Abdul Hameed Nachan Vs. State of Maharashtra  INSC 620 (11 August 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs.
419-421 OF 2008 Saquib Abdul Hameed Nachan .... Appellant(s) Versus State of
Maharashtra .... Respondent(s) WITH WRIT PETITION (CRL.) NO. 128 OF 2008 AND
SPECIAL LEAVE PETITION (CRL.) NO. OF 2010 (D.No.17899 of 2008)
Appeal Nos. 419-421 of 2008 1) Aggrieved by the decision of the Full Bench of
the High Court of Bombay dated 05.11.2004, the appellant has filed these
view of the limited issue, being the same covered by a subsequent decision of
this Court and the course which we are going to adopt, we feel that there is no
need to traverse the factual details. After reference by a Division Bench, the
Full Bench of the High Court of Bombay re-framed the following questions for
adjudication which read as under:
Whether Section 32 of the Prevention of Terrorism Act, 2002 so provides that a
confession/statement made under that section by an accused person can be used
as a substantive piece of evidence against the other co-accused also? Q.2 In
the event the answer to the question no.1 is in negative, i.e. to say evidence
is not substantive evidence in nature, to what extent such statement can be
used in the trial?"
deliberations, the Full Bench answered the above questions as under:
Question No.1: In view of the discussion made above, in our considered view,
the confessional statement recorded under Section 32 of POTA cannot be used as
a substantive piece of evidence against other co-accused.
Question No.2: In our view, the statement recorded under Section 32 of POTA is
undoubtedly a statement made by a person and it can be used for any purpose to
the extent a statement under Sections 161-164 of Cr.P.C. can be used."
answering the reframed questions, the Full Bench considered the claim of the
parties on merits and remitted the matter back to the Designated Court for
deciding the application of the original accused No.1 for discharge, on the
ground mentioned therein and in the light of the observations made in the
judgment. The conclusion of the Full Bench as well the ultimate direction is
under challenge in the above appeals.
Petition (Crl.) No. 128 of 2008 4) Gulam Akbar Abdul Sattar Khotal, Accused
No.4 and five others filed this writ petition under Article 32 of the
Constitution of India seeking to issue a writ of mandamus to the Special POTA
Court to start the trial of the POTA Case No. 2 of 2003 in respect of the
petitioners herein and for that purpose to modify the order of this Court dated
18.10.2005 passed in Criminal Appeal Nos. 419-421 of 2008 entitled Saquib Abdul
Hameed Nachan vs. State of Maharashtra. In addition to the same, they also
prayed for certain other directions to the Special Court dealing with the case
under POTA Act.
S.L.P.(Crl.).............(D.No. 17899/2008) 5) Muzzamil Akhtar Abdul Raheem
Ansari, Accused No.12 filed this petition from the Jail complaining that
because of the stay order granted by this Court on 18.10.2005 in Crl. Appeal
Nos. 419-421 of 2008 staying the trial pending before the Special POTA Court,
Mumbai, he has been prevented from proceeding further in the trial, hence,
prayed for appropriate direction for vacating the stay order.
the prayer in the `writ petition' as well as the `jail petition' depends upon
the disposal of the Crl. Appeal Nos.
of 2008, it is sufficient if we pass an order considering the claim of the
appellant in these appeals.
the respective counsel.
Akhil Sibal, learned counsel appearing for the appellants in Crl. Appeal Nos.
419-421 of 2008, submitted that in view of the subsequent decision of this
Court rendered in State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005)
11 SCC 600, the conclusion of the Full Bench cannot be sustained. He also
submitted that in view of the same, the 4 consequential direction to the POTA
Court is also liable to be vacated.
have already noted the questions framed by the Full Bench of the High Court and
the answers made therein.
to the decision of the Full Bench of the Bombay High Court, which is impugned
in these appeals, the very same issue, viz., use of confessional statement made
under Section 32 of POTA by an accused person as a substantive piece of
evidence against other co-accused and if the evidence is not a substantive
evidence in nature, to what extent the statement can be used against other
co-accused in the trial were considered by this Court in Navjot Sandhu's
case(supra). The relevant portion of the judgment read as under:
start with the confessions. Under the general law of the land as reflected in
the Evidence Act, no confession made to a police officer can be proved against
which is a terminology used in criminal law is a species of
"admissions" as defined in Section 17 of the Evidence Act. An
admission is a statement, oral or documentary which enables the court to draw
an inference as to any fact in issue or relevant fact. It is trite to say that
every confession must necessarily be an admission, but, every admission does
not necessarily amount to a confession. While Sections 17 to 23 deal with
admissions, 5 the law as to confessions is embodied in Sections 24 to 30 of the
Evidence Act. Section 25 bars proof of a confession made to a police officer.
