Ayyub Vs.
State of U.P [2002] Insc 98 (28 February 2002)
R.P.
Sethi & K.G. Balakrishnan K.G. Balakrishnan, J.
Appeal (crl.) 804 of 2001
The
appellants in these two appeals were found guilty by the Designated Judge
(TADA), Meerut, for the offences punishable under Sections 3(1)(2)(i) of the
Terrorists and Disruptive Activities [Prevention] Act, 1987 (hereinafter called
as the 'TADA Act') and also for offences punishable under Section 302 and
Section 307 read with Section 34 of Indian Penal Code. The appellants were
sentenced to undergo imprisonment for life and a fine of Rs. 5,000/- u/s 3(1)(2)(i)
of TADA and in default of payment of fine to undergo imprisonment for a period
of one year. The appellants were sentenced to imprisonment for life and a fine
of Rs. 5000/- and in default to undergo imprisonment for one year under Section
302 read with Section 34 I.P.C. The appellants were also sentenced to rigorous
imprisonment of five years and a fine of Rs.3,000/- under Section 307 read with
Section 34 IPC and in default of payment of fine to undergo imprisonment for
six months. The appellants were further found guilty and sentenced to
imprisonment for a period of two years for the offences under Section 4 of the
Prevention of Damages to Property Act 1984.
The prosecution
case against the two appellants was that on 26.1.1993 at about 7.45 p.m., the appellants came running to the police picket at
Hapur Road, near Veterinary Hospital, Meerut and hurled bombs at the security
personnel. A PAC company including the informant Platoon Commander, Ramvir
Singh (PW1), Head Constable Rohitash Singh & N.K. Mahender Prasad Sharma,
Constable Pramod Kumar, Constable Desh Raj Singh (PW 2), Constable Atar Singh,
Constable Rambir Singh, Constable Sarvesh Singh (PW 3) and Constable Sanjiv
Kumar were posted at the said picket near the Veterinary Hospital, Meerut. The bombs hurled by the appellants exploded and Constable Pramod
Kumar and three others sustained injuries. Constable Pramod Kumar and N.K. Mahender
Prasad Sharma fired shots from their firearms, but the two appellants managed
to escape from the scene. Government vehicles parked nearby were also damaged
and the incident created a terror in the vicinity.
The
Platoon Commander Ramvir Singh(PW 1) took the injured to the hospital. Later,
he gave a report before the Police Station, Civil Lines, Meerut.
The
F.I. Statement was recorded at 10.15 p.m. on
26.1.1993 whereafter Inspector Ranvir Pratap Singh, Incharge of the Police
Station (PW 38), took over the investigation. Injured N.K. Mahender Prasad
Sharma died at the hospital and an inquest report was prepared by Sri B.R. Arya
(PW 41). PW 4 Dr. Ramender Singh conducted the post-mortem examination. The
Investigating Officer prepared the site plan of the place of occurrence. A dog
was found lying dead on the spot. The remnants of exploded bombs were collected
by the Investigating Officer. On 28.1.1993, PW 16, the Station Officer of P.S. Lisari
Gate, Meerut received secret information that the accused who was involved in
the bomb blast at the PAC picket on 26.1.1993 was staying with one Ameer Hamza
in Mohalla Kidwai Nagar. PW 16 Station Officer along with other police
personnel raided the house of Ameer Hamza and found the accused Abdul Jabbar
lying on a cot with multiple injuries and one doctor by name Dr. Mohd. Imran
was found treating him for the injuries. Appellant Abdul Jabbar was brought to
the Police Station and this information was passed on to PW 15 Superintendent
of Police(City), Meerut, and he was informed that appellant Abdul Jabbar was
prepared to give a confession statement. Superintendent of Police(City), Meerut recorded the confession of the
appellant Abdul Jabbar on 29.1.1993 and he was produced before the then
Designated Judge.
Meanwhile,
the other Appellant Ayyub surrendered before the Court on 1.3.1993 and
expressed his willingness to make a confession statement. He was produced
before PW 15 Superintendent of Police(City), Meerut. The Identification parade was held on 10.3.1993 and some
of the witnesses identified both the appellants. After the completion of the
investigation, charge sheets were filed against these two appellants and five
others who had allegedly committed the crime or helped the appellants in the
commission of the crime.
During
the course of the trial before the Designated Judge, Senior Prosecuting Officer
sought permission to withdraw from the prosecution against the five other
accused who had been charged along with the appellants. As against those
persons, permission was granted by the Designated Judge to withdraw from the
prosecution by order dated 27.4.1995. Pursuant to the Order of the Govt. of
Uttar Pradesh, the Senior Prosecuting Officer had also filed an application for
withdrawal of prosecution in respect of the present two appellants so far as the
charges framed against them under the TADA Act. The learned Designated Judge
declined sanction for withdrawal from prosecution in respect of these two
appellants and they were accordingly tried by the Judge and found guilty as
afore-stated.
