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CASE NO.:

Appeal (crl.) 889 of 2001

PETITIONER:

Central Bureau of Investigation

RESPONDENT:

Ashiq Hussain Faktoo & Ors.

DATE OF JUDGMENT: 30/01/2003

BENCH:

S. N. VARIAVA & B. N. AGRAWAL.

JUDGMENT:

J U D G M E N T

S. N. VARIAVA, J.

This Appeal is against the Judgment dated 14th July, 2001 by

which the Presiding Officer of the Designated Court, Jammu, under the

Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter

referred to as the TADA Act), has acquitted the Respondents.

Briefly stated the facts are as follows:

Initially there were 12 persons who were charged under Sections 302

read with 120B of the Indian Penal Code and Section 3 of the TADA

Act. Out of those 4 persons died and 5 others were absconding.

Therefore, only the three Respondents were put to trial The only

evidence against these Respondents were their confessional

statements recorded under Section 15 of the TADA Act.

The case of the prosecution was that they were part of a

terrorist group under the name and style of Jamait-Ul-Mujahidin.

The case of the prosecution was that the aim of the group is to over

awe the Government duly established by law and to segregate Jammu

and Kashmir from Union of India. The case of the prosecution was

that with these purposes in mind these persons spread terrorism. The

case of the prosecution was that they condemned the activities of a

Hinduism forum whose moving spirit was one Mr. H. N. Wanchoo. The

case of the prosecution was that in the months of July and November,

1992 the accused persons (including these Respondents) hatched a

criminal conspiracy to eliminate Mr. H. N. Wanchoo and that in

pursuance to such conspiracy they kidnapped Mr. H. N. Wanchoo from

his house in Srinagar, took him to Bal Garden and shot him dead.

As stated above, the only evidence against the Respondents is

their confessional statements. The 1st Respondent gave a confessional

statement which is recorded in English on 27th and 28th June, 1993.

The 2nd Respondent gave a confessional statement which is recorded

in English on 13th and 14th January, 1994. The 3rd Respondent gave a

confessional statement which is recorded in Hindi on 4th and 5th May,

1994.

The Designated Court has held that the Superintendent of Police,

CBI has failed to ask the accused material questions to satisfy himself

as to whether the accused were going to make the confessional

statements voluntarily. The Designated Court has held that

Superintendent of Police, CBI has not asked the accused whether they

knew before whom they were standing. It is also held that he had not

explained to the accused that he is the Superintendent of Police, CBI

and that if any confessional statement is made before him it will be

used as evidence against them. It is further held that during his

evidence the Superintendent of Police has stated that the confessional

statements were recorded in his own hand, but in cross-examination

he admitted that the confessional statements had been recorded by his

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Steno under his dictation. It is further held that the confessional

statement should be in the language of the accused and if that is not

possible then in the official language of the Recording Officer or the

language of the Designated Court. It is held that the confessional

statement of the 3rd Respondent is in Hindi, whereas the official

language was Urdu or English. It is held that the I.O. did not make

written request to the Superintendent of Police for recording the

confessional statement of the accused and that was a mandatory

provision of law. It is further held that the Superintendent of Police,

CBI, had not asked the accused whether they wanted to add or

subtract anything from their confessional statements. It was held that

the Superintendent of Police, CBI had therefore not recorded the

confessional statements in conformity with the provision of law and

that therefore the confessional statements could not be considered as

a substantive piece of evidence against the accused persons. On this

basis the Respondents were acquitted.

In order to consider the correctness or otherwise of the above

findings, it would be appropriate to set out the relevant provisions.

Section 15 and Rule 15 of the TADA Act and the rules framed

thereunder read as follows:

"S.15. Certain confessions made to police officers to

be taken into consideration.- (1) Notwithstanding

anything in the Code or in the Indian Evidence Act, 1872

(1 of 1872), but subject to the provisions of this section, 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 sound tracks

from out of which sounds or images can be reproduced,

shall be admissible in the trial of such person or co-

accused, abettor or conspirator for an offence under this

Act or rules made thereunder:

Provided that co-accused, abettor or conspirator is

charged and tried in the same case together with the

accused.

(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."

"Rule 15. Recording of confession made to

police officers.- (1) A confession made by a person

before a police officer and recorded by such police officer

under Section 15 of the Act shall invariably be recorded in

the language in which such confession is made and if that

is not practicable, in the language used by such police

officer for official purposes or in the language of the

Designated Court and it shall form part of the record.

(2) The confession so recorded shall be shown, read

or played back to the person concerned and if he does not

understand the language in which it is recorded, it shall be

interpreted to him in a language which he understands and

he shall be at liberty to explain or add to his confession.

