{"id":151564,"date":"2002-10-03T00:00:00","date_gmt":"2002-10-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2"},"modified":"2018-06-22T02:38:04","modified_gmt":"2018-06-21T21:08:04","slug":"bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2","title":{"rendered":"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002<\/div>\n
Author: Y Sabharwal<\/div>\n
Bench: Y.K.Sabharwal, H.K. Sema.<\/div>\n
           CASE NO.:\nAppeal (crl.)  594 of 2002\nAppeal (crl.)  720 of 2002\nAppeal (crl.)  721 of 2002\nAppeal (crl.)  731 of 2002\nAppeal (crl.)  828 of 2002\n\nPETITIONER:\nBharatbhai @ Jimi Premchandbhai\n\nRESPONDENT:\nState of Gujarat\n\nDATE OF JUDGMENT: 03\/10\/2002\n\nBENCH:\nY.K.Sabharwal & H.K. Sema.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Y.K. Sabharwal, J.\n<\/p>\n
\tDeceased Raghunath Yadav was convicted and sentenced by the
\nSessions Court at Varanasi for the murder of father of Brijesh Singh  who
\nis one of the absconding accused in the present case.  While on bail in
\nappeal, Raghunath Yadav, apprehending danger to his life, came to
\nreside at Mehsana in the State of Gujarat.  On 14th June, 1992,
\nRaghunath Yadav was murdered at Mehsana.\n<\/p>\n
\tIn TADA case Nos.1, 2 3 and 7 of 1996, twelve accused were tried
\nby the Designated Judge, Ahmedabad for offences under Sections 302,
\n397, 307, 120B IPC, Section 3(1), 3(3), 3(4) and 5 of the Terrorist And
\nDisruptive Activities (Prevention) Act, 1987 (for short ‘TADA Act’) and
\nunder Section 25(1)(a) and (b) of the Arms Act.\n<\/p>\n
\tThe charge-sheet against accused Nos.1 to 3 was filed on 6th April,
\n1993, against accused Nos. 4 to 6 on 1st July, 1994, against accused Nos.
\n7 to 11 on 15th April, 1996 and against accused No.12 on 26th November,
\n1996.  The charges were that the accused persons and the absconding
\naccused\t Sharifkhan Azizkhan Pathan, Daud Ibrahim Meman,
\nBrijeshsinh Bholansinh, Radayanarayansinh alias Harinarayansinh alias
\nBhulansinh Thakur, Unita Prajapati, deceased accused Sunil Savat and
\nAbdullatif Abdul Vahab Shaikh had hatched a conspiracy to commit
\nmurder of Raghunath Yadav and thereby, committed criminal acts
\npunishable under Section 120-B of the Indian Penal Code; as per the
\nabove conspiracy on 14th June, 1992, accused Nos. 1, 3, 4, 8, 9 and the
\nabsconding accused Radayanarayansinh @ Harinarayansinh @
\nBhuvansinh Thakur and Brijeshsinh Bhuvansinh @ Ravinathsinh Thakur
\nhad gone to S.T. Bus stand, Mehsana and after obtaining information
\nabout the identification of the deceased as a part of the conspiracy made
\nfiring with the pistol and caused murder of Raghunath Yadav and created
\nan atmosphere of terror and fear at the said place and then fled away in
\nthe vehicles and, thus, committed offences punishable under Section 302
\nread with Section 120B IPC and under Sections 3(1) and 3(3) of TADA
\nAct read with Section 120B IPC; while fleeing away from Mehsana after
\nfiring and committing murder as aforesaid, Police Sub-Inspector, Zala who
\ntried to arrest the accused was fired at by the accused causing him
\ninjuries and had run away taking the Government Maruti Gypsy with them
\nand, thus, committing offence punishable under Sections 307, 120B IPC
\nand under Sections 3(1), 3(3), 3(4) and 5 of the TADA Act read with
\nSection 120B IPC and Section 397 read with Section 120B IPC.
\n\tThe Designated Court, by the impugned judgment and order
\nconvicted and sentenced accused Nos. 4 Subhashsinh @ Mahesh
\nShobhnathsinh Thakur, accused No.5 Abdul Khuddarsh Abdulgani
\nShaikh, accused No.7 Bharat Premchandbhai Patel, accused No.8
\nRamdularsinh Ramdharisinh Thakur and accused No.9 Shitalaprasad
\nDevjansinh Thakur for offences punishable under Sections 120B, Section
\n302 read with Section 120B, Section 307 read with Section 120B, Section
\n397 read with Section 120B IPC and offence under Sections 3(1), 3(3) of
\nthe TADA Act read with Section 5 read with Section 120B IPC.  All of them
\nhave been sentenced to undergo life imprisonment for offence under
\nSection 120B, offence under Section 302 read with Section 120B IPC and
\nfine of Rs.500\/- each and further imprisonment of one month for default in
\npayment of fine.  For other offences, varying punishments have been
\nawarded.  Accused No.12 died during trial and the remaining were
\nacquitted.\n<\/p>\n
\tThe convicted accused have preferred these appeals under Section
\n19 of TADA Act.\t We have perused the record and heard Mr. Yashank
\nAdhyaru for accused No.7 (Crl.A. No.594\/2002), Mr. Ranjit Kumar for
\naccused No.9 (Crl.A. No.720\/2002), Mr. V.S. Kotwal for accused No.8
\n(Crl.A.No.731\/2002), Mr. U.R. Lalit for accused No.4 (Crl.A. No.721\/2002),
\nMr. Sushil Kumar for accused No.5 (Crl.A. No.828\/2002) and Mr.
\nMahendra Anand for the respondent.\n<\/p>\n
\tThe conviction of the appellants is primarily based on the two
\nconfessional statements.  One  made by accused No.7 Bharatbhai and
\nthe other by accused No.8 Ramdularsinh Thakur.\tThese statements were
\nrecorded by Mr. A.S. Bhatia, Superintendent of Police (PW18) under
\nSection 15 of TADA Act.\t In respect of the conviction of accused Nos.4, 5
\nand 9 which is also based mainly on these confessional statements,
\naccording to the prosecution, there is also sufficient corroborative
\nevidence against them.\n<\/p>\n
\tThe fate of the entire case rests on the legality of the confessional
\nstatements.  If the confessional statements are held as inadmissible, the
\nprosecution case against all the appellants will fail. It has not been
\ndisputed and, in our opinion, rightly, by Mr. Anand, learned counsel for the
\nrespondent-State  that in case the confessional statements are held
\ninadmissible and, therefore, discarded, it would not be possible to sustain
\nthe conviction of the appellants.  The learned counsel has, however,
\nstrenuously urged that no provision of the TADA Act or rules framed
\nthereunder has been violated in recording of the confessional statement
\nand submitted that the confessional statements of accused Nos. 7 and 8
\nhave been rightly relied upon by the Designated Court in convicting all the
\nappellants.  The facts leading to the recording of the confessional
\nstatements and what is contained therein may be briefly noticed.
