whether a confession of one of the accused persons who was tried earlier [due to split of the case], is admissible in evidence against the
appellant ?. No
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1120 OF 2010
RAJA @ AYYAPPAN … APPELLANT
VERSUS
STATE OF TAMIL NADU … RESPONDENT
J U D G M E N T
S. ABDUL NAZEER, J.
1. This criminal appeal filed under Section 19 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (in short ‘the TADA
Act’) 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
2
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.
2. The case of the prosecution in brief is that during June 1988,
the absconding accused, Ilango @ Kumaran @ Ravi @ Santhosh and
Suku @ Sukumaran @ Kumar, had formed an organization at
Trichy under the name ‘Tamilar Pasarai’, with the object of
achieving separate Statehood for Tamil Nadu and to blast Central
and State Government buildings with bombs with a view to overawe
the Government established by law. The appellant herein and 13
other accused have enrolled themselves in the said organization
and they entered into a criminal conspiracy during June 1988 to
commit an illegal act and to blast the State Government building in
the Secretariat by name ‘Namakkal Kavignar Maligai’ and in
furtherance of the said conspiracy, Suku and Shanmuga Sundaram
had undergone a course in electronics at Tamil Nadu Advanced
Technical Institute, Trichy, and learnt the mechanism for devising
electronic timer, to be used in the time bombs to be manufactured
by them.
3
3. The further case of the prosecution is that during September
1990, the above said Suku had brought electronic printed circuit
board, integrated circuit switches, resisters and directed Shanmuga
Sundram to device electronic timer device, to be attached to time
bomb. The appellant, along with two other accused, wrote slogans
in the paper (MO7) hailing ‘Tamilar Pasarai’ and kept it near the
time bomb on 22.09.1990. The bomb was to be blasted by another
accused, namely, Sukku, in a jerrycan (MO1) containing explosives
with timer devices (MO6), near Namakkal Kavignar Maligai on
22.09.1990. The bomb was noticed before its explosion at about
6.45 a.m. by the Head Constable, G.M. Rajendran (PW1), attached
to Armed Reserves, Madras, and the said bomb was subsequently
defused. Thereafter, information was given by PW1 to the Assistant
Commissioner, incharge of the Fort Police Station, who handed
over the investigation to Parthasarathy (PW21), the then D.S.P.,
who registered the case initially under Section 4 of the Explosive
Substances Act, 1908 and under Sections 2F(d)(1) and (2) read
with Section 13 of the Unlawful Activities (Prevention) Act, 1967.
Subsequently, during the course of investigation, the charges were
4
altered against the accused under Section 120B IPC read with
Sections 3(3) and 4(1) of TADA Act and under Section 5 of the
Explosive Substance Act, 1908.
4. On 24.09.1990, the place of incident was searched by the
bomb disposal squad and the seized items were sent for finger print
examination. A request was also made to the Chief Controller of
Explosives for examining the explosive substance.
5. The statements of witnesses were recorded in respect of the
aforesaid offences on the basis of the information received during
investigation. The Inspector of Police C.B.C.I.D., Thanjavore, raided
the premises of one Abdul Kalam and handed over his custody to
Inspector Raman of ‘Q’ Branch.
6. On 10.05.1993, PW26, the then Superintendent of Police,
SBCID, received the case file pertaining to Cr. No.1 GO/90, Fort
Station, Chennai. Thereafter, he sent the requisition for the
extension of remand of the accused Sathish @ Vadivelu and Abdul
Kalam, on 04.06.1993 and 14.07.1993 respectively. He gave
requisition to the competent authority for sanction to prosecute
Abdul Kalam and Vadivelu and obtained the sanction orders. On
5
receiving the statement of the accused, Chandran, he obtained
sanction for prosecution of Chandran under the TADA Act on
02.09.1993.
7. After completion of the investigation, the police on 03.09.1993,
filed the chargesheet against the accused Nos. 1 to 14 and the
unknown accused, under Section 120B read with Section 3(3), (4)
(1) of the TADA Act and Section 5 of the Explosive Substance Act
and Section 7 read with Section 35(1)(A), Section 3 read with
Section 25(1)(B) of the Arms Act. Thereafter, the statements of the
witnesses were recorded by the Special Judge in the aforesaid case.
8. It was the further case of the prosecution that on 24.05.2007,
PW28, Superintendent of Police, Ashok Kumar, ‘Q’ Branch, CID
Head Quarters, Chennai, came to know about the arrest of the
appellantaccused by the DSP ‘Q’ Branch Tanjavore, in connection
with the Mannarkudi P.S. Cr. No.954/94 and as the appellant was
involved in the subject case, the investigating officer was informed
to take necessary steps for the same. Accordingly, PW26 took steps
for the police custody of the appellant from 25.07.2007 to
27.07.2007. During the police custody, the appellant voluntarily
6
wished to give his confessional statement and as such he was
produced before PW28, Superintendent of Police, on 26.07.2007
with a requisition, Ex. P55 by PW27. On 27.07.2007, PW28
recorded the confession of the accused, observing the formalities
under Section 15 of the TADA Act, as Ex. P56 and P57. PW28
made an appendix as per the said provision and the appellant was
handed over to the DSP to be produced before the Court. All the
proceedings were sent in a sealed cover to the Chief Metropolitan
Magistrate through special messenger on 27.07.2007.
9. Thereafter, the charges were framed against the appellant,
read over and explained to him. However, while questioning, the
appellant denied the charges. The prosecution examined as many
as 28 witnesses to prove the case against the accused. The
appellant was examined under Section 313 of the Code of Criminal
Procedure, 1973. The appellant was permitted to be examined as
DW1. He filed the documents Ex. DW1 to DW7. As stated earlier,
the Designated Court has convicted the appellant in the aforesaid
terms.
