RAJA @ AYYAPPAN versus STATE OF TAMIL NADU on 1 April 2020

[2020] 4 S.C.R. 1112

SUPREME COURT REPORTS

[2020] 4 S.C.R.

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RAJA @ AYYAPPAN

v.

STATE OF TAMIL NADU

(Criminal Appeal No. 1120 of 2010)

BAPRIL 01, 2020

[S. ABDUL NAZEER AND DEEPAK GUPTA, JJ.]

Terrorist and Disruptive Activities (Prevention) Act, 1987 –s.15 – Conviction of appellant on the basis of confession – PleaCof appellant that the alleged confession was not recorded in a freeatmosphere and prescribed procedure under the Act and rules werenot followed while recording confession and, therefore, theconfession was not admissible in evidence as it was not voluntary– Held: In the instant case, confession was recorded by theSuperintendent of Police (PW-28) – In the evidence of PW-28, thereDwas nothing to show that the appellant-accused was warned asrequired u/s.15 of the Act and r.15(3) of TADA Rules – Complyingwith these rules is not an empty formality or a mere technicality asthese provisions serve a statutory purpose to ensure a fair trial asguaranteed u/Art.21 of the Constitution of India – The entireEproceedings on record should reflect application of mind intovarious surrounding circumstances including questions andanswers elicited from the accused – Mere recording in a certificatewill only amount to technical observance of the rule but that willnot prove the voluntariness of the statement – It is evident that fromFout of the questions put by PW-28 and the answers elicited andthe manner in which the appellant has made the statement are allthe foundations upon which it is to be found out as to whether thestatement was made voluntarily or not – PW-28 merely explainedto him that he had been produced only to record the statement –GHe did not explain to the appellant that he had been produced torecord the confession – Thus, there is nothing on record to provethe voluntariness of the statement – Confessional statement ofappellant rejected – Code of Criminal Procedure, 1973 – s.164 –Constitution of India – Art.21 – Terrorist and Disruptive ActivitiesRules – r.15(3).H

Terrorist and Disruptive Activities (Prevention) Act, 1987: s.15– Confessional statement of co-accused made in separate trial –Admissibility of, in case of appellant – Held: Not admissible – s.15specifically provides that the confession recorded shall beadmissible in trial of a co-accused for offence committed and triedin the same case together with the accused who makes theconfession – If for any reason, a joint trial is not held, theconfession of a co-accused cannot be held to be admissible inevidence against another accused who would face trial at a laterpoint of time in the same case – Since the trial of the other twoaccused persons was separate, their confessional statements werenot admissible in evidence and the same cannot be taken asevidence against the appellant – Designated Court was not justifiedin convicting the appellant.

Allowing the appeal, the Court

HELD: 1.1 It is well-settled that a confession which is notfree from doubt about its voluntariness, is not admissible inevidence. A confession caused by inducement, threat or promisecannot be termed as voluntary confession. Whether a confessionis voluntary or not is essentially a question of fact. [Para 16][1121-B]

Pakala Narayana Swami v. Emperor 1939 PC 47 ;State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC600 : [2005] 2 Suppl. SCR 79 – relied on.

Conclusion

1.2 Section 15(1) of the TADA Act is a self-containedscheme for recording the confession of an accused charged withan offence under the said Act. This provision of law is adeparture from the provisions of Sections 25 to 30 of theEvidence Act. Section 15 of the TADA Act operatesindependently of the Evidence Act and the Criminal ProcedureCode. In Kartar Singh, a Constitution Bench of this Court, whileupholding the validity of the said provision, issued certainguidelines to be followed while recording confession. Theseguidelines were issued to ensure that the confession obtainedin the pre-indictment interrogation by a police officer not lowerin rank than a Superintendent of Police is not tainted with anyvice but is in strict conformity with the well-recognised andaccepted aesthetic principles and fundamental fairness. [Para 17][1121-H; 1122-A-B]

