2025 INSC 376 Page 1 of 43

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEL LATE JURISDICTION

CRIMINAL APPEAL NO. 1681 OF 2009

STATE (CBI) …APPELLANT(S)

VERSUS

MOHD. SALIM ZARGAR

@ FAYAZ & ORS. …RESPONDENT (S)

WITH

CRIMINAL APPEAL NO. 1770 OF 2009

J U D G M E N T

UJJAL BHUYAN , J.

Criminal Appeal No. 1681 of 2009

This is an appeal under Section 19 of the

Terrorist and Disruptive Activities (Prevention) Act, 1987

by the State (CBI) assailing the judgment and order

dated 20.04.2009 passed by the 3

rd Addl. Sessions

Judge, Jammu (briefly ‘the Special Court’ hereinafter).

By the aforesaid judgment and order, the Special Court

acquitted the respondents in CBI Case No. RC

5(S)/1990 for the offences under Sections 118, 302, 368

and 365 of the Ranbir Penal Code, 1932 (RPC) and

Page 2 of 43

under Sections 3 and 4 of the Terrorist and Disruptive

Activities (Prevention) Act, 1987, hereinafter referred to

as the TADA Act (since repealed).

2. Genesis of the case can be traced to FIR No.

55/1990 registered at Police Station Nageen, Srinagar

under Sections 364, 341 and 120-B of RPC read with

Section 3(2) of the TADA Act. The FIR was lodged on the

basis of a complaint filed by Shri Ghulam Nabi Dar, a

driver of Kashmir University. Informant alleged that on

06.04.1990 at about 04.20 pm, Dr. Mushir-ul-Haq, Vice

Chancellor of Kashmir University, and his Personal

Secretary Shri Abdul Gani Zargar were kidnapped by

armed terrorists from their official car outside the

Sadarbal Gate of the University. After taking them in the

said vehicle for a short distance towards Lal Bazar on

Sadarbal Road, they were shifted to a red Maruti van

and taken away.

2.1 Subsequently, dead bodies of Dr. Mushir-ul-

Haq and Shri Abdul Gani Zargar were recovered on

10.04.1990. As a result, Section 302 RPC and Section

3/25 of the Arms Act, 1959 (‘Arms Act’ hereinafter) were

added to the FIR.

2.2 Investigation of the case was transferred to

the Central Bureau of Investigation (CBI) on the request

Page 3 of 43

of the Jammu and Kashmir Government. On the CBI

taking over investigation, the case was re-registered as

RC 5 (S)/90-SIU.V on 21.04.1990 under Sections 302,

341 and 364 RPC read with Section 3 of the TADA Act

and Sections 3/25 of the Arms Act.

2.3 Investigation revealed that Hilal Beg was the

self-styled Chief Commander of a banned militant

organization called Jammu & Kashmir Students

Liberation Front (JKSLF). He along with other members

of JKSLF, including accused Javed Shala, Tahir Ahmed

Mir, Mushtaq Ahmed Sheikh, Mus htaq Ahmed Khan,

Mohd. Hussain Khan and Moh d. Salim Zargar entered

into a conspiracy between 31.03.1990 and 06.04.1990

to kidnap Dr. Mushir-ul-Haq, the Vice-Chancellor of

Kashmir University and others to strike terror in the

minds of the public, thereby to compel the Government

to release their associates, viz, Nissar Ahmed Jogi,

Gulam Nabi Bhat and Fayyaz Ahmed Wani. The

conspiracy included execution of the hostages if their

demands were not met.

2.4 On 06.04.1990, at approximately 09.00 a.m.,

the accused persons grouped together at Aftab’s house.

They left the house of Aftab in a red Maruti van bearing

registration No. JKD-9394 and proceeded towards

Kashmir University. They were fully armed. At about

Page 4 of 43

01.20 p.m., the accused persons saw the car of the Vice-

Chancellor coming out of the University campus

towards the Sadarbal Gate. The vehicle had to stop as

the gate was being opened. As it came out from the gate,

some of the accused persons forcibly got inside the car

of the Vice-Chancellor brandishing their weapons. They

overpowered the driver, the Vice -Chancellor, his

Personal Secretary and Jamadar, Malook Khan . The

vehicle of the Vice-Chancellor was driven towards the

Sadarbal side followed by accused Javed S hala and

Mushtaq Sheikh in the red Maruti van.

2.5 After travelling some distance, the said

vehicle was stopped whereafter the accused persons

forced the Vice-Chancellor and his Personal Secretary to

come out of the car. The Vice-Chancellor and his

Personal Secretary were thereafter taken to the red

Maruti van. Subsequently the two kidnapped persons

were taken to different locations and ultimately were

taken to the residence of Mohd. Sadiq Rather at

Natipura. From there the two kidnapped persons were

shifted to the house of accused Shabir where they were

kept confined.

2.6 Accused Hilal Beg claimed responsibility for

the abduction of Dr. Mushir-ul-Haq, the Vice-

Chancellor, and his Personal Secretary Abdul Gani

Page 5 of 43

Zargar. In this connection, accused Hilal Beg issued a

press release.

2.7 As the Government did not comply with their

demand, accused Hilal Beg and his associates convened

a meeting on 09.04.1990 at 03.00 p.m. to decide the

fate of the hostages.

