JUDGMENT
V.G. Palshikar, J.
1. Writ Petition No. 1742 of 2004 is filed by the petitioner praying for quashing the judgment and order passed by the Special Court under Prevention of Terrorism Act 2002 (hereinafter referred to as POTA 2002 for the sake of brevity) rejecting the application of the petitioner for directing inquiry into the encounter dated 29-03-2003 for reasons mentioned in the order dated 13-05-2004.
2. Writ Petition No. 1650 of 2004 is also filed by the same petitioner challenging the framing of charges by the Special Court in POTA Special case No. 2 of 2003 pending before the Special Court. It also prays for directions regarding investigation into recoveries made under the panchanama dated 12th April and 19th April 2003 in C.R. No. 21 of 2003 in POTA Special Case No. 2 of 2003.
3. Criminal Appeal No. 983 of 2004 is also filed by the same petitioner, who is original accused No. 1 in the trial, challenging the order passed on 14th July 2004 in POTA Special Case No. 2 of 2004 by the Special Court. By this order the learned trial Judge rejected the application of the appellant of not framing charges on the grounds mentioned therein. He thus challenges both by the writ petitions as also by the appeal, the proceedings before the learned trial Judge in POTA Special Case No. 2 of 2003 on the ground mentioned therein basically that the entire case rests on the confessional statement made by the co-accused and user thereof, being assailed under section 15, nothing survives for the court to proceed under the provisions of POTA.
4. Writ Petition No. 1992 of 2004 is filed by one Abdul Wahid Ansari. By this petition, the petitioner seeks a direction that a confessional statement retracted by the confessor purported to have been recorded under section 32 of POTA shall not be treated as confession at all. In effect this petition apart from the scope of section 32 of POTA, we have to determine various other guidelines issuance of which will have to be considered along with the scope of section 32.
5. Writ Petition No. 2001 of 2004 is filed by one Anif Husain Panwala claiming identical reliefs as claimed by the petitioner in writ petition No. 1992 of 2004.
6. Then three applications have been filed, one by Dr. Abdul Mateen Abdul Basit i.e. Criminal Application No. 4261 of 2004 by which Dr. Abdul seeks intervention in Criminal Writ Petition No. 1742 of 2004 filed by Saquib Abdul Hamid Nachan. He seeks intervention by praying on the question of scope and extent of section 32 of POTA. This application was therefore allowed and the applicant’s advocate was permitted to intervene. Identical applications were moved by way of Criminal Application No. 4260 of 2004 by Mr. Shaikh Mohammed Muzammil, Criminal Application No. 4262 or 2004 by Mr. Haseeb Zuber Mulla and Criminal Application No. 4263 of 2004 by Mr. Aatif Nasir Mulla claiming intervention as others. All these applications were allowed and the learned counsel appearing for them were heard. When these petitions came up for hearing before a Division Bench of this court, after hearing the learned advocates appearing for both the sides, the said Division Bench came to the conclusion that in view of certain judgments passed by another Division Bench of this court, the entire position of law in so far as section 32 of POTA is concerned, requires reconsideration and authoritative pronouncement by this court as according to the learned Honourable Judges, there appears to be some anomaly in that regard i.e. to say in regard to the scope and extent of section of POTA and therefore the matters were placed before My Lord the Chief Justice and he has directed this Full Bench to be constituted for hearing all these petitions.
7. After those petitions were listed, the intervention applications as mentioned above, were moved and the applicants were permitted to intervene. The matter was thereafter fixed for final hearing. All concerned were heard. Intervention Applications were allowed as indicated above and now we proceed to deal with the contentions raised for the purposes of answering the questions referred to the Full Bench. After the matter was heard for sometime it was agreed by all concerned that the questions as referred, needs reframing and accordingly by consent of all, the following questions were reframed for adjudication by this Court.
Q.1) 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 ?
