restricted to the period of two years from the date of its commencement. But noticing the continuanc.e of menace, that too on a larger scale TADA has been enacted. Menace of terrorism is not restricted to our country, and it has become a matter of international concern and the attacks on the World Trade Centre and other places on 11th September, 2001 amply show it. Attack on the Parliament on 13th December, 2001 shows how grim the situation is. TADA is applied as an extreme measure when police fails to tackle with the situation under the ordinary penal law. Whether the criminal act was committed with an intention to strike terror in the people or section of people would depend upon the facts of each case. As was noted in Jayawant Dattatray Suryarao etc. etc. vs. State of Maharashtra etc. etc. (2001 AIR SCW 4717), for finding out the intention of the accused, there would hardly be a few cases where there would be direct evidence. It has to be mainly inferred from the circumstances of each case.

2. In Hitendra Vishnu Thakur and Ors. vs. State of Maharashtra and Ors. (1994(4) SCC 602), this Court observed that “the legal position remains unaltered that the crucial postulate for judging whether the offence is a terrorist act falling under Act or not is whether it was done with the intent to overawe the Government as by law established or to strike terror in the people etc. A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity is to be one that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. It is in essence a deliberate and systematic use of coercive intimidation”. As was noted in the said case, it is a common feature that hardened criminals today take advantage of the situation and by wearing the cloak of terrorism, aim to achieve acceptability and respectability in the society; because in different parts of the country affected by militancy, a terrorist is projected as a hero by a group and often even by many misguided youth. As noted at the outset, it is not possible to precisely define “terrorism”. Finding a definition of “terrorism” has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon, definition. Terminology consensus would however, be necessary’ for a single comprehensive convention on terrorism, which some countries favour in place of the present 12 piecemeal conventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State’s “terrorist” is another State’s “freedom fighter”. If terrorism is define

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2002 Supreme(SC) 418

Important Point When the confessional statement made u/s. 15 of TADA Act is voluntary no corroboration for the purpose of its acceptance is necessary.

Cases Referred (22)

Important Point
When the confessional statement made u/s. 15 of TADA Act is voluntary no corroboration for the purpose of its acceptance is necessary.