Section 26 goes a step further and prohibits proof of confession made by any
person while he is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate. Section 24 lays down the obvious rule that
a confession made under any inducement, threat or promise becomes irrelevant in
a criminal proceeding. Such inducement, threat or promise need not be proved to
the hilt. If it appears to the court that the making of the confession was
caused by any inducement, threat or promise proceeding from a person in
authority, the confession is liable to be excluded from evidence. The
expression "appears" connotes that the court need not go to the
extent of holding that the threat, etc. has in fact been proved. If the facts
and circumstances emerging from the evidence adduced make it reasonably
probable that the confession could be the result of threat, inducement or
pressure, the court will refrain from acting on such confession, even if it be
a confession made to a Magistrate or a person other than a police officer.
Confessions leading to discovery of a fact which is dealt with under Section 27
is an exception to the rule of exclusion of confession made by an accused in
the custody of a police officer. Consideration of a proved confession affecting
the person making it as well as the co-accused is provided for by Section 30.
Briefly and broadly, this is the scheme of the law of evidence vis-`-vis
confessions. The allied provision which needs to be noticed at this juncture is
Section 162 CrPC. It prohibits the use of any statement made by any person to a
police officer in the course of investigation for any purpose at any enquiry or
trial in respect of any offence under investigation. However, it can be used to
a limited extent to contradict a witness as provided for by Section 145 of the
Evidence Act. Sub-section (2) of Section 162 makes it explicit that the embargo
laid down in the section shall not be deemed to apply to any statement falling
within clause (1) of Section 32 or to affect the provisions of Section 27 of
the Evidence Act.
the Privy Council decision of Pakala Narayana Swami v. Emperor Lord Atkin
elucidated the meaning and purport of the expression "confession" in
the following words:
52) "[A] confession must either admit in terms the offence, or at any rate
substantially all the facts which constitute the 6 offence. An admission of a
gravely incriminating fact, even a conclusively incriminating fact is not of
itself a confession...."
Confessions are considered highly reliable because no rational person would
make admission against his interest unless prompted by his conscience to tell
and voluntary confessions of guilt, if clearly proved are among the most
effectual proofs in law." (Vide Taylor's Treatise on the Law of Evidence,
Vol. I.) However, before acting upon a confession the court must be satisfied
that it was freely and voluntarily made. A confession by hope or promise of
advantage, reward or immunity or by force or by fear induced by violence or
threats of violence cannot constitute evidence against the maker of the
confession. The confession should have been made with full knowledge of the
nature and consequences of the confession. If any reasonable doubt is
entertained by the court that these ingredients are not satisfied, the court
should eschew the confession from consideration. So also the authority
recording the confession, be it a Magistrate or some other statutory
functionary at the pre-trial stage, must address himself to the issue whether
the accused has come forward to make the confession in an atmosphere free from
fear, duress or hope of some advantage or reward induced by the persons in
authority. Recognising the stark reality of the accused being enveloped in a
state of fear and panic, anxiety and despair while in police custody, the
Evidence Act has excluded the admissibility of a confession made to the police
Section 164 CrPC is a salutary provision which lays down certain precautionary
rules to be followed by the Magistrate recording a confession so as to ensure
the voluntariness of the confession and the accused being placed in a situation
free from threat or influence of the police.
Before we turn our attention to the more specific aspects of confessions under
POTA, we should have a conspectus of the law on the evidentiary value of
confessions which are retracted, which is a general feature in our country and
is the legal position relating to CONFESSIONS UNDER POTA is the next important
Following the path shown by its predecessor, namely, the TADA Act, POTA marks a
notable departure from the general law of evidence in that it makes the
confession to a 7 high-ranking police officer admissible in evidence in the
trial of such person for the offence under POTA. As regards the confession to
the police officer, the TADA regime is continued subject to certain
let us take stock of the provisions contained in Section 32 of POTA.