7
10. Shri S. Nagamuthu, learned senior counsel appearing for the
appellant, has submitted that the Designated Court has relied on
the confession (Ex. P57) of the appellant for his conviction. PW28
who recorded the alleged confession, had not scrupulously followed
the guidelines laid by this Court in Kartar Singh v. State of
Punjab1
. The confession had not been recorded in a free
atmosphere. The prescribed procedure under the TADA Act and the
rules made thereunder had not been followed while recording the
confession. It was also submitted that the confession was not
admissible in evidence as it was not voluntary. In this connection,
he has taken us through the oral evidence of the parties. It was
further submitted that the accused had retracted the confession
subsequently. Therefore, even if the confession is admissible, it is a
weak piece of evidence and the same cannot be the sole evidence for
conviction in the absence of corroboration from independent
sources. It was also submitted that the confession of the coaccused (Ex. P26 and P27) are not admissible in evidence because
there was no joint trial of those two accused with the appellant. The
1 1994 (3) SCC 569
8
confession of the coaccused is not substantive piece of evidence.
The proviso to Section 15(1) of the TADA Act, introduced by
amending the said section in the year 1993 which, in fact,
supplements Section 30 of the Evidence Act, mandates that there
should be a joint trial. Therefore, he submits that the conviction of
the appellant by the Designated Court is unsustainable in law.
11. On the other hand, Shri Jayant Muth Raj, learned Additional
Advocate General, appearing for the respondentState, has
supported the impugned judgment of the Designated Court.
12. We have carefully considered the submissions of the learned
senior counsel made at the Bar and perused the materials placed
on record.
13. The Designated Court has convicted the appellant on the basis
of the confession of the appellant made on 27.02.2007 (Ex. P57)
and the confession statement of the two other coaccused (Ex. P26
and P27).
14. Therefore, the first question for consideration is whether the
appellant has made the confession (Ex. P57) voluntarily and
truthfully.
9
15. The law of confession is embodied in Sections 24 to 30 of the
Indian Evidence Act, 1872. The confession is a form of admission
consisting of direct acknowledgment of guilt in a criminal charge. In
this connection, it is relevant to notice the observations of Privy
Council in Pakala Narayana Swami v. Emperor2 which is as under:
“…..a confession must either admit in terms of an
offence, or at any rate substantially all the fact which
constitute the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating
fact is not by itself a confession….”
16. It is wellsettled that a 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. In State (NCT of Delhi) v. Navjot
Sandhu3
this Court has elaborately considered this aspect as
under:
“29. Confessions are considered highly reliable
because no rational person would make admission
against his interest unless prompted by his
2 1939 PC 47
3
(2005) 11 SCC 600
10
conscience to tell the truth. “Deliberate and voluntary
confessions of guilt, if clearly proved are among the
most effectual proofs in law.” (Vide Taylor’s Treatise
on the Law of Evidence, Vol. I.) However, before acting
upon a confession the court must be satisfied that it
was freely and voluntarily made. A confession by
hope or promise of advantage, reward or immunity or
by force or by fear induced by violence or threats of
violence cannot constitute evidence against the
maker of the confession. The confession should have
been made with full knowledge of the nature and
consequences of the confession. If any reasonable
doubt is entertained by the court that these
ingredients are not satisfied, the court should eschew
the confession from consideration. So also the
authority recording the confession, be it a Magistrate
or some other statutory functionary at the pretrial
stage, must address himself to the issue whether the
accused has come forward to make the confession in
an atmosphere free from fear, duress or hope of some
advantage or reward induced by the persons in
authority. Recognising the stark reality of the
accused being enveloped in a state of fear and panic,
anxiety and despair while in police custody, the
Evidence Act has excluded the admissibility of a
confession made to the police officer.”
17. Section 15(1) of the TADA Act is a selfcontained scheme for
recording the confession of an accused charged with an offence
under the said Act. This provision of law is a departure from the
provisions of Sections 25 to 30 of the Evidence Act. Section 15 of
the TADA Act operates independently of the Evidence Act and the
11
Criminal Procedure Code. In Kartar Singh (supra) a Constitution
Bench of this Court while upholding the validity of the said
provision has issued certain guidelines to be followed while
recording confession. These guidelines have been issued to ensure
that the confession obtained in the preindictment interrogation by
a police officer not lower in rank than a Superintendent of Police is
not tainted with any vice but is in strict conformity with the wellrecognised and accepted aesthetic principles and fundamental
fairness. These guidelines are:
“(1) The confession should be recorded in a free
atmosphere in the same language in which the
person is examined and as narrated by him;
(2) The person from whom a confession has been
recorded under Section 15(1) of the Act, should be
produced before the Chief Metropolitan Magistrate or
the Chief Judicial Magistrate to whom the confession
is required to be sent under Rule 15(5) along with the
original statement of confession, written or recorded
on mechanical device without unreasonable delay;
(3) The Chief Metropolitan Magistrate or the Chief
Judicial Magistrate should scrupulously record the
statement, if any, made by the accused so produced
and get his signature and in case of any complaint of
torture, the person should be directed to be produced
for medical examination before a Medical Officer not
lower in rank than of an Assistant Civil Surgeon;
12
(4) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973, no police officer below
the rank of an Assistant Commissioner of Police in
the Metropolitan cities and elsewhere of a Deputy
Superintendent of Police or a police officer of
equivalent rank, should investigate any offence
punishable under this Act of 1987.
This is necessary in view of the drastic provisions
of this Act. More so when the Prevention of
Corruption Act, 1988 under Section 17 and the
Immoral Traffic Prevention Act, 1956 under Section
13, authorise only a police officer of a specified rank
to investigate the offences under those specified Acts.
(5) The police officer if he is seeking the custody of
any person for preindictment or pretrial
interrogation from the judicial custody, must file an
affidavit sworn by him explaining the reason not only
for such custody but also for the delay, if any, in
seeking the police custody;
(6) In case, the person, taken for interrogation, on
receipt of the statutory warning that he is not bound
to make a confession and that if he does so, the said
statement may be used against him as evidence,
asserts his right to silence, the police officer must
respect his right of assertion without making any
compulsion to give a statement of disclosure.”
