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CASE NO.:

Appeal (crl.) 906 of 2000

Appeal (crl.) 804 of 2001

PETITIONER:

AYYUB

Vs.

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT: 28/02/2002

BENCH:

R.P. Sethi & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J.

The appellants in these two appeals were found guilty by the Designated

Judge (TADA), Meerut, for the offences punishable under Sections 3(1)(2)(i) of

the Terrorists and Disruptive Activities [Prevention] Act, 1987 (hereinafter called

as the 'TADA Act') and also for offences punishable under Section 302 and

Section 307 read with Section 34 of Indian Penal Code. The appellants were

sentenced to undergo imprisonment for life and a fine of Rs. 5,000/- u/s 3(1)(2)(i)

of TADA and in default of payment of fine to undergo imprisonment for a period

of one year. The appellants were sentenced to imprisonment for life and a fine

of Rs. 5000/- and in default to undergo imprisonment for one year under Section

302 read with Section 34 I.P.C. The appellants were also sentenced to rigorous

imprisonment of five years and a fine of Rs.3,000/- under Section 307 read with

Section 34 IPC and in default of payment of fine to undergo imprisonment for six

months. The appellants were further found guilty and sentenced to imprisonment

for a period of two years for the offences under Section 4 of the Prevention of

Damages to Property Act 1984.

The prosecution case against the two appellants was that on 26.1.1993 at

about 7.45 p.m., the appellants came running to the police picket at Hapur Road,

near Veterinary Hospital, Meerut and hurled bombs at the security personnel. A

PAC company including the informant Platoon Commander, Ramvir Singh

(PW1), Head Constable Rohitash Singh & N.K. Mahender Prasad Sharma,

Constable Pramod Kumar, Constable Desh Raj Singh (PW 2), Constable

Atar Singh, Constable Rambir Singh, Constable Sarvesh Singh (PW 3) and

Constable Sanjiv Kumar were posted at the said picket near the Veterinary

Hospital, Meerut. The bombs hurled by the appellants exploded and Constable

Pramod Kumar and three others sustained injuries. Constable Pramod Kumar

and N.K. Mahender Prasad Sharma fired shots from their firearms, but the two

appellants managed to escape from the scene. Government vehicles parked

nearby were also damaged and the incident created a terror in the vicinity.

The Platoon Commander Ramvir Singh(PW 1) took the injured to the

hospital. Later, he gave a report before the Police Station, Civil Lines, Meerut.

The F.I. Statement was recorded at 10.15 p.m. on 26.1.1993 whereafter

Inspector Ranvir Pratap Singh, Incharge of the Police Station (PW 38), took

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over the investigation. Injured N.K. Mahender Prasad Sharma died at the

hospital and an inquest report was prepared by Sri B.R. Arya (PW 41). PW 4

Dr. Ramender Singh conducted the post-mortem examination. The Investigating

Officer prepared the site plan of the place of occurrence. A dog was found lying

dead on the spot. The remnants of exploded bombs were collected by the

Investigating Officer. On 28.1.1993, PW 16, the Station Officer of P.S. Lisari

Gate, Meerut received secret information that the accused who was involved in

the bomb blast at the PAC picket on 26.1.1993 was staying with one Ameer

Hamza in Mohalla Kidwai Nagar. PW 16 Station Officer along with other police

personnel raided the house of Ameer Hamza and found the accused Abdul

Jabbar lying on a cot with multiple injuries and one doctor by name Dr. Mohd.

Imran was found treating him for the injuries. Appellant Abdul Jabbar was

brought to the Police Station and this information was passed on to PW 15

Superintendent of Police(City), Meerut, and he was informed that appellant Abdul

Jabbar was prepared to give a confession statement. Superintendent of

Police(City), Meerut recorded the confession of the appellant Abdul Jabbar on

29.1.1993 and he was produced before the then Designated Judge.

