Full Judgment Text
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CASE NO.:
Appeal (crl.) 757 of 2007
PETITIONER:
Afzalkhan @ Babu Murtuzakhan Pathan
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 17/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 757 OF 2007
[Arising out of S.L.P.(Crl.) No. 754 of 2007]
WITH
CRIMINAL APPEAL NO. 758 OF 2007
[Arising out of S.L.P.(Crl.) No. 6509 of 2006]
S.B. Sinha, J.
1. Leave granted.
2. These appeals arise out of the judgments and orders dated 8.9.2006 as
also the judgment and order dated 10.8.2006 passed by the High Court of
Gujarat at Ahmedabad in Criminal Appeal No. 334 of 2005 and Criminal
Appeal No. 751 of 2006 respectively whereby and whereunder the bail
petitions filed by both the appellants were dismissed. A First Information
Report was lodged on or about 4.4.2003 for commission of an alleged
offence under Section 120(B), 121, 121(A), 122 and 123 of the Indian Penal
Code, 1860 and Section 25(1)(b), 25(1)(c), 27 and 29 of the Arms Act in the
D.C.B. Police Station, Ahmedabad. The names of the appellants, however,
did not figure in the said First Information Report. The first informant was
one Tarun Kumar Amrutlai Barot, Police Inspector, Ahmedabad Crime
Branch. An information was received that after the Godhra massacre some
youths from Ahmedabad City had gone to Pakistan for obtaining training for
carrying out terrorist activities with a view to take revenge of loss of lives
and properties caused to the Muslim community in communal riots which
had taken place therein and they have returned back to India after training.
An investigation was carried out. On the allegations that he was a party to
the conspiracy, Appellant Afzal Khan was arrested on 15.4.2003. We may
notice that a First Information Report almost on the same terms was
registered in Hyderabad on or about 19.4.2003 wherein also allegations had
been made that a group of boys had gone to Pakistan for terrorist training.
Appellant Saiyed Ejaz Ahmed @ Chota Ejaz who is a resident of Hyderabad
was arrested in connection with the said case on 3.12.2003. During
investigation of the Ahmedabad case also, Appellant Saiyed Ijaz Ahmed was
arrested by the Gujarat Police on 14.12.2003.
3. A chargesheet against the first appellant was filed on 10.9.2003 and a
chargesheet against the second appellant was filed on 21.1.2004.
4. In both the cases, confessional statements of various persons accused
of commission of the said offence were recorded. Pursuant to such
confessional statements of the appellant as also those of the co-accused, a
huge quantity of arm was recovered from the first appellant. The principal
allegations against the second appellant are that he had gone to Pakistan for
training.
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5. It is also not in dispute that the first appellant had moved the learned
Special Judge as also the High Court for grant of bail which had been
rejected. It now appears that charges have also been framed on 1.12.2005.
6. Ms. Kamini Jaiswal, learned counsel appearing for the first appellant
and Ms. Lata Krishnamurthy, learned counsel appearing for the second
appellant would inter alia submit that the appellants should have been
enlarged on bail as :-
(i) No overt act has been attributed against them.
(ii) Confessions have been obtained subsequent to their arrest.
(iii) Recovery of any weapon by itself would not lead to any conviction
under TADA.
(iv) Confessions of Mohammed Riyaz @ Goru, Mohammed Parvez Abdul
Kayyum Shaikh and Mohammed Yunus were recorded on 24.4.2003
in similar language and hence do not inspire confidence.
(v) Purported Confessions of two more accused had been recorded in the
year 2005 alleging that the first appellant had rendered monetary help
to the group was also recorded in similar language.
(vi) In view of the decisions of this Court in Shaheen Welfare Association
v Union of India and Ors. [(1996) 2 SCC 616], People’s Union for
Civil Liberties and Another v Union of India [(2004) 9 SCC 580],
State of Maharashtra v Sitaram Popat Vetal and Another [(2004) 7
SCC 521], State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru
[(2005) 11 SCC 600], the appellants are entitled to grant of bail.