2.8 On 10.04.1990, the two hostages were taken

to a field. Accused Salim Zargar fired upon with an AK-

47 rifle causing multiple bullet injuries on their persons

as a result of which both of them died on the spot. Local

police came to the crime scene and recovered 9 empty

cartridges of an AK-47 rifle but the AK-47 rifle could not

be recovered. On conclusion of investigation (after

transfer of the same to the CBI), charge sheet was filed

implicating Hilal Beg, Javed Ahmed S hala, Mushtaq

Ahmed Sheikh, Moh d. Salim Zargar, Mohd. Hussain

Khan, Aftab Lach Khan, Mushtaq Ahmed Khan, Shabir

Butt, Hilal Sheikh, Mohammad Ashraf Butt and Gulam

Qadir Mir as the accused for committing an offence

under Sections 120B read with Section 365 RPC. All the

above, except Aftab Lach Khan, were accused of

committing an offence punishable under Sections 3(1)

and 3(3) of the TADA Act. Accused Aftab Lach Khan was

charged with committing an offence under Section 3(3)

of the TADA Act. Additionally, Hilal Beg, Javed Ahmed

Page 6 of 43

Shala, Mushtaq Ahmed Sheikh, Mohd. Salim Zargar,

Mushtaq Ahmed Khan and Tahir Mir were charged

under Section 4(2) of the TADA Act. Accused Mohd.

Salim Zargar was further charged for committing an

offence punishable under Section 302 RPC while

accused Hilal Beg was charged under Section 32 read

with Section 34 of the RPC.

3. Vide order dated 22.04.2000 accused Abdul

Aziz Dar, Gulam Qadir Mir, Shabir Ahmed Bhat, Moh d.

Sadiq Rather, Mushtaq Ahmed Khan and Moh d. Salim

Zargar (respondents in the present appeal) were charged

for committing an offence under Sections

118/302/368/365 of the RPC read with Sections 3/4 of

the TADA Act.

3.1 Accused denied their guilt and claimed to be

tried. One of the accused persons Tahir Ahmed Mir was

discharged on the same day but proceedings were

initiated against the other accused persons. During

pendency of the trial, accused Hilal Beg passed away.

3.2 To prove its case, prosecution examined a

number of witnesses. After considering the evidence and

other materials on record, the Special Court vide the

judgment and order dated 20.04.2009 acquitted the

accused persons holding that the prosecution could not

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prove the guilt of the accused beyond any reasonable

doubt. The Special Court discarded the ocular evidence

of PW-2, PW-3 and PW-6 as well as the confessional

statements of the accused which were held to be

inadmissible in evidence.

4. Aggrieved thereby, appellant (State) has

approached this Court by filing criminal appeal under

Section 19 of the TADA Act , being Crl. Appl. No.

1681/2009. Crl. Appl. No. 1681/2009 was admitted by

this Court vide the order dated 28.08.2009.

5. We have heard Mrs. Sonia Mathur, learned

Senior Counsel for the appellant and Ms. Kamini

Jaiswal, learned counsel for the respondents.

6. Learned Senior Counsel for the appellant-

State submits that the Special Court relied on a

previous decision dated 21.12.2002 in the case of State

through CBI Vs. Mohd. Salim Zarg ar wherein the

confessional statement of Mohd. Salim Zargar was held

to be inadmissible. In the present proceedings, besides

the confessional statement of Mohd. Salim Zargar, there

were confessional statements of two other accused

persons, namely, Mushtaq Ahmed Khan and Mohd.

Sadiq Rather. However, the confessional statements of

Page 8 of 43

both the accused persons were rejected due to the

following reasons:

i) No statements in the form of questions and

answers were recorded by the Recording Officer

to conclude that his satisfaction was based on

sound material;

ii) No record was maintained by the Recoding

Officer to ascertain if the confessional statement

was voluntary;

iii) No effort was made to find out if any other

Superintendent of Police was available to record

the confessional statements;

iv) No letter was written by the Investigating

Officer to the Recording Officer requesting the

later to record the confessional statements of the

aforesaid two accused persons;

v) It is not mentioned that the Recording Officer

had given time to the accused persons and at

what time the accused persons were produced

before him;

vi) Confessions of the accused persons were

recorded on the same day when they were

produced before the Superintendent of Police;

Page 9 of 43

6.1 Learned Senior Counsel for the appellant

submits that for the aforesaid lacunae the Special Court

did not accept the confessional statements of Mushtaq

Ahmed Khan and Mohd. Sadiq Rather.

6.2 Referring to Section 15 of the TADA Act,

learned Senior Counsel submits that if a confessional

statement is established as voluntary, truthful and

relates to the accused directly, it holds sufficient

evidentiary value. In such a case, no further

corroboration is necessary. Conviction of the accused

can be based solely on such confession. In the present

case, the confessions of the accused persons were

voluntary, true and those corroborated with each other.

Recording Officer Shri AK Suri, PW-12, had followed the

procedure mandated under Section 15 of the TADA Act

and Rule 15 of the TADA Rules. Therefore, the Special

Court was not justified in rejecting the confessional

statements of the aforesaid two accused persons.