18. In Jameel Ahmad v. State of Rajasthan4
this Court has held
that when an accused charged with an offence under the provisions
of the TADA Act, is voluntarily willing to make a confessional
4
(2003) 9 SCC 673
13
statement and if such statement is made and recorded by an officer
not below the rank of Superintendent of Police in a manner
provided in that section, is admissible in evidence. The findings
recorded in this case are as under:
“35. To sum up our findings in regard to the legal
arguments addressed in these appeals, we find:
(i) If the confessional statement is properly recorded,
satisfying the mandatory provision of Section 15 of
the TADA Act and the Rules made thereunder, and if
the same is found by the court as having been made
voluntarily and truthfully then the said confession is
sufficient to base a conviction on the maker of the
confession.
(ii) Whether such confession requires corroboration
or not, is a matter for the court considering such
confession on facts of each case.
(iii) In regard to the use of such confession as against
a coaccused, it has to be held that as a matter of
caution, a general corroboration should be sought for
but in cases where the court is satisfied that the
probative value of such confession is such that it
does not require corroboration then it may base a
conviction on the basis of such confession of the coaccused without corroboration. But this is an
exception to the general rule of requiring
corroboration when such confession is to be used
against a coaccused.
14
(iv) The nature of corroboration required both in
regard to the use of confession against the maker as
also in regard to the use of the same against a coaccused is of a general nature, unless the court
comes to the conclusion that such corroboration
should be on material facts also because of the facts
of a particular case. The degree of corroboration so
required is that which is necessary for a prudent
man to believe in the existence of facts mentioned in
the confessional statement.
(v) The requirement of subrule (5) of Rule 15 of the
TADA Rules which contemplates a confessional
statement being sent to the Chief Metropolitan
Magistrate or the Chief Judicial Magistrate who, in
turn, will have to send the same to the Designated
Court is not mandatory and is only directory.
However, the court considering the case of direct
transmission of the confessional statement to the
Designated Court should satisfy itself on facts of
each case whether such direct transmission of the
confessional statement in the facts of the case
creates any doubt as to the genuineness of the said
confessional statement.”
19. Bearing these principles in mind, let us consider as to whether
the confession of the appellant was voluntary and truthful. The
appellant was examined as DW1. In his evidence he has stated
that he was arrested on 19.05.2007, when he was returning from
Chennai airport. He was detained for two days and was taken to
Trichi, “Q” branch office and was kept there for one day. During
15
this period, he was allegedly tortured by the police. On 22.05.2007
he was produced before the Judicial Magistrate, Trichi, and was
remanded by the court till 25.07.2007. PW27 made an application
requesting for police custody of the accused for five days and
obtained police custody from 25.07.2007 to 27.07.2007. On
25.07.2007, when the appellant was sitting in the police vehicle,
Mr. Rajendran, ‘Q’ Branch Inspector, told him that he should sign
certain papers, otherwise he would be killed in police custody.
When he was brought before the Designated Court, on the same
day, he informed the same to the learned Judge and gave a petition
(Ex. D1) stating that he was tortured by the police and that he had
nothing to do with the alleged incident. When he was again
produced before the Designated Court, after recording the
confession statement, he gave a petition (Ex. D2) stating that he
has not made any incriminating statement before PW28.
20. On 26.07.2007, PW29 produced the appellant before PW28.
PW28 during his crossexamination has stated that until the
accused was produced on 26.07.2007, the accused was in police
custody. On 26.07.2007, though it has been recorded that a
16
number of questions were put to the accused and the answers were
elicited, there is no record to show that the appellantaccused was
warned as required under Section 15 of the TADA Act and Rule
15(3) of the TADA Rules. During his crossexamination PW28 has
stated that he gave warning to the accused which was not
supported by any contemporary record, namely, Ex. P56 dated
26.06.2007. As it is seen in Ex. P57, only two questions were
asked to the appellant and answers elicited, which do not reflect
any warning as required under the TADA Act and the TADA Rules.
The evidence of PW28 is that he gave the same warning which he
had given on 26.07.2007. There are no contemporary records to
show that the warning was made on 26.07.2007 or 27.07.2007. The
second question asked on 27.07.2007 (per Ex. P57) assumes much
importance. In this question PW28 has only explained to the
accused that he had been produced only to record his statement.
He did not explain to the accused that he had been produced to
record the confession.
21. It was contended by the learned Additional Advocate General,
appearing for the respondent, that the footnote appended to Ex. P
17
56 would satisfy Section 15 of TADA Act and Rule 15 of TADA
Rules. It is necessary to notice here that 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 the Constitution of India. The entire proceedings on
record should reflect application of mind into various surrounding
circumstances including questions and answers elicited from the
accused. Mere recording in a certificate will only amount to
technical observance of the rule but that will not prove the
voluntariness of the statement. In law, it is not the technical
observance of the rules but it is the real satisfaction about the
voluntariness of the confession is sine qua non.
22. It is also necessary to state here that the confession recorded
by the police officer is undoubtedly equated to a confession
recorded by a Judicial Magistrate under Section 164 Cr.P.C. Thus,
the said confession is a substantive piece of evidence. Therefore, all
the safeguards which are to be followed by a Magistrate should
have been followed by the police officer also. It is wellsettled that
the satisfaction arrived at by the Magistrate under Section 164
18
Cr.P.C. is, if doubtful, then, the entire confession should be
rejected.
23. In the instant case, it is evident that from out of the questions
put by PW28 and the answers elicited and the manner in which
the accused has made the statement are all the foundations upon
which it is to be found out as to whether the statement was made
voluntarily or not. If the certificate is not supported by any of the
above inputs, then the certificate needs to be rejected. The police
officer cannot record such a certificate out of his own imagination
and the entire proceedings should reflect that the certificate was
rightly given based on the materials. In the present case, there is
nothing on record to prove the voluntariness of the statement. Ex.
