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A confession by co-accused under TADA cannot be relied upon unless there is a joint trial - reason for separate trial of accused persons is immaterial; SC.

Supreme Court of India

Justice S. Abdul Nazeer & Justice Deepak Gupta

The SC on April 01, 2020 {RAJA @ AYYAPPAN v. STATE OF TAMIL NADU} held that it is well ­settled that a confession, which is not free from doubt about its voluntariness, is not admissible in evidence. It was held that 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.

It was held that 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. It was also held that if the certificate is not supported by any of the above inputs, then the certificate needs to be rejected. It was held that 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. It was held that in the present case, there is nothing on record to prove the voluntariness of the statement. It was held that Ex. D­1 and D­2 and other circumstances would go to show that the appellant could not have made the statement voluntarily. Accordingly, it was held by the SC that the confession statement of the appellant requires to be rejected.

Further held that 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. It was held that this provision of law is a departure from the provisions of Sections 25 to 30 of the Evidence Act. It was also held that Section 15 of the TADA Act operates independently of the Evidence Act and the Criminal Procedure Code. It was held that in Kartar Singh v. State of Punjab (1994 (3) SCC 569) a Constitution Bench   of   the   SC   while   upholding   the   validity   of   the   said provision   has   issued   certain   guidelines   to   be   followed   while recording confession. It was held that 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 recognised   and   accepted   aesthetic   principles   and   fundamental fairness. These guidelines are as follows:

“(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 directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon;
(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   pre-­indictment   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.”



It was held by the SC that Section 30 of the Indian Evidence Act mandates that to make the confession of a co-­accused admissible in evidence, there has to be a joint trial. It was held that 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.  It was held that the Constitution Bench of the SC 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 co-­accused, is also a substantive piece of evidence provided that there is a joint trial.

It was held that the confession statement of the co-­accused was recorded by the Superintendent of Police (PW­20) in Crime No.160/1990. It was held that the appellant was absconding, hence the proclamation order was issued by the trial court and thereafter the case was split against the appellant. It was held that a separate trial was conducted against the appellant and the impugned judgment convicting the appellant­-accused has been passed by the Designated Court.

It was held in the instant case, no doubt, the appellant was absconding.  It was held that is why, joint trial of the appellant with the other two accused persons could not be held. It was also held that Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co-­accused for offence committed and tried in   the   same   case   together   with   the   accused   who   makes   the confession.

It was held by the SC 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.  

Therefore, in view of the discussion made above, it was held by the SC that the Designated Court was   not   justified   in   convicting   the   appellant.   The   appeal   was accordingly   allowed by the SC.   The   judgment   and   order   dated   4.12.2009 passed by the Presiding Judge, Designated Court No.2, Chennai, in Calendar Case No.1/2007, was set aside and the appellant-accused was acquitted for the offence for which he was tried by the SC.

In the present case, the criminal appeal was filed under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short ‘the TADA Act’) was 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   had 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 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. The said conviction and punishment was set aside by the SC in view of findings as stated above, and the appellant-accused was acquitted.

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