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A2.1 The appellant (DW-1) in his evidence stated that hewas arrested on 19.05.2007 and was allegedly tortured by thepolice. On 22.05.2007, he was produced before the JudicialMagistrate and was remanded by the court till 25.07.2007. PW-27 made an application requesting for police custody of theaccused for five days and obtained police custody fromB25.07.2007 to 27.07.2007. On 25.07.2007, when the appellantwas sitting in the police vehicle, Inspector, told him that heshould sign certain papers, otherwise he would be killed inpolice custody. When he was brought before the DesignatedCourt, on the same day, he informed the same to the Judge andCgave a petition stating that he was tortured by the police andthat he had nothing to do with the alleged incident. When hewas again produced before the Designated Court, after recordingthe confession statement, he gave another petition stating thathe has not made any incriminating statement before PW-28. [Para19] [1124-G-H; 1125-A-B]D

2.2 On 26.07.2007, PW-29 produced the appellant beforePW-28, the Superintendent of Police. PW-28 during his cross-examination stated that until the accused was produced on26.07.2007, the accused was in police custody. On 26.07.2007,though it has been recorded that a number of questions wereEput to the accused and the answers were elicited, there is norecord to show that the appellant-accused was warned asrequired under Section 15 of the TADA Act and Rule 15(3) ofthe TADA Rules. During his cross-examination, PW-28 hasstated that he gave warning to the accused which was notFsupported by any contemporary record. As it is seen in Ex. P-57, only two questions were asked to the appellant and answerselicited, which do not reflect any warning as required under theTADA Act and the TADA Rules. The evidence of PW-28 is thathe gave the same warning which he had given on 26.07.2007.

There are no contemporary records to show that the warningGwas made on 26.07.2007 or 27.07.2007. The second questionasked per Ex. P-57 assumes much importance. In this question,PW-28 has only explained to the accused that he had beenproduced only to record his statement. He did not explain tothe accused that he had been produced to record the confession.HComplying with the rules is not an empty formality or a mere technicality as these provisions serve a statutory purpose toensure a fair trial as guaranteed under Article 21 of theConstitution of India. In law, it is not the technical observanceof the rules but it is the real satisfaction about the voluntarinessof the confession is sine qua non. [Paras 20, 21] [1125-C-H;1126-A]

3.1 The confession recorded by the police officer isundoubtedly equated to a confession recorded by a JudicialMagistrate under Section 164 Cr.P.C. Thus, the said confessionis a substantive piece of evidence. Therefore, all the safeguardswhich are to be followed by a Magistrate should have beenfollowed by the police officer also. It is well-settled that thesatisfaction arrived at by the Magistrate under Section 164Cr.P.C. is, if doubtful, then, the entire confession should berejected. [Para 22] [1126-B-C]

3.2 In the instant case, it is evident that from out of thequestions put by PW-28 and the answers elicited and the mannerin which the accused has made the statement are all thefoundations upon which it is to be found out as to whether thestatement was made voluntarily or not. If the certificate is notsupported by any of the above inputs, then the certificate needsto be rejected. The police officer cannot record such a certificateout of his own imagination and the entire proceedings shouldreflect that the certificate was rightly given based on thematerials. In the instant case, there is nothing on record to provethe voluntariness of the statement. Ex. D-1 and D-2 and othercircumstances would go to show that the appellant could not havemade the statement voluntarily. Therefore, the confessionstatement of the appellant requires to be rejected. [Para 23][1126-C-E]

4.1 The second question for consideration is whether thestatement of two other co-accused is admissible in evidence.Section 30 of the Indian Evidence Act mandates that to makethe confession of a co-accused admissible in evidence, there hasto be a joint trial. If there is no joint trial, the confession of aco-accused is not at all admissible in evidence and, therefore,the same cannot be taken as evidence against the other co-accused. The Constitution Bench of this Court in Kartar Singhwhile considering the inter-play between Section 30 of the Indian A

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AEvidence Act and Section 15 of the TADA Act held that as perSection 15 of the TADA Act, after the amendment of the year1993, the confession of the co-accused, is also a substantivepiece of evidence provided that there is a joint trial. [Paras 24,28] [1126-F-H; 1127-A-C]

BKartar Singh v. State of Punjab (1994) 3 SCC 569 :[1994] 2 SCR 375 – followed.