8. It will be seen from the facts in the main two writ petitions mentioned above, that what is claimed by the petitioners is that on a proper interpretation of the provisions of section 32 of POTA, the prosecution started against the petitioner in POTA Special Case No. 2 of 2004 is liable to be quashed as the above interpretation which is advanced on behalf of the petitioner, nothing survives on the basis of which the prosecution can be continued. In effect he claims that the entire proceedings against the petitioner under POTA be quashed on an interpretation of section 32 of the Act. We will have to consider all these and other contentions raised during the course of argument while determining what exactly is the scope and extent of section 32 of the POTA.
9. The Parliament of India was considering terrorist activities going on in India and it was deemed necessary by the Parliament to make provisions for prevention of Terrorist and Disruptive Activities in India, an enactment is necessary. The Terrorist and Disruptive Activities (Prevention) Act of 1985 was therefore passed by which it was provided for punishment for certain offences specified in section thereof. The designated courts were brought into existence and asked to conduct speedy trials of those accused under the Act. It also gives power to make rules to the Central Government.
10. However the provisions were not effective enough to control the terrorism as was found in the northern States of India by the Terrorist activities, especially in parts of occupied Kashmir and the neighbouring States. Therefore Government of India found that this Act had a limited life and it was scheduled to expire on 23rd May 1987. Therefore on 18th May 1985 another bill was introduced in the Parliament for framing effective legislation to curb the Terrorist Activities as was done by the Legislation of 1985. This bill was passed by the Parliament and on 25th August 1987 it received ascent of the President of India on 3rd September 1987. The bill therefore became The Terrorist and Disruptive Activities (Prevention) Act 1987. Section 3, 4, 6 to 15, 16 to 20 and 23 to came into force on 24th May 1987 and the provisions of sections 5, 15, 21 and 22 came into force on 3rd September 1987. Section 15 of this Act which came into force on 3rd September 1987 provided for certain confessions made to police officers being considered or taken into consideration for the purposes of trial under that Act. It would be necessary, in the circumstances, to note the provisions of section 15 of 1987 Act.(hereinafter referred to as TADA Act of 1987). Section 15 reads thus:
15. Certain confessions made to police officers to be taken into consideration:-
(1) Notwithstanding anything in the Code or in the Indian Evidence Act 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 for an offence under this Act or rules made thereunder.
(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.
11. It will be seen from the above quoted section that notwithstanding anything contained in the Code of Cr.P.C. or the Indian Evidence Act 1872, a confession made by a person before a police officer not below the rank of Superintendent of police and recorded by such police officer in the manner provided, shall be admissible in the trial of such person for an offence under the Act. The precaution to be taken by the police officer recording the confession under this section, were mentioned in sub section (2). Section 21 of this Act provided for raising of certain presumption mentioned therein. Several persons were accordingly tried under the Act. The Act as was operative since 1987, was considered inadequate in relation to confessional statement and presumptions made under sections 15 and 21 respectively. Therefore by amending the Act of 1993 the provisions of sections 15 and 21 were extensively amended. By this amendment section 15 was amended making it possible from the date of amendment the use of the confessional statement mentioned in section 15 against the co-accused, abettor or conspirator and who was being tried in the same case. We are concerned only with the amendment of section 15 in the present petition.
12. It will thus be seen that earlier section 15 as it stood provided that certain confessions made in a certain manner by certain police officers of the rank mentioned, were admissible and were therefore liable to be used against the maker and it was provided that such statement shall be admissible in the trial of such person. Till the amendment of 1993, therefore the confession recorded under section 15 were adm issible and usable only against the person who made it during his trial. They could not therefore prior to amendment of 1993 be used against the co-accused, abettor or conspirator in that case. It was to remove this disability that section 15 was specifically amended to include the amended portion. The amended provision reads thus:
“Amendment of section 15:
In section 15 of the principal Act:
(a) in sub section (1), after the words “trial of such person”, the words “or co-accused, abettor or conspirator” shall be inserted.
(b) after sub-section (1) the following proviso shall be inserted, namely:-
“Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.”
13. We therefore note with specific emphasis what exactly was achieved by the amendment of 1993.
1) Prior to 1993 though section 15 made certain confessions admissible and usable, they were so admissible or usable in the trial of such person only as the maker thereof. They could not be used against the co-accused, abettors or conspirators in the same trial.