In
Criminal Appeal No. 906 of 2000, Mr. Himanshu Munshi, learned Counsel appeared
on behalf of the appellant and Mr. Anoop G. Chaudhary, learned Senior Counsel
appeared on behalf of the State while in Criminal Appeal No. 804 of 2001, Mr.
K.T.S. Tulsi, learned Senior Counsel appeared on behalf of the appellant.
Mr.
K.T.S. Tulsi, learned Senior Counsel on behalf of the appellant, argued that
the Designated Judge seriously erred in not allowing the withdrawal from
prosecution in respect of these appellants. It was pointed out that the State
Government after considering the various aspects of the matter had requested
the Senior Prosecuting Officer for withdrawal from prosecution in respect of
the offences charged under various provisions of the TADA Act. Mr. Tulsi argued
that when such an application was filed, the Court should have normally
accepted that plea as it was not tainted with any mala fide intention. The
learned Senior Counsel on behalf of the State of U.P., Shri Anoop G. Chaudhary, however, stated that these
appellants had not challenged the order passed by the Designated Judge
declining the withdrawal from prosecution and therefore, the appellants cannot
now be heard to say that the Designated Judge went wrong in passing the said
order. We do not find much force in this contention as the order passed by the
Designated Judge was only interim in nature and it is doubtful whether an
appeal would lie against that order. This Court has expressed its doubt whether
an appeal would lie against such an order and the question is still left open.
The learned Senior Counsel Mr. K.T.S. Tulsi has rightly contended that the
appellants are entitled to challenge the same in these proceedings.
This
Court in State of Bihar vs Ram Naresh Pandey and Anr. AIR
1957 SC 389 had made following observations while dealing with an application
under Section 494 of the old Cr. P.C., which enabled the prosecution to
withdraw from the prosecution. Section 321 of the new Cr.P.C. is similarly
worded with slight modifications. This Court observed as follows:- "The
section is an enabling one and vests in the Public Prosecutor the discretion to
apply to the Court for its consent to withdraw from the prosecution of any
person. The consent, if granted, has to be followed up by his discharge or
acquittal, as the case may be. The section gives no indication as to the
grounds on which the Public Prosecutor may make the application, or the
considerations on which the Court is to grant its consent.
The
function of the Court, therefore, in granting its consent may well be taken to
be a judicial function. It follows that in granting the consent the Court must
exercise a judicial discretion.
But it
does not follow that the discretion is to be exercised only with reference to
material gathered by the judicial method. Otherwise the apparently wide
language of Section 494, Criminal P.C. would become considerably narrowed down
in its application. In understanding and applying the section, two main
features thereof have to be kept in mind. The initiative is that of the Public
Prosecutor and what the Court has to do is only to give its consent and not to
determine any matter judicially.
. The
judicial function, therefore, implicit in the exercise of the judicial
discretion for granting the consent would normally mean that the Court has to
satisfy itself that the executive function of the Public Prosecutor has not
been improperly exercised, or that it is not an attempt to interfere with the
normal course of justice for illegitimate reasons or purposes." In State
of Orissa vs. Chandrika Mohapatra and Others (1976) 4 SCC 250, P.N. Bhagwati,
J. as he then was speaking for the three Judge bench regarding withdrawal from
the prosecution, said:
"the
paramount consideration in all those cases must be the interest of
administration of justice. No hard and fast rule can be laid down nor can any
categories of cases be defined in which consent should be granted or refused.
It must ultimately depend on the facts and the circumstances of each case in
the light of what is necessary in order to promote the ends of justice, because
the objective of every judicial process must be the attainment of
justice." In Kartar Singh vs. State of Punjab (1994) 3 SCC 569, the constitutional validity of some of the provisions
contained in the TADA Act was challenged. The Constitution Bench of this Court
while upholding most of the provisions contained in the TADA Act, suggested
that in order to ensure higher level of scrutiny and applicability of TADA Act,
there must be a Screening Committee or a Review Committee constituted by the
Central Government consisting of the Home Secretary, Law Secretary and other
Secretaries concerned of the various Departments to review all the TADA cases
instituted by the Central Government as well as to have a quarterly administrative
review. In respect of the States also, a similar suggestion was made. Pursuant
to the recommendations of the Review Committee, some of the cases filed under
the TADA Act were proposed to be withdrawn from further prosecution. But the
court passed orders under Section 321 of the Criminal Procedure Code declining
permission to withdraw from prosecution. These orders were challenged in R .M. Tewari,
Advocate vs. State (NCT of Delhi) and Ors. etc.etc. (1996) 2 SCC 610 and the
scope of Section 321 of the Code of Criminal Procedure, 1973 came up for
consideration. This Court, in paragraph 10 & 11 of the judgment, observed
as under:- "The observations in Kartar Singh have to be understood in the
context in which they were made. It was observed that a review of the cases
should be made by a High Power Committee to ensure that thee was no misuse of
the stringent provisions of the TADA Act and any case in which resort to the
TADA Act was found to be unwarranted, the necessary remedial measures should be
taken.