State v. Nalini and Others (1999) 5 SCC 253 : [1999]3 SCR 1 ; Jameel Ahmad v. State of Rajasthan (2003)9 SCC 673 – held inapplicable.C4.2 In the instant case, no doubt, the appellant wasabsconding. That is why, joint trial of the appellant with the othertwo accused persons could not be held. Section 15 of the TADAAct specifically provides that the confession recorded shall beadmissible in trial of a co-accused for offence committed and Dtried in the same case together with the accused who makes theconfession. If for any reason, a joint trial is not held, theconfession of a co-accused cannot be held to be admissible inevidence against another accused who would face trial at a laterpoint of time in the same case. Since the trial of the other two Eaccused persons was separate, their confession statements arenot admissible in evidence and the same cannot be taken asevidence against the appellant. The Designated Court was notjustified in convicting the appellant. [Paras 31, 33, 34] [1128-E-G; 1129-E-F]

FAnanta Dixit v. The State 1984 Crl. L.J. 1126 –approved.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1120 of 2010

From the Judgment and Order dated 04.12.2009 of the PresidingJudge, Designated Court No.2 (Vth Additional Sessions Court, Chennai-104) in Calendar Case No.1/2007

S. Nagamuthu, Sr. Adv., Y.A. Runagiri, M.P. Parthiban,A.S. Vairawan, Hardik Gautam, Rakesh K. Sharma, Advs. for theAppellant.

Jayant Muth Raj, Sr. Adv., Roy Abraham, P.V. Dinesh,M. Yogesh Kanna, Advs. for the Respondent.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J.

1. This criminal appeal filed under Section 19 of the Terroristand Disruptive Activities (Prevention) Act, 1987 (in short ‘the TADAAct’) is directed against the judgment and order dated 04.12.2009passed by the Presiding Judge, Designated Court No.2, Chennai, inCalendar Case No.1/2007, whereby the Designated Court has convictedthe appellant and sentenced him to undergo rigorous imprisonment for2 years under Section 120-B IPC and 5 years each under Section120-B IPC read with Section 3(3) and 4(1) of the TADA Act and underSection 120-B 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 andSuku @ Sukumaran @ Kumar, had formed an organization at Trichyunder the name ‘Tamilar Pasarai’, with the object of achieving separateStatehood for Tamil Nadu and to blast Central and State Governmentbuildings with bombs with a view to overawe the Governmentestablished by law. The appellant herein and 13 other accused haveenrolled themselves in the said organization and they entered into acriminal conspiracy during June 1988 to commit an illegal act and toblast 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 electronicsat Tamil Nadu Advanced Technical Institute, Trichy, and learnt themechanism for devising electronic timer, to be used in the time bombsto be manufactured by them.

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1118SUPREME COURT REPORTS

A3. The further case of the prosecution is that during September1990, the above said Suku had brought electronic printed circuit board,integrated circuit switches, resisters and directed Shanmuga Sundramto device electronic timer device, to be attached to time bomb. Theappellant, along with two other accused, wrote slogans in the paper(MO-7) hailing ‘Tamilar Pasarai’ and kept it near the time bomb onB22.09.1990. The bomb was to be blasted by another accused, namely,Sukku, in a jerrycan (MO-1) containing explosives with timer devices(MO-6), near Namakkal Kavignar Maligai on 22.09.1990. The bombwas noticed before its explosion at about 6.45 a.m. by the HeadConstable, G.M. Rajendran (PW-1), attached to Armed Reserves,CMadras, and the said bomb was subsequently defused. Thereafter,information was given by PW-1 to the Assistant Commissioner,in-charge of the Fort Police Station, who handed over the investigationto Parthasarathy (PW-21), the then D.S.P., who registered the caseinitially under Section 4 of the Explosive Substances Act, 1908 and underSections 2-F(d)(1) and (2) read with Section 13 of the UnlawfulDActivities (Prevention) Act, 1967. Subsequently, during the course ofinvestigation, the charges were altered against the accused underSection 120-B IPC read with Sections 3(3) and 4(1) of TADA Act andunder Section 5 of the Explosive Substance Act, 1908.

4. On 24.09.1990, the place of incident was searched by theEbomb disposal squad and the seized items were sent for finger printexamination. A request was also made to the Chief Controller ofExplosives for examining the explosive substance.