\n\tRaghunath Yadav was murdered on 14th June, 1992.  Accused
\nNo.7 was arrested on 13th December, 1995.  His remand had been
\nobtained upto 29th December, 1995.  He was produced before PW18 A.S.
\nBhatia, on 27th December, 1995 at 7.30 p.m.  PW18 is competent to
\nrecord the confessional statement under Section 15 of the TADA Act.  The
\naccused was told by PW18 that he was not legally bound to give
\nconfession and the same shall be used against him.  The accused stated
\nthat still on his own and without any sort of pressure, threats or
\nmental\/physical harassment, he intended to give the confessional
\nstatement.  The confessional statement was, however, not recorded on
\n27th December, 1995.  He was given time to think over.\tHis confessional
\nstatement was recorded on the next date, i.e., 28th December from 10.45
\nupto 1145 hours.\n<\/p>\n
Similar is the position in respect of the confessional statement of
\naccused No.8 Ramdularsinh Thakur.  He was first produced before PW18
\nat 8 p.m. on 27th December, 1995.  The confession was recorded on 28th
\nDecember from 1145 upto 1215 hours.  His arrest was also on 13th
\nDecember, 1995.\t His remand was obtained upto 29th December, 1995.
\n\tThe english translated typed copy of the confessional statement of
\nPW7 runs into 35 pages whereas that of PW8 runs into 12 pages.
\n\tThe identical statement of accused Nos.7 and 8 that were recorded
\non 27th December, 1995 read as under :\n<\/p>\n
“In connection with the Mehsana City police
\nstation Cr.R. No.I-197\/92 for the offence
\npunishable under sections 147, 148, 149, 307,
\n397, 120-B of the Indian Penal Code and under
\nsection 25(i)B, A and u\/s 3 of the TADA Act, I
\nhave been arrested by the police on 13\/12\/95,
\nand a remand has been obtained upto 29\/12\/95.\n<\/p>\n
\tSince I intend to voluntarily give my
\nconfessional statement as regards the facts of
\nthis offence known to me and the parts which I
\ndid play therein, I have been today produced
\nbefore you.  I have been given understanding by
\nyou that I am legally not bound to give this
\nconfession and that the same shall be used
\nagainst me.  Still, however, I on my own and
\nwithout any sort of pressure, threats or
\nmental\/physical harassment, intend to give this
\nconfessional statement.\n<\/p>\n
\tI state that I have been given sufficient time
\nto think over giving this confessional statement by
\nyou, and after due and thoughtful consideration, I
\nhave been produced before you to give this
\nconfessional statement.”\n<\/p>\n
\tThe first paragraph of the statement of accused No.7 that was
\nrecorded on 28th December, 1995 reads as under :
\n“Upon being personally interrogated, I state that I
\nam residing at the above address for the last one
\nand half years and doing the work of filing share
\nissues forms, purchase and sale of shares,
\npurchase and sale of small  big properties and
\nplaying cards (gambling).  Since I am fond of
\ngambling since my childhood, I also gain or lose
\nmoney in it.”\n<\/p>\n
\tIn respect of accused No.8 that paragraph reads as under :\n<\/p>\n
“Upon being interrogated personally, I state that I
\nam residing at the above address and running a
\nflour mill.  My wife and children are residing at the
\nabove address of my native place and they are
\ndoing the agriculture work and I many times go to
\nmy native place once or twice in a year.  I am
\nresiding here since last 19 years and I have
\nstudied upto Std.7 in Hindi medium.  I know,
\nunderstand and speak Gujarati language very
\nwill.”\n<\/p>\n
\tIn the confessional statement, accused No.7 has given a detailed
\naccount as to how he came in contact with the absconding accused and
\nthe other accused persons; how and when they had been coming to his
\nhouse and making telephone calls; his going to Ahmedabad Airport with
\nBachchisinh in the car of Sunil Savat to receive Subhashsinh Thakur who
\ncame from Delhi along with Brijeshsinh Thakur.\tThat was on 10th June,
\n1992.  Sunil Savat, Brijeshsinh Thakur and Bachchinsinh came to his
\nhouse from hotel and Sunil Savat had talked to Daud at Dubai and told
\nhim to make all arrangements.  The talks were in code words.  Thereafter,
\nafter five minutes, a phone call was received from Abdul Latif who talked
\nwith Sunil Savat.  Latif stated that he will make all the arrangements.\t All
\npersons went to the house of uncle of Subhashsinh named S.D. Thakur.
\nSubhashsinh introduced all with him  PSI S.D. Thakur and talked with
\nhim as regards their going to Mehsana on the next day.\tS.D. Thakur
\ngave the name and address of another ‘Bhaiya’ to Subhashsinh.
\nThereafter all went to the house of Latif where Sharifkhan and Abdul
\nKhudarsh accused No.5 were also present.  As per the talk between Sunil
\nSavant and Latif, since murder of one ‘Bhaiya’ was to be committed at
\nMehsana, Latif told that arrangements of car and persons shall be made
\nby him and that two cars and persons would reach the hotel.  Sunil
\nSavant told him to come to the hotel on the next day at about 6.30 hours
\nin the morning.\t He went there at about 7.00 a.m.  All 6 persons were
\nready at the Natraj Hotel.  After some time two cars sent by Latif came to
\nhotel out of which one was Maruti 1000 of metallic blue colour wherein
\nAbdul Khudarsh, Sunil Savant, Brijeshsing and one boy out of the two sat.