D1 and D2 and other circumstances would go to show that the
appellant could not have made the statement voluntarily. Therefore,
the confession statement of the appellant requires to be rejected.
24. The second question for consideration is whether the
statement of two other coaccused (Ex. P26 and P27) is admissible
in evidence.
19
25. The confession statement of the coaccused was recorded by
the Superintendent of Police (PW20) in Crime No.160/1990. The
appellant was absconding, hence the proclamation order was issued
by the trial court and thereafter the case was split against the
appellant. A separate trial was conducted against the appellant and
the impugned judgment convicting the appellantaccused has been
passed by the Designated Court.
26. The contention of the learned Additional Advocate General,
appearing for the appellant, is that the appellant cannot take the
advantage of his own wrong to thwart the object and purpose of
Section 15 of the TADA Act.
27. Learned senior counsel appearing for the appellant has
submitted that the confession statements of the two coaccused are
not at all admissible in evidence because there was no joint trial of
those two coaccused with the appellant. Therefore, Ex. P26 and
Ex. P27 are not admissible in evidence.
28. Section 30 of the Indian Evidence Act mandates that to make
the confession of a coaccused admissible in evidence, there has to
be a joint trial. If there is no joint trial, the confession of a co
20
accused is not at all admissible in evidence and, therefore, the same
cannot be taken as evidence against the other coaccused. The
Constitution Bench of this Court in Kartar Singh (supra), while
considering the interplay between Section 30 of the Indian
Evidence Act and Section 15 of the TADA Act held that as per
Section 15 of the TADA Act, after the amendment of the year 1993,
the confession of the coaccused, is also a substantive piece of
evidence provided that there is a joint trial.
29. In State v. Nalini and others5 Justice Quadri has held that a
confession of an accused made under Section 15 of the TADA Act is
admissible against all those tried jointly with him. It has been held
thus:
“688. Having excluded the application of Sections 24
to 30 of the Evidence Act to a confession recorded
under Section 15(1) of the TADA Act, a selfcontained
scheme is incorporated therein for recording the
confession of an accused and its admissibility in his
trial with coaccused, abettor or conspirator for
offences under the TADA Act or the Rules made
thereunder or any other offence under any other law
which can jointly be tried with the offence with which
he is charged at the same trial. There is thus no
room to import the requirements of Section 30 of the
Evidence Act in Section 15 of the TADA Act.
5
(1999) 5 SCC 253
21
689. Under Section 15(1) of the TADA Act the
position, in my view, is much stronger, for it says,
‘
“a confession made by a person before a police
officer not lower in rank than a Superintendent
of Police and recorded by such police officer
either in writing or on any mechanical device like
cassettes, tapes or soundtracks from out of
which sounds or images can be reproduced, shall
be admissible in the trial of such person or coaccused, abettor or conspirator for an offence
under this Act or Rules made thereunder,
provided that coaccused, abettor or conspirator
is charged and tried in the same case together
with the accused.”
On the language of subsection (1) of Section 15, a
confession of an accused is made admissible
evidence as against all those tried jointly with him, so
it is implicit that the same can be considered against
all those tried together. In this view of the matter
also, Section 30 of the Evidence Act need not be
invoked for consideration of confession of an accused
against a coaccused, abettor or conspirator charged
and tried in the same case along with the accused.”
30. In Jameel Ahmad (supra), this Court has reiterated the above
position as under:
“30……Therefore we notice that the accepted
principle in law is that a confessional statement of an
accused recorded under Section 15 of the TADA Act
is a substantive piece of evidence even against his co
22
accused provided the accused concerned are tried
together.”
31. In the instant case, no doubt, the appellant was absconding.
That is why, joint trial of the appellant with the other two accused
persons could not be held. As noticed above, Section 15 of the
TADA Act specifically provides that the confession recorded shall be
admissible in trial of a coaccused for offence committed and tried
in the same case together with the accused who makes the
confession. We are of the view, that if for any reason, a joint trial is
not held, the confession of a coaccused 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 respondentState, it is as good as rewriting the scope of
Section 15 of the TADA Act as amended in the year 1993.
32. In Ananta Dixit v. The State6
the Orissa High Court was
considering a similar case under Section 30 of the Evidence Act.
The appellant, in this case, was absconding. The question for
consideration was whether a confession of one of the accused
6 1984 Crl. L.J. 1126
23
persons who was tried earlier, is admissible in evidence against the
appellant. The Court held that the confession of the coaccused was
not admissible in evidence against the present appellant. The Court
held:
“7. As recorded by the learned trial Judge, the
accused Narendra Bahera, whose confessional
statement had been relied upon, had been tried
earlier and not jointly with the appellant and the coaccused person Baina Das. A confession of the
accused may be admissible and used not only
against him but also against a coaccused person
tried jointly with him for the same offence. Section
30 applies to a case in which the confession is made
by accused tried at the same time with the accused
person against whom the confession is used. The
confession of an accused tried previously would be
rendered inadmissible. Therefore, apart from the
evidentiary value of the confession of a coaccused
person, the confession of Narendra Behera was not to
be admitted under Section 30 of the Evidence Act
against the present appellant and the coaccused
Baina Das.”
We are in complete agreement with the view of the High Court.
33. We are of the view that since the trial of the other two accused
persons was separate, their confession statements (Ex.P26 and
P27) are not admissible in evidence and the same cannot be taken
as evidence against the appellant.
24
34. In view of the discussion made above, the Designated Court
was not justified in convicting the appellant. The appeal is
accordingly allowed. The judgment and order dated 4.12.2009
passed by the Presiding Judge, Designated Court No.2, Chennai, in
Calendar Case No.1/2007, is hereby set aside and the appellantaccused is acquitted for the offence for which he was tried. This
Court by order dated 25.19.2010 had granted the bail to the
appellant. Hence, the question of releasing him does not arise. The
bail bond executed by the appellant and the surety, if any, stands
cancelled.
…………………………………………J.
(S. ABDUL NAZEER)
…………………………………………J.
