The Supreme Court in the case of Raja v State of Tamil Nadu held that a confession statement which is not made voluntarily is not admissible as evidence. Further, confession statements of a co-accused are not admitted in the absence of a joint trial.
Brief facts of the case
The Appellant and the 14 other accused had formed an organization named ‘Tamil Pasarai’ for obtaining separate statehood for Tamil Nadu. They planned to blast the Central and State Government buildings with self-designed bombs. They enrolled themselves in a course in electronics from Tamil Nadu Advanced Technical Institute, Trichy. The bomb was planned to be blasted near a State Government building named, Namakkal Kavignar Maligai on 22.09.1990 but at around 6:45 am, the bomb was noticed by the Head Constable and it was subsequently defused. The DSP of the Fort Police Station registered a case under Section 120-B Indian Penal Code read with Sections 3(3) and 4(1) of TADA Act, 1987 and Under Section 5 of the Explosive Substance Act, 1908.
The place of incident was searched and seized items were sent for fingerprint examination. Further, the statements of the witnesses were recorded and after completion of the investigation, the police on 03.09.1993, filed the charge sheet against the Accused Nos. 1 to 14 and the unknown Accused, Under Section 120-B 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)s(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. When the IO in the case, took custody of the Appellant, he gave a confession statement. The confession statement of the co-Accused was also recorded on a later date. The Appellant was absconding, hence the proclamation order was issued by the trial court and thereafter the case was split against the Appellant. The validity of the confession statements was taken into consideration in this appeal.
Arguments before the Court
The Appellant’s counsel argued that the confession statement was not taken properly and that it did not follow the guidelines laid down in Kartar Singh v. State of Punjab. The said statement was not voluntary, not recorded in a free atmosphere and that the prescribed procedure under the TADA Act was not followed. The Appellant retracted from his statement, which made it a weak piece of evidence. Also, a joint trial of the co-accused did not take place which makes their confession statements not admissible as evidence. Section 15(1) of the TADA Act, introduced by amending the said Section in the year 1993 which supplements Section 30 of the Evidence Act, mandates that there should be a joint trial.
The Respondent counsel for the State supported the reliance of the designated court on the confession statement of the Appellant and of the two co-accused and the subsequently convicted them.
Supreme Court’s View
The first question for consideration by the court was whether the Appellant has confessed voluntarily and truthfully. The law of confession is embodied in Sections 24 to 30 of the Indian Evidence Act, 1872. Whether a confession is voluntary or not is essentially a question of fact. Recognizing 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.
Nevertheless, Section 15(1) of the TADA Act is a self-contained 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 Code of Criminal Procedure. In Kartar Singh v. State of Punjab, a Constitution Bench of this Court while upholding the validity of the said provision has issued certain guidelines to be followed while recording the confession. These guidelines are:
- The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him;
- 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 the mechanical device without unreasonable delay;
- 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;
- 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 for the 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, authorize only a police officer of a specified rank to investigate the offences under those specified Acts.
- The police officer if he is seeking the custody of any person for pre-indictment or pre-trial 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;
- In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to confess 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 state disclosure.
These guidelines have been issued to ensure that the confession obtained in the pre-indictment 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 well-recognized and accepted aesthetic principles and fundamental fairness.
On 25.07.2007, when the Appellant was sitting in the police vehicle, ‘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 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 stating that he has not made any incriminating statement before Superintendent of Police, CID Head Quarters, Chennai.
Though it has been recorded that several questions were put to the Accused and the answers were elicited, there is no record to show that the Appellant-Accused was warned as required under Section 15 of the TADA Act and Rule 15(3) of the TADA Rules. During his cross-examination Superintendent of Police has stated that he gave warning to the Accused which was not supported by any contemporary record. As it is seen in Exhibit 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 the Superintendent 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 assumes much importance. In this question, the Superintendent 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.
It was contended by the learned Additional Advocate General, appearing for the Respondent, that the footnote appended to Exhibit P-56 would satisfy Section 15 of TADA Act and Rule 15 of TADA Rules. The court observed that “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 the application of mind into various surrounding circumstances including questions and answers elicited from the Accused. Mere recording in a certificate will only amount to the 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.”
The court was in agreement of the well-settled satisfaction arrived at by the Magistrate under Section 164 Code of Criminal Procedure is, if doubtful then, the entire confession should be rejected. Further, in the instant case, it is evident that from out of the questions put by the Superintendent and the answers elicited and how 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. The police officer cannot record a certificate out of his 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. Exhibits 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.
The second question for consideration by the court was whether the statement of two other co-accused is admissible in evidence. The confession statement of the co-Accused was recorded by the Superintendent of Police and because 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 Appellant-Accused has been passed by the Designated Court. The contention of the learned Additional Advocate General, appearing for the Appellant, is that the Appellant cannot take the advantage of his wrong to thwart the object and purpose of Section 15 of the TADA Act. Section 30 of the Indian Evidence Act mandates that to confess a co-accused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a co-Accused is not at all admissible in evidence and, therefore, the same cannot be taken as evidence against the other co-Accused.
The court opined that in the instant case, no doubt, the Appellant was absconding. That is why a 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 the trial of a co-Accused for an offence committed and tried in the same case together with the accused who confesses. We are of the view, that 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.
Further, this court was in agreement with the decision in Ananta Dixit v. The State where 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 persons who was tried earlier, is admissible in evidence against the Appellant. The Court held that the confession of the co-Accused was not admissible in evidence against the present Appellant
The court was in agreement of the well-settled satisfaction arrived at by the Magistrate under Section 164 Code of Criminal Procedure is, if doubtful then, the entire confession should be rejected. Further, in the instant case, it is evident that from out of the questions put by the Superintendent and the answers elicited and how 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 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. Exhibits 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.
Since the trial of the other two Accused persons was separate, their confession statements (are not admissible in evidence and the same cannot be taken as evidence against the Appellant. Because 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, is hereby set aside and the Appellant-Accused is acquitted for the offence for which he was tried.
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