\nIt was told that car should stop at Nandsan Hotel.  Latif’s persons came in
\nthe Maruti Fronti wherein Subhashsinh and two other persons sat.  He
\nand Bachchisinh were in Hyundai car.  Bachchisinh was having the
\naddress of Anupam Cinema and, therefore, their car was kept ahead
\nwhere Ramdularsinh (accused No.8) met them.  On finding Ramdularsinh
\non road, Bachchisinh was dropped there and he (accused No.7) returned
\nhome in the Hyundai car.  Bachchisinh and Ramdularsinh sat in the
\nMaruti Fronti car which had followed the car of accused No.7 from the
\nhotel.\tAfter taking Ramdularsinh, they went in the Maruti Fronti to take
\nS.D. Thakur.  From there, all were to gather at Nandasan Hotel.\t He did
\nnot see as to which weapons were kept in which car.  At 4.30 p.m. in the
\nevening, Sunil Savant and Brijeshsinh Thakur came to his house in a
\nfrightened condition.  Sunil Savant informed accused no.7 that “he has
\nbeen finished, but quandary (lafada) occurred, many bullet shots were
\nfired, everything has been disturbed, we left the cars and returned.”  Sunil
\nSavant talked to Daud and informed him about this incident and also
\ninformed that the work is over and the cars were left there only.  He also
\ntalked about the incident with Latif over telephone in Hindi.  Latif told him
\nthat whatever has happened, has already happened, don’t worry.\tHe also
\nstated about going to the house of S.D. Thakur with Subhashsinh and
\nothers on the next day and Subhashsinh informing his uncle that the work
\nis over.  He has further stated about going to Nepal with Sunil Savant and
\nBachchisinh.  He has also made statement about the boys of Mumbai
\nhaving accepted ‘supari’ for N.G. Patel for a big amount and his being
\nfrightened on that account.\n<\/p>\n
\tAt the end the confession reads that “The above facts as narrated
\nby me are true and correct”.  It has been signed by accused No.7.  The
\nsignatures of PW18 appear below the words ‘Before me’.
\n\tIn the same manner as above, the confessional statement of
\naccused No.8 at the end records that “The above facts as narrated by me
\nare true and correct which has been read over to me”.  It has also been
\nsigned by the accused.\tThe signatures of the Superintendent of Police
\n(PW18) appear in a similar fashion as above.\n<\/p>\n
Accused No.8 has, inter alia, stated that he had not known
\nBrijeshsinh Thakur but heard his name and had got the information that
\nhe has been doing the activities of murders etc. in Banaras, Lucknow and
\nthe surrounding areas.\tHe knew Subhashsinh Thakur for the last 4-5
\nyears and also accused No.9 for the past 10-12 years; the
\ndisputes\/quarrels between Yadav’s of the Dhavarhara village of
\nBrijeshsinh and Thakurs were going on since years.  At about 12
\nmidnight, accused No.9 came to his house and informed him that they
\nhave to go to Mehsana next day in the morning and on asking for the
\npurpose for going there, accused No.9 stated that he will tell him the next
\nday morning.  On the next day morning Subhashsinh Thakur came in
\nMaruti Fronti car and with him, he went to accused No.9 who told him that
\nto take revenge of the murder of father of Brijeshsinh, the murder of
\nRaghunath Yadav is to be committed and accused No.8 knows him and,
\ntherefore, he should identify him at Mehsana.  Accused No.8 agreed to go
\nwith accused No.9 to Mehsana.  In that car, Subhashsinh and accused
\nNoS.8 and 9 were sitting.  In another car that was following them 6-7
\npersons were sitting.  On reaching Mehsana, they went to bus stand;
\nthere was rush at sugarcane juice stall.  On his asking as to where is
\nYadavji, he was told that he was getting his beard shaved in the nearby
\ncabin.\tOn looking into the cabin, he found that Raghunath Yadav was
\ngetting his beard shaved.  He told Subhashsinh as to the person who was
\ngetting shaved was Raghunath Yadav.  After showing Raghunath Yadav,
\nhe and accused No.9, after consulting Subhashsinh left the bus stand and
\nSubhashsinh and other persons in the car waited there.\tHe and accused
\nNo.9 came to Ahmedabad after taking a jeep from Mehsana Highway bus
\nstand where they reached by taking a rickshaw.\tThe passenger and the
\njeep driver were discussing on the way that firing had taken place at
\nMehsana S.T. bus stand.\t Therefore, we knew that Subhashsinh and his
\nother companions had made firing.\n<\/p>\n
\tThe confessional statement recorded under Section 15 of TADA
\nAct by a Police Officer authorized therein is admissible in evidence.  It is
\nalso no more res integra that a confession recorded under Section 15 is a
\nsubstantive piece  of evidence [State  through Superintendent of
\nPolice, CBI\/SIT v. Nalini & Ors.  (1999) 5 SCC 253];  [Devender Pal
\nSingh v. State of NCT of Delhi & Anr.  (2002) 5 SCC 234] and
\nRavinder Singh @ Bittu v. The State of Maharashtra  JT 2002 (4) SC
\n470].\n<\/p>\n
\tThe maker of a confessional statement can be convicted solely on
\nthe basis of his confessional statement made under Section 15 of the
\nTADA Act.  That statement is also substantive evidence against his co-
\naccused.  Against the co-accused, though taken as substantive evidence
\nas a rule of prudence, to get support, the Court would look upon
\ncorroborative evidence as well.\n<\/p>\n
\tThus, the fate of not only the accused but the co-accused as well
\nhinges on the confessional statement recorded by a Police officer under
\nSection 15 of the TADA Act.  Such a statement cannot be recorded in a
\nmechanical manner.  All the safeguards provided in the Act and the Rules
\nhave to be strictly adhered to.\t There can be no room for any latitude in
\nthe matter and manner of recording of a confessional statement.\t Any
\nmaterial discrepancy will be fatal unless satisfactorily explained by the
\nprosecution.  The burden of proving confessional statements always
\nremains on the prosecution.  It is for the prosecution to prove that the
\nconfessional statement that is being relied upon was voluntary, truthful
\nand all safeguards were complied with while recording it. The burden of
\nproving such confessional statement on the prosecution cannot be
\nlightened by urging that the confession was not retracted or challenged
\nexcept in the cross-examination of the witnesses.  Undoubtedly, when the
\nconfession is duly recorded and is proved to be voluntary and truthful,
\nthen it can be taken to be the most reliable piece of evidence coming from
\nthe accused himself and made sole basis of conviction in the manner
\nstated earlier, confession being an admission of the guilt.
\n\tThe conviction in the present case is based mainly, if not entirely,
\non the strength of what is stated in the confessional statements made by
\naccused Nos.7 and 8.  The confessional statements have been recorded
\nby a police officer.  It was not contended for the State that the conviction
\ncould be  supported even if the confessions were inadmissible.