(3) The confession shall, if it is in writing, be -

(a) signed by the person who makes the

confession ; and

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(b) by the police officer who shall also certify

under his own hand that such confession

was taken in his presence and recorded

by him and that the record contains a full

and true account of the confession made

by the person and such police officer

shall make a memorandum at the end of

the confession to the following effect :-

"I have explained to (name) that

he is not bound to make a confession

and that, if he does so, any confession

he may make may be used as evidence

against him and I believe that this

confession was voluntarily made. It was

taken in my presence and hearing and

recorded by me 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.

Sd/- Police Officer."

(4) Where the confession is recorded on any

mechanical device, the memorandum referred to in sub-

rule (3) in so far as it is applicable and a declaration made

by the person making the confession that the said

confession recorded on the mechanical device has been

correctly recorded in his presence shall also be recorded in

the mechanical device at the end of the confession.

(5) Every confession recorded under the said Section

15 shall be sent forthwith to the Chief Metropolitan

Magistrate or the Chief Judicial Magistrate having

jurisdiction over the area in which such confession has

been recorded and such Magistrate shall forward the

recorded confession so received to the Designated Court

which may take cognizance of the offence."

This being the legal position one has now to see whether these

provisions have been complied with. We have seen all the three

confessional statements. In all the three confessional statements the

Officer has first ascertained whether the Respondent who is making

the statement was making the statement voluntarily. The

Respondents have been informed that the confessional statements

made by them could be used against them as evidence. They were

then asked whether they still wanted to make the confessional

statements. They have been told that they are not bound to make the

confessional statements and that if they make the confessional

statements the same would be used against them and that therefore

they should think over the matter and let the Officer know whether

they still wanted to make the confessional statements. The

Superintendent of Police, CBI has signed as such. The Respondents

have also signed. This clearly shows that the Respondents were aware

that they were making their confessional statements before the

Superintendent of Police, CBI.

The Respondents were then given one day's time to think over

the matter. On the next day the Superintendent of Police, CBI again

informed them that they were not bound to make the confessions and

that if they make the confessions the same could be used as evidence

against them. It has been recorded that even after this warning they

were willing to make the confessions. It has been recorded that the

Superintendent of Police, CBI was satisfied that the confession was

being made voluntarily. This note has been signed by the

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Superintendent of Police, CBI as well as the concerned Respondent.

It is only thereafter that the confessional statement has been

recorded. At the end of each confessional statements it has also been

recorded that the confessional statement had been read over and

admitted to be correct. The required memorandum under Rule

15(3)(b) of the TADA Act is also made on each of the confessional

statements.

We are therefore unable to accept the reasoning of the

Designated Court that the confessional statements are not in

conformity with the provisions of law. The Designated Court was

wrong in holding that it was not explained to the Respondents that he

was a Superintendent of Police or that it was not explained to the

Respondents that the confessional statements could be used as

evidence against them. The Designated Court was wrong in

concluding that the Superintendent of Police, CBI did not satisfy

himself whether the accused were going to make the confessional

statements voluntarily.

We are also unable to appreciate the relevance of the

observations of the Designated Court that the Superintendent of

Police, CBI stated that the statements were in his hand-writing but in

cross-examination admitted that they had been recorded by his Steno

under his dictation. In our view, when a confessional statement is

dictated to a Steno and typed on a typewriter, the same amounts to a

confessional statement being in writing. This view is supported by an

authority of this Court in the case of State of Tamil Nadu versus

Sivarasan reported in (1997) 1 SCC 682. In this case it has been held

that the words "recorded in writing" in Section 15 includes a type-

written confessional statement. It is held that the Police Officer need

not record the statement in his own hand-writing, but can take the

help of a Steno or use a type-writer.

At this stage, it would be appropriate to mention that in the case

of Devender Pal Singh Vs. State of NCT of Delhi reported in

2002 (5) SCC 234, a confessional statement was recorded on a

computer by a Steno under dictation of the D.C.P. The certificate

required to be given by the D.C.P. was type-written. It is held that the

confessional statement could not be discarded or its authenticity

doubted on these grounds. It is held that non-observance of

procedural requirements, as laid down in Rule 15, does not cause any

prejudice to the accused. It is held that procedure is the hand-maid

and not the mistress of law. It was held that procedures are intended

to subserve and facilitate the cause of justice and not govern or

obstruct it. It is held that minor deficiencies, if any, cannot be

considered to be fatal for the prosecution.

In the case of State through Superintendent of Police, CBI/SIT

vs. Nalini and others reported in 1999(5) SCC 253 a confessional

statement was recorded on 18 pages. The first 16 pages contained

signatures but the last two pages did not have any signatures. An

argument that the confessional statement should be discarded was

repelled with the following observations:

"125. The requirement that a confessional

statement shall be signed by the maker has been

substantially complied with despite the slip in

obtaining the signatures in the last two pages.