(DEEPAK GUPTA)
New Delhi;
April 1, 2020.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1120 OF 2010
RAJA @ AYYAPPAN … APPELLANT
VERSUS
STATE OF TAMIL NADU … RESPONDENT
J U D G M E N T
S. ABDUL NAZEER, J.
1. This criminal appeal filed under Section 19 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (in short ‘the TADA
Act’) 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
2
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.
2. The case of the prosecution in brief is that during June 1988,
the absconding accused, Ilango @ Kumaran @ Ravi @ Santhosh and
Suku @ Sukumaran @ Kumar, had formed an organization at
Trichy under the name ‘Tamilar Pasarai’, with the object of
achieving separate Statehood for Tamil Nadu and to blast Central
and State Government buildings with bombs with a view to overawe
the Government established by law. The appellant herein and 13
other accused have enrolled themselves in the said organization
and they entered into a criminal conspiracy during June 1988 to
commit an illegal act and to blast the State Government building in
the Secretariat by name ‘Namakkal Kavignar Maligai’ and in
furtherance of the said conspiracy, Suku and Shanmuga Sundaram
had undergone a course in electronics at Tamil Nadu Advanced
Technical Institute, Trichy, and learnt the mechanism for devising
electronic timer, to be used in the time bombs to be manufactured
by them.
3
3. The further case of the prosecution is that during September
1990, the above said Suku had brought electronic printed circuit
board, integrated circuit switches, resisters and directed Shanmuga
Sundram to device electronic timer device, to be attached to time
bomb. The appellant, along with two other accused, wrote slogans
in the paper (MO7) hailing ‘Tamilar Pasarai’ and kept it near the
time bomb on 22.09.1990. The bomb was to be blasted by another
accused, namely, Sukku, in a jerrycan (MO1) containing explosives
with timer devices (MO6), near Namakkal Kavignar Maligai on
22.09.1990. The bomb was noticed before its explosion at about
6.45 a.m. by the Head Constable, G.M. Rajendran (PW1), attached
to Armed Reserves, Madras, and the said bomb was subsequently
defused. Thereafter, information was given by PW1 to the Assistant
Commissioner, incharge of the Fort Police Station, who handed
over the investigation to Parthasarathy (PW21), the then D.S.P.,
who registered the case initially under Section 4 of the Explosive
Substances Act, 1908 and under Sections 2F(d)(1) and (2) read
with Section 13 of the Unlawful Activities (Prevention) Act, 1967.
Subsequently, during the course of investigation, the charges were
4
altered against the accused under Section 120B IPC read with
Sections 3(3) and 4(1) of TADA Act and under Section 5 of the
Explosive Substance Act, 1908.
4. On 24.09.1990, the place of incident was searched by the
bomb disposal squad and the seized items were sent for finger print
examination. A request was also made to the Chief Controller of
Explosives for examining the explosive substance.
5. The statements of witnesses were recorded in respect of the
aforesaid offences on the basis of the information received during
investigation. The Inspector of Police C.B.C.I.D., Thanjavore, raided
the premises of one Abdul Kalam and handed over his custody to
Inspector Raman of ‘Q’ Branch.
6. On 10.05.1993, PW26, the then Superintendent of Police,
SBCID, received the case file pertaining to Cr. No.1 GO/90, Fort
Station, Chennai. Thereafter, he sent the requisition for the
extension of remand of the accused Sathish @ Vadivelu and Abdul
Kalam, on 04.06.1993 and 14.07.1993 respectively. He gave
requisition to the competent authority for sanction to prosecute
Abdul Kalam and Vadivelu and obtained the sanction orders. On
5
receiving the statement of the accused, Chandran, he obtained
sanction for prosecution of Chandran under the TADA Act on
02.09.1993.
7. After completion of the investigation, the police on 03.09.1993,
filed the chargesheet against the accused Nos. 1 to 14 and the
unknown accused, under Section 120B read with Section 3(3), (4)
(1) of the TADA Act and Section 5 of the Explosive Substance Act
and Section 7 read with Section 35(1)(A), Section 3 read with
Section 25(1)(B) of the Arms Act. Thereafter, the statements of the
witnesses were recorded by the Special Judge in the aforesaid case.
8. It was the further case of the prosecution that on 24.05.2007,
PW28, Superintendent of Police, Ashok Kumar, ‘Q’ Branch, CID
Head Quarters, Chennai, came to know about the arrest of the
appellantaccused by the DSP ‘Q’ Branch Tanjavore, in connection
with the Mannarkudi P.S. Cr. No.954/94 and as the appellant was
involved in the subject case, the investigating officer was informed
to take necessary steps for the same. Accordingly, PW26 took steps
for the police custody of the appellant from 25.07.2007 to
27.07.2007. During the police custody, the appellant voluntarily
6
wished to give his confessional statement and as such he was
produced before PW28, Superintendent of Police, on 26.07.2007
with a requisition, Ex. P55 by PW27. On 27.07.2007, PW28
recorded the confession of the accused, observing the formalities
under Section 15 of the TADA Act, as Ex. P56 and P57. PW28
made an appendix as per the said provision and the appellant was
handed over to the DSP to be produced before the Court. All the
proceedings were sent in a sealed cover to the Chief Metropolitan
Magistrate through special messenger on 27.07.2007.
9. Thereafter, the charges were framed against the appellant,
read over and explained to him. However, while questioning, the
appellant denied the charges. The prosecution examined as many
as 28 witnesses to prove the case against the accused. The
appellant was examined under Section 313 of the Code of Criminal
Procedure, 1973. The appellant was permitted to be examined as
DW1. He filed the documents Ex. DW1 to DW7. As stated earlier,
the Designated Court has convicted the appellant in the aforesaid
terms.