7. Ms. Hemantika Wahi, learned counsel appearing on behalf of the
respondent, on the other hand, brought to our notice that the trial has already
commenced and two witnesses have been examined. It was pointed out that
as some other co-accused had moved this Court, wherein the original records
had been called for, the designated court could not proceed with the trial, but
as now the original records have since been received by the learned Special
Judge, all endeavours would be made to complete the trial as expeditiously
as possible.
8. The validity of Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA) came up for consideration before this Court in Kartar Singh v
State of Punjab [(1994) 3 SCC 569]. Therein inter alia the validity of
provisions in regard to the exceptions made to Sections 25 and 26 of the
Indian Evidence Act by reason thereof had been upheld. At this stage, it is
not desirable, although called upon to do so by the learned counsel, to go
into the merit of the matter so as to prejudice the case of either of the parties
in the main trial. The value of a confessional statements made before a high
ranking officer under the Special Acts and the precautions which are
necessary to be taken therefrom which are exceptions to the provisions of
the general statute namely Indian Evidence Act had been considered by this
Court in some of its decisions. We may notice some of them.
9. In Simon and Others v State of Karnataka [(2004) 1 SCC 74], this
Court held:-
"22. It is the duty of the recording officer to ensure that the
confession is made voluntarily and out of free will by the
accused without any pressure. Except the omnibus
statement about the general practice which was being
followed by PW 108, there is no evidence of any question
or attempt being made by the officer to satisfy himself that
the confession was being made voluntarily. This factor
becomes, on the facts and circumstances of the case, very
important since immediately after the arrest, the accused
was produced and the person actively associated with the
recording of statement was none other than the
investigating officer who by nature of things is interested
in the success of the prosecution case. Recording of
confessional statement is not a mechanical exercise. A
duty has been cast and considerable amount of confidence
has been reposed in a senior officer under Section 15 of the
TADA Act in giving him the duty to record the confession
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and making such a confession before a police officer
admissible in evidence..."
10. In S.N. Dube v N.B. Bhoir [(2000) 2 SCC 254], it was held:-
"31. As regards the breach of Rule 15(3) it has been
held that Shinde did not write the certificates and the
memorandums in the same form and terms as are
prescribed by that rule. It was submitted by the
learned counsel for the respondents that the
certificates and memorandums have not been recorded
by Shinde in identical terms and as Rule 15 is held
mandatory the trial court was right in holding them
inadmissible for non-compliance with that mandatory
requirement. Therefore, the question to be considered
is whether the certificate and the memorandum are
required to be written by that rule in the same form
and terms. What Rule 15(3)( b ) requires is that the
police officer should 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".
According to that rule the memorandum should be 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."
Writing the certificate and making the memorandum
are thus made mandatory to prove that the accused
was explained that he was not bound to make a
confession and that if he made it it could be used
against him as evidence, that the confession was
voluntary and that it was taken down by the police
officer fully and correctly. These matters are not left
to be proved by oral evidence alone. The requirement
of the rule is preparation of contemporaneous record
regarding the manner of recording the confession in
the presence of the person making it. Though giving
of the statutory warning, ascertaining the
voluntariness of the confession and preparation of a
contemporaneous record in the presence of the person
making the confession are mandatory requirements of
that rule, we see no good reason why the form and the
words of the certificate and memorandum should also
be held mandatory. What the mandatory requirements
of a provision are cannot be decided by overlooking
the object of that provision. They need not go beyond
the purpose sought to be achieved. The purpose of the
provision is to see that all formalities are performed
by the recording officer himself and by others to
ensure full compliance with the procedure and
seriousness of recording a confession. We fail to
appreciate how any departure from the form or the
words can adversely affect the object of the provision
or the person making the confession so long as the
court is able to conclude that the requirements have
been substantially complied with. No public purpose
is likely to be achieved by holding that the certificate
and memorandum should be in the same form and