The Review
Committee is expected to perform its functions in this manner. If the
recommendation of the Review Committee, based on the material present, is, that
resort to provisions of the TADA Act is unwarranted for any reason which
permits withdrawal from prosecution for those offences, a suitable application
made under Section 321 Cr.P.C. on that ground has to be considered and decided
by the Designated Court giving due weight to the opinion formed by the public
prosecutor on the basis of the recommendation of the High Power Committee.
It has
also to be borne in mind that the initial invocation of the stringent
provisions of the TADA Act is itself subject to sanction of the Government and,
therefore, the revised opinion of the Government formed on the basis of the
recommendation of the High Power Committee after scrutiny of each case should
not be lightly disregarded by the court except for weighty reasons such as mala
fides or manifest arbitrariness. The worth of the material to support the
charge under the TADA Act and the evidence which can be produced, is likely to
be known to the prosecuting agency and, therefore, mere existence of prima
facie material to support the framing of the charge should not by itself be
treated as sufficient to refuse the consent for withdrawal from prosecution. It
is in this manner an application made to withdraw the charges of offences under
the TADA Act pursuant to review of a case by the Review Committee has to be
considered and decided by the Designated Courts." In the instant case, the
learned Designated Judge rejected the application for withdrawal from
prosecution indicating that the State Government had not given any reason for
withdrawal from prosecution and that mere use of the expression "Janhit"
was not sufficient for according consent in a mechanical manner. The learned
Judge was also of the view that it cannot be said that ends of public interest
and administration of justice would be served by the withdrawal from
prosecution. The learned Judge was of the view that material records might not
have been placed before the Government while taking a decision in the matter.
We do
not find any merit in the reasons given by the Designated Judge.
There
are stringent provisions in the TADA Act and in the Government Order, it is stated
that the Government after proper discussion on the facts of the case and the
evidence/reports/letters available on the record decided to waive the TADA
Sections in the cases recorded in the enclosed list. When the Order itself
states that all records were perused and considered, we do not think that the
learned Designated Judge was justified in rejecting the application. It cannot
be said that the Senior Prosecuting Officer had filed the application without
consideration of the relevant facts. It cannot also be said that application
was filed with any mala fide intention to save some of the culprits from the
clutches of law. The request was made only to withdraw from prosecution as
against the offences punishable under the TADA Act. Charges in respect of other
offences punishable under Indian Penal Code remained and the accused had to
face trial for that. Government must have thought that the stringent and harsh
provisions of TADA Act were not necessary to deal with such situations.
We are
of the view that the learned Designated Judge should have accepted the
application for withdrawal from prosecution as against the offences charged
against the appellants under the TADA Act. Therefore, we allow that application
and the appellants shall stand acquitted under Section 321(b) of Cr. P.C of all
the charges framed against them under the TADA Act.
The
charge of murder and other allied offences against these appellants is held to
have been proved by the prosecution from the evidence of the eyewitnesses, the
circumstantial evidence and the confession made by these appellants under
Section 15 of the TADA Act.
As
regards their confession statements, the Special Court accepted the same and held that they are reliable. Even if
the appellants are acquitted of the charges under the TADA Act, the confession
recorded by the police officer could have been of some assistance to the
prosecution, but in view of the infirmity in recording the confession the same
is not admissible in evidence. The confession statements of appellants were
recorded not in accordance with law and that there is nothing on record to show
that the same was voluntarily made by these appellants. It is pertinent to note
that under Section 15 of the TADA Act, it is specifically stated that the
Police Officer who is recording the confession shall not record the same unless
he has reason to believe that it was being made voluntarily. The relevant
portion of Section 15 of the TADA Act, as amended, is as under: -
15.
Certain confessions made to police officers to be taken into consideration..
(1) ..
(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."