7
10. Shri S. Nagamuthu, learned senior counsel appearing for the
appellant, has submitted that the Designated Court has relied on
the confession (Ex. P57) of the appellant for his conviction. PW28
who recorded the alleged confession, had not scrupulously followed
the guidelines laid by this Court in Kartar Singh v. State of
Punjab1
. The confession had not been recorded in a free
atmosphere. The prescribed procedure under the TADA Act and the
rules made thereunder had not been followed while recording the
confession. It was also submitted that the confession was not
admissible in evidence as it was not voluntary. In this connection,
he has taken us through the oral evidence of the parties. It was
further submitted that the accused had retracted the confession
subsequently. Therefore, even if the confession is admissible, it is a
weak piece of evidence and the same cannot be the sole evidence for
conviction in the absence of corroboration from independent
sources. It was also submitted that the confession of the coaccused (Ex. P26 and P27) are not admissible in evidence because
there was no joint trial of those two accused with the appellant. The
1 1994 (3) SCC 569
8
confession of the coaccused is not substantive piece of evidence.
The proviso to Section 15(1) of the TADA Act, introduced by
amending the said section in the year 1993 which, in fact,
supplements Section 30 of the Evidence Act, mandates that there
should be a joint trial. Therefore, he submits that the conviction of
the appellant by the Designated Court is unsustainable in law.
11. On the other hand, Shri Jayant Muth Raj, learned Additional
Advocate General, appearing for the respondentState, has
supported the impugned judgment of the Designated Court.
12. We have carefully considered the submissions of the learned
senior counsel made at the Bar and perused the materials placed
on record.
13. The Designated Court has convicted the appellant on the basis
of the confession of the appellant made on 27.02.2007 (Ex. P57)
and the confession statement of the two other coaccused (Ex. P26
and P27).
14. Therefore, the first question for consideration is whether the
appellant has made the confession (Ex. P57) voluntarily and
truthfully.
9
15. The law of confession is embodied in Sections 24 to 30 of the
Indian Evidence Act, 1872. The confession is a form of admission
consisting of direct acknowledgment of guilt in a criminal charge. In
this connection, it is relevant to notice the observations of Privy
Council in Pakala Narayana Swami v. Emperor2 which is as under:
“…..a confession must either admit in terms of an
offence, or at any rate substantially all the fact which
constitute the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating
fact is not by itself a confession….”
16. It is wellsettled that a 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. In State (NCT of Delhi) v. Navjot
Sandhu3
this Court has elaborately considered this aspect as
under:
“29. Confessions are considered highly reliable
because no rational person would make admission
against his interest unless prompted by his
2 1939 PC 47
3
(2005) 11 SCC 600
10
conscience to tell the truth. “Deliberate and voluntary
confessions of guilt, if clearly proved are among the
most effectual proofs in law.” (Vide Taylor’s Treatise
on the Law of Evidence, Vol. I.) However, before acting
upon a confession the court must be satisfied that it
was freely and voluntarily made. A confession by
hope or promise of advantage, reward or immunity or
by force or by fear induced by violence or threats of
violence cannot constitute evidence against the
maker of the confession. The confession should have
been made with full knowledge of the nature and
consequences of the confession. If any reasonable
doubt is entertained by the court that these
ingredients are not satisfied, the court should eschew
the confession from consideration. So also the
authority recording the confession, be it a Magistrate
or some other statutory functionary at the pretrial
stage, must address himself to the issue whether the
accused has come forward to make the confession in
an atmosphere free from fear, duress or hope of some
advantage or reward induced by the persons in
authority. Recognising the stark reality of the
accused being enveloped in a state of fear and panic,
anxiety and despair while in police custody, the
Evidence Act has excluded the admissibility of a
confession made to the police officer.”
17. Section 15(1) of the TADA Act is a selfcontained scheme for
recording the confession of an accused charged with an offence
under the said Act. This provision of law is a departure from the
provisions of Sections 25 to 30 of the Evidence Act. Section 15 of
the TADA Act operates independently of the Evidence Act and the
11
Criminal Procedure Code. In Kartar Singh (supra) a Constitution
Bench of this Court while upholding the validity of the said
provision has issued certain guidelines to be followed while
recording confession. These guidelines have been issued to ensure
that the confession obtained in the preindictment interrogation by
a police officer not lower in rank than a Superintendent of Police is
not tainted with any vice but is in strict conformity with the wellrecognised and accepted aesthetic principles and fundamental
fairness. These guidelines are:
“(1) The confession should be recorded in a free
atmosphere in the same language in which the
person is examined and as narrated by him;
(2) The person from whom a confession has been
recorded under Section 15(1) of the Act, should be
produced before the Chief Metropolitan Magistrate or
the Chief Judicial Magistrate to whom the confession
is required to be sent under Rule 15(5) along with the
original statement of confession, written or recorded
on mechanical device without unreasonable delay;
(3) The Chief Metropolitan Magistrate or the Chief
Judicial Magistrate should scrupulously record the
statement, if any, made by the accused so produced
and get his signature and in case of any complaint of
torture, the person should be directed to be produced
for medical examination before a Medical Officer not
lower in rank than of an Assistant Civil Surgeon;
12
(4) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973, no police officer below
the rank of an Assistant Commissioner of Police in
the Metropolitan cities and elsewhere of a Deputy
Superintendent of Police or a police officer of
equivalent rank, should investigate any offence
punishable under this Act of 1987.
This is necessary in view of the drastic provisions
of this Act. More so when the Prevention of
Corruption Act, 1988 under Section 17 and the
Immoral Traffic Prevention Act, 1956 under Section
13, authorise only a police officer of a specified rank
to investigate the offences under those specified Acts.
(5) The police officer if he is seeking the custody of
any person for preindictment or pretrial
interrogation from the judicial custody, must file an
affidavit sworn by him explaining the reason not only
for such custody but also for the delay, if any, in
seeking the police custody;
(6) In case, the person, taken for interrogation, on
receipt of the statutory warning that he is not bound
to make a confession and that if he does so, the said
statement may be used against him as evidence,
asserts his right to silence, the police officer must
respect his right of assertion without making any
compulsion to give a statement of disclosure.”