6.3 Adverting to the rejection of the confessional

statement of Mohd. Salim Zargar, l earned Senior

Counsel submits that the doctrine of issue estoppel

cannot be applied in the present case. Salim Zargar was

acquitted in a different proceeding vide the judgment

and order dated 21.12.2002 which was not challenged

Page 10 of 43

by CBI. Barring Salim Zargar, parties are different in

both the cases. Present trial had arisen out of a

completely different incident i.e. kidnapping of Dr.

Mushir-ul-Haq, the Vice -Chancellor of Kashmir

University, and his Personal Secretary, Abdul Gani

Zargar, from the Sadarbal Gate of the University on

06.04.1990. Therefore, the Special Court fell in error in

rejecting the confessional statement of Salim Zargar

relying on the doctrine of issue estoppel.

6.4 In any case, in addition to the confessional

statement of Salim Zargar, there were confessions of two

other accused persons, viz, Mushtaq Ahmed Khan and

Mohd. Sadiq Rather which were recorded by the

Superintendent of Police on 14.08.1990 and 25.08.1990

respectively. In view of the joint trial of the accused

persons, confessions of the aforesaid two accused

persons which were made voluntarily and corroborated

with each other should have been relied upon.

6.5 It is further submitted that confessions of the

accused persons were recorded in the year 1990 when

there were no guidelines prescribed for recording of

statements under Section 15 of the TADA Act.

Judgment in the case of Kartar Singh Vs. State of

Page 11 of 43

Punjab

1, came much later. Therefore, the procedure

prescribed in Kartar Singh (supra) could not have been

followed in the present case.

6.6 Learned Senior Counsel submits that Section

15 of the TADA Act provides the substantive legal frame

work for recording confessions while Rule 15 of the

TADA Rules lays down the procedural safeguards

necessary to uphold the validity of such confessional

statements. Section 15(2) of the TADA Act should be

read with Rule 15 of the TADA Rules. Notably, sub-rule

3(b) of Rule 15 mandates the police officer recording a

confession to append a memorandum at the end of the

confession. In the present case, Shri AK Suri, PW-12,

ensured before recording the confessional statements

that the accused were doing so voluntarily and they

were duly warned about the legal consequences of such

confession. The accused signed every page of the

statements and the Recording Officer appended the

mandatory memorandum confirming the voluntary

nature of the confessions. The certificates, duly signed

and sealed, were forwarded to the competent authority.

Hence the issuance of the certificates complied with

Rule 15(3) of the TADA Rules reflecting the officer’s

satisfaction regarding the voluntariness of the

confessions.

1

(1994) 3 SCC 569

Page 12 of 43

6.7 That apart, it is further submitted that the

confessional statement of Mohd. Salim Zarg ar was

additionally recorded under Section 164 of the Code of

Criminal Procedure, 1973 (Cr.PC) which was duly

exhibited during the trial.

6.8 Thus, the confessional statements of Mohd.

Salim Zargar, Mushtaq Ahmed Khan and Mohd. Sadiq

Rather were recorded following the legal procedure

mandated by the statute. Therefore, the Special Court

was not at all justified in discarding the confessional

statements of the abovenamed accused persons. On the

basis of such confessional statements, the guilt of the

accused persons stood conclusively established. In the

circumstances, learned Senior Counsel submits that the

appeal may be allowed setting aside the impugned

judgment of the Special Court.

6.9 In support of her submissions, learned Senior

Counsel has placed reliance on the following decisions:

i) Kartar Singh (supra);

ii) Sharafat Hussain Abdul Rahaman

Shaikh Vs. State of Gujarat

2;

iii) SN Dube Vs. NB Bhoir

3;

2

(1996) 11 SCC 62

3

(2000) 2 SCC 254

Page 13 of 43

iv) Ahmed Hussein Vali Mohammed. Saiyed

Vs. State of Gujarat

4;

v) Yakub Abdul Razak Memon Vs. State of

Maharashtra

5; and,

vi) Raja Vs. State of Tamil Nadu

6;

7. Per contra, learned counsel for the

respondents submits that Special Court had acquitted

all the accused persons as the only actionable evidence

were the alleged confessional statements of the three

accused persons. In so far the confessional statement of

Mohd. Salim Zargar is concerned, the same was already

rejected by the Special Court vide the judgment and

order dated 21.12.2002 in a separate TADA proceeding.

No appeal was preferred by the CBI against the said

acquittal order which was passed following rejection of

the confessional statement of Mohd. Salim Zarg ar.

Thus, the said finding had become final. In the present

proceeding, prosecution relied upon the same

confessional statement which was rightly rejected by the

Special Court.

7.1 Learned counsel submits that trial in this

case took more than 19 years to complete as the

prosecution was very tardy in producing the witnesses

4

(2009) 7 SCC 254

5

(2013) 13 SCC 1

6

(2020) 5 SCC 118

Page 14 of 43

before the Court while the accused persons remained in

custody as under -trial prisoners. The alleged

confessional statements were recorded by one Shri AK

Suri, PW-12, who was holding the post of

Superintendent of Police, CBI at the relevant point of

time and was also supervising the investigation of the

present case. Prosecution could not produce any

authorization whereby PW-12 was authorized to record

the confessional statements. After due consideration,

the Special Court discarded the confessional statements

of all the three accused persons. While the confessional

statement of Mohd. Salim Zargar was rejected because

the same confessional statement was relied upon by the

prosecution in another trial where it was rejected, in so

far the confessional statements of Mushtaq Ahmed and

Mohd. Sadiq Rather are concerned, the Special Court

expressed serious doubt about the voluntary nature of

such confessions.