\nThe admissibility in evidence of confessional statements made by
\nan accused before a police officer has for long been an anathema to the
\nrule of law.  The police has, ordinarily, been suspect of using third degree
\nmethods in obtaining confession.  Section 25 of the Evidence Act
\nstipulates that no confession made to a police officer, shall be proved as
\nagainst a person accused of any offence.  Section 26 provides that no
\nconfession made by any person whilst he is in the custody of a police
\nofficer, unless it be made in the immediate presence of a Magistrate, shall
\nbe proved as against such person.  Section 24 provides that a confession
\nmade by an accused person is irrelevant in a criminal proceeding, if the
\nmaking of the confession appears to the Court to have been caused by
\nany inducement, threat or promise, having reference to the charge
\nagainst the accused person, proceeding from a person in authority and
\nsufficient in the opinion of the Court, to give the accused person grounds,
\nwhich would appear to him reasonable, for supposing that by making it he
\nwould gain any advantage or avoid any evil of a temporal nature in
\nreference to the proceedings against him.  Article 20(3) of the Constitution
\nof India provides that no person accused of any offence shall be
\ncompelled to be a witness against himself.\n<\/p>\n
In Kartar Singh v. State of Punjab [(1994) 3 SCC 569], a serious
\nchallenge was made to the constitutional validity of Section 15 of the
\nTADA Act which contained a drastic departure from the existing
\nprovisions of the Evidence Act, in particular Section 25 thereof, and
\nprovided that notwithstanding anything contained in the Indian Evidence
\nAct, 1872, but subject to the provisions of that section, a confession made
\nby a person before a police officer not lower in rank than a
\nSuperintendent of Police and recorded in the manner provided in the
\nsection shall be admissible in the trial of such person or co-accused,
\nabettor or conspirator for an offence under the TADA Act or rules made
\nthereunder.  The co-accused, abettor or conspirator is required to be
\ncharged and tried in the same case together with the accused for the
\napplicability of Section 15(1) of the TADA Act.\t Section 15 (2) stipulates
\nthat the police officer shall, before recording any confession under
\nSection 15(1), explain to the person making it that he is not bound to
\nmake a confession and that, if he does so, it may be used as evidence
\nagainst him and such police officer shall not record any such confession
\nunless upon questioning the person making it, he has reason to believe
\nthat it is being made voluntarily.  Thus, this provision was made in
\nconsonance with Article 20(3) of the Constitution as the compulsion on an
\naccused to make a statement against him has been interdicted by the
\nConstitution.\n<\/p>\n
\tIn Kartar Singh’s case, it was contended that the procedure
\nprescribed in the TADA Act is the antithesis of the just, fair and
\nreasonable procedure.  A blistering attack was made on the validity of
\nSection 15.  It was, inter alia, contended that the existing Codes of law
\nwhich have a life history of more than a century proceed on the footing
\nthat police confessions are untrustworthy and, thus, Section 15 gives a
\ndeath-knell to the very basic principle hitherto recognized and followed
\nthat a confession made before a police officer under any circumstance as
\nwell as a confession to a Magistrate or a third party while in police
\ncustody is totally inadmissible and that such a confession cannot be
\nproved as against a person accused of any offence.  It was contended in
\nthe said case that oppressive behaviour and excessive naked abuse and
\nmisuse of power by the police in extorting confession by compelling the
\naccused to speak under the untold pain by using third degree methods
\nwith diabolical barbarity in utter violation of human rights, cannot be lost
\nsight of or consigned to oblivion and the courts would not be justified by
\nshowing a volte-face and turning a blind eye to the above reality and
\ndrawing a legal presumption that the confession might have been
\nobtained by a police officer not lower in rank than a Superintendent of
\nPolice in terms of Section 15(1) only in accordance with the legally
\npermissible procedure.\tThe counsel castigated the conduct of the police
\nofficers in whisking away the accused either on arrest or on obtaining
\ncustody from the court to an unknown destination or unannounced
\npremises for custodial interrogation in order to get compulsory self-
\nincriminating statement as a source of proof to be produced before a
\ncourt of law.  Examples were cited where on several occasions, this Court
\nhave ordered exemplary compensation to the victims at the hands of the
\npolice officials.  It was submitted therein that the police officer is inherently
\nsuspect of implying coercion to obtain confession and, therefore, the
\nconfession made to police officer should totally be excluded from
\nevidence.  The emphasis was more on the police culture rather than on
\nthe person, the contention being that the climate was still not conducive
\nfor effecting a drastic change by investing the police officer with a power
\nto record confession and then make it admissible in evidence.  It was
\nsubmitted that without bringing about a change in the outlook of the
\npolice, such a drastic departure was not justified.
\n\tThe challenge to the constitutional validity of Section 15 almost
\nsucceeded as seems clear from the observations that were made in the
\nmajority opinion in Kartar Singh’s case while upholding the constitutional
\nvalidity of Section 15.\t The observations are :\n<\/p>\n
“Though we at the first impression thought of
\nsharing the view of the learned counsel that it
\nwould be dangerous to make a statement given to
\na police officer admissible (notwithstanding the
\nlegal position making the confession of an
\naccused before the police admissible in some
\nadvanced countries like United Kingdom, United
\nStates of America, Australia and Canada etc.)
\nhaving regard to the legal competence of the
\nlegislature to make the law prescribing a different
\nmode of proof, the meaningful purpose and object
\nof the legislation, the gravity of terrorism
\nunleashed by the terrorists and disruptionists
\nendangering not only the sovereignty and integrity
\nof the country but also the normal life of the
\ncitizens, and the reluctance of even the victims as
\nwell as the public in coming forward, at the risk of
\ntheir life, to give evidence  hold that the
\nimpugned section cannot be said to be suffering
\nfrom any vice of unconstitutionality.  In fact, if the
\nexigencies of certain situations warrant such a
\nlegislation then it is constitutionally permissible as
\nruled in a number of decisions of this Court
\nprovided none of the fundamental rights under
\nChapter III of the Constitution is infringed.”\n<\/p>\n
\tThe two learned Judges, however, expressed the minority opinion
\nthat Section 15 is unconstitutional.\n<\/p>\n
\tWhile upholding the validity of Section 15, a note of caution was
\nadded in Kartar Singh’s case in the following terms :