18. In Jameel Ahmad v. State of Rajasthan4
this Court has held
that when an accused charged with an offence under the provisions
of the TADA Act, is voluntarily willing to make a confessional
4
(2003) 9 SCC 673
13
statement and if such statement is made and recorded by an officer
not below the rank of Superintendent of Police in a manner
provided in that section, is admissible in evidence. The findings
recorded in this case are as under:
“35. To sum up our findings in regard to the legal
arguments addressed in these appeals, we find:
(i) If the confessional statement is properly recorded,
satisfying the mandatory provision of Section 15 of
the TADA Act and the Rules made thereunder, and if
the same is found by the court as having been made
voluntarily and truthfully then the said confession is
sufficient to base a conviction on the maker of the
confession.
(ii) Whether such confession requires corroboration
or not, is a matter for the court considering such
confession on facts of each case.
(iii) In regard to the use of such confession as against
a coaccused, it has to be held that as a matter of
caution, a general corroboration should be sought for
but in cases where the court is satisfied that the
probative value of such confession is such that it
does not require corroboration then it may base a
conviction on the basis of such confession of the coaccused without corroboration. But this is an
exception to the general rule of requiring
corroboration when such confession is to be used
against a coaccused.
14
(iv) The nature of corroboration required both in
regard to the use of confession against the maker as
also in regard to the use of the same against a coaccused is of a general nature, unless the court
comes to the conclusion that such corroboration
should be on material facts also because of the facts
of a particular case. The degree of corroboration so
required is that which is necessary for a prudent
man to believe in the existence of facts mentioned in
the confessional statement.
(v) The requirement of subrule (5) of Rule 15 of the
TADA Rules which contemplates a confessional
statement being sent to the Chief Metropolitan
Magistrate or the Chief Judicial Magistrate who, in
turn, will have to send the same to the Designated
Court is not mandatory and is only directory.
However, the court considering the case of direct
transmission of the confessional statement to the
Designated Court should satisfy itself on facts of
each case whether such direct transmission of the
confessional statement in the facts of the case
creates any doubt as to the genuineness of the said
confessional statement.”
19. Bearing these principles in mind, let us consider as to whether
the confession of the appellant was voluntary and truthful. The
appellant was examined as DW1. In his evidence he has stated
that he was arrested on 19.05.2007, when he was returning from
Chennai airport. He was detained for two days and was taken to
Trichi, “Q” branch office and was kept there for one day. During
15
this period, he was allegedly tortured by the police. On 22.05.2007
he was produced before the Judicial Magistrate, Trichi, and was
remanded by the court till 25.07.2007. PW27 made an application
requesting for police custody of the accused for five days and
obtained police custody from 25.07.2007 to 27.07.2007. On
25.07.2007, when the appellant was sitting in the police vehicle,
Mr. Rajendran, ‘Q’ Branch Inspector, told him that he should sign
certain papers, otherwise he would be killed in police custody.
When he was brought before the Designated Court, on the same
day, he informed the same to the learned Judge and gave a petition
(Ex. D1) stating that he was tortured by the police and that he had
nothing to do with the alleged incident. When he was again
produced before the Designated Court, after recording the
confession statement, he gave a petition (Ex. D2) stating that he
has not made any incriminating statement before PW28.
20. On 26.07.2007, PW29 produced the appellant before PW28.
PW28 during his crossexamination has stated that until the
accused was produced on 26.07.2007, the accused was in police
custody. On 26.07.2007, though it has been recorded that a
16
number of questions were put to the accused and the answers were
elicited, there is no record to show that the appellantaccused was
warned as required under Section 15 of the TADA Act and Rule
15(3) of the TADA Rules. During his crossexamination PW28 has
stated that he gave warning to the accused which was not
supported by any contemporary record, namely, Ex. P56 dated
26.06.2007. As it is seen in Ex. P57, only two questions were
asked to the appellant and answers elicited, which do not reflect
any warning as required under the TADA Act and the TADA Rules.
The evidence of PW28 is that he gave the same warning which he
had given on 26.07.2007. There are no contemporary records to
show that the warning was made on 26.07.2007 or 27.07.2007. The
second question asked on 27.07.2007 (per Ex. P57) assumes much
importance. In this question PW28 has only explained to the
accused that he had been produced only to record his statement.
He did not explain to the accused that he had been produced to
record the confession.
21. It was contended by the learned Additional Advocate General,
appearing for the respondent, that the footnote appended to Ex. P
17
56 would satisfy Section 15 of TADA Act and Rule 15 of TADA
Rules. It is necessary to notice here that 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 the Constitution of India. The entire proceedings on
record should reflect application of mind into various surrounding
circumstances including questions and answers elicited from the
accused. Mere recording in a certificate will only amount to
technical observance of the rule but that will not prove the
voluntariness of the statement. In law, it is not the technical
observance of the rules but it is the real satisfaction about the
voluntariness of the confession is sine qua non.
22. It is also necessary to state here that the confession recorded
by the police officer is undoubtedly equated to a confession
recorded by a Judicial Magistrate under Section 164 Cr.P.C. Thus,
the said confession is a substantive piece of evidence. Therefore, all
the safeguards which are to be followed by a Magistrate should
have been followed by the police officer also. It is wellsettled that
the satisfaction arrived at by the Magistrate under Section 164
18
Cr.P.C. is, if doubtful, then, the entire confession should be
rejected.
23. In the instant case, it is evident that from out of the questions
put by PW28 and the answers elicited and the manner in which
the accused has made the statement are all the foundations upon
which it is to be found out as to whether the statement was made
voluntarily or not. If the certificate is not supported by any of the
above inputs, then the certificate needs to be rejected. The police
officer cannot record such a certificate out of his own imagination
and the entire proceedings should reflect that the certificate was
rightly given based on the materials. In the present case, there is
nothing on record to prove the voluntariness of the statement. Ex.
D1 and D2 and other circumstances would go to show that the
appellant could not have made the statement voluntarily. Therefore,
the confession statement of the appellant requires to be rejected.