7.2 Elaborating further, learned counsel for the

respondents submits that PW-12 did not testify as to

how the accused persons had appeared before him on

their own. He was also silent about the production of

the accused persons before him and also in respect of

any request regarding recording of such confessional

statements made to him by the Investigating Officer. The

Investigating Officer deposed that he had never arrested

Page 15 of 43

the accused persons and had not even produced the

accused before the Court. He further stated that he did

not ask the SP, CBI (Shri AK Suri) to come for recording

the statement of the accused persons. There is no

record to show from whose custody the accused persons

were produced before Shri Suri when the alleged

confessions were recorded or whether the accused

persons made any desire in writing or orally to get their

confessions recorded. The testimony of Shri AK Suri also

shows that no questions were put to and answers

sought from the accused persons before recording their

confessions. There is no contemporaneous record to

show that questions were put to the accused persons by

Shri AK Suri before the statements were recorded. No

satisfaction was recorded that the confessional

statements were made voluntarily and were truthful.

Admittedly, the confessional statements were recorded

under compelling circumstances in places which were

fortified and heavily guarded, such as, BSF camp and

Joint Interrogation Centres.

7.3 Learned counsel for the respondents submits

that it is not the case of the prosecution that no other

Superintendent of Police was available at the relevant

point of time and that only Shri AK Suri was available

which necessitated him to record the confessional

statements. Learned counsel asserts that Shri Suri was

Page 16 of 43

keen and overzealous to get the confessional statements

recorded by himself for more than one reason. There is

nothing on record to show from whose custody the

accused persons were produced before Shri Suri for

recording of the confessional statements in the BSF

camp and at the Joint Interrogation Centres and at

whose instance. There was no independent evidence to

support the prosecution case and, therefore, the only

way the prosecution could succeed in proving the guilt

of the accused persons was to resort to the draconian

law for getting the confessions recorded by themselves.

7.4 Learned counsel for the respondents submits

that no offence under the TADA Act was made out or

proved as against the respondents. It is evident that the

accused persons were subjected to harsh interrogation,

treatment and unlawful incarceration to make out a

case of TADA but without any evidence. Special Court

rightly acquitted the respondents. There is no illegality

or perversity in the order of acquittal. No case is made

out to reverse the order of acquittal.

7.5 Learned counsel has relied upon the decisions of

this Court in Kartar Singh (supra), SN Dube (supra)

and also in the case of Raja (supra) which clearly lay

down the proposition that the guidelines prescribed by

this Court for recording of confessional statements

Page 17 of 43

under Section 15 of the TADA Act and Rule 15 of the

TADA Rules are mandatory in nature which have to be

followed if such confessions are to be relied upon. If the

guidelines or conditions are not complied with, such

confessional statements cannot be relied upon to

convict the accused.

7.6 In the circumstances, learned counsel for the

respondents submits that there is no merit in the appeal

which should, therefore, be dismissed.

8. Submissions made by learned counsel for the

parties have received the due consideration of the Court.

9. Prosecution presented PW -2, Ghulam

Mohiuddin Khan, PW-3, Molu Khan, and PW-6, Ghulam

Nabi Dar, the driver, as the eyewitnesses. PW-2 and PW-

3 in their evidence described the kidnappers as young

men with moustaches but could not identify them. PW-6

detailed how armed individuals hijacked the vehicle and

later transferred the kidnapped persons to another car

but he could not recognize the individuals. Therefore,

evidence of the aforesaid witnesses are of not much

assistance to the prosecution.

10. Though the medical and forensic evidence

confirmed that both the deceased were killed by bullets

Page 18 of 43

fired from AK-47 rifle, the weapon (AK-47 rifle) used in

the crime could not be recovered. In fact, PW-11 Shri

Roop Singh, a Senior Scientific Officer from the Central

Forensic Science Laboratory, New Delhi testified that the

cartridges recovered and sent to him for forensic

examination were from a 7.62 mm AK-47 rifle. However,

during cross-examination, he admitted that he had not

seen the AK-47 rifle from which the cartridges were

fired.

11. It is evident that the aforesaid testimony of

the prosecution witnesses coupled with non-recovery of

the weapon of offence seriously damaged the

prosecution case. Prosecution therefore relied entirely

on the confessional statements of Mohd. Salim Zargar,

Mushtaq Ahmed Khan and Mohd. Sadiq Rather to prove

the case against the respondents.

12. Before we deal with the admissibility or

otherwise of the aforesaid confessional statements, it

would be apposite to analyse the relevant legal

provisions under the TADA Act and the TADA Rules

dealing with recording of confessional statements.

13. TADA Act was a special legislation enacted to

make special provisions for the prevention of and for

coping with terrorist and disruptive activities and for

Page 19 of 43

matters connected therewith o r incidental thereto.

Section 15 provides for certain confessions made to

police officers to be taken into consideration. Section 15

is as under:

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 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.

