Bureau of Investigation Vs. Ashiq Hussain Faktoo & Ors  Insc 40 (30 January 2003)
N. Variava & B. N. Agrawal. S. N. Variava, J.
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
stated the facts are as follows:
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.
only the three Respondents were put to trial The only evidence against these
Respondents were their confessional statements recorded under Section 15 of the
case of the prosecution was that they were part of a terrorist group under the
name and style of Jamait-Ul-Mujahidin.
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.
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
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 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.
order to consider the correctness or otherwise of the above findings, it would
be appropriate to set out the relevant provisions.
15 and Rule 15 of the TADA Act and the rules framed thereunder read as follows:
Certain confessions made to police officers to be taken into consideration.-
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:
that co-accused, abettor or conspirator is charged and tried in the same case
together with the accused.
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."
15. Recording of confession made to police officers.-
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.
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.
The confession shall, if it is in writing, be –
by the person who makes the confession ; and
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
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.
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
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.
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 Superintendent of
Police, CBI as well as the concerned Respondent.
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
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.
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.
this stage, it would be appropriate to mention that in the case 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.
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:
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.
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.
On the facts we are not persuaded to uphold the contention that Rule 15(3) has
not been 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).
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.
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.
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.
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
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.
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 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.
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.
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.
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.