24. The second question for consideration is whether the
statement of two other coaccused (Ex. P26 and P27) is admissible
in evidence.
19
25. The confession statement of the coaccused was recorded by
the Superintendent of Police (PW20) in Crime No.160/1990. The
appellant was absconding, hence the proclamation order was issued
by the trial court and thereafter the case was split against the
appellant. A separate trial was conducted against the appellant and
the impugned judgment convicting the appellantaccused has been
passed by the Designated Court.
26. The contention of the learned Additional Advocate General,
appearing for the appellant, is that the appellant cannot take the
advantage of his own wrong to thwart the object and purpose of
Section 15 of the TADA Act.
27. Learned senior counsel appearing for the appellant has
submitted that the confession statements of the two coaccused are
not at all admissible in evidence because there was no joint trial of
those two coaccused with the appellant. Therefore, Ex. P26 and
Ex. P27 are not admissible in evidence.
28. Section 30 of the Indian Evidence Act mandates that to make
the confession of a coaccused admissible in evidence, there has to
be a joint trial. If there is no joint trial, the confession of a co
20
accused is not at all admissible in evidence and, therefore, the same
cannot be taken as evidence against the other coaccused. The
Constitution Bench of this Court in Kartar Singh (supra), while
considering the interplay between Section 30 of the Indian
Evidence Act and Section 15 of the TADA Act held that as per
Section 15 of the TADA Act, after the amendment of the year 1993,
the confession of the coaccused, is also a substantive piece of
evidence provided that there is a joint trial.
29. In State v. Nalini and others5 Justice Quadri has held that a
confession of an accused made under Section 15 of the TADA Act is
admissible against all those tried jointly with him. It has been held
thus:
“688. Having excluded the application of Sections 24
to 30 of the Evidence Act to a confession recorded
under Section 15(1) of the TADA Act, a selfcontained
scheme is incorporated therein for recording the
confession of an accused and its admissibility in his
trial with coaccused, abettor or conspirator for
offences under the TADA Act or the Rules made
thereunder or any other offence under any other law
which can jointly be tried with the offence with which
he is charged at the same trial. There is thus no
room to import the requirements of Section 30 of the
Evidence Act in Section 15 of the TADA Act.
5
(1999) 5 SCC 253
21
689. Under Section 15(1) of the TADA Act the
position, in my view, is much stronger, for it says,
‘
“a confession made by a person before a police
officer not lower in rank than a Superintendent
of Police and recorded by such police officer
either in writing or on any mechanical device like
cassettes, tapes or soundtracks from out of
which sounds or images can be reproduced, shall
be admissible in the trial of such person or coaccused, abettor or conspirator for an offence
under this Act or Rules made thereunder,
provided that coaccused, abettor or conspirator
is charged and tried in the same case together
with the accused.”
On the language of subsection (1) of Section 15, a
confession of an accused is made admissible
evidence as against all those tried jointly with him, so
it is implicit that the same can be considered against
all those tried together. In this view of the matter
also, Section 30 of the Evidence Act need not be
invoked for consideration of confession of an accused
against a coaccused, abettor or conspirator charged
and tried in the same case along with the accused.”
30. In Jameel Ahmad (supra), this Court has reiterated the above
position as under:
“30……Therefore we notice that the accepted
principle in law is that a confessional statement of an
accused recorded under Section 15 of the TADA Act
is a substantive piece of evidence even against his co
22
accused provided the accused concerned are tried
together.”
31. In the instant case, no doubt, the appellant was absconding.
That is why, joint trial of the appellant with the other two accused
persons could not be held. As noticed above, Section 15 of the
TADA Act specifically provides that the confession recorded shall be
admissible in trial of a coaccused for offence committed and tried
in the same case together with the accused who makes the
confession. We are of the view, that if for any reason, a joint trial is
not held, the confession of a coaccused 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 respondentState, it is as good as rewriting the scope of
Section 15 of the TADA Act as amended in the year 1993.
32. In Ananta Dixit v. The State6
the Orissa High Court was
considering a similar case under Section 30 of the Evidence Act.
The appellant, in this case, was absconding. The question for
consideration was whether a confession of one of the accused
6 1984 Crl. L.J. 1126
23
persons who was tried earlier, is admissible in evidence against the
appellant. The Court held that the confession of the coaccused was
not admissible in evidence against the present appellant. The Court
held:
“7. As recorded by the learned trial Judge, the
accused Narendra Bahera, whose confessional
statement had been relied upon, had been tried
earlier and not jointly with the appellant and the coaccused person Baina Das. A confession of the
accused may be admissible and used not only
against him but also against a coaccused person
tried jointly with him for the same offence. Section
30 applies to a case in which the confession is made
by accused tried at the same time with the accused
person against whom the confession is used. The
confession of an accused tried previously would be
rendered inadmissible. Therefore, apart from the
evidentiary value of the confession of a coaccused
person, the confession of Narendra Behera was not to
be admitted under Section 30 of the Evidence Act
against the present appellant and the coaccused
Baina Das.”
We are in complete agreement with the view of the High Court.
33. We are of the view that since the trial of the other two accused
persons was separate, their confession statements (Ex.P26 and
P27) are not admissible in evidence and the same cannot be taken
as evidence against the appellant.
24
34. In view of the discussion made above, the Designated Court
was not justified in convicting the appellant. The appeal is
accordingly allowed. The judgment and order dated 4.12.2009
passed by the Presiding Judge, Designated Court No.2, Chennai, in
Calendar Case No.1/2007, is hereby set aside and the appellantaccused is acquitted for the offence for which he was tried. This
Court by order dated 25.19.2010 had granted the bail to the
appellant. Hence, the question of releasing him does not arise. The
bail bond executed by the appellant and the surety, if any, stands
cancelled.
…………………………………………J.
(S. ABDUL NAZEER)
…………………………………………J.
(DEEPAK GUPTA)
New Delhi;
April 1, 2020.