5. The statements of witnesses were recorded in respect of theaforesaid offences on the basis of the information received duringFinvestigation. The Inspector of Police C.B.C.I.D., Thanjavore, raidedthe premises of one Abdul Kalam and handed over his custody toInspector Raman of ‘Q’ Branch.

6. On 10.05.1993, PW-26, the then Superintendent of Police,SBCID, received the case file pertaining to Cr. No.1 GO/90, FortGStation, Chennai. Thereafter, he sent the requisition for the extensionof remand of the accused Sathish @ Vadivelu and Abdul Kalam, on04.06.1993 and 14.07.1993 respectively. He gave requisition to thecompetent authority for sanction to prosecute Abdul Kalam and Vadiveluand obtained the sanction orders. On receiving the statement of theH

accused, Chandran, he obtained sanction for prosecution of Chandranunder the TADA Act on 02.09.1993.

7. After completion of the investigation, the police on 03.09.1993,filed the charge-sheet against the accused Nos. 1 to 14 and theunknown accused, under Section 120-B read with Section 3(3), (4)(1)of the TADA Act and Section 5 of the Explosive Substance Act andSection 7 read with Section 35(1)(A), Section 3 read with Section25(1)(B) of the Arms Act. Thereafter, the statements of the witnesseswere recorded by the Special Judge in the aforesaid case.

8. It was the further case of the prosecution that on 24.05.2007,PW-28, Superintendent of Police, Ashok Kumar, ‘Q’ Branch, CID HeadQuarters, Chennai, came to know about the arrest of the appellant-accused by the DSP ‘Q’ Branch Tanjavore, in connection with theMannarkudi P.S. Cr. No.954/94 and as the appellant was involved inthe subject case, the investigating officer was informed to takenecessary steps for the same. Accordingly, PW-26 took steps for thepolice custody of the appellant from 25.07.2007 to 27.07.2007. Duringthe police custody, the appellant voluntarily wished to give hisconfessional statement and as such he was produced before PW-28,Superintendent of Police, on 26.07.2007 with a requisition, Ex. P-55 byPW-27. On 27.07.2007, PW-28 recorded the confession of the accused,observing the formalities under Section 15 of the TADA Act, asEx. P-56 and P-57. PW-28 made an appendix as per the said provisionand the appellant was handed over to the DSP to be produced beforethe Court. All the proceedings were sent in a sealed cover to the ChiefMetropolitan Magistrate through special messenger on 27.07.2007.

9. Thereafter, the charges were framed against the appellant, readover and explained to him. However, while questioning, the appellantdenied the charges. The prosecution examined as many as 28 witnessesto prove the case against the accused. The appellant was examinedunder Section 313 of the Code of Criminal Procedure, 1973. Theappellant was permitted to be examined as DW-1. He filed thedocuments Ex. DW-1 to DW-7. As stated earlier, the Designated Courthas convicted the appellant in the aforesaid terms.

10. Shri S. Nagamuthu, learned senior counsel appearing for theappellant, has submitted that the Designated Court has relied on theconfession (Ex. P-57) of the appellant for his conviction. PW-28 whorecorded the alleged confession, had not scrupulously followed the A

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Aguidelines laid by this Court in Kartar Singh v. State of Punjab[1]. Theconfession had not been recorded in a free atmosphere. The prescribedprocedure under the TADA Act and the rules made thereunder hadnot been followed while recording the confession. It was also submittedthat the confession was not admissible in evidence as it was notvoluntary. In this connection, he has taken us through the oral evidenceBof the parties. It was further submitted that the accused had retractedthe confession subsequently. Therefore, even if the confession isadmissible, it is a weak piece of evidence and the same cannot be thesole evidence for conviction in the absence of corroboration fromindependent sources. It was also submitted that the confession of theCco-accused (Ex. P-26 and P-27) are not admissible in evidence becausethere was no joint trial of those two accused with the appellant. Theconfession of the co-accused is not substantive piece of evidence. Theproviso to Section 15(1) of the TADA Act, introduced by amending thesaid section in the year 1993 which, in fact, supplements Section 30 ofthe Evidence Act, mandates that there should be a joint trial. Therefore,Dhe submits that the conviction of the appellant by the Designated Courtis unsustainable in law.