Sub-section (1) of this section starts with a non obstante provision with the
anything in the Code [of Criminal Procedure] or in the Indian Evidence
Act...." Then it says:
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 or electronic
admissible in the trial of such person for an offence under this Act or the
provision, the ban against the reception of confessional statements made to the
police is lifted. That is why the non obstante clause. This sub-section is
almost identical to Section 15(1) of TADA excepting that the words "or
co-accused, abettor or conspirator" occurring after the expression
"in the trial of such person" were omitted. The other four sub-sections
(2) to (5) of Section 32 are meant to provide certain safeguards to the accused
in order to ensure that the confession is not extracted by threat or
(2) says that the police officer, before recording a confession should explain
in writing to the person concerned that he is not bound to make a confession
and that the confession if made by him can be used against him. The right of
the person to remain silent before the police officer called upon to record the
confession is recognised by the proviso to sub-section (2). Sub-section (3)
enjoins that the confession shall be recorded in a threat-free atmosphere.
it should be recorded in the same language as that used by the maker of the
confession. The most important safeguard provided in sub-sections (4) and (5)
is that the person from whom the confession was recorded is required to be
produced before a Chief Metropolitan Magistrate or Chief Judicial Magistrate,
within 48 hours, together with the original statement of confession in whatever
manner it was recorded. The CMM or the CJM shall then record the statement made
by the person so produced. If there is any complaint of torture, the police
shall be directed to produce the person for medical examination and thereafter
he shall be sent to judicial custody.
8 Use of
confession under POTA against a co-accused
let us examine the question whether Section 32(1) of POTA takes within its
sweep the confession of a co- accused. Section 32(1) of POTA which makes the
confession made to a high-ranking police officer admissible in the trial does
not say anything explicitly about the use of confession made by a co-accused.
The words in the concluding portion of Section 32(1) are:
be admissible in the trial of such person for an offence under this Act or the
rules made thereunder."
however, the contention of the learned Senior Counsel Shri Gopal Subramanium
that Section 32(1) can be so construed as to include the admissibility of
confessions of the co-accused as well. The omission of the words in POTA
"or co-accused, abettor or conspirator" following the expression
"in the trial of such person" which are the words contained in
Section 15(1) of TADA does not make material difference, according to him. It
is his submission that the words "co-accused", etc. were included by
the 1993 Amendment of TADA by way of abundant caution and not because the
unamended section of TADA did not cover the confession of the co-accused.
According to the learned Senior Counsel, the phrase "shall be admissible in
the trial of such person" does not restrict the admissibility only against
the maker of the confession. It extends to all those who are being tried
jointly along with the maker of the confession provided they are also affected
by the confession.
Senior Counsel highlights the crucial words "in the trial of such
person" and argues that the confession would not merely be admissible
against the maker but would be admissible in the trial of the maker which may
be a trial jointly with the other accused persons. Our attention has been drawn
to the provisions of CrPC and POTA providing for a joint trial in which the
accused could be tried not only for the offences under POTA but also for the
offences under IPC.
no difficulty in accepting the proposition that there could be a joint trial
and the expression "the trial of such person" may encompass a trial
in which the accused who made the confession is tried jointly with the other
that, does it follow that the confession made by one accused is equally
admissible against others, in the absence of specific words? The answer, in our
view, should be in the negative. On a plain reading of Section 32(1), the
confession made by an accused before a police officer shall be admissible against
the maker of the confession in the course 9 of his trial. It may be a joint
trial along with some other accused; but, we cannot stretch the language of the
section so as to bring the confession of the co-accused within the fold of
admissibility. Such stretching of the language of law is not at all warranted
especially in the case of a law which visits a person with serious penal
consequences [vide the observations of Ahmadi, J. (as he then was) in Niranjan
Singh v. Jitendra, SCC at p. 86, which were cited with approval in Kartar Singh
case. We would expect a more explicit and transparent wording to be employed in
the section to rope in the confession of the co-accused within the net of
admissibility on a par with the confession of the maker. An evidentiary rule of
such importance and grave consequence to the accused could not have been
conveyed in a deficient language. It seems to us that a conscious departure was
made by the framers of POTA on a consideration of the pros and cons, by
dropping the words "co-accused", etc. These specific words
consciously added to Section 15(1) by the 1993 Amendment of TADA so as to cover
the confessions of the co-accused would not have escaped the notice of
Parliament when POTA was enacted.
Parliament in its wisdom would have thought that the law relating to confession
of the co-accused under the ordinary law of evidence, should be allowed to have
its sway, taking a cue from the observations in Kartar Singh case at para 255.
The confession recorded by the police officer was, therefore, allowed to be
used against the maker of the confession without going further and transposing
the legal position that was obtained under TADA. We cannot countenance the
contention that the words "co-accused", etc. were added in Section
15(1) of TADA, ex majore cautela.