Meanwhile, the other Appellant Ayyub surrendered before the Court on 1.3.1993

and expressed his willingness to make a confession statement. He was

produced before PW 15 Superintendent of Police(City), Meerut. The

Identification parade was held on 10.3.1993 and some of the witnesses identified

both the appellants. After the completion of the investigation, charge sheets

were filed against these two appellants and five others who had allegedly

committed the crime or helped the appellants in the commission of the crime.

During the course of the trial before the Designated Judge, Senior

Prosecuting Officer sought permission to withdraw from the prosecution against

the five other accused who had been charged along with the appellants. As

against those persons, permission was granted by the Designated Judge to

withdraw from the prosecution by order dated 27.4.1995. Pursuant to the Order

of the Govt. of Uttar Pradesh, the Senior Prosecuting Officer had also filed an

application for withdrawal of prosecution in respect of the present two appellants

so far as the charges framed against them under the TADA Act. The learned

Designated Judge declined sanction for withdrawal from prosecution in respect of

these two appellants and they were accordingly tried by the Judge and found

guilty as afore-stated.

In Criminal Appeal No. 906 of 2000, Mr. Himanshu Munshi, learned

Counsel appeared on behalf of the appellant and Mr. Anoop G. Chaudhary,

learned Senior Counsel appeared on behalf of the State while in Criminal Appeal

No. 804 of 2001, Mr. K.T.S. Tulsi, learned Senior Counsel appeared on behalf of

the appellant.

Mr. K.T.S. Tulsi, learned Senior Counsel on behalf of the appellant,

argued that the Designated Judge seriously erred in not allowing the withdrawal

from prosecution in respect of these appellants. It was pointed out that the State

Government after considering the various aspects of the matter had requested

the Senior Prosecuting Officer for withdrawal from prosecution in respect of the

offences charged under various provisions of the TADA Act. Mr. Tulsi argued

that when such an application was filed, the Court should have normally

accepted that plea as it was not tainted with any mala fide intention. The

learned Senior Counsel on behalf of the State of U.P., Shri Anoop G.

Chaudhary, however, stated that these appellants had not challenged the order

passed by the Designated Judge declining the withdrawal from prosecution and

therefore, the appellants cannot now be heard to say that the Designated Judge

went wrong in passing the said order. We do not find much force in this

contention as the order passed by the Designated Judge was only interim in

nature and it is doubtful whether an appeal would lie against that order. This

Court has expressed its doubt whether an appeal would lie against such an order

and the question is still left open. The learned Senior Counsel Mr. K.T.S. Tulsi

has rightly contended that the appellants are entitled to challenge the same in

these proceedings.

This Court in State of Bihar vs Ram Naresh Pandey and Anr. AIR

1957 SC 389 had made following observations while dealing with an application

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under Section 494 of the old Cr. P.C., which enabled the prosecution to withdraw

from the prosecution. Section 321 of the new Cr.P.C. is similarly worded with

slight modifications. This Court observed as follows:-

"The section is an enabling one and vests in the Public

Prosecutor the discretion to apply to the Court for its consent to

withdraw from the prosecution of any person. The consent, if

granted, has to be followed up by his discharge or acquittal, as the

case may be. The section gives no indication as to the grounds on

which the Public Prosecutor may make the application, or the

considerations on which the Court is to grant its consent.

The function of the Court, therefore, in granting its

consent may well be taken to be a judicial function. It follows that in

granting the consent the Court must exercise a judicial discretion.

But it does not follow that the discretion is to be exercised only with

reference to material gathered by the judicial method. Otherwise

the apparently wide language of Section 494, Criminal P.C. would

become considerably narrowed down in its application. In

understanding and applying the section, two main features thereof

have to be kept in mind. The initiative is that of the Public

Prosecutor and what the Court has to do is only to give its consent

and not to determine any matter judicially.

. The judicial function, therefore,

implicit in the exercise of the judicial discretion for granting the

consent would normally mean that the Court has to satisfy itself that

the executive function of the Public Prosecutor has not been

improperly exercised, or that it is not an attempt to interfere with the

normal course of justice for illegitimate reasons or purposes."