11. On the other hand, Shri Jayant Muth Raj, learned AdditionalAdvocate General, appearing for the respondent-State, has supportedthe impugned judgment of the Designated Court.E12. We have carefully considered the submissions of the learnedsenior counsel made at the Bar and perused the materials placed onrecord.

13. The Designated Court has convicted the appellant on the basisof the confession of the appellant made on 27.02.2007 (Ex. P-57) andFthe confession statement of the two other co-accused (Ex. P-26 andP-27).

14. Therefore, the first question for consideration is whether theappellant has made the confession (Ex. P-57) voluntarily and truthfully.

15. The law of confession is embodied in Sections 24 to 30 ofGthe Indian Evidence Act, 1872. The confession is a form of admissionconsisting of direct acknowledgment of guilt in a criminal charge. Inthis connection, it is relevant to notice the observations of Privy Councilin Pakala Narayana Swami v. Emperor[2]which is as under:

1 1994 (3) SCC 569H2 1939 PC 47

“…..a confession must either admit in terms of an offence, orat any rate substantially all the fact which constitute the offence.An admission of a gravely incriminating fact, even a conclusivelyincriminating fact is not by itself a confession….”

16. It is well-settled that a confession which is not free fromdoubt about its voluntariness, is not admissible in evidence. A confessioncaused by inducement, threat or promise cannot be termed as voluntaryconfession. Whether a confession is voluntary or not is essentially aquestion of fact. In State (NCT of Delhi) v. Navjot Sandhu[3] thisCourt has elaborately considered this aspect as under:

“29. Confessions are considered highly reliable because norational person would make admission against his interest unlessprompted by his conscience to tell the truth. “Deliberate andvoluntary confessions of guilt, if clearly proved are among themost effectual proofs in law.” (Vide Taylor’s Treatise on theLaw of Evidence, Vol. I.) However, before acting upon aconfession the court must be satisfied that it was freely andvoluntarily made. A confession by hope or promise of advantage,reward or immunity or by force or by fear induced by violenceor threats of violence cannot constitute evidence against themaker of the confession. The confession should have been madewith full knowledge of the nature and consequences of theconfession. If any reasonable doubt is entertained by the courtthat these ingredients are not satisfied, the court should eschewthe confession from consideration. So also the authority recordingthe confession, be it a Magistrate or some other statutoryfunctionary at the pre-trial stage, must address himself to the issuewhether the accused has come forward to make the confessionin an atmosphere free from fear, duress or hope of someadvantage or reward induced by the persons in authority.Recognising the stark reality of the accused being enveloped ina state of fear and panic, anxiety and despair while in policecustody, the Evidence Act has excluded the admissibility of aconfession made to the police officer.”

17. Section 15(1) of the TADA Act is a self-contained schemefor recording the confession of an accused charged with an offenceunder the said Act. This provision of law is a departure from the 3 (2005) 11 SCC 600

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Aprovisions of Sections 25 to 30 of the Evidence Act. Section 15 of theTADA Act operates independently of the Evidence Act and the CriminalProcedure Code. In Kartar Singh (supra) a Constitution Bench of thisCourt while upholding the validity of the said provision has issued certainguidelines to be followed while recording confession. These guidelineshave been issued to ensure that the confession obtained in the pre-Bindictment interrogation by a police officer not lower in rank than aSuperintendent of Police is not tainted with any vice but is in strictconformity with the well-recognised and accepted aesthetic principlesand fundamental fairness. These guidelines are:

“(1) The confession should be recorded in a free atmosphereCin the same language in which the person is examinedand as narrated by him;

(2) The person from whom a confession has been recordedunder Section 15(1) of the Act, should be producedbefore the Chief Metropolitan Magistrate or the ChiefDJudicial Magistrate to whom the confession is requiredto be sent under Rule 15(5) along with the originalstatement of confession, written or recorded onmechanical device without unreasonable delay;

(3) The Chief Metropolitan Magistrate or the Chief JudicialEMagistrate should scrupulously record the statement, ifany, made by the accused so produced and get hissignature and in case of any complaint of torture, theperson should be directed to be produced for medicalexamination before a Medical Officer not lower in rankFthan of an Assistant Civil Surgeon;

(4) Notwithstanding anything contained in the Code ofCriminal Procedure, 1973, no police officer below therank of an Assistant Commissioner of Police in theMetropolitan cities and elsewhere of a DeputySuperintendent of Police or a police officer of equivalentrank, should investigate any offence punishable underthis Act of 1987.