Page 20 of 43

13.1 Sub-section (1) starts with a non-obstante

clause. It says that notwithstanding anything contained

in the Cr.P.C. or in the Indian Evidence Act, 1872

(‘Evidence Act’ hereinafter) but subject to the provisions

of Section 15 of the TADA Act, a confession made by a

person before a police officer not lower in rank than a

Superintendant of Police (SP) shall be admissible in the

trial of such person or that of co-accused, abettor or

conspirator for an offence under the TADA Act or under

the TADA Rules. The recording may be by such a police

officer or on any mechanical device, like, cassettes,

tapes etc. Proviso to sub-section (1) says that the

confessional statement made under sub-section (1) shall

be admissible with regard to the co-accused, abettor or

conspirator if they are charged and tried in the same

case together with the accused. Sub-section (2) of

Section 15 mandates that before recording any

confession under sub-section (1), the police officer shall

explain to the person making it that he is not bound to

make a confession but if he does so, it may be used as

evidence against him. Such a 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.

13.2 Thus, sum and substance of Section 15 of the

TADA Act is that a confessional statement made

Page 21 of 43

voluntarily by a person before a police officer not below

the rank of SP shall be admissible in the trial of such

person for an offence under the TADA Act.

14. Rule 15 of the TADA Rules lays down the

procedure regarding recording of confession made to

police officers. Rule 15 reads thus:

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

Page 22 of 43

(b) by the police officer who shall 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) insofar 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.

Page 23 of 43

(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.

14.1 While sub-rule (1) mandates that the

confession under Section 15 of the TADA Act should be

recorded in the language in which the confession is

made, but if that is not practical, then it should be

recorded in the language used by such police officer for

official purposes or in the language of the designated

court. In any case, the confessional statement shall

form part of the record.

14.2 As per sub-rule (2), the confession so

recorded shall be shown, read or played back to the

person concerned. If he does not understand the

language in which it is recorded, it shall be interpreted

to him in a language which he understands. At that

stage, the person making the confession shall be at

liberty to explain or add to his confession.

14.3 The requirement of sub-rule (3) is that the

confession if it is in writing shall be signed by the

Page 24 of 43

person who makes the confession as well as by the

police officer. Additionally, the police officer shall certify

under his own hand that such confession was taken in

his presence and recorded by him. He shall also certify

that the record contains a full and true account of the

confession made by the person. At the end of the

confession, the police officer is required to make a

memorandum, the substance of which is that the police

officer had explained to the person concerned that he is

not bound to make a confession but if he does so, the

same may be used against him as evidence. The

memorandum should contain a certificate of the police

officer that he believes that the confession was made

voluntarily in his presence and recorded by him; that it

was read over to the person concerned who admitted the

same to be correct containing a full and true account of

the statement made by him.

14.4 Sub-rule (4) deals with a situation where the

confession is recorded on any mechanical device. Since

in the present case, the confessional statements were

not recorded on any mechanical device, this provision

may not have much relevance.

14.5 Sub-rule (5) mandates that every confession

recorded under Section 15 of the TADA Act shall be sent

forthwith to the jurisdictional Chief Judicial Magistrate

Page 25 of 43

or the Chief Metropolitan Magistrate, as the case may

be, who shall forward the recorded confession so

received to the designated court (special court) which

may take cognizance of the offence.

14.6 Thus, Rule 15 deals with the procedural

aspect regarding recording of confession made to police

officers under Section 15.

15. As noticed above, TADA Act was enacted by

the Parliament to deal with the menace of terrorism and

related disruptive activities. It contained a special

provision in the form of Section 15 which permitted

confessional statement recorded by a police officer not

below the rank of SP to be admitted as evidence in the

trial of the person making the confessional statement or

the trial of the co-accused, abettor or conspirator if they

are tried together in the same case as the person

making the statement.

16. In criminal jurisprudence, developed over a

century, confessions made to a police officer are

inadmissible in evidence. 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. Power to record confessions is given to a Judicial

Magistrate. Strict and rigorous guidelines have been laid

Page 26 of 43

down to record such judicial confessions under Section

164 Cr.P.C. Such safeguards are founded on the well-

settled principle that confession is an admission of guilt.

Ordinarily, nobody would like to admit his guilt as he is

fully aware that the same would be used against him.

That apart, an accused has a constitutional and

fundamental right against testimonial compulsion.

Therefore, Section 15 of the TADA Act completely altered

the fundamental rules of evidence.

17. Vires of the TADA Act was challenged before

the Supreme Court in Kartar Singh (supra). A

Constitution Bench of this Court while upholding the

validity of Section 15 of the TADA Act as well as the

entirety of the Act, however, laid down certain guidelines

so as to ensure that 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 compliance with well-recognized

and accepted aesthetic principles and fundamental

fairness. These guidelines are as follows:

263. However, we would like to lay down following

guidelines so as 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

Page 27 of 43

conformity with the well-recognised and accepted

aesthetic principles and fundamental fairness:

(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 be

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.

Page 28 of 43

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 pre-trial

interrogation from the judicial custody, must file

an affidavit sworn by him explaining the reason

not only for such custody but also for the delay, if

any, in seeking the police custody;

(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;

The Central Government may take note of these

guidelines and incorporate them by appropriate

amendments in the Act and the Rules.

17.1 This Court further clarified that though it is

entirely for the court trying the offence to decide the

question of admissibility or reliability of a confession in

its judicial wisdom strictly adhering to the law, it must

Page 29 of 43

satisfy itself that there was no trap, no track and no

importune seeking of evidence during the phase of

custodial interrogation. The court should also satisfy

itself that all the required conditions are fulfilled. This

Court further emphasized that in order to ensure a

higher level of scrutiny vis-a-vis applicability of TADA

Act there should be a screening committee or a review

committee both at the central level as well as at the

state level.