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also in the same terms as are to be found in Rule
15(3)( b ). We fail to appreciate how the sanctity of
the confession would get adversely affected merely
because the certificate and the memorandum are not
separately written but are mixed up or because
different words conveying the same thing as is
required are used by the recording officer. We hold
that the trial court committed an error of law in
holding that because the certificates and
memorandums are not in the same form and words
they must be regarded as inadmissible. Having gone
through the certificates and the memorandums made
by Shinde at the end of the confessions what we find
is that he had mixed up what is required to be stated in
the certificate and what is required to be stated in the
memorandum. He has stated in each of the certificates
and the memorandums that he had ascertained that the
accused was making the confession willingly and
voluntarily and that he was under no pressure or
enticement. It is further stated therein that he had
recorded the confession in his own handwriting
(except in case of A-7 whose confession was recorded
with the help of a writer). He has also stated that it
was recorded as per the say of the accused, that it was
read over to the accused completely, that the accused
had personally read it, that he had ascertained
thereafter that it was recorded as per his say and that
the confession was taken in his presence and recorded
by him. It is true that he has not specifically stated
therein that the record contains "a full and true
account of the confession made". The very fact that he
had recorded the confession in his own handwriting
would imply that it was recorded in his presence and
was recorded by him. So also when he stated in the
certificates and memorandums that the confession was
recorded as per the say of the accused, that it was read
over to him fully, that the accused himself personally
read it and that he had ascertained that it was recorded
as per his say, that would mean that it contains "a full
and true account of the confession" and that the
contents were admitted by the accused. Thus, while
writing the certificate and the memorandum what
Shinde has done is to mix up the two and use his own
words to state what he had done. The only thing that
we find missing therein is a statement to the effect
that he had explained to the accused that he was not
bound to make a confession and that if he did so the
confession might be used as evidence against him.
Such a statement instead of appearing at the en d of
the confession in the memorandum appears in the
earlier part of the confession in the question and
answer form. Each of the accused making the
confession was explained about his right not to make
the confession and the danger of its being used against
him as evidence. That statement appears in the body
of the confession but not at the end of it. Can the
confession be regarded as not in conformity with Rule
15(3)( b ) only for that reason? We find no good
reason to hold like that. We hold that the trial court
was wrong in holding that there was a breach of Rule
15(3) and, therefore, the confessions were
inadmissible and bad."
11. In Hardeep Singh Sohal and Ors. v State of Punjab through CBI
[(2004) 11 SCC 612], it was held:-
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"17. Ext. PAA does not contain such a certificate
having been given by PW 34. It is true that PW 34 had
put certain questions to the accused as to whether he
was aware that the statement which he wants to make
could be used against him and on the basis of the same
he will be sentenced. The officer also asked him
whether there is any pressure, fear on him and he
answered in the negative. However, PW 34 did not give
the certificate at the end of the confession. The
certificate should have specifically stated that he had
explained to the person making the confession that he
was not bound to make the confession and, if he does
so, the confession he may make may be used against
him and that he believed that this confession was
voluntarily made and it was taken in his presence and
recorded by him and was read over to the person
making it and admitted by him to be correct, and it
contained a full and true account of the statement made
by him."
12. Thus, the question as to where irregularity, if any had been committed
in recording the confessional statement of the accused or the same otherwise
would not inspire confidence before a court of law is a matter which in our
opinion would fall for consideration of the learned Trial Judge.
13. An irregularity made in recording a statement may be held to be
curable and admissible in evidence. {See State of Tamil Nadu through
Superintendent of Police CBI/SIT v Nalini and Ors. [A.I.R. (1999) SC
2640].
14. Strongly relying upon the decision of this Court in State (NCT of
Delhi) v Navjot Sandhu [(2005) 11 SCC 600], however, it was submitted
that under a Special Statute like POTA or TADA confession of a co-accused
could not be taken into consideration even for the purpose of Section 30 of
the Indian Evidence Act. It is not necessary to examine that aspect of the
matter at this stage.