\n” we state that there should be no breach of
\nprocedure and the accepted norms of recording
\nthe confession which should reflect only the true
\nand voluntary statement and there should be no
\nroom for hyper criticism that the authority has
\nobtained an invented confession as a source of
\nproof irrespective of the truth and creditability as it
\ncould be ironically put that when a Judge
\nremarked , ‘Am I not to hear the truth’, the
\nprosecution giving a startling answer, ‘No Your
\nLordship is to hear only the evidence’.”\n<\/p>\n
\t\t\t\t\t(Emphasis is ours)<\/p>\n
\tIn the same context, while laying down the guidelines so as to
\nensure that the confession obtained in the pre-indictment interrogation by
\na police officer not lower in rank than a Superintendent of Police is not
\ntainted with any vice but is in strict conformity with the well-recognised
\nand accepted aesthetic principles and fundamental fairness, the
\nConstitution Bench also said that :\n<\/p>\n
“Though it is entirely for the court trying the
\noffence to decide the question of admissibility or
\nreliability of a confession in its judicial wisdom
\nstrictly adhering to the law, it must, while so
\ndeciding the question should satisfy itself that
\nthere was no trap, no track and no importune
\nseeking of evidence during the custodial
\ninterrogation and all the conditions required are
\nfulfilled.”\n<\/p>\n
(emphasis is ours)<\/p>\n
\tBefore basing conviction on confessional statement, it is necessary
\nto examine whether all conditions for recording of confession have been
\nfulfilled or not.  The requirements of Section 15 have already been noticed
\nearlier.  In exercise of the powers conferred by Section 28 of the TADA
\nAct, the Central Government has made the Terrorist and Disruptive
\nActivities (Prevention) Rules, 1987.  Rule 15 relates to recording of
\nconfession made to police officers.  It reads as under :
\n“15. Recording of confession made to police
\nofficers.(1) A confession made by a person
\nbefore a police officer and recorded by such
\npolice officer under Section 15 of the Act shall
\ninvariably be recorded in the language in which
\nsuch confession is made and if that is not
\npracticable, in the language used by such police
\nofficer for official purposes or in the language of
\nthe Designated Court and it shall form part of the
\nrecord.\n<\/p>\n
(2) The confessions so recorded shall be shown,
\nread or played back to the person concerned and
\nif he does not understand the language in which it
\nis recorded, it shall be interpreted to him in a
\nlanguage which he understands and he shall be
\nat liberty to explain or add to his confession.\n<\/p>\n
(3)\tThe confession shall, if it is in writing, be\n<\/p>\n
(a)\tsigned by the person who makes the
\nconfession; and\n<\/p>\n
(b)\tby the police officer who shall also certify
\nunder his own hand that such confession
\nwas taken in his presence and recorded by
\nhim and that the record contains a full and
\ntrue account of the confession made by the
\nperson and such police officer shall make a
\nmemorandum at the end of the confession
\nto the following effect :-\n<\/p>\n
\t‘I have explained to (name) that he is not
\nbound to make a confession and that, if he does
\nso, any confession he may make may be used as
\nevidence against him and I believe that this
\nconfession was voluntarily made.  It was taken in
\nmy presence and hearing and recorded by me
\nand was read over to the person making it and
\nadmitted by him to be correct, and it contains a
\nfull and true account of the statement made by
\nhim.\n<\/p>\n
\t\t\tSd\/- Police Officer.”\n<\/p>\n
(4) Where the confession is recorded on any
\nmechanical device, the memorandum referred to
\nin sub-rule (3) in so far as it is applicable and a
\ndeclaration made by the person making the
\nconfession that the said confession recorded on
\nthe mechanical device has been correctly
\nrecorded in his presence shall also be recorded in
\nthe mechanical device at the end of the
\nconfession.\n<\/p>\n
(5)\tEvery confession recorded under the said
\nSection 15 shall be sent forthwith to the Chief
\nMetropolitan Magistrate or the Chief Judicial
\nMagistrate having jurisdiction over the area in
\nwhich such confession has been recorded and
\nsuch Magistrate shall forward the recorded
\nconfession so received to the Designated Court
\nwhich may take cognizance of the offence.”\n<\/p>\n
\tWhat is required to be examined is whether requirements of
\nSection 15 of the TADA Act and the aforesaid Rule 15 when recording the
\nconfessional statements in question, have been complied or not.\t Let us
\nexamine whether requirements of Rule 15 have been complied by PW18
\nwhen he recorded confessional statements of accused Nos.7 and 8.  One
\nof the requirements of Rule 15(3)(b) is making of a memorandum at the
\nend of the confession.\tIt is not in dispute that Rule 15(3)(b) has not been
\ncomplied with in as much as the memorandum at the end of the
\nconfession has not been appended.  PW18, the police officer who
\nrecorded the confession, admitted in his deposition that such a
\nmemorandum was not made.  The core question is its effect on the
\nadmissibility of confession.\n<\/p>\n
Learned counsel for the appellants contend that it is fatal to the
\ncase of the prosecution.  In absence of such a memorandum, the
\nconfession is inadmissible and cannot be relied upon and the conviction,
\nimpugned in the present appeals, being based only on confession is liable
\nto be upturned is the contention.  On the other hand, counsel for the
\nrespondent would submit that though no memorandum, as required by
\nRule 15(3)(b),\thas been made and appended by PW18, but in substance
\nthe rule has been complied with.  The contention is that the deposition of
\nPW18 in Court shows that he was satisfied that the confession was
\nvoluntarily made and, therefore, the absence of the memorandum is only
\na defect of form and not of substance.\t Hence, the non-making of
\nmemorandum in the present case is of no consequence is the contention.
\nIn the aforesaid light, the vital question to be determined is can the
\ndefect of non-making and appending of memorandum, as required by
\nRule 15(3)(b), be cured by oral deposition of the Superintendent of Police
\nwho recorded the confession, while appearing as a witness in court.  In
\nother words, can oral evidence in Court be a substitute for a
\nmemorandum to be made under Rule 15(3)(b) is the point for
\ndetermination.\n<\/p>\n
The significance of the confessional statement has already been
\nnoticed earlier.  It is such that the fate of not only the accused but co-
\naccused, abettor and conspirator depends upon it.  It can result in the
\nhanging of accused and co-accused etc.\tRelying on it, punishment upto
\ndeath penalty can be imposed on the maker as also on others.  First of
\nall, let us remind ourselves of the observations that have stood test of
\ntime as made in the off-quoted decision of Privy Council in Nazir Ahmad
\nv. King-Emperor [AIR 1936 PC 253] holding that where a power is given
\nto do a certain thing in a certain way, the thing must be done in that way
\nor not at all.\tOther methods of performance are necessarily forbidden.