18. In the case of SN Dube (supra), a two Judge

Bench of this Court negatived the contention of the

defence that a confession under Section 15 of the TADA

Act should be recorded in two phases i.e. the

preliminary part containing the record of how and for

what purpose the person was forwarded and the

questions and answers put to him for ascertaining his

voluntary willingness to make a confession even after

being told that the confession may be used against him

as a piece of evidence; and the second part which

contains the actual confessional statement. Contention

of the defence was that it is the second part which has

to be regarded as the actual confessional statement and

not the preliminary part. Therefore, the obligation to

explain and ascertain is to be performed while recording

the real confessional part. Such explanation and

ascertainment done earlier when the preliminary part

Page 30 of 43

was recorded cannot be regarded as proper compliance

with the requirement of Rule 15(2). The police officer

must explain and give the statutory warning before the

actual confessional part starts and it is at that point of

time that he has to ascertain by questioning the person

making it that he is making the confession voluntarily.

18.1 The aforesaid contention of the defence was

repelled by this Court in the following manner:

30. ...Therefore, the contention that when the

confession is recorded in two parts, only the second

part can be regarded as the confession and while

recording the second part the police officer should give

the statutory warning and then ascertain if the person

concerned is making it voluntarily, cannot be

accepted. The requirement of law is that before

recording the confession the police officer should

ascertain by putting questions to the maker of it that

he is making the confession voluntarily and he should

also explain to him that he is not bound to make the

confession and that if he makes it that can be used

against him as evidence. In this case DSP Shinde had

put questions to each of the accused who was brought

before him to ascertain if he was willing to make a

confession voluntarily and had also given the

statutory warning to him on that day. Even after the

accused had shown his willingness to make a

confession Shinde had given him time not exceeding

Page 31 of 43

48 hours to think over his readiness to make the

confession. When the accused was brought to him

again he had again ascertained if he was still ready

and willing to give a statement. He had also asked

him if he was making it under any pressure or

coercion or threat. Only after the accused had replied

in the negative he had told the accused to say

whatever he wanted to state about Suresh Dube's

murder. In view of these facts and circumstances it is

not possible to uphold the finding recorded by the trial

court and to accept the contention raised on behalf of

the respondents that while recording the confessions

of the accused Shinde had committed a breach of Rule

15(2).

19. Shiraj Ahmed (supra) is a case where a two

Judge Bench of this Court while considering the

admissibility of a confession recorded under Section 15

of the TADA Act referred to the exceptional nature of

Section 15 and the guidelines laid down by the

Constitution Bench in Kartar Singh (supra). This Court

held that any confession made in defiance of the

safeguards would not be relied upon by a court. This

Court held thus:

50. From the aforementioned statements of law

enunciated by this Court, it is apparent that

considerable amount of confidence has been reposed in

Page 32 of 43

the senior police officials for recording the confessional

statement. A confessional statement to police is not

admissible under the general law connected with

administration of criminal justice, which is made

admissible under the TADA Act, and, therefore, strict

compliance with the procedure prescribed under Section

15 of the TADA Act read with Rule 15 of the TADA Rules

is expected to be followed. Any confession made in

defiance of the safeguards provided therein, would not

be relied upon by a court. The confession should be

made voluntarily without there being any force or

pressure put on, or allurement or inducement given to, a

person who is voluntarily admitting his guilt. Under

Section 25 of the Evidence Act, a confession made to the

police officer is not admissible in evidence to be

considered by a court. Although there are certain

exceptions in the preceding provisions, but the fact

remains that as a rule a confession made to the police

officer is not made admissible under the Evidence Act.

The idea appears to be that any statement made to a

police officer who is connected with the investigation

and prosecution of a person, would not be taken as

evidence. Under Section 15 of the TADA Act, if a

confession made by the accused to a police officer not

lower than the rank of Superintendent of Police is made

admissible, it would still be a confession made to the

police officer, and thus inbuilt safeguards have been

provided under Section 15 of the TADA Act read with

Rule 15 of the TADA Rules so as to lend credence to the

Page 33 of 43

confession made to the police officer, it being voluntary

and without any force or pressure and allurement or

inducement. The Constitution Bench of this Court in

Kartar Singh has also laid down the condition to

establish the voluntary nature of the confession.

x x x x x x x x x x

52. From a bare reading of the above certificate, it is

clear that it is necessary for the police officer to certify

that he has explained to the accused that the accused is

not bound to make a confession and if he does so such

confession may be used as evidence against him. It is

further required to be recorded that he believes that the

confession was voluntarily made. He has to record that

the confessional statement has been taken in his

presence and heard and recorded by him. The

confessional statement should be read over to the

person making it and admitted by him to be correct and

it should be certified that it contains a full and true

account of the statement made by the accused. The

certificate which is required to be given by the police

officer is not a mere formality, but it is for the purposes

of ascertaining that the police officer has recorded the

confession keeping in mind and being fully aware of the

fact that the confession recorded by him is a voluntary

confession and with the information available to the

accused that he is not bound to make such confession

and if he does so it will be used as evidence against

him. A duty is cast on the police officer who is to record

the confession to bring at the relevant time these facts to

Page 34 of 43

the notice of the person whose confession is going to be

recorded.