2) The amendment of 1993 specifically permitted user of this statement made under section 15 against the abettors or conspirators and co-accused only in the event of they being tried at the same trial.
14. We must note therefore the progress or the changes made in law very substantially. Till 1993 TADA Act permitted using of confessions or confessional statements during the trial of a person making such confession admissible only against such person and by the amendment of 1993 they were made admissible and usable against the abettors, conspirators and co-accused, provided they were tried in the same trial. It will thus be seen that though the statement confessional in nature were allowed to be used against co-accused, abettors and conspirators it could be done only in the event of such abettors or co-accused or conspirator being tried along with the persons who made the confessional statement.
15. After this amendment was made again hue and cry was raised by human rights activists in India against the provisions of TADA Act as amended by 1993, and the enactment came to be challenged as unconstitutional under Article 32 of the Constitution of India as violating the fundamental right before the Supreme Court of India. The Supreme Court of India decided all the challenges to the validity of the provisions of TADA Act in the Case of Kartar Singh v. State of Punjab, reported in 1994 S.C.C. (Cri.) page 899. The matter was referred to a constitutional Bench of five Judges and by majority it was held that the entire enactment of TADA was valid and constitutional.
16. In so far as provisions of section 15 are concerned, it was held by majority that the provisions of section 15 makes a special provision based on classifications made by the Act amongst the terrorists and disruptionists by making them a separate class of offenders from ordinary criminals under the ordinary laws and of offences mentioned under TADA Act. The offences under TADA Act according to the Supreme Court, were aggravated form of serious offences and therefore the provisions of section 15 making confessional statement admissible and usable against co-accused, abettors and conspirators was valid as it had reasonable nexus with the object and purpose sought to be achieved by TADA Act of 1987. From the majority the dissenting view was recorded by K. Ramaswamy J. and Sahai J. But the majority as noted above upheld the constitutional validity of this Act and the provisions of section 15. The provisions were also upheld in the following words:
243. The above decision, in our view, cannot be availed of for striking down section 15 of TADA Act because the classification of ‘offenders’ and ‘offences’ to be tried by the Designated Court under the TADA Act or by the Special Courts under the Act of 1984, are not left to the arbitrary and uncontrolled discretion of the Central Government but the Act itself has made a delineated classification of the offences as terrorists and disruptionists in the TADA Act and the terrorists under the Special Courts Act 1984 as well as the classification of offences under both the Acts.
244. Therefore, the complaint of incorporation of invidious discrimination in the Act has to be turned down. All that the court has to see is whether the power is used for any extranous purpose i.e. to say not for achieving the object for which the power is granted and whether the Act (TADA) has been made on grounds which are not germane or relevant to the policy and purpose of this Act and whether it is discriminatory so as to offend Article 14. In our considered opinion, the classifications have rational nexus with the object sought to be achieved by the TADA Acts and Special Courts Act and consequently there is no violation of Article 14 of the Constitution.
The Supreme Court then further observed in para 255 as under:
255. As the Act now stands after its amendment consequent upon the deletion of section 21(1)(c) a confession made by a person before a police officer can be made admissible in the trial of such person not only as against the person but also against the co-accused, abettor or conspirator provided that the co-accused, abettor or conspirator is charged and tried in the same case together with the accused, namely the maker of the confession. The present position is in conformity with section 30 of the Evidence act.
17. It will thus be seen that after the provisions of section 15 of the TADA was amended in 1993 and were upheld by the Supreme Court, the position of law as it then existed was that a confessional statement made under section 15 was admissible not only against the maker thereof but also against the abettor, conspirator and co-accused of such person provided they also were tried at the same time. This aspect is also concluded by the judgment of the Supreme Court of India in Nalini’s case reported in 1999 Cr.L.J. page 3124 S.C.
18. Nalini’s case was considered by the Bench of three Honourable Judges of the Supreme Court of India. They were Honourable Shri Justice K.T. Thomas, Honourable Shri Justice Quadri Wadhwa and Honourable Shri Justice Quadri. Two Members of the Bench agreed with each other but each wrote a separate judgment. It would therefore be necessary to carve out the findings recorded by each Honourable Judge for coming to a definite conclusion as to what exactly was laid down by the Supreme Court of India in Nalini’s case.