15. In Navjot Sandhu (supra) this Court held
"39. The crucial expression used in Section 30 is " the
Court may take into consideration such confession"
(emphasis supplied). These words imply that the
confession of a co-accused cannot be elevated to the
status of substantive evidence which can form the basis
of conviction of the co-accused. The import of this
expression was succinctly explained by the Privy Council
in Bhuboni Sahu v. R. 23 in the following words: (AIR p.
260)
"[T]he court may take the confession into consideration
and thereby, no doubt, makes its evidence on which the
court may act; but the section does not say that the
confession is to amount to proof. Clearly there must be
other evidence. The confession is only one element in the
consideration of all the facts proved in the case; it can be
put into the scale and weighed with the other evidence ."
(emphasis supplied)"
However, it was held:-
"50. We are, therefore, of the view that having regard to
all these weighty considerations, the confession of a co-
accused ought not to be brought within the sweep of
Section 32(1). As a corollary, it follows that the
confessions of the first and second accused in this case
recorded by the police officer under Section 32(1), are of
no avail against the co-accused or against each other. We
also agree with the High Court that such confessions
cannot be taken into consideration by the Court under
Section 30 of the Evidence Act. The reason is that the
confession made to a police officer or the confession
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made while a person is in police custody, cannot be
proved against such person, not to speak of the co-
accused, in view of the mandate of Sections 25 and 26 of
the Evidence Act. If there is a confession which qualifies
for proof in accordance with the provisions of the
Evidence Act, then of course, the said confession could
be considered against the co-accused facing trial under
POTA. But, that is not the case here.
As at present advised, we need not go into the said question.
16. We are not oblivious of some of the decisions of this Court that the
Courts should assign reasons while allowing or refusing an application for
bail. But then it is trite that detailed reasons touching the merit of the matter
should not be given, which may prejudice the accused. What is necessary is
that the order should not suffer from non-application of mind. At this stage
a detailed examination of evidence and elaborate documentation of the merit
of the case is not required to be undertaken.
17. Ordinarily, a bail application, in a case of this nature, which involves
the security of the State should be rejected.
18. Our attention has, however, been drawn to Shaheen Welfare
Association v Union of India and Ors. [(1996) 2 SCC 616], paragraph 13 of
the case reads as under:-
"13. For the purpose of grant of bail to TADA
detenus, we divide the undertrials into three ( sic
four) classes, namely, ( a ) hardcore undertrials
whose release would prejudice the prosecution case
and whose liberty may prove to be a menace to
society in general and to the complainant and
prosecution witnesses in particular; ( b ) other
undertrials whose overt acts or involvement directly
attract Sections 3 and/or 4 of the TADA Act; ( c )
undertrials who are roped in, not because of any
activity directly attracting Sections 3 and 4, but by
virtue of Section 120-B or 147, IPC, and; ( d ) those
undertrials who were found possessing incriminating
articles in notified areas and are booked under
Section 5 of TADA."
19. In Nalini (supra), the learned Judges forming the Division Bench
differed in their opinion as to whether confession of a co-accused would be
admissible as a substantive evidence against another co-accused. We,
however, at this stage, are not concerned with such a situation.
20. In a case of this nature, it is very difficult to say at this stage as to
whether they are parties to the larger conspiracy or not. In the evidence, it is
alleged that one of the appellants had gone for training to Pakistan, another
had provided money and he had been in possession of a large quantity of
arms. A strong prima facie case has been made out against the appellants
herein. Their release at this juncture may hamper the smooth conduct of
trial since main witnesses are yet to be examined. One of the appellants
hails from a different State. It may be difficult to secure his presence, if
released on bail at this crucial juncture.
21. In this view of the matter, we are of the opinion that the interest of
justice shall be subserved if the learned Designated Judge is directed to
conclude the trial as expeditiously as possible and preferably within six
months from the date of communication of this order. With this observation,
the appeals are dismissed.