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 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 10 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
10 of the Evidence Act
next question is whether the confession of the accused which cannot be proved
against a co-accused either under Section 32(1) of POTA or under Section 30 of
the Evidence Act, would be relevant evidence against the co- accused involved
in the conspiracy by reason of Section 10 of the Evidence Act. The section
Things said or done by conspirator in reference to common design.--Where there
is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or
written by any one of such persons in reference to their common intention,
after the time when such intention was first entertained by any one of them, is
a relevant fact as against each of the persons believed to be so conspiring, as
well for the purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it."
Kehar Singh v. State (Delhi Admn.) Jagannatha Shetty, J., has analysed the
section as follows: (SCC p. 734, para 278) "278. From an analysis of the
section, it will be seen that Section 10 will come into play only when the
court is satisfied that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence. There should be, in other
words, a prima facie evidence that the person was a party to the conspiracy
before his acts can be used against his co-conspirator. Once such prima facie
evidence exists, anything said, done or written by one of the conspirators in
reference to the common intention, after the said intention was first
entertained, is relevant against the others. It is relevant not only for the
purpose of proving the existence of conspiracy, but also for proving that the
other person was a party to it."
Section 10 of the Evidence Act is based on the principle of agency operating
between the parties to the conspiracy inter se and it is an exception to the
rule against hearsay testimony. If the conditions laid down therein are
satisfied, the act done or statement made by one is admissible against the
co-conspirators (vide Sardul Singh Caveeshar v. State of Maharashtra).
adverting to various decisions including the State vs. Nalini, (1999) 5 SCC
253, finally this Court concluded as under:
the light of the foregoing discussion, we have no option but to reject the
contention of Mr. Gopal Subramanium on the interpretation of Section 10, though
not without hesitation. However, in view of the fact that the confessional
statement is not being relied on, the question of applicability of Section 10
fades into insignificance."
decision in Navjot Sandhu's case (supra) makes it clear that a
confession/statement made under Section 32 of POTA by an accused person cannot
be used as a piece of evidence for any purpose against the other co-accused.
[Emphasis supplied]. We reiterate the same. In view of the said conclusion, the
decision of the Full Bench is liable to be set aside insofar as the
applicability of confessional statement of an accused under Section 32 of POTA
against the other co- accused is concerned.
Akhil Sibal strenuously contended that after answering the reference, the Full
Bench, without giving notice to the counsel, without affording any opportunity
to the 12 parties and without considering the merits of the matter disposed of
the main matter which is not warranted and permissible. Generally, there is no
bar in deciding and considering the merits of the matter referred to the Full
after answering the reference by the larger Bench, it is for the reference
Court to decide the issue on merits on the basis of the answers given by the
larger Bench. In the case on hand, such recourse has not been followed by the
for other respondents have not seriously disputed the grievance of the counsel
for appellants herein. In the light of the assertion by the counsel and not
seriously disputed by other parties, we are of the view that now it is for the
Division Bench to consider the claim of the parties on merits on the basis of
the ratio in Navjot Sandhu' s case(supra).
Inasmuch as we are disposing of the Crl. Appeal Nos. 419-421 of 2008, we vacate
the interim stay order granted by this Court on 18.10.2005 staying the trial
pending before the Special POTA Court, Mumbai. In view of the same, no separate
orders are required in Writ Petition (Crl.) No. 128 of 13 2008 and
S.L.P.(Crl.)......(D.No. 17899 of 2008). However, in the light of the above
discussion, we pass the following order:
impugned judgment of the Full Bench of the Bombay High Court dated 05.11.2004
is set aside and we clarify that the decision of this Court in Navjot Sandhu's
case(supra) shall govern the issue raised by the appellant.
Criminal Writ Petition No. 1742 of 2004 with Criminal Application Nos.
4260-4263 of 2004, Criminal Writ Petition Nos. 1650, 1992, 2001 and 983 of 2004
be heard by a Division Bench on merits in the light of the decision in Navjot
Sandhu's case (supra) as expeditiously as possible.
view of the vacation of the interim order passed by this Court on 18.10.2005,
the petitioners in Writ Petition (Crl.) No. 128 of 2008 and
S.L.P.(Crl.)......(D.No.17899/2008) are free to move the POTA Court for
appropriate relief and it is for the concerned court to decide as per law
have not expressed anything on the merits of the claim made by the parties
except pointing out the legal position.
view of the foregoing reasons, Criminal Appeal Nos. 419-421 of 2008 are allowed
on the above terms. Writ Petition (Crl.)No. 128 of 2008 and
S.L.P.(Crl.).....(D.No. 17899 of 2008) are disposed of as indicted above.
..........................................J. (P. SATHASIVAM)
..........................................J. (DR. B.S. CHAUHAN)
AUGUST 11, 2010.