20. In the case of Ajit Singh (supra), a two Judge

Bench of this Court again considered admissibility of

confessions recorded under Section 15 of the TADA Act.

Observing the draconian nature of Section 15, this

Court emphasized that TADA Act is a harsh penal

statute and its provisions must, therefore, be construed

in that perspective. Referring to an earlier decision, this

Court observed that Section 15 is a clear departure from

the general law that a statement made to a police officer

is not permissible in evidence. Adverting to Kartar

Singh (supra), it was observed that the Constitution

Bench while upholding the vires of Section 15 repeatedly

dealt on the severity of the said provision as one laying

down altogether a new procedure and emphasized that

provisions of the TADA Act and the TADA Rules must be

scrupulously observed with particular reference to the

provisions relating to recording of confessions. In the

facts of that case, it was noticed that 15 to 30 minutes

time was given to the accused for reflection before the

actual confessions were recorded. This Court held that

sufficient cooling off time was not given to the accused.

It was also found that there was no evidence on record

that the confessional statements were submitted to the

Page 35 of 43

concerned Magistrate. In the circumstances, this Court

observed as under:

13. Applying the aforesaid principles to the facts of

the present case, we are of the opinion that adequate

time had not been given to any of the accused as

they had been in police custody for almost 45 days

in each case We also observe that there is no

evidence on record to suggest that the special report

envisaged under sub-rule (5) of Rule 15 had been

submitted to the Magistrate. The confessions cannot,

therefore, be taken into account for any purpose.

21. Having surveyed the law on the subject, let us

now advert to the three confessional statements.

22. The confessional statement of Mohd. Salim

Zargar (respondent No. 1) was recorded on 16.09.1990

(sic) by PW-12, Shri AK Suri, SP. The following

memorandum was appended to the confessional

statement:

The person named above who is presently lodged in

BSF camp at Srinagar voluntarily expressed his

willingness before me to make a clean-breast of his

guilt. It was explained to him that he is not bound to

make any confession and that if he does so, it may

be used against him as evidence. Even after this he

is willing to make a confession of his guilt. On further

Page 36 of 43

questioning him I have satisfied myself that he is

making the confession voluntarily.

Sd/ 16.09.90

(A.K. SURI)

SUPTD OF POLICE

CBI/SIC-U, NEW DELHI.

22.1 From the above, it is seen that respondent

No. 1 was lodged in a BSF camp at Srinagar where his

confession was recorded. But there is no mention where

the confession was recorded. Further, the time when the

confession was recorded was not mentioned. PW-12 also

did not mention whether he had afforded any time to

respondent No. 1 to reflect before making the confession

which is most crucial. This statement is as vague as it

can be. Thus, there is clear departure from the norms

which renders the confession highly suspect.

22.2 The record does not contain any statement in

the form of questions and answers wherefrom it could

be deciphered that PW-12 had reason to believe that

respondent No. 1 was making the confession

voluntarily. Further, in his evidence PW-12 stated that

he was posted as SP, CBI in New Delhi. He was on a

visit to Srinagar on 06.08.1990 when respondent No. 1

was produced before him. Confessional statement of

respondent No. 1 was recorded on the same day i.e. on

06.08.1990 at the BSF camp. It is thus apparent that

since the confession was recorded on the same day,

Page 37 of 43

hardly any or no time for reflection was given which has

vitiated the said confessional statement. There is one

more aspect which needs to be noted. The certificate

appended to the confessional statement is dated

16.09.1990 whereas PW-12 in his evidence stated that

he had recorded the confession of respondent No. 1 on

06.08.1990. This is again a grave discrepancy.

22.3 It may be mentioned that this very

confessional statement of respondent No. 1 was rejected

by the Special Court in a prior case concerning the

killing of one BK Ganju (File No. 6/CH, CBI Vs. Mohd.

Salim Zargar, decision dated 21.12.2002) where the said

confessional statement was deemed inadmissible and

unreliable.

23. This Court in the case of Ravinder Singh Vs.

Sukhbir Singh

7

, examined the principle of issue

estoppel. That was a case arising out of a prayer for

quashing of criminal proceedings under the Scheduled

Caste and Scheduled Tribes (Prevention of Atrocities)

Act, 1989. This Court explained the principle of issue

estoppel in the following manner:

25. The principle of issue estoppel is also known

as “cause of action estoppel” and the same is

different from the principle of double jeopardy or

7

(2013) 9 SCC 245

Page 38 of 43

autrefois acquit, as embodied in Section 300

CrPC. This principle applies where an issue of

fact has been tried by a competent court on a

former occasion, and a finding has been reached

in favour of an accused. Such a finding would

then constitute an estoppel, or res judicata

against the prosecution but would not operate as

a bar to the trial and conviction of the accused,

for a different or distinct offence. It would only

preclude the reception of evidence that will

disturb that finding of fact already recorded

when the accused is tried subsequently, even for

a different offence, which might be permitted by

Section 300(2) CrPC. Thus, the rule of issue

estoppel prevents re-litigation of an issue which

has been determined in a criminal trial between

the parties...