In State of Orissa vs. Chandrika Mohapatra and Others

(1976) 4 SCC 250, P.N. Bhagwati, J. as he then was speaking for the three

Judge bench regarding withdrawal from the prosecution, said:

"the paramount consideration in all those cases must be

the interest of administration of justice. No hard and fast rule can

be laid down nor can any categories of cases be defined in which

consent should be granted or refused. It must ultimately depend on

the facts and the circumstances of each case in the light of what is

necessary in order to promote the ends of justice, because the

objective of every judicial process must be the attainment of

justice."

In Kartar Singh vs. State of Punjab (1994) 3 SCC 569, the

constitutional validity of some of the provisions contained in the TADA Act was

challenged. The Constitution Bench of this Court while upholding most of the

provisions contained in the TADA Act, suggested that in order to ensure higher

level of scrutiny and applicability of TADA Act, there must be a Screening

Committee or a Review Committee constituted by the Central Government

consisting of the Home Secretary, Law Secretary and other Secretaries

concerned of the various Departments to review all the TADA cases instituted by

the Central Government as well as to have a quarterly administrative review. In

respect of the States also, a similar suggestion was made. Pursuant to the

recommendations of the Review Committee, some of the cases filed under the

TADA Act were proposed to be withdrawn from further prosecution. But the

court passed orders under Section 321 of the Criminal Procedure Code declining

permission to withdraw from prosecution. These orders were challenged

in R .M. Tewari, Advocate vs. State (NCT of Delhi) and Ors. etc.etc.

(1996) 2 SCC 610 and the scope of Section 321 of the Code of Criminal

Procedure, 1973 came up for consideration. This Court, in paragraph 10 & 11

of the judgment, observed as under:-

"The observations in Kartar Singh have to be understood in

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the context in which they were made. It was observed that a review

of the cases should be made by a High Power Committee to ensure

that thee was no misuse of the stringent provisions of the TADA Act

and any case in which resort to the TADA Act was found to be

unwarranted, the necessary remedial measures should be taken.

The Review Committee is expected to perform its functions in this

manner. If the recommendation of the Review Committee, based

on the material present, is, that resort to provisions of the TADA Act

is unwarranted for any reason which permits withdrawal from

prosecution for those offences, a suitable application made under

Section 321 Cr.P.C. on that ground has to be considered and

decided by the Designated Court giving due weight to the opinion

formed by the public prosecutor on the basis of the

recommendation of the High Power Committee.

It has also to be borne in mind that the initial invocation of

the stringent provisions of the TADA Act is itself subject to sanction

of the Government and, therefore, the revised opinion of the

Government formed on the basis of the recommendation of the

High Power Committee after scrutiny of each case should not be

lightly disregarded by the court except for weighty reasons such as

mala fides or manifest arbitrariness. The worth of the material to

support the charge under the TADA Act and the evidence which

can be produced, is likely to be known to the prosecuting agency

and, therefore, mere existence of prima facie material to support

the framing of the charge should not by itself be treated as

sufficient to refuse the consent for withdrawal from prosecution. It

is in this manner an application made to withdraw the charges of

offences under the TADA Act pursuant to review of a case by the

Review Committee has to be considered and decided by the

Designated Courts."

In the instant case, the learned Designated Judge rejected the application

for withdrawal from prosecution indicating that the State Government had not

given any reason for withdrawal from prosecution and that mere use of the

expression "Janhit" was not sufficient for according consent in a mechanical

manner. The learned Judge was also of the view that it cannot be said that ends

of public interest and administration of justice would be served by the withdrawal

from prosecution. The learned Judge was of the view that material records might

not have been placed before the Government while taking a decision in the

matter.

We do not find any merit in the reasons given by the Designated Judge.