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This is necessary in view of the drastic provisions of this Act.More so when the Prevention of Corruption Act, 1988 underHSection 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorise only a police officer of a specified rank toinvestigate the offences under those specified Acts.

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(5) The police officer if he is seeking the custody of anyperson for pre-indictment or pre-trial interrogation fromthe judicial custody, must file an affidavit sworn by himexplaining the reason not only for such custody but alsoBfor the delay, if any, in seeking the police custody;

(6) In case, the person, taken for interrogation, on receiptof the statutory warning that he is not bound to make aconfession and that if he does so, the said statement maybe used against him as evidence, asserts his right tosilence, the police officer must respect his right ofassertion without making any compulsion to give astatement of disclosure.”

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18. In Jameel Ahmad v. State of Rajasthan[4 ]this Court hasheld that when an accused charged with an offence under the provisionsof the TADA Act, is voluntarily willing to make a confessionalstatement and if such statement is made and recorded by an officernot below the rank of Superintendent of Police in a manner providedin that section, is admissible in evidence. The findings recorded in thiscase are as under:

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“35. To sum up our findings in regard to the legal argumentsaddressed in these appeals, we find:

(i) If the confessional statement is properly recorded,satisfying the mandatory provision of Section 15 of theTADA Act and the Rules made thereunder, and if thesame is found by the court as having been madevoluntarily and truthfully then the said confession issufficient to base a conviction on the maker of theconfession.

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(ii) Whether such confession requires corroboration or not,is a matter for the court considering such confession onfacts of each case.

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(iii) In regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a 4 (2003) 9 SCC 673

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Ageneral corroboration should be sought for but in caseswhere the court is satisfied that the probative value ofsuch confession is such that it does not requirecorroboration then it may base a conviction on the basisof such confession of the co-accused withoutcorroboration. But this is an exception to the general ruleBof requiring corroboration when such confession is tobe used against a co-accused.

(iv) The nature of corroboration required both in regard tothe use of confession against the maker as also in regardto the use of the same against a co-accused is of aCgeneral nature, unless the court comes to the conclusionthat such corroboration should be on material facts alsobecause of the facts of a particular case. The degreeof corroboration so required is that which is necessaryfor a prudent man to believe in the existence of factsmentioned in the confessional statement.

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(v) The requirement of sub-rule (5) of Rule 15 of the TADARules which contemplates a confessional statementbeing sent to the Chief Metropolitan Magistrate or theChief Judicial Magistrate who, in turn, will have to sendthe same to the Designated Court is not mandatory andEis only directory. However, the court considering thecase of direct transmission of the confessional statementto the Designated Court should satisfy itself on facts ofeach case whether such direct transmission of theconfessional statement in the facts of the case createsFany doubt as to the genuineness of the said confessionalstatement.”

19. Bearing these principles in mind, let us consider as to whetherthe confession of the appellant was voluntary and truthful. The appellantwas examined as DW-1. In his evidence he has stated that he wasGarrested on 19.05.2007, when he was returning from Chennai airport.He was detained for two days and was taken to Trichi, “Q” branchoffice and was kept there for one day. During this period, he wasallegedly tortured by the police. On 22.05.2007 he was produced beforethe Judicial Magistrate, Trichi, and was remanded by the court till25.07.2007. PW-27 made an application requesting for police custodyHof 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 sittingin the police vehicle, Mr. Rajendran, ‘Q’ Branch Inspector, told him thathe should sign certain papers, otherwise he would be killed in policecustody. When he was brought before the Designated Court, on thesame day, he informed the same to the learned Judge and gave apetition (Ex. D-1) stating that he was tortured by the police and thathe had nothing to do with the alleged incident. When he was againproduced before the Designated Court, after recording the confessionstatement, he gave a petition (Ex. D-2) stating that he has not madeany incriminating statement before PW-28.