19. The matter before the Supreme Court of India arose in Death Reference Case No. 1 of 1998 as several of the accused persons facing trial for assassination of Mr. Rajiv Gandhi were sentenced to death by the Designated Court and an appeal against the order was also led before the Supreme Court of India. At that time the Supreme Court of India was called upon to consider the scope and extent of Section 15 as amended for the purposes of determining whether such statements made by co-accused as contemplated by section 15 of the Act can be used against the co-accused, abettors or conspirators in the same trial. Honourable Shri Justice K.T. Thomas deals with this aspect of section of TADA in para 90 to 95, 102, 128 and 239 of His Lordship’s judgment. Honourable Shri Justice Wadhwa refers to this provision of section 15 of TADA in his judgment in paras 417, 418, 420 and 423. Honourable Shri Justice Quadri has considered this aspect in para 682, 683, 697 and 699 of his judgment. We will consider the observations of the Supreme Court as noted above which in our opinion, were unanimous though the orders were written separately by each Honourable Member of the Bench. The Supreme Court of India took into consideration the history of TADA Act of 1985 and 1987, its amendment Act of 1993 and observed that the Parliamentary intention was obvious from the nature of amendment and the need to make it. The Supreme Court held therefore that the Parliament intended to make use of the confessional statement recorded under section 15 as amended, permissible against abettors, conspirators and co-accused also. But it provided a safe guard namely the trial of the abettors, conspirators and co-accused should be same as that of the person making the confessional statement. Noting the legislative changes consciously it was held unanimously by the Supreme Court in Nalini’s case that the statement can be used against co-accused, abettors or conspirators of the accused, making the statement provided all of them are tried in one trial. Honourable Shri Justice K.T. Thomas considered the provisions of amended act of 1993, noted the changes brought about by it and observed in para 90 that the amendment of 1993 has completely wiped out the said presumption (under section 21) against the co-accused from the statute book and then proceeded to consider in para 90 what is it that the Parliament did by adding the words in section 15(1) and by inserting the proviso after the amendment of section, then proceeded to consider the judgment of the Supreme Court of India reported in AIR 1949 Privy Council page 257. Opinion delivered by Sir John Beaumont sitting with five Lordships of the Privy Council in relation to the scope and extent of section 30 of the Indian Evidence Act, His Lordship proceeded to consider the observations of the three Judge Bench in Kashmira Singh’s case which observed as under:
“Thus the established position which gained ground for a very long time is that while a confession is substantive evidence against its maker it cannot be used as substantive evidence against another person even if the latter is a co-accused, but it can be used as a piece of corroborative material to support other substantive evidence. The non obstante words in section 15(1) of TADA are not intended to make it substantive evidence against the non maker, particularly after amendments were brought about in the sub-section through Act 43 of 1993.”
20. Thus the established position which gained the ground for a long time is that while the confession is a substantive evidence against its maker, it cannot be used as a substantive evidence against another person even if the later is co-accused, but it can be used as a piece of corroborative material to support the substantive evidence. It will thus be seen that according to Justice K.T. Thomas inspite of the amendment of the Act in 1993 the confessional statement was not liable to be considered as substantive evidence. This view, it is submitted with deepest respect, is a minority view of the Supreme Court of India. The majority views appears in the orders written by Shri Justice Wadhwa and Justice Quadri which are as follows:
Section 15 TADA starts with a non obstante clause. It says that neither the Evidence Act nor the Code of Criminal Procedure will apply. This is certainly a departure from the ordinary law. When the legislature enacts that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30. By judicial interpretation or judicial rigmarole, the court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. TADA was enacted to meet extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative. It must, therefore, be held that under Section 15 of TADA confession of an accused is admissible against a co-accused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence.