There are stringent provisions in the TADA Act and in the Government Order, it

is stated that the Government after proper discussion on the facts of the case

and the evidence/reports/letters available on the record decided to waive the

TADA Sections in the cases recorded in the enclosed list. When the Order itself

states that all records were perused and considered, we do not think that the

learned Designated Judge was justified in rejecting the application. It cannot be

said that the Senior Prosecuting Officer had filed the application without

consideration of the relevant facts. It cannot also be said that application was

filed with any mala fide intention to save some of the culprits from the clutches of

law. The request was made only to withdraw from prosecution as against the

offences punishable under the TADA Act. Charges in respect of other offences

punishable under Indian Penal Code remained and the accused had to face trial

for that. Government must have thought that the stringent and harsh provisions

of TADA Act were not necessary to deal with such situations.

We are of the view that the learned Designated Judge should have

accepted the application for withdrawal from prosecution as against the offences

charged against the appellants under the TADA Act. Therefore, we allow that

application and the appellants shall stand acquitted under Section 321(b) of

Cr. P.C of all the charges framed against them under the TADA Act.

The charge of murder and other allied offences against these appellants is

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held to have been proved by the prosecution from the evidence of the

eyewitnesses, the circumstantial evidence and the confession made by these

appellants under Section 15 of the TADA Act.

As regards their confession statements, the Special Court accepted the same

and held that they are reliable. Even if the appellants are acquitted of the

charges under the TADA Act, the confession recorded by the police officer could

have been of some assistance to the prosecution, but in view of the infirmity in

recording the confession the same is not admissible in evidence. The confession

statements of appellants were recorded not in accordance with law and that there

is nothing on record to show that the same was voluntarily made by these

appellants. It is pertinent to note that under Section 15 of the TADA Act, it is

specifically stated that the Police Officer who is recording the confession shall not

record the same unless he has reason to believe that it was being made

voluntarily. The relevant portion of Section 15 of the TADA Act, as amended, is

as under: -

15. Certain confessions made to police officers to be taken into

consideration..

(1) ..

(2) The police officer shall, before recording any confession

under sub-section (1), explain to the person making it that he

is not bound to make a confession and that, if he does so, it

may be used as evidence against him and such police officer

shall not record any such confession unless upon

questioning the person making it, he has reason to believe

that it is being made voluntarily."

The constitutionality of Section 15 of the TADA Act was challenged in

Kartar Singh vs. State of Punjab (supra) and the Constitution Bench of this

Court considered the matter in detail and upheld the same . It was pointed out

by this Court that sufficient safeguards have been made to see that powers given

under Section 15 are not being misused by the police and the Court also noticed

Rule 15 of the Terrorists and Disruptive Activities (Prevention) Rules 1987

dealing with the mode of recording of a confession made to police officers.

Under that rule, the confession shall, if it is in writing be signed by the person

who makes the confession and the police officer shall also certify under his own

hand that such confession was taken in his presence and recorded by him and

that the record contains full and true accounts of the confession made by the

person and such police officer shall make a memorandum at the end of the

confession. In that memorandum, he has to state that it was taken in his

presence and hearing and recorded by him and was read over to the person

making it and admitted by him to be correct, and it contains a full and true

account of the statement made by him. It also states that the officer who is

recording the confession should explain that he is not bound to make a

confession and that, if he does so, the confession made by him would be used

against him and the police officer should also certify that he has reason to

believe that it is being voluntarily made. In the instant case, the confession made

by these two appellants does not indicate that the same was voluntary in nature

and the police officer who recorded the same has not certified that he believed

that the confession was voluntarily made. In Sharafat Hussain Abdul

Rahaman Shaikh & Ors. vs. State of Gujarat and another 1996 (11) SCC 62,

it was held that if there is no certificate by the police officer who is recording

confession, in accordance with sub-rule 3(b) of Rule 15, TADA Rules, 1987, the

same is not admissible in evidence.

Even as regards the confession made under Section 164 Cr.P.C., this

Court as early as in Sarwan Singh Rattan Singh Vs. State of Punjab, etc.etc.

