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Report No. 173

It is not really necessary to amend any of the paragraphs in sub-clause (3) as proposed in para 5.15 of our Working Paper inasmuch as the Bill does not propose to take away the right of cross-examination. The suggestion for substitution of paragraph (c) in sub-section (3) made by the Law Commission in the said para is accordingly withdrawn keeping in view the opinions expressed in the seminars. Sub-clause (4) is merely consequential to sub-clause (3) in the sense that it provides for punishing the person violating a direction issued under sub-clause (3).

Clause 15 provides that the trial by special courts shall have precedence over the trial of any other case against the accused in any other court (not being a special court). It also provides that the trial of such other case shall remain in abeyance pending disposal of the trial before the special court. This provision cannot again be reasonably objected to, particularly in view of the fact that we are suggesting elsewhere a time limit within which the special court should conclude the trial. It is hoped that in course of time, the special courts will develop expertise in dealing with terrorism-related offences, thus enabling speedy disposal of the cases.

By way of official amendments a new clause 15A is sought to be introduced. Sub-clause (1) of this clause makes the confession made by a person before a police officer not lower in rank than a Superintendent of Police admissible in evidence provided it is recorded in accordance with the provisions of the said clause. The proviso to sub-clause (1) further provides that a confession made by a co-accused shall be admissible in evidence against other co-accused. This provision overrides the provisions to the contrary in the Code of Criminal Procedure and the Indian Evidence Act. Sub-clause (2) provides that a police officer shall, before recording any confession, explain to such person in writing that he is not bound to make confession and that if he makes any confession, it could be used against him.

The provisio to sub-clause (2) says that if such person prefers to remain silent, the police officer shall not compel him or induce him to make any confession. Sub-clause (3) says that the confession shall be recorded in an atmosphere free from threat or inducement and shall be recorded in the same language in which it is made. Sub-clause (4) creates an obligation upon the police officer, who has recorded a confession under sub-clause (1), to produce the person along with the confessional statement, without unreasonable delay, before the court of a Chief Metropolitan Magistrate or the court of a Chief Judicial Magistrate. Sub-clause (5) is a continuation of sub-clause (4).

Sub-clause (5) provides that the Magistrate before whom the person is so produced, shall record the statement, if any, made by the person so produced and get his signature thereon. It provides further that if there is any complaint of torture by such person, he shall be directed to be produced for medical examination before a medical officer not lower in rank than an Assistant Civil Surgeon. In our opinion, clause 15A, hedged in as it is by several safeguards, is a necessary provision in such a law. It is not as if the confession made before a police officer is made admissible without anything more.

Not only is the police officer under a duty to record a confession in the same language in which it is made and if possible by employing mechanical devices like cassettes, tapes or sound tracks, he is also under an obligation to explain in writing to the person that any confession made by him will be used against him. But the more important and truly effective safeguard is the one contained in sub-clauses (4) and (5) which sub-clauses, it is evident have been inserted in the light of and in pursuance of the observations made by the Supreme Court in Kartar Singh's case while dealing with section 15 of TADA.

Sub-clauses (4) and (5) read with sub-clause (1) do mean that unless a confession is recorded in accordance with the several provisions contained in clause 15A, including sub-clauses (4) and (5), such confession will not be valid and admissible. As already stated, sub-clauses (4) and (5) require that soon after recording of confession by the police officer, the person shall be produced before a Chief Metropolitan Magistrate or a Chief Judicial Magistrate along with the recorded confession and such magistrate is required again to record the statement of the person and take his signature thereon and further, if the person complains of any torture, it is obligatory upon the Magistrate to send him to medical officer not lower in rank than a Assistant Civil Surgeon for medical examination.

It is difficult to find any legitimate objection to such a provision in an anti-terrorism law. As has been repeatedly pointed out during the course of seminars and the responses received, in an extraordinary situation (such as the India is facing on account of external and internal threats of terrorism), an extraordinary law is called for. In fact, during the seminars, no serious objection was taken to this provision except the general objection that confessions made before the police officers should not be made admissible because in that event they will resort to third degree methods to obtain confessions and as an excuse for their inability to investigate the crime effectively. In the light of the safeguards contained in clause 15A and, in particular, the safeguards contained in sub-clauses (4) and (5) read with sub-clause (1) thereof, the said criticism must be held to be untenable.