20. On 26.07.2007, PW-29 produced the appellant before PW-28. PW-28 during his cross-examination has stated that until the accusedwas produced on 26.07.2007, the accused was in police custody. On26.07.2007, though it has been recorded that a number of questions wereput to the accused and the answers were elicited, there is no record toshow that the appellant-accused was warned as required under Section15 of the TADA Act and Rule 15(3) of the TADA Rules. During hiscross-examination PW-28 has stated that he gave warning to theaccused which was not supported by any contemporary record, namely,Ex. P-56 dated 26.06.2007. As it is seen in Ex. P-57, only two questionswere asked to the appellant and answers elicited, which do not reflectany warning as required under the TADA Act and the TADA Rules.The evidence of PW-28 is that he gave the same warning which hehad given on 26.07.2007. There are no contemporary records to showthat the warning was made on 26.07.2007 or 27.07.2007. The secondquestion asked on 27.07.2007 (per Ex. P-57) assumes much importance.In this question PW-28 has only explained to the accused that he hadbeen produced only to record his statement. He did not explain to theaccused 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-56would 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 anempty formality or a mere technicality as these provisions serve astatutory purpose to ensure a fair trial as guaranteed under Article 21of the Constitution of India. The entire proceedings on record shouldreflect application of mind into various surrounding circumstancesincluding questions and answers elicited from the accused. Mererecording in a certificate will only amount to technical observance of A

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Athe rule but that will not prove the voluntariness of the statement. Inlaw, it is not the technical observance of the rules but it is the realsatisfaction about the voluntariness of the confession is sine qua non.

22. It is also necessary to state here that the confession recordedby the police officer is undoubtedly equated to a confession recordedBby a Judicial Magistrate under Section 164 Cr.P.C. Thus, the saidconfession is a substantive piece of evidence. Therefore, all thesafeguards which are to be followed by a Magistrate should have beenfollowed by the police officer also. It is well-settled that the satisfactionarrived at by the Magistrate under Section 164 Cr.P.C. is, if doubtful,then, the entire confession should be rejected.C

23. In the instant case, it is evident that from out of the questionsput by PW-28 and the answers elicited and the manner in which theaccused has made the statement are all the foundations upon which itis to be found out as to whether the statement was made voluntarily ornot. If the certificate is not supported by any of the above inputs, thenDthe certificate needs to be rejected. The police officer cannot recordsuch a certificate out of his own imagination and the entire proceedingsshould reflect that the certificate was rightly given based on thematerials. In the present case, there is nothing on record to prove thevoluntariness of the statement. Ex. D-1 and D-2 and othercircumstances would go to show that the appellant could not have madeEthe statement voluntarily. Therefore, the confession statement of theappellant requires to be rejected.

24. The second question for consideration is whether thestatement of two other co-accused (Ex. P-26 and P-27) is admissiblein evidence.F

25. The confession statement of the co-accused was recordedby the Superintendent of Police (PW-20) in Crime No.160/1990. Theappellant was absconding, hence the proclamation order was issued bythe trial court and thereafter the case was split against the appellant.A separate trial was conducted against the appellant and the impugnedGjudgment convicting the appellant-accused has been passed by theDesignated Court.

26. The contention of the learned Additional Advocate General,appearing for the appellant, is that the appellant cannot take theadvantage of his own wrong to thwart the object and purpose of SectionH15 of the TADA Act.

27. Learned senior counsel appearing for the appellant hassubmitted that the confession statements of the two co-accused arenot at all admissible in evidence because there was no joint trial of thosetwo co-accused with the appellant. Therefore, Ex. P-26 and Ex. P-27are not admissible in evidence.

28. Section 30 of the Indian Evidence Act mandates that to makethe confession of a co-accused admissible in evidence, there has to bea joint trial. If there is no joint trial, the confession of a co-accused isnot at all admissible in evidence and, therefore, the same cannot betaken as evidence against the other co-accused. The ConstitutionBench of this Court in Kartar Singh (supra), while considering theinter-play between Section 30 of the Indian Evidence Act and Section15 of the TADA Act held that as per Section 15 of the TADA Act,after the amendment of the year 1993, the confession of theco-accused, is also a substantive piece of evidence provided that thereis a joint trial.