AIR 1957 SC 637 held that in order to make the confession statement under the

Act, it must be proved that the same was voluntarily made by the maker. It

would, of course, be necessary in every case to put the questions prescribed by

the High Court circulars but the questions intended to be put under sub section

(2) of Section 164 should not be allowed to become a matter of a mere

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mechanical enquiry. No element of casualness should be allowed to creep in

and the Magistrate should be fully satisfied that the confessional statement which

the accused wants is in fact and in substance voluntary.

In Shivappa vs. State of Karnataka (1995) 2 SCC 76, while considering

the question of a confession recorded under Section 164 Cr.P.C., it was

observed as under:-

".. it is manifest that the said provisions emphasise an

inquiry by the Magistrate to ascertain the voluntary nature of the

confession. This inquiry appears to be the most significant and an

important part of the duty of the Magistrate recording the

confessional statement of an accused under Section164 Cr.P.C.

The failure of the Magistrate to put such questions from which he

could ascertain the voluntary nature of the confession detracts so

materially from the evidentiary value of the confession of an

accused that it would not be safe to act upon the same."

It was further observed in paragraph 7 as under:

". Moreover, the Magistrate must not only be satisfied as to the

voluntary character of the statement, he should also make and

leave such material on the record in proof of the compliance with

the imperative requirements of the statutory provisions, as would

satisfy the court that sits in judgment in the case, that the

confessional statement was made by the accused voluntarily and

the statutory provisions were strictly complied with."

Section 15 of the TADA Act altered the fundamental rules of evidence

given in the Evidence Act, which stood the test of time for over a century. Under

Section 25 of the Evidence Act, a confession made to a police officer by a person

accused of an offence shall not be proved against him. The power to record

judicial confession is given to Magistrate and strict and rigorous guidelines have

been laid down in Section 164 Cr.P.C. That apart many High Courts also have

framed rules giving detailed procedure for recording confession. Confession is an

admission of guilt. Normally, nobody would like to admit his guilt as he is fully

aware that the same would be used against him. That apart, there is

constitutional right for the accused that he shall not be subjected to any

"testimonial compulsion". Under Article 20(3) of the Constitution, accused person

has a protection from being compelled to be a witness against himself. As the

confession made under Section 15 of the TADA Act is made admissible in

evidence, the strict procedure laid down therein for recording confession is to be

followed. Any confession made in defiance of these safeguards cannot be

accepted by the Court as reliable evidence. The confession should appear to

have been made voluntarily and the police officer who records the confession

should satisfy himself that the same had been made voluntarily by the maker of

that statement. The recorded confession must indicate that these safeguards

have been fully complied with. In this case, the recorded confession statements

do not show that the officer who recorded the statement had followed those

guidelines. Therefore, it is inadmissible in evidence.

According to the prosecution, these two appellants hurled bombs at the

police picket and they were identified by eyewitnesses, namely, PW2 Desh Raj

Singh, PW 3 Sarvesh Singh and PW1 Platoon Commander Ramvir Singh. PW1

Platoon Commander Ramvir Singh deposed that two boys came running and

threw bombs one after another and that he could see them in the electric light.

At the relevant time, he was standing outside the tent and the appellants were

seen at a distance of ten to fifteen paces away. He also deposed that he noticed

these appellants while they were coming towards them. Constable Desh Raj

Singh, PW-2 also deposed that while he was standing outside the tent he saw

the appellants coming and throwing bombs at them. The counsel for the

appellants contended that there was no source of light available for these

witnesses to see the appellants and as the incident happened at about 7.45

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P.M., the assailants might not have been identified by the witnesses. The

counsel also argued that no reference was made regarding the source of light in

the First Information Report. But, it is important to note that in the site plan

prepared later, an electric pole is shown very near to the place of incident and

when as many as three of the witnesses deposed that they had identified the

assailant in the electric light, we do not find any justifiable reason to reject their

evidence.