So far as the proviso to sub-clause (1) of clause 15A is concerned, a little explanation would be in order. In the TADA (Act 28 of 1987), clause (c) of sub-section (1) of section 21 provided that the confession of a co-accused was admissible. However, by virtue of the 1993 amendment to TADA, clause (c) in sub-section (1) of section 21 was omitted and at the same time clause 15(1) was amended by introducing the words "are co-accused, abettor or conspirator" after the words "trial of such person". In sub-clause (1), a proviso was also introduced which read:

"provided that co-accused or conspirator is charged and tried in the same case together with the accused".

The effect of the 1993 amendment was that unless the co-accused was charged and tried in the same case together with the accused, his confession was not admissible or relevant against the accused. Though this aspect was not considered in Kartar Singh's case, it was considered in Kalpnath Rai v. State, 1997(8) SCC 732 by a two-Judge Bench and later by a three-Judge Bench in State v. Nalini, 1993 SCC (Cri.) 691. In Nalini's case, the majority (Wadhwa and Quadri JJ.) held that because of the clear and unambiguous language employed in section 15 and, in particular, having regard to the non-obstante clause with which the sub-section opens, there is no reason to read any limitation upon the admissibility of confession of co-accused as indicated in Kalpnath Rai's case.

They opined that overall decision in Kalpnath Rai's case and rationale thereof practically brings back section 30 of the Evidence Act into TADA by a back door. The majority held that the confession of the co-accused is substantive evidence and though it may not be substantial evidence in the sense that the value to be attached to such evidence is a matter of appreciation of evidence in a given case, it is wrong to say that it requires to be re-corroborated before it is made admissible. At the same time, the majority cautioned that as a matter of prudence, the Court may look for some corroboration if the confession is to be used against the co-accused.

It is evident that the proviso to sub-clause (1) of clause 15A (sought to be introduced by Official Amendment in the Criminal Law Amendment Bill) is in effect a reproduction of the provision obtaining in TADA as amended by the 1993 Amendment Act. The question, however, still remains whether such a provision is desirable. It is one thing for the Court to uphold its validity because the Court looks at the provision from the point of view of its constitutional validity and it is altogether a different thing when the question arises about its desirability.

We are here concerned with the desirability of such a provision. In our opinion, if this provision is retained, the very concept and necessity of the provision regarding approver's evidence may become unnecessary. Since the evidence of a co-accused is ordinarily not admissible, necessity arises for giving pardon to one of the accused and make him an approver so that his evidence may be relevant and admissible against the other co-accused. Section 30 of the Evidence Act which merely says that the evidence of a co-accused can be taken into consideration against the other accused is based upon good reason.

It does not appear necessary to enlarge upon the principle of section 30 of the Evidence Act. We are, therefore, of the opinion that proviso to sub-clause 15A(1) as suggested in the Official Amendment should be dropped. Clause 16 provides for transfer by the special court of an offence to an ordinary court where the special court finds it is not an offence triable by it. This is a necessary procedural provision and no objection has also been taken thereto.

Clause 17 which is the last clause in Part III provides for an appeal against the orders of the special court. As originally provided, the appeal was provided to a High Court both on facts and law and it was further directed that such an appeal shall be heard by a Bench of two Judges. An appeal against an interlocutory order was, of course, barred. The period of limitation for filing an appeal was prescribed as 30 days but the High Court was given the power to condone the delay on proof of sufficient cause. By way of Official Amendments, the forum of appeal is sought to be substituted. Instead of a High Court, the appeal is sought to be provided to the Supreme Court.

The proviso to sub-clause (1) which is sought to be inserted by Official Amendments, however, says that if the person tried by special court for an offence under this Act is convicted for any other offence (and is acquitted for any offence under this Act), he can file an appeal before the High Court. The second proviso to sub-clause (1) sought to be introduced by the Official Amendment provides that if in such a case, an appeal is preferred by the State against the order of acquittal in respect of an offence under this Act, the State can apply to the Supreme Court to withdraw the appeal, if any, filed by the accused in the High Court for being heard along with the State's appeal in the Supreme Court.

As a consequence of this amendment, sub-clause (2) of clause 17 as originally drafted is sought to be deleted. Several participants in the seminars and others have expressed the opinion that provision of an appeal to the Supreme Court as suggested by the Official Amendments makes the said remedy almost unavailable inasmuch as many accused may not be in a position to approach the Supreme Court having regard to the cost involved and, in many cases, the distance and other inhibiting factors. We are of the opinion that the amendment proposed by Official Amendments ought to be dropped and that clause 17 as originally drafted in the Bill should remain unchanged.

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