The constitutionality of Section 15 of the TADA Act was challenged in Kartar
Singh vs. State of Punjab (supra) and the Constitution Bench of this Court
considered the matter in detail and upheld the same . It was pointed out by
this Court that sufficient safeguards have been made to see that powers given
under Section 15 are not being misused by the police and the Court also noticed
Rule 15 of the Terrorists and Disruptive Activities (Prevention) Rules 1987
dealing with the mode of recording of a confession made to police officers.
Under
that rule, the confession shall, if it is in writing be signed by the person
who makes the confession and the police officer shall also certify under his
own hand that such confession was taken in his presence and recorded by him and
that the record contains full and true accounts of the confession made by the
person and such police officer shall make a memorandum at the end of the
confession. In that memorandum, he has to state that it was taken in his
presence and hearing and recorded by him 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. It also states that the officer who is recording
the confession should explain that he is not bound to make a confession and
that, if he does so, the confession made by him would be used against him and
the police officer should also certify that he has reason to believe that it is
being voluntarily made. In the instant case, the confession made by these two
appellants does not indicate that the same was voluntary in nature and the
police officer who recorded the same has not certified that he believed that
the confession was voluntarily made. In Sharafat Hussain Abdul Rahaman Shaikh
& Ors. vs. State of Gujarat and another 1996 (11) SCC 62, it was held that
if there is no certificate by the police officer who is recording confession,
in accordance with sub-rule 3(b) of Rule 15, TADA Rules, 1987, the same is not
admissible in evidence.
Even
as regards the confession made under Section 164 Cr.P.C., this AIR 1957 SC 637
held that in order to make the confession statement under the Act, it must be
proved that the same was voluntarily made by the maker. It would, of course, be
necessary in every case to put the questions prescribed by the High Court
circulars but the questions intended to be put under sub section (2) of Section
164 should not be allowed to become a matter of a mere mechanical enquiry. No
element of casualness should be allowed to creep in and the Magistrate should
be fully satisfied that the confessional statement which the accused wants is
in fact and in substance voluntary.
In Shivappa
vs. State of Karnataka (1995) 2 SCC 76, while considering the question of a
confession recorded under Section 164 Cr.P.C., it was observed as under:-
".. it is manifest that the said provisions emphasise an inquiry by the
Magistrate to ascertain the voluntary nature of the confession. This inquiry
appears to be the most significant and an important part of the duty of the
Magistrate recording the confessional statement of an accused under Section164 Cr.P.C.
The
failure of the Magistrate to put such questions from which he could ascertain
the voluntary nature of the confession detracts so materially from the
evidentiary value of the confession of an accused that it would not be safe to act
upon the same." It was further observed in paragraph 7 as under:
".
Moreover, the Magistrate must not only be satisfied as to the voluntary
character of the statement, he should also make and leave such material on the
record in proof of the compliance with the imperative requirements of the
statutory provisions, as would satisfy the court that sits in judgment in the
case, that the confessional statement was made by the accused voluntarily and
the statutory provisions were strictly complied with." Section 15 of the
TADA Act altered the fundamental rules of evidence given in the Evidence Act,
which stood the test of time for over a century. 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. The power to record judicial
confession is given to Magistrate and strict and rigorous guidelines have been
laid down in Section 164 Cr.P.C. That apart many High Courts also have framed
rules giving detailed procedure for recording confession. Confession is an
admission of guilt. Normally, nobody would like to admit his guilt as he is
fully aware that the same would be used against him. That apart, there is
constitutional right for the accused that he shall not be subjected to any
"testimonial compulsion". Under Article 20(3) of the Constitution,
accused person has a protection from being compelled to be a witness against
himself. As the confession made under Section 15 of the TADA Act is made
admissible in evidence, the strict procedure laid down therein for recording
confession is to be followed. Any confession made in defiance of these
safeguards cannot be accepted by the Court as reliable evidence. The confession
should appear to have been made voluntarily and the police officer who records
the confession should satisfy himself that the same had been made voluntarily
by the maker of that statement. The recorded confession must indicate that
these safeguards have been fully complied with. In this case, the recorded
confession statements do not show that the officer who recorded the statement
had followed those guidelines. Therefore, it is inadmissible in evidence.
According
to the prosecution, these two appellants hurled bombs at the police picket and
they were identified by eyewitnesses, namely, PW2 Desh Raj Singh, PW 3 Sarvesh
Singh and PW1 Platoon Commander Ramvir Singh. PW1 Platoon Commander Ramvir
Singh deposed that two boys came running and threw bombs one after another and
that he could see them in the electric light.