The counsel for the appellants further contended that the test

identification parade was conducted belatedly and no evidentiary value could be

attached to it. It was submitted that in the case of appellant-Abdul Jabbar, the

test identification parade was done 43 days after his arrest and in the case of

appellant Ayyub the same was done 10 days after he surrendered in the court.

The test identification parade as such is not a substantive piece of

evidence, but it is done only for the satisfaction of the prosecution that the

investigation was moving in the right direction. In the instant case, the test

identification parade was held under the supervision of a Judicial Magistrate, but

as he passed away subsequently, he could not be examined. PW-6, K.P.

Agarwal and PW-34, B.B. Chaturvedi were examined to prove that the

identification parade was conducted in a fair manner. Both these PWs deposed

in detail regarding the various steps taken by them to see that the identification

parade was done properly and their evidence shows that all necessary

precautions were taken by them. We do not find any apparent defect in the test

identification conducted by the prosecution.

There are various other pieces of circumstantial evidence to prove the

complicity of these appellants. Appellant Abdul Jabbar was arrested on

28.1.1993 pursuant to an information that he was undergoing treatment in the

house of one Ameer Hamza. He was taken into custody immediately and

subjected to medical examination by PW 20, Dr. R.P. Mishra. This appellant

had 7 injuries on his body. Injury nos. 5 & 6 were scabbed burn injuries, and in

all probability, these injuries must have been caused due to handling of some

explosive substance. Appellant Abdul Jabbar was produced before PW-10,

Shri R.C. Chaturvedi, the then Designated Judge, on 29.1.1993 itself. The

learned Judge recorded his observations and also the statement made by

appellant Abdul Jabbar at that time. The statement was marked as Ex. Ka-11.

In support of this document, PW-10 gave evidence in court. In Ex. Ka-11, the

appellant made a confession of his guilt and he also made a statement to the

effect that a fellow named, Saleem, forced him to indulge in the bomb-throwing

on 26.1.1993 evening and he also stated about his accomplice. PW-10 deposed

that when appellant Abdul Jabbar was produced before him he had injuries on

his body and that he had noted this in Ex. Ka-11. Appellant Abdul Jabbar when

questioned under Section 313 Cr.P.C., could not give justifiable explanation for

the injuries found on his body. This is a clear incriminating circumstance to

prove the guilt of appellant Abdul Jabbar.

In this case, PW-4 conducted the post-mortem examination on the body of

deceased N.K. Mahender Prasad Sharma and he found 13 ante-mortem injuries.

Most of the injuries were lacerated injuries and PW-4, the doctor, deposed that

the abrasions on the body of the deceased could have been caused by splinters

as a result of bomb explosion.

Learned Special Judge considered all items of evidence and came to the

conclusion that the two appellants have committed offences punishable under

Section 302 read Section 34 IPC. It is proved beyond reasonable doubt that the

appellants came to the police picket and hurled bombs at police personnel

present there and thereby caused the death of N.K. Mahender Prasad Sharma

and also caused injuries to others. The appellants have been rightly convicted

under Section 302 read Section 34 IPC and Section 307 read with Section 34

IPC. Their conviction and sentences under Section 4 of the Prevention of

Damage to Property Act, 1984 is also confirmed. The prayer of the respondent-

State of U.P. to withdraw from prosecution as regards charges under Section

3(1)(2)(i) is granted and as directed earlier in this judgment the appellants

are acquitted of the charges framed against them under the provisions of the

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TADA Act. As regards the conviction and sentences awarded to the appellant

on various other counts under the Indian Penal Code and Prevention of Damage

to Property Act, we see no reason to interfere therewith. The conviction and

sentence of the appellants under Section 302 read with Section 34 and Section

307 read with Section 34 IPC as also under Section 4 of the Prevention of

Damage to Property Act, 1984 are maintained. Consequently, these appeals

shall stand partly allowed.

...J.

(R.P. SETHI)

J.

(K.G. BALAKRISHNAN)

February 28, 2002.