\n\tIn S.N. Dube v. N.B. Bhoir & Ors.<\/a> [(2000) 2 SCC 254],  the trial
\ncourt had taken the view that the officer recording confession did not write
\nthe certificates and the memorandums in the same form and terms as are
\nprescribed by Rule 15 of the Rules framed under the TADA Act and the
\nsame were, therefore, inadmissible.  Counsel for the accused submitted
\nbefore this Court that the certificates and the memorandums having not
\nbeen recorded in identical terms and as Rule 15 is mandatory, the trial
\nCourt was right in holding the confessions inadmissible for non-
\ncompliance with that mandatory requirement.  While considering the
\nquestion whether the certificate and the memorandum are required to be
\nwritten in the same form and terms as required by the Rule, this Court
\nheld that :\n<\/p>\n
“Writing the certificate and making the
\nmemorandum are thus made mandatory to prove
\nthat the accused was explained that he was not
\nbound to make a confession and that if he made
\nit, it could be used against him as evidence, that
\nthe confession was voluntary and that it was
\ntaken down by the police officer fully and
\ncorrectly.  These matters are not left to be proved
\nby oral evidence alone.\t The requirement of the
\nrule is preparation of contemporaneous record
\nregarding the manner of the recording the
\nconfession in the presence of the person making
\nit.  Though giving of the statutory warning,
\nascertaining the voluntariness of the confession
\nand preparation of a contemporaneous record in
\nthe presence of the person making the confession
\nare mandatory requirements of the rule, we see
\nno good reason why the form and the words of
\nthe certificate and memorandum should also be
\nheld mandatory.\t What the mandatory
\nrequirements of a provision are cannot be
\ndecided\t by overlooking the object of that
\nprovision.  They need not go beyond the purpose
\nsought to be achieved.\tThe purpose of the
\nprovision is to see that all formalities are
\nperformed by the recording officer himself and by
\nothers to ensure full compliance with the
\nprocedure and seriousness of recording a
\nconfession.  We fail to appreciate how any
\ndeparture from the form or the words can
\nadversely affect the object of the provision or the
\nperson making the confession so long as the
\ncourt is able to conclude that the requirements
\nhave been substantially complied with.\tNo public
\npurpose is likely to be achieved by holding that
\nthe certificate and memorandum should be in the
\nsame form and also in the same terms as are to
\nbe found in Rule 15(3)(b).  We fail to appreciate
\nhow the sanctity of the confession would get
\nadversely affected merely because the certificate
\nand the memorandum are not separately written
\nbut are mixed up or because different words
\nconveying the same thing as is required are used
\nby the recording officer.  We hold that the trial
\ncourt committed an error of law in holding that
\nbecause the certificates and memorandums are
\nnot in the same form and words they must be
\nregarded as inadmissible.  Having gone through
\nthe certificates and the memorandums made by
\nShinde at the end of the confessions what we find
\nis that he had mixed up what is required to be
\nstated in the certificate and what is required to be
\nstated in the memorandum.   He has stated in
\neach of the certificates and the memorandums
\nthat he had ascertained that the accused was
\nmaking the confession willingly and voluntarily
\nand that he was under no pressure or enticement.
\nIt is further stated therein that he had recorded
\nthe confession in his own handwriting (except in
\ncase of A-7 whose confession was recorded with
\nthe help of a writer).\tHe has also stated that it
\nwas recorded as per the say of the accused, that
\nit was read over to the accused completely, that
\nthe accused had personally read it, that he had
\nascertained thereafter that it was recorded as per
\nhis say and that the confession was taken in his
\npresence and recorded by him.  It is true that he
\nhas not specifically stated therein that the record
\ncontains “a full and true account of the confession
\nmade”.\tThe very fact that he had recorded the
\nconfession in his own handwriting would imply
\nthat it was recorded in the certificates and
\nmemorandums that the confession was recorded
\nas per the say of the accused, that it was read
\nover to him fully, that the accused himself
\npersonally read it and that he had ascertained
\nthat it was recorded as per his say, that would
\nmean that it contains “a full and true account of
\nthe confession” and that the contents were
\nadmitted by the accused.  Thus, while writing the
\ncertificate and the memorandum what Shinde has
\ndone is to mix up the two and use his own words
\nto state what he had done.  The only thing that we
\nfind missing therein is a statement to the effect
\nthat he had explained to the accused that he was
\nnot bound to make a confession and that if he did
\nso the confession might be used as evidence
\nagainst him.  Such a statement instead of
\nappearing at the end of the confession in the
\nmemorandum appears in the earlier part of the
\nconfession in the question and answer form.\n<\/p>\n
Each of the accused making the confession was
\nexplained about his right not to make the
\nconfession and the danger of its being used
\nagainst him as evidence.  That statement appears
\nin the body of the confession but not at the end of
\nit.  Can the confession be regarded as not in
\nconformity with Rule 15(3)(b) only for that
\nreason?\t We find no good reason to hold like that.
\nWe hold that the trial court was wrong in holding
\nthat there was a breach of Rule 15(3) and,
\ntherefore, the confessions were inadmissible and
\nbad.”\n<\/p>\n
(emphasis is ours)<\/p>\n
\tThus, what has been laid in the aforesaid case is that the writing  of
\ncertificate and making the memorandum are mandatory and these
\nmatters are not left to be proved by oral evidence alone.  The requirement
\nof the Rule is preparation of contemporaneous record regarding the
\nmanner of recording the confession in the presence of the person making
\nit.  This Court, while holding that making of the memorandum is a
\nmandatory requirement of the Rule, further held that what was not
\nmandatory was the form and words of the certificate and memorandum.
\nThus, the making of certificate and memorandum was held to be
\nmandatory but not form thereof.\n<\/p>\n
In the present case, admittedly no such memorandum has been
\nprepared.  That mandatory requirement is sought to be fulfilled by oral
\ndeposition of PW18.  Reliance has been placed on the testimony of PW18
\nwhen he stated that :\n<\/p>\n
“I again asked him that, whether he is giving this
\nconfession under any threat, pressure or
\ntemptation and he replied no.  I was, therefore,
\nsatisfied that he voluntarily wanted to give his
\nstatement and thereafter his statement came to
\nbe recorded.  From the statement recorded it
\nappeared to me that the averments made by him
\nwere absolutely true.”\n<\/p>\n
\tThe first part of the aforesaid deposition relates to stage prior to
\nactual recording of the confession and the latter part that has been
\nunderlined by us relates to stage after recording of the actual confession.
\nAccording to Rule 15(3)(b), the satisfaction to be recorded is about the
\nconfession having been made voluntarily.  The memorandum to be
\nrecorded at the end of the confession requires the recording officer to
\nstate that “I believe that this confession was voluntarily made”.  For the
\npresent, assuming that oral testimony in Court can be a substitute of
\nmemorandum, what has been deposed in Court by PW18 is not the belief
\nthat the confession was voluntarily made but “it appeared to me that the
\naverments made by him were absolutely true”.  Hopefully the officer knew
\ndifference between the words ‘voluntary’ and ‘truth’.  None explained what
\nPW18 meant.  In Chandran v. The State of Tamil Nadu<\/a> [(1978) 4 SCC
\n90] in the memorandum that had been made instead of certifying that the
\nofficer believed that confession was voluntarily made, the Magistrate had
\nstated that “I hope that the statement was made voluntarily”.  It was
\nnoticed that although the Magistrate was examined as a witness at the
\ntrial, no attempt was made by the prosecution to establish from his word
\nof mouth that the use of the word “hope” by him was inadvertent or
\naccidental.  The confession was, therefore, excluded from consideration.
