CASE NO.: Appeal (crl.) 473 of 1996 PETITIONER: SHARAFAT HUSSAIN ABDULRAHAMAN SHAIKH AND ORS. RESPONDENT: STATE OF GUJARAT AND ANR. DATE OF JUDGMENT: 22/11/1996 BENCH: M.K. MUKHERJEE & S.P. KURDUKAR JUDGMENT:
JUDGMENT
1996 Supp(9) SCR 86
JUDGMENT
M.K. Mukherjee, J.
1. The four appellants along with eight others were tried by the Designated
Court, Ahmedabad for offences punishable under Sections 120-B and 307 IPC,
Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (‘TADA’ for short) and Section 4 and 6 of the Explosive
Substances Act, 1908. The allegations against them were that they hatched a
criminal conspiracy to let loose a reign of terror in the city of Ahmedabad
by hurling bombs on the people of the Hindu community and that pursuant to
the said conspiracy they hurled bombs near Sarangpur bus stand on January
27, 1993 as a result of which some members of the public sustained
injuries. The trial ended in an order of conviction and sentence recorded
against all the appellants under Sections 120-B IPC and 3 and 5 of TADA,
two of the appellants under Sections 307 IPC and 4 of the Explosive
Substances Act and the other two appellants under Sections 6 of the
Explosive Substances Act and of acquittal of the other eight. Aggrieved by
their convictions and sentences the appellants have filed this appeal under
Section 19 of TADA.
2. To sustain the charges leveled against the appellants, the prosecution
rested its case primarily upon the confessional statements made by each of
the above four appellants before Shri D.B. Patel, (P.W. 6) Superintendent
of Police, C.I.D. Crime Branch, Ahmedabad which were purportedly recorded
under Section 15 of TADA. The Designated Court found the confessions
voluntary and true and, as they corroborated each other, passed the
impugned judgment against the appellants.
3. Under Sub-section (1) of Section 15 of TADA a confession made by a
person before a Police Officer not lower in rank than a Superintendent of
Police is admissible notwithstanding the provisions contained in the Code
of Criminal Procedure or Indian Evidence Act. Sub-section (2) thereof, read
with Rule 15 of the Rules framed under TADA, lays down the procedure to be
followed for recording such confession. Sub-rule (3)(b) of Rule 15 enjoins
the Police Officer, who records the confession, to 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.
4. Admittedly, in none of the four confessions (Ext. 72, 73, 75 and 76),
with which we are concerned in this appeal, such a memorandum finds place.
The question, therefore, that falls for our consideration is what is the
value of such a memorandum and, for that matter, the effect of absence
thereof. The answer to this question has been given by this Court in
Chandran v. State of Madras :AIR (1970) SC 1574 while dealing with Sub-
section (4) of Section 164 Cr.P.C. which lays down the procedure to be
followed by a Magistrate in recording a confession and is pari materia with
the above quoted Rule 15(3), with the following words:
But the law does peremptorily require that after recording the confession
of the accused, the Magistrate must append at the foot on the record a
memorandum certifying that he believes that the confession was voluntarily
made. The reason for requiring compliance with this mandatory requirement
at the close of the recording of the confession, hearing the confession and
observing the demeanour of the person making it that the Magistrate is in
the best position to append the requisite memorandum certifying the
voluntariness of the confession made before him. If, the Magistrate
recording a confession of an accused person produced before him in the
course of police investigation, does not, on the face of the record,
certify in clear categorical terms his satisfaction or belief as to the
voluntary nature of the confession recorded by him, nor testifies orally as
to such satisfaction or belief the defect would be fatal to the
admissibility and use of the confession against the accused at the trial.
(emphasis supplied)
5. Apart from the fact that P.W. 6 did not give any certificate, in
accordance with the earlier quoted Rule 15(3) of his satisfaction or belief
about the voluntariness of the confessions after the same were recorded, it
is also an admitted fact that while being examined as a witness he did not
testify about his such satisfaction or belief. Resultantly, in view of the
above quoted observations of this Court, with which we are in complete
agreement, the confessions allegedly made by the four appellants cannot be
pressed into service to prove the charges leveled against them. Since there
is no other evidence on record from which it could be said that the
appellant are guilty of the offences for which they were charged and
convicted the appeal must succeed.
6. In the result we allow this appeal, set aside the convictions and
sentences of the appellant and direct that they be released forthwith,
unless wanted in connection with some other case.