Justice Quadri has observed in regard to analysis of section 15 as under:
An analysis of sub-section (1) of Section 15 shows that it has two limbs. The first limb bars application of provisions of the Code of Criminal Procedure and the Indian Evidence Act to a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by him in any of the modes noted in the section. The second limb makes such a confession admissible, dehors the provisions of the Evidence Act in the trial of such person or co-accused, abettor or conspirator for an offence under the TADA Act or rules made thereunder provided the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. The import of Section 15(1) is that in so far as the provisions of Cr.P.C and the Evidence Act come in conflict with either recording of a confession of a person by a police officer of the rank mentioned therein, in any of the modes specified in the section, or its admissibility at the trial, they will have to yield to the provisions of section 15(1) of the TADA Act as it is given overriding effect.
Thus, Sections 162, 164, 281 and 463 of the Code of Criminal Procedure which have a bearing on the question of recording of statement/confession of a person and Sections 24 to 30 of the Evidence Act which deal with various aspects of confession of an accused stand excluded vis-a-vis Section 15(1) of the TADA Act and cannot be called in aid to invalidate recording of confession of an accused by a police officer of the specified rank and/or its admissibility in the trial of the co-accused, abettor or conspirator charged and tried in the same case together with the accused for an offence under the TADA Act or rules made thereunder. It must be made clear that the non obstante clause in Section 15(1) of the TADA Act does not exclude the application of all the provisions of the Cr.P.C and the Indian Evidence Act in the trial of offences under the TADA Act.
Having excluded the application of Sections 24 to 30of the Evidence Act to a confession recorded under Section 15(1) of the TADA Act, a self-contained scheme is incorporated therein for recording the confession of an accused and its admissibility in his trial with co-accused, abettor or conspirator for offences under the TADA Act or the rules made thereunder or any other offence under any other law which can jointly be tried with the offence with which he is charged at the same trial. There is thus no room to import the requirements of Section 30 of the Evidence Act in Section 15 of the TADA Act.
21. Therefore it will be seen that the majority view of the Supreme Court of India after the judgment in Nalini’s case is that the statement confessional in nature made by the accused in a trial, can be used against co-accused, abettors and conspirators of that accused in the same trial irrespective of the provisions tontained in sections 24 to 30 of the Indian Evidence Act. The position of law which emerges from this discussion is what is observed above.
22. This proposition is further made clear by the observations of Justice K.T. Thomas in the case of Nalini.
88. No doubt, the amendment carried out in section 15(1) and in section 21(1) was in one package. It was done with a definite purpose,. Before the amendment the Designated Court had a duty to presume that an accused had committed the offence if his co-accused had, in a confession, involved the former. The words “shall presume” in section 21(1) denoted that it was the duty of the court to draw such presumption.
89. This means the court should have treated the confession of one accused as against a co-accused to be substantive evidence against the latter, and in the absence of proof to the contrary, the Designated Court would have full power to base a conviction of the co-accused upon the confession made by another accused.
90. But the amendment of 1993 has completely wiped out the said presumption against a co-accused from the statute-book. In other words, after the amendment a Designated Court could not do what it would have done before the amendment with the confession of one accused against a co-accused. Parliament has taken away such empowerment. Then what is it that Parliament did by adding the words in section 15(1) and by inserting the proviso. After the amendment the Designated court could use the confession of one accused against another accused only if two conditions are fulfilled.
1) The co-accused should have been charged in the same case along with the confessor.
2) He should have been tried together with the confessor in the same case. Before amendment the Designated Court had no such restriction as the confession of an accused could have been used against a co-accused whether or not the latter was charged or tried together with the confessor.
23. It will be seen that though the opinions of the Honourable Judges of the Supreme Court were separately recorded, the conclusion arrived at by all the Honourable Judges are same, which according to us is summarised as under:
1) There should be a confessional statement recorded under the provisions of section 15 of TADA.
2) It must implicate apart from the maker/accused and co-accused, abettor and conspirators, and
3) That co-accused or abettor should be tried along with the confessioner in the same case.