\n\tAt the cost of repetition, we may again note that in Dube’s case, it
\nwas held that writing the certificate and making the memorandum are
\nmandatory; these matters are not left to be proved by oral evidence alone;
\nthe requirement of the rule is preparation of contemporaneous record
\nregarding the manner of recording the confession and the preparation of
\ncontemporaneous record in the presence of the person making the
\nconfession are mandatory requirement but forming and words are not
\nmandatory.  Unlike present case, Dube was a case where certificate and
\nmemorandum had been prepared though not using exactly same words
\nas required by the Rule.  In the present case, PW18 admits that no such
\ndocument was made and appended at the end of the confession.  The
\ncontemporaneous record has to support the deposition in Court.\tIf the
\nrecording officer without contemporaneous record is allowed to depose
\nlater after lapse of several years in Court, it would be too hazardous to
\nrely on such testimony as, ordinarily,\tan officer is likely to depose in court
\nwhat was left out to be recorded in documents as per mandatory
\nprovisions of the Act and the Rules, once he knows that he had made
\nvital omission.\t If the contemporaneous record shows that in substance
\nthough not in form, the requirements of the Rule were fulfilled, the defect
\nof form can be cured by oral deposition made, may be after many years,
\non the basis of the contemporaneous record.  The importance of fulfilling
\nall the requirements of the provision while recording confessional
\nstatements has already been noticed.  As already noticed, the fate of not
\nonly the accused but others also hinges on such a confession recorded
\nby a Police officer. Further what heavily weighed with the Constitution
\nBench when it upheld the constitutional validity of Section 15, is  that all
\nrequirements in respect of recording of confessional statements will be
\nfulfilled which would act as safeguard to the accused.
\nThe making of certificate and memorandum is not an empty
\nformality of the Rule.\tIt is required to be made at the end of the
\nconfession.   The officer certifies the manner in which the statement was
\ngiven by the accused and was recorded.\tThe satisfaction as per Rule
\n15(3)(b) of recording officer has substantial relevance on the aspect of
\nvoluntary nature of confession, which is the heart of confession for it
\nbeing made the basis of conviction.\n<\/p>\n
In Chandran (supra) this Court held that the law peremptorily
\nrequires that after recording the confession of the accused, the Magistrate
\nmust append at the foot of the record a memorandum certifying that he
\nbelieves that the confession was voluntarily made.  It was further held that
\nthe reason for requiring compliance with this mandatory requirement at
\nthe close of the recording of confession, appears to be that it is only after
\nhearing the confession and observing the demeanour of the person
\nmaking it, that the Magistrate is in the best position to append the
\nrequisite memorandum certifying the voluntariness of the confession
\nmade before him.  If, the Magistrate recording a confession of an accused
\nperson produced before him in the course of police investigation, does
\nnot, on the face of the record, certify in clear, categorical terms his
\nsatisfaction or belief as to the voluntary nature of the confession recorded
\nby him, nor testifies orally, as to such satisfaction or belief, the defect
\nwould be fatal to the admissibility and use of the confession against the
\naccused at the trial.  As earlier noticed in the said case, the memorandum
\nhad been made and the Magistrate in the memorandum appended by him
\nat the foot of the confession had merely expressed a ‘hope’ that the
\nconfession was voluntarily made.  Even in his oral evidence at the trial,
\nthe Magistrate did not vouch for the voluntariness of the confession.  He
\ndid not say that use of the word ‘hope’ by him in the memorandum was
\ndue to some accidental slip or heedless error.\tUnder these
\ncircumstances, the confessional statement was excluded from
\nconsideration.\tIt can, thus, be seen that this was a case where a
\nmemorandum was appended but with using different language as
\nabovenoticed.  The argument that the preliminary satisfaction before
\nrecording of confession about its voluntary nature can be substitute for
\nrecording satisfaction after recording of confession was not accepted
\nholding that there was no requirement to record satisfaction at the earlier
\nstage whereas there was such a requirement of satisfaction being
\nappended at the foot of the confession.\n<\/p>\n
In Ayyub v. State of U.P.<\/a> [(2002) 3 SCC 510], while considering
\nthe contention that the police officer, who recorded the confessional
\nstatement, had not certified that he believed that the confession was
\nvoluntarily made, this Court held that as the confession made under
\nSection 15 of the TADA Act is made admissible in evidence, the strict
\nprocedure laid down therein for recording confession is to be followed.
\nAny confession made in defiance of these safeguards cannot be accepted
\nby the court as reliable evidence.  The confession should appear to have
\nbeen made voluntarily and the police officer who records the confession
\nshould satisfy himself that the same had been made voluntarily by the
\nmaker of that statement.  The recorded confession must indicate that
\nthese safeguards have been fully complied with.\t The confession was
\nheld to be inadmissible evidence as the recorded confessional statement
\ndid not show that the officer who recorded the statement had followed the
\nguidelines.  After noticing that under Article 20(3) of the Constitution, the
\naccused person has the protection of being compelled to be witness
\nagainst himself, the Court held that “As the confession made under
\nSection 15 of the TADA Act is made admissible in evidence, the strict
\nprocedure laid down therein for recording confession is to be followed.
\nAny confession made in defiance of these safeguards cannot be accepted
\nby the court as reliable evidence  the police officer  who records the
\nconfession should satisfy himself that the same has been made
\nvoluntarily by the maker of that statement.  The recorded confession must
\nindicate that these safeguards have been fully complied with.”