At the
relevant time, he was standing outside the tent and the appellants were seen at
a distance of ten to fifteen paces away. He also deposed that he noticed these
appellants while they were coming towards them. Constable Desh Raj Singh, PW-2
also deposed that while he was standing outside the tent he saw the appellants
coming and throwing bombs at them. The counsel for the appellants contended
that there was no source of light available for these witnesses to see the
appellants and as the incident happened at about 7.45 P.M., the assailants might not have been identified by the
witnesses. The counsel also argued that no reference was made regarding the
source of light in the First Information Report. But, it is important to note
that in the site plan prepared later, an electric pole is shown very near to
the place of incident and when as many as three of the witnesses deposed that
they had identified the assailant in the electric light, we do not find any
justifiable reason to reject their evidence.
The
counsel for the appellants further contended that the test identification
parade was conducted belatedly and no evidentiary value could be attached to
it. It was submitted that in the case of appellant-Abdul Jabbar, the test
identification parade was done 43 days after his arrest and in the case of
appellant Ayyub the same was done 10 days after he surrendered in the court.
The
test identification parade as such is not a substantive piece of evidence, but
it is done only for the satisfaction of the prosecution that the investigation
was moving in the right direction. In the instant case, the test identification
parade was held under the supervision of a Judicial Magistrate, but as he
passed away subsequently, he could not be examined. PW-6, K.P. Agarwal and
PW-34, B.B. Chaturvedi were examined to prove that the identification parade
was conducted in a fair manner. Both these PWs deposed in detail regarding the
various steps taken by them to see that the identification parade was done
properly and their evidence shows that all necessary precautions were taken by
them. We do not find any apparent defect in the test identification conducted
by the prosecution.
There
are various other pieces of circumstantial evidence to prove the complicity of
these appellants. Appellant Abdul Jabbar was arrested on 28.1.1993 pursuant to an
information that he was undergoing treatment in the house of one Ameer Hamza.
He was taken into custody immediately and subjected to medical examination by
PW 20, Dr. R.P. Mishra. This appellant had 7 injuries on his body. Injury nos.
5 & 6 were scabbed burn injuries, and in all probability, these injuries
must have been caused due to handling of some explosive substance. Appellant
Abdul Jabbar was produced before PW-10, Shri R.C. Chaturvedi, the then Designated
Judge, on 29.1.1993 itself. The learned Judge recorded his observations and
also the statement made by appellant Abdul Jabbar at that time. The statement
was marked as Ex. Ka-11.
In
support of this document, PW-10 gave evidence in court. In Ex. Ka-11, the
appellant made a confession of his guilt and he also made a statement to the
effect that a fellow named, Saleem, forced him to indulge in the bomb-throwing
on 26.1.1993 evening and he also stated about his accomplice. PW-10 deposed
that when appellant Abdul Jabbar was produced before him he had injuries on his
body and that he had noted this in Ex. Ka-11. Appellant Abdul Jabbar when
questioned under Section 313 Cr.P.C., could not give justifiable explanation
for the injuries found on his body. This is a clear incriminating circumstance
to prove the guilt of appellant Abdul Jabbar.
In
this case, PW-4 conducted the post-mortem examination on the body of deceased
N.K. Mahender Prasad Sharma and he found 13 ante-mortem injuries.
Most
of the injuries were lacerated injuries and PW-4, the doctor, deposed that the
abrasions on the body of the deceased could have been caused by splinters as a
result of bomb explosion.
Learned
Special Judge considered all items of evidence and came to the conclusion that
the two appellants have committed offences punishable under Section 302 read
Section 34 IPC. It is proved beyond reasonable doubt that the appellants came
to the police picket and hurled bombs at police personnel present there and
thereby caused the death of N.K. Mahender Prasad Sharma and also caused
injuries to others. The appellants have been rightly convicted under Section
302 read Section 34 IPC and Section 307 read with Section 34 IPC. Their
conviction and sentences under Section 4 of the Prevention of Damage to
Property Act, 1984 is also confirmed. The prayer of the respondent- State of
U.P. to withdraw from prosecution as regards charges under Section 3(1)(2)(i)
is granted and as directed earlier in this judgment the appellants are
acquitted of the charges framed against them under the provisions of the TADA
Act. As regards the conviction and sentences awarded to the appellant on
various other counts under the Indian Penal Code and Prevention of Damage to
Property Act, we see no reason to interfere therewith. The conviction and
sentence of the appellants under Section 302 read with Section 34 and Section
307 read with Section 34 IPC as also under Section 4 of the Prevention of
Damage to Property Act, 1984 are maintained. Consequently, these appeals shall stand
partly allowed.
...J.
(R.P.
SETHI) J.
(K.G.
BALAKRISHNAN) February 28, 2002.
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