24. According to the Supreme Court of India therefore the scope and extent of section 15 as amended by the amendment of 1993 was what we have summarised above. This aspect came up for consideration before the Division Bench of this Court at Nagpur and considering the entire law on the point, the Division Bench came to the conclusion that after repeal of TADA, POTA was legislated and the words put in section 15 by amendment Act No. 43 of 1993 were conspicuously absent in the actual enacted POTA. The Division Bench therefore came to a conclusion that confessional statement made by the accused recorded under section 32 of POTA cannot be used against co-accused in the same trial. It is for this reason that the Division Bench presided over by Justice H.L. Gokhale held that the entire law needs reconsideration. Hence as we have noted earlier this reference was made to us.
25. We would therefore like to note the legislated changes which took place after repeal of TADA.
26. The need for having comprehensive legislation for effectively curbing the growing terrorism in India continued and infact the same increased and therefore Parliament enacted POTA. We must keep in mind the background in which TADA was made, the background in which TADA was amended and re-enacted in the shape of POTA while considering this aspect of the interpretation of law.
27. The basic purpose and aim and object of Parliament of India was common through out this time. It is to prevent terrorism activities in India, therefore, they first legislated TADA in 1987 and made a confessional statement by an accused in a particular way provided in section 15 thereof, admissible and usable as substantive evidence against the maker thereof. It had also provided certain safe guards.
28. Those presumptions or provisions of recording and using of confessional statement were found inadequate. Presumptions were found more oppressive than necessary though the provisions were found adequate. Admissibility of a confessional statement was found correct, but the presumptions were found to be excessive. Therefore provisions of section 15 were extensively amended as noted above by us and specifically the confessional statement made by the accused was made admissible as a substantive evidence and usable as such against the co-accused, abettor and conspirator, provided they were tried in the same trial.
29. Thereafter came the repeal of TADA, and the enactment of POTA. While enacting POTA, section 15 of TADA prior to its amendment was adopted mutatis muntandis with conscious deletion of the part which made confession of an accused admissible and usable against the co-accused, including the requirement of trial being the same. There is no escape therefore from the conclusion that this was conscious exercise of its legislative prerogative by the Parliament of India in re-framing section 32 of POTA by deleting the admissibility and usability part of the confessional statement. That being the position in law, in our opinion, the view taken by the Division Bench presided over by Justice Sinha is the correct view of what is meant by section 32 of POTA. With all respects, we concur with the same and approve the same. The judgment of the Division Bench of this Court in the case of Ollala Kamlakar Lachiah and Anr. Vs. State of Maharashtra and Anr. has been brought to our notice where it has been held that the confession of an accused can be taken into consideration against the co-accused to supplement other evidence. However, in view of our observations in respect of use of the statement of an accused against the co-accused it can no longer be said to be good law.
30. There is another aspect of the matter which is required to be noted. A Division Bench of the Supreme Court considered this question of scope and extent of section 15 of TADA again in Hardeep Singh Sohal Vs. State of Punjab’s case, which is . The proceedings under TADA were commenced on the death of one Dr. Megh Raj Goyal, when the provisions of TADA were applicable, the matter came for trial thereafter and when the matter came to trial, the provisions of TADA were amended by 1993 Act and the learned trial Judge by recourse to section 15 of the Act as amended, convicted the accused persons for various offences punishable therein. The appeal against this conviction was decided by the Supreme Court in the aforementioned case of Hardeep Singh Sohal. The Supreme Court then traced the history of amendment to TADA and observed as under:
A. By Act No. 43 of 1993, clause (c) of Section 21 of the TADA Act was deleted and original Section 15 of the TADA Act also was amended by the very same Act, i.e. Act No. 43 or 1993.
B. A perusal of these provisions would show that by Act No. 43 of 1993, certain serious changes have been made in the matter of admissibility of confession made by a co-accused. Prior to the Amendment Act 43 of 1993, if a confession had been made by a co-accused, that he had committed the offence, the Designated Court could draw a presumption that the accused had committed such offence, unless the contrary was proved. This provision was completely taken away and instead of that the confession of a co-accused recorded under Section 15 of the TADA Act was made admissible subject to certain conditions. One major change that was brought into effect was that such confession recorded under section 15 of the TADA Act by a co-accused could be made use of against that accused provided the co-accused is charged and tried in the same case together with the accused.