\n\tLet us now consider the case of State of Maharashtra v. Bharat
\nChaganlal Raghani & Ors.<\/a> [(2001) 9 SCC 1] on which strong reliance
\nwas placed by the learned counsel for the respondent-State in support of
\nthe contention that if there is oral evidence in Court showing substantial
\ncompliance with Rule 15(3), the confession cannot be discarded for want
\nof preparation of memorandum.  It appears that that was not a case
\nwhere memorandum was not prepared at all, but was a case where the
\ncontention for the accused was that the mandate of Rule 15(3) had not
\nbeen complied with because the recording officer has not made the
\nmemorandum in the form specified therein and, therefore, confessional
\nstatement cannot be held admissible in evidence and relied upon as a
\npiece of evidence against the accused person.  Under these
\ncircumstances, the Court held that though the memorandum was not
\nrecorded as desired by the Rule but, at the same time, from the questions
\nput by the recording officer to the accused, the trial court was satisfied
\nand so was this Court that the confessional statements were made
\nvoluntarily without any threat, inducement or pressure and strictly in
\naccordance with the mandate of the TADA Act as interpreted by this
\nCourt from time to time.  That does not appear to be a case where the
\nmemorandum was not prepared at all.\n<\/p>\n
\tIn Sharafat Hussain Abdul Rahaman Shaikh & Ors. v. State of
\nGujarat & Anr.<\/a> [(1996) 11 SCC 62], the conviction of the appellant was
\nprimarily based on confessions of each of them.\t Allowing the appeal and
\nsetting aside the judgment of conviction passed by the Designated Court
\nand citing with approval Chandran’s case (supra), this Court held that :
\n“4. Admittedly, in none of the four confessions
\n(Ext. 72, 73, 75 and 76), with which we are
\nconcerned in this appeal, such a memorandum
\nfinds place.  The question, therefore, that falls for
\nour consideration is what is the value of such a
\nmemorandum and, for that matter, the effect of
\nabsence thereof.  The answer to this question has
\nbeen given by this Court in Chandran v. State of
\nT.N. while dealing with sub-section (4) of Section
\n164 Cr.P.C., which lays down the procedure to be
\nfollowed by a Magistrate in recording a
\nconfession and is pari material with the above-
\nquoted Rule 15(3), with the following words :\n<\/p>\n
(SCC p.101, para 31)
\n‘But the law does peremptorily require that after
\nrecording the confession of the accused, the
\nMagistrate must append at the foot of the record
\na memorandum certifying that he believes that
\nthe confession was voluntarily made.  The reason
\nfor requiring compliance with this mandatory
\nrequirement at the close of the recording of the
\nconfession, appears to be that it is only after
\nhearing the confession and observing the
\ndemeanour of the person making it, that the
\nMagistrate is in the best position to append the
\nrequisite memorandum certifying the
\nvoluntariness of the confession made before him.
\nIf, the Magistrate recording a confession of an
\naccused person produced before him in the
\ncourse of police investigation, does not, on the
\nface of the record, certify in clear, categorical
\nterms his satisfaction or belief as to the voluntary
\nnature of the confession recorded by him, nor
\ntestifies orally, as to such satisfaction or belief,
\nthe defect would be fatal to the admissibility and
\nuse of the confession against the accused at the
\ntrial.’
\n(emphasis supplied)\n<\/p>\n
5. Apart from the fact that PW6 did not give any
\ncertificate, in accordance with the earlier quoted
\nRule 15(3) of his satisfaction or belief about the
\nvoluntariness of the confessions after the same
\nwere recorded, it is also an admitted fact that
\nwhile being examined as a witness he did not
\ntestify about his such satisfaction or belief.
\nResultantly, in view of the above-quoted
\nobservations of this Court, with which we are in
\ncomplete agreement, the confessions allegedly
\nmade by the four appellants cannot be pressed
\ninto service to prove the charges leveled against
\nthem.  Since there is no other evidence on record
\nfrom which it could be said that the appellants are
\nguilty of the offences for which they were charged
\nand convicted the appeal must succeed.”\n<\/p>\n
\tLearned counsel for the State submitted that the observations in
\npara 5 above show that by oral evidence in court, prosecution can show
\nthat Rule 15(3)(b) was complied with.  While making this submission what
\nis being missed by the learned counsel is that facts of the case do not
\nshow, one way or the other, about the existence of contemporaneous
\nrecord.\t As noticed above, in Chandran’s case there was
\ncontemporaneous record in the form of memorandum itself though using
\ndifferent words.  Sharafat Hussain’s case is not a decision which holds
\nthat without contemporaneous record, oral evidence can be led to
\nestablish the fulfillment of mandatory requirement of the Rule.
\nIt may also be stated that harsher the consequences, the stricter is
\nthe need to comply with the requirement of the Rules.
\n\tIn view of aforesaid discussion, our conclusions are as follows :
\nA.\tWriting the certificate and making the memorandum under Rule
\n15(3)(b) is mandatory.\n<\/p>\n
B.\tThe language of the certificate and the memorandum is not
\nmandatory.\n<\/p>\n
C.\tIn case the certificate and memorandum is not prepared but the
\ncontemporaneous record shows substantial compliance of what is
\nrequired to be contained therein, the discrepancy can be cured if
\nthere is oral evidence of recording officer based on such
\ncontemporaneous record.\n<\/p>\n
D.\tIn absence of contemporaneous record, discrepancy cannot be
\ncured by oral evidence based on memory of the recording officer.
\n\tIn the present case, admittedly Rule 15(3)(b) has not been
\ncomplied.  No memorandum as required was made.\tThere is also no
\ncontemporaneous record to show the satisfaction of the recording officer
\nafter writing of confession that the confession has been voluntarily made.
\nThe confession of accused No.7 does not even state that it was read over
\nto him.\t Thus, confessional statements are inadmissible and cannot be
\nmade basis of upholding the conviction.\t Once confessional statements
\nare excluded the conviction cannot be sustained.
\nFurther, in view of the above, oral evidence could not be led to
\nshow compliance of Rule 15(3)(b).  That apart, as earlier noticed, in fact,
\neven oral evidence of PW18 does not satisfy the requirement of the Rule.
\nFor the reasons aforesaid, we set aside the impugned judgment of
\nthe Designated Court, allow the appeals and direct the appellants to be
\nset free forthwith, if not required in any other case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002 Author: Y Sabharwal Bench: Y.K.Sabharwal, H.K. Sema. CASE NO.: Appeal (crl.) 594 of 2002 Appeal (crl.) 720 of 2002 Appeal (crl.) 721 of 2002 Appeal (crl.) 731 of 2002 Appeal (crl.) 828 of 2002 PETITIONER: Bharatbhai @ Jimi Premchandbhai […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-151564","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2002-10-02T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-06-21T21:08:04+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"43 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002\",\"datePublished\":\"2002-10-02T18:30:00+00:00\",\"dateModified\":\"2018-06-21T21:08:04+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2\"},\"wordCount\":8664,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2\",\"name\":\"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2002-10-02T18:30:00+00:00\",\"dateModified\":\"2018-06-21T21:08:04+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2","og_locale":"en_US","og_type":"article","og_title":"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2002-10-02T18:30:00+00:00","article_modified_time":"2018-06-21T21:08:04+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"43 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002","datePublished":"2002-10-02T18:30:00+00:00","dateModified":"2018-06-21T21:08:04+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2"},"wordCount":8664,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2","url":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2","name":"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2002-10-02T18:30:00+00:00","dateModified":"2018-06-21T21:08:04+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-jimi-premchandbhai-vs-state-of-gujarat-on-3-october-2002-2#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Bharatbhai @ Jimi Premchandbhai vs State Of Gujarat on 3 October, 2002"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/151564","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=151564"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/151564\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=151564"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=151564"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=151564"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}