24. Therefore, applying the aforesaid principle the

confessional statement of respondent No. 1 could not

have been relied upon by the prosecution and was

rightly rejected by the Special Court. Acceptance of the

same confessional statement of respondent No.1 would

disturb the finding of fact already recorded in the

previous criminal trial relating to the killing of one B.K.

Ganju. In any case, the said statement is clearly vitiated

by non-compliance with the procedural safeguards

Page 39 of 43

provided under Rule 15 and enumerated in Kartar

Singh (supra).

25. This brings us to the confessional statements

of respondent No.2, Mushtaq Ahmed Khan , and

respondent No. 6, Mohd. Sadiq Rather. While the

confessional statement of Mushtaq Ahmed Khan was

recorded on 14.08.1990, that of Mohd. Sadiq Rather on

25.08.1990. Confessional statements of the above two

respondents were recorded in the same manner as the

confessional statement of respondent No.1; the only

difference being that statement of respondent No. 2 was

recorded at the Joint Interrogation Centre (JIC),

Srinagar, whereas statement of respondent No. 6 was

recorded at JIC, Kot Bhalwal, Jammu. The

memorandum appended to their confessional

statements did not contain the time of recording of

confession and from where they were produced; and

also as to whether any time was given to the said

respondents for reflection before recording of the

confessional statements. This is a most crucial omission

which has completely vitiated the confessional

statements. That apart, no statements in the form of

questions and answers were recorded by PW -12 to

ascertain the voluntary nature of the confessional

statements made by respondent N os. 2 and 6. In

addition to the above, nothing has been placed on

Page 40 of 43

record to show any authorization to PW-12 to record the

confessional statements of the above respondents.

25.1 PW-12 in his evidence deposed that he was

on a visit to Srinagar on 14.08.1990 when respondent

No. 2 was produced before him in the JIC and he had

recorded the confession of respondent No. 2 on that day

itself. Similarly, PW-12 stated that he was on a visit to

Jammu on 25.08.1990 when respondent No. 6 was

produced before him in the JIC where he had recorded

the confession of respondent No. 6 on that day itself.

Therefore, it is evident that since the confessional

statements of the above two respondents were recorded

on the same day of production, hardly any or no time

was given to them for reflection which has completely

vitiated the said two confessional statements.

26. Kartar Singh (supra) says that confession

should be recorded in a free atmosphere. Recording of

confessional statements in a heavily guarded BSF camp

or in a JIC where the atmosphere for an accused would

generally be daunting and overbearing cannot be said to

be in a free atmosphere. It has come on record that the

confessional statements so recorded were not accepted

by the Court of Chief Judicial Magistrate whereafter

those were sent directly to the Special Court which

again is an infraction of the statute.

Page 41 of 43

27. The Legislature had reposed great faith in the

fairness and uprightness of the higher police officials in

the rank of SP and above while conferring the drastic

power of recording confessional statements of the

accused persons upon them making the same

admissible in evidence subject to fulfillment of the

procedural safeguards. But we are afraid, in so far the

present case is concerned, the procedural safeguards

were given a complete go-bye. The Special Court has

stopped short of observing that it was a case of abuse of

power and authority. It is indeed a sad reflection as to

how investigation and trial unfolded in this case where

truth and justice, both for the victims and the accused,

remained elusive. It is not for nothing that such

draconian provisions have since been repealed. We say

this and no more.

28. Thus, in view of the discussions made above,

we do not find any error or infirmity in the view taken by

the Special Court in acquitting the respondents. This is

not even a case of plausible view. No other view is

possible. Consequently, there is no merit in the criminal

appeal which is accordingly dismissed.

Page 42 of 43

CRIMINAL APPEAL NO. 1770 OF 2009

29. This appeal under Section 19 of the TADA Act

by the State (CBI) assails the judgment and order dated

20.04.2009 passed by the Special Court in CBI Case No.

RC 6(S)/1990 acquitting the respondents for the

offences under Section 3(1) of the TADA Act read with

Sections 120B, 302, 368 and 364 of the RPC.

30. This Court vide the order dated 11.09.2009

had admitted the instant criminal appeal and directed

listing of the same with Criminal Appeal No. 1681 of

2009. However, Criminal Appeal No. 1770 of 2009 (State

Vs. Tahir Ahmed Mir and Anr.) was dismissed by this

Court vide the order dated 04.12.2023 for non -

prosecution qua respondent No. 1.

31. This criminal appeal arises out of the incident

relating to kidnapping and subsequent murder of Shri

H.L. Khera, the then General Manager, HMT Watch

Factory, Srinagar allegedly by the respondents after

entering into a criminal conspiracy to strike terror in the

minds of the general public and thereby to compel the

Government to release their associates.

32. Like the previous criminal appeal, here also

the weapon of assault was not recovered. That apart,

Page 43 of 43

the eyewitnesses deposed that the respondents who

were produced in court were not the accused persons.

Ultimately, the entire prosecution case centered around

the confessional statement of Mohd. Salim Zargar

(respondent No. 2) recorded by Shri A.K. Suri (PW-3

here) which we have already rejected in Criminal Appeal

No. 1681/2009.

33. For the reasons stated while dismissing

Criminal Appeal No. 1681 of 2009, the present criminal

appeal also fails and is accordingly dismissed.

………………………………J.

[ABHAY S. OKA]

………………………………J.

[UJJAL BHUYAN]

NEW DELHI;

MARCH 20, 2025