29. In State v. Nalini and others[5] Justice Quadri has held thata confession of an accused made under Section 15 of the TADA Actis admissible against all those tried jointly with him. It has been heldthus:

“688. Having excluded the application of Sections 24 to 30 ofthe Evidence Act to a confession recorded under Section 15(1)of the TADA Act, a self-contained scheme is incorporated thereinfor recording the confession of an accused and its admissibilityin his trial with co-accused, abettor or conspirator for offencesunder the TADA Act or the Rules made thereunder or any otheroffence under any other law which can jointly be tried with theoffence with which he is charged at the same trial. There is thusno room to import the requirements of Section 30 of the EvidenceAct in Section 15 of the TADA Act.

689. Under Section 15(1) of the TADA Act the position, in myview, is much stronger, for it says, ‘

“a confession made by a person before a police officer notlower in rank than a Superintendent of Police and recordedby such police officer either in writing or on any mechanical 5 (1999) 5 SCC 253

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device like cassettes, tapes or soundtracks from out of whichsounds or images can be reproduced, shall be admissible inthe trial of such person or co-accused, abettor or conspiratorfor an offence under this Act or Rules made thereunder,provided that co-accused, abettor or conspirator is chargedand tried in the same case together with the accused.”

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On the language of sub-section (1) of Section 15, a confessionof an accused is made admissible evidence as against all thosetried jointly with him, so it is implicit that the same can beconsidered against all those tried together. In this view of thematter also, Section 30 of the Evidence Act need not be invokedCfor consideration of confession of an accused against aco-accused, abettor or conspirator charged and tried in the samecase along with the accused.”

30. In Jameel Ahmad (supra), this Court has reiterated the aboveposition as under:D

“30……Therefore we notice that the accepted principle in lawis that a confessional statement of an accused recorded underSection 15 of the TADA Act is a substantive piece of evidenceeven against his co-accused provided the accused concerned aretried together.”

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31. In the instant case, no doubt, the appellant was absconding.That is why, joint trial of the appellant with the other two accusedpersons could not be held. As noticed above, Section 15 of the TADAAct specifically provides that the confession recorded shall be admissiblein trial of a co-accused for offence committed and tried in the sameFcase together with the accused who makes the confession. We are ofthe view, that if for any reason, a joint trial is not held, the confessionof a co-accused cannot be held to be admissible in evidence againstanother accused who would face trial at a later point of time in thesame case. We are of the further opinion that if we are to accept theargument of the learned counsel for the respondent-State, it is as goodGas re-writing the scope of Section 15 of the TADA Act as amended inthe year 1993.

32. In Ananta Dixit v. The State[6] the Orissa High Court wasconsidering a similar case under Section 30 of the Evidence Act. The H6 1984 Crl. L.J. 1126

appellant, in this case, was absconding. The question for considerationwas whether a confession of one of the accused persons who was triedearlier, is admissible in evidence against the appellant. The Court heldthat the confession of the co-accused was not admissible in evidenceagainst the present appellant. The Court held:

“7. As recorded by the learned trial Judge, the accused NarendraBahera, whose confessional statement had been relied upon, hadbeen tried earlier and not jointly with the appellant and the co-accused person Baina Das. A confession of the accused maybe admissible and used not only against him but also against aco-accused person tried jointly with him for the sameoffence. Section 30 applies to a case in which the confession ismade by accused tried at the same time with the accused personagainst whom the confession is used. The confession of anaccused tried previously would be rendered inadmissible.Therefore, apart from the evidentiary value of the confession ofa co-accused person, the confession of Narendra Behera wasnot to be admitted under Section 30 of the Evidence Act againstthe present appellant and the co-accused 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 othertwo accused persons was separate, their confession statements(Ex.P-26 and P-27) are not admissible in evidence and the same cannotbe taken as evidence against the appellant.

34. In view of the discussion made above, the Designated Courtwas not justified in convicting the appellant. The appeal is accordinglyallowed. The judgment and order dated 4.12.2009 passed by thePresiding Judge, Designated Court No.2, Chennai, in Calendar CaseNo.1/2007, is hereby set aside and the appellant-accused is acquittedfor the offence for which he was tried. This Court by order dated25.10.2010 had granted the bail to the appellant. Hence, the questionof releasing him does not arise. The bail bond executed by the appellantand the surety, if any, stands cancelled.

Devika Gujral

Appeal allowed.

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