C. Section 15 of the TADA Act as amended by Act 43 of 1993 clearly stipulates that the confession recorded under section 15 of the TADA Act is admissible only if the confessor is charged and tried in the same case together with the co-accused. After the amendment of 1993, the addition of the words “co-accused, abnettor or conspirator” and the insertion of the new “proviso” to the effect that “the co-accused, abettor or conspirator is charged or tried together with the accused” clearly shows that the confession copuld be considered by the court only when the co-accused who makes the confession is charged and tried along with other accused.
31. The Supreme Court so observing came to hold that since Balwinder Singh had escaped from the custody and was not being tried along with the other including the appellant before the Supreme Court, confession allegedly made by him cannot be used against the co-accused because they are not tried in the same trial. In so doing the Honourable Supreme Court has also taken into consideration the history of amendment of TADA and noted the judgments delivered by the Supreme Court in Kartar Singh’s case as we have indicated above. The view that we are now taking, in our opinion, is therefore fortified by the view taken by the Supreme Court in Hardeep Singh’s case noted above. In our opinion, therefore the questions referred for adjudication of this Bench are liable to be answered as under:
Q.1 Whether section 32 of POTA 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 ?
Ans: In view of the discussion made above, in our considered view, the confessional statement recorded under section 32 of POTA cannot be used as s substantive piece of evidence against other co-accused.
Q.2 In the event the answer to the question (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 ?
Ans: 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 section 161-164 of Cr.P.C. can be used.
32. We accordingly have answered the questions as above and that gives rise to the question as to what should be done to all these writ petitions. Are they liable to be sent back for decision before the appropriate Division Bench in the light of the observations made by us or that they can be conveniently disposed of by us by this order itself ?
33. Normally when a question is referred to a larger Bench for its opinion, the larger Bench should rest at answering the referred questions and let the matters be decided by the appropriate Court by which the reference was made. To adopt that course for the present would mean that the matters go back to a Division Bench of this Court, considering writ petitions on the criminal side. Factually that Division Bench is consisting of two of us (V.G. Palshikar and Anoop V. Moha, JJ.). It would therefore be a futile exercise to be undertaken by the Division Bench in these circumstances. We are therefore of the opinion that we, by this order, can dispose of those petitions also.
34 We have noted in extenso how the writ petitions arise in the begining of our opinion. Writ Petiiton No. 1742 of 2004 claims for a direction to investigate into the police encounter allegedly held on 29-03-2003. It is pertinent to note that earlier an application by the same accused for discharge under POTA was rejected by the trial court and that order is not in challenge. There is therefore no reason to consider the prayer of the accused Saquib Abdul Hameed Nachan for enquiry into the encounter as much as it has nothing to do with the trial which he is facing under POTA.
35. Therefore Writ Petitions Nos. 1742 of 2004 and 1650 of 2004 be dismissed and are accordingly disposed off by this order itself.
36. Criminal Appeal No. 983 of 2002 challenges the order passed by the Special Judge in POTA Special Case No. 2 of 2004 on 14th July 2004 rejecting the application of the appellant for not framing charges on the ground mentioned therein. In the view that we have taken namely on the scope and extent of section 32 of the Act, the order dated 14th July 2004 passed in POTA Special Case No. 2 of 2004 is required to be set aside and the matter is remitted back to the designated court for deciding the application of the original accused no. 1 for discharge, on the ground mentioned therein in light of the observations made by us in this judgment.
37. Writ Petitions Nos. 1992 of 2004 and 2001 of 2004 are also dismissed in view of the fact that we have clearly defined the scope and extent of section 32 of the Act and the learned trial Judge can deal with the matters pending before him in the light of this opinion.
38. Criminal Application No. 4261 of 2004 in Writ Petition No. 1742 of 2004 is also dismissed in view of the order made by us defining the scope and extent of section 32 of POTA.
39. In the result therefore, all the above petitions and applications stand disposed off and all interim orders if any, stand vacated by this order itself.
40. All parties concerned to act on an authenticated copy of this order.