According to PW 52 - the Superintendent of Police

who recorded it - the said slip was an inadvertent

omission. But that omission does not mean that the

confession was not signed by her at all. The

certificate which is required by Rule 15(3) has also

been made at the foot of Ext.P-77, but that

happened to be made on one of the two pages where

the signature of A-1 is absent.

126. On the facts we are not persuaded to uphold

the contention that Rule 15(3) has not been

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complied with. That apart, even if there was such an

omission the question is whether it would have

injured the accused in her defence. Section 463 of

the Code permits such an approach to be made in

regard to the omissions in recording the confession

under Section 164 of the Code. That approach can

be adopted in respect of the confession recorded

under Section 15 of TADA as well. The resultant

position is that the said omission need not be

countenanced since it was not shown that the

omission has caused any harm to the accused."

The observations of the Designated Court that the Respondents

had not been asked whether they wanted to add or subtract anything

appear to have been made on a misunderstanding of Rule 15(2).

Under Rule 15(2) the recorded confession has to be (where it is in

writing) shown and read back to the person concerned and if he does

not understand the language in which it is recorded it has to be

interpreted to him in a language he understands. That person is at

liberty to explain or add to his confession. In this case the

confessional statements were shown and read back to the

Respondents. If they wanted they could have explained or added to

these confessional statements. They chose not to do so. Thus the

requirement of Rule 15(2) was fully complied with.

There is one other aspect, which is required to be clarified. As

the confessional statements were in writing Sub-rule (4) of Rule 15 of

the TADA Act was not applicable at all. Sub-rule (4) of Rule 15 would

only come into play if the confessional statement was not in writing

but was recorded on some mechanical device like a cassette, tape or

on sound tracks. In this case the confession being in writing Sub-rule

(3) would be applicable. The requirements of Sub-rule (3) have been

fully complied with.

The other ground on which the Designated Court has held that

the requirements of law were not complied with is that the

confessional statement of 3rd Respondent is in Hindi. The Court has

held that this is not the language of the Designated Court, i.e. Urdu or

English, and therefore it was not according to law. Under Rule 15(1)

the confessional statement must be recorded in the language in which

the confession is made. It is nobody's case that 3rd Respondent did

not know Hindi or that that was not the language in which he made

the confessional statement. A confessional statement is to be in a an

official language or a language of the Designated Court only, provided

it is not the language in which it was made.

Thus none of the reasons given by the Designated Court can be

sustained. It is thus held that these confessional statements, could

under Section 15 of the said Act, be used against the Respondents.

We have read all the confessional statements. In the

confessional statements each of the Respondents admits that they

were part of the organisation and that they had taken part in the

conspiracy to eliminate Mr. H. N. Wanchoo. So far as 3rd Respondent

is concerned he had actually participated in the kidnapping of H. N.

Wanchoo and had then given orders in writing that H. N. Wanchoo be

killed. Therefore, the offence under Section 3 of the TADA Act as well

as under Sections 302 read with 120B of the Indian Penal Code is

made out. We therefore convict the Respondents under Section 3 of

the TADA Act and under Section 302 read with 120B IPC.

Mr. B. B. Singh submitted that leniency should be shown whilst

sentencing the Respondents. He submitted that the 2nd Respondent

was a lecturer who had been forced to join the terrorist group because

of threats of torture. He submitted that the occurrence had taken

place on 5th December, 1992. He submitted that the 2nd Respondent

had been arrested on 29th December, 1993 and was in jail till 14th July,

2001 when he was acquitted by the Designated Court. He submitted

that thereafter, pursuant to an Order of this Court, he surrendered on

26th November, 2001 and was granted bail by this Court on 14th

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December, 2001. He submitted that after being released on bail he

has not participated in the activities of the terrorist group and there is

no allegation that he has done any other illegal act. He submits that

the same set of circumstances would apply to 1st Respondent also.

He submitted that so far as Respondents 1 and 2 are concerned, this

Court should show leniency, particularly in view of the fact that at

present the trend of the Government is to have a healing touch. He

submitted that such a healing touch would give these persons an

opportunity to reform themselves. He submitted that the Court

should sentence Respondents 1 and 2 to the term already undergone

by them.

In our view, having seen the activities which had been carried on

by the Respondents and that they had conspired and murdered Mr. H.

N. Wanchoo, this is a fit case where the sentence should be life

imprisonment.

Accordingly, the Appeal is allowed. The Judgment of the

Designated Court is set aside. The Respondents are sentenced to life

imprisonment. Their bail bonds shall stand cancelled. They shall be

taken into custody forthwith. They shall be given benefit of the period

already undergone by them.