{"id":202349,"date":"2003-01-30T00:00:00","date_gmt":"2003-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/central-bureau-of-investigation-vs-ashiq-hussain-faktoo-ors-on-30-january-2003"},"modified":"2016-06-20T20:37:52","modified_gmt":"2016-06-20T15:07:52","slug":"central-bureau-of-investigation-vs-ashiq-hussain-faktoo-ors-on-30-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/central-bureau-of-investigation-vs-ashiq-hussain-faktoo-ors-on-30-january-2003","title":{"rendered":"Central Bureau Of Investigation vs Ashiq Hussain Faktoo & Ors on 30 January, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Central Bureau Of Investigation vs Ashiq Hussain Faktoo & Ors on 30 January, 2003<\/div>\n
Author: S N Variava<\/div>\n
Bench: S. N. Variava, B. N. Agrawal.<\/div>\n
           CASE NO.:\nAppeal (crl.)  889 of 2001\n\nPETITIONER:\nCentral Bureau of Investigation\n\nRESPONDENT:\nAshiq Hussain Faktoo & Ors.\n\nDATE OF JUDGMENT: 30\/01\/2003\n\nBENCH:\nS. N. VARIAVA & B. N. AGRAWAL.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S. N. VARIAVA, J.\n<\/p>\n
\tThis Appeal is against the Judgment dated 14th July, 2001 by
\nwhich the Presiding Officer of the Designated Court, Jammu, under the
\nTerrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
\nreferred to as the TADA Act), has acquitted the Respondents.\n<\/p>\n
\tBriefly stated the facts are as follows:\n<\/p>\n
Initially there were 12 persons who were charged under Sections 302
\nread with 120B of the Indian Penal Code and Section 3 of the TADA
\nAct.  Out of those 4 persons died and 5 others were absconding.
\nTherefore, only the three Respondents were put to trial\t  The only
\nevidence against these Respondents were their confessional
\nstatements recorded under Section 15 of the TADA Act.\n<\/p>\n
\tThe case of the prosecution was that they were part of a
\nterrorist group under the name and style of Jamait-Ul-Mujahidin.
\nThe case of the prosecution was that the aim of the group is to over
\nawe the Government duly established by law and to segregate Jammu
\nand Kashmir from Union of India.  The case of the prosecution was
\nthat with these purposes in mind these persons spread terrorism.  The
\ncase of the prosecution was that they condemned the activities of a
\nHinduism forum whose moving spirit was one Mr. H. N. Wanchoo.  The
\ncase of the prosecution was that in the months of July and November,
\n1992 the accused persons (including these Respondents) hatched a
\ncriminal conspiracy to eliminate Mr. H. N. Wanchoo and that in
\npursuance to such conspiracy they kidnapped Mr. H. N. Wanchoo from
\nhis house in Srinagar, took him\t to Bal Garden and shot him dead.
\n\tAs stated above, the only evidence against the Respondents is
\ntheir confessional statements.\tThe 1st Respondent gave a confessional
\nstatement which is recorded in English on 27th and 28th June, 1993.
\nThe 2nd Respondent gave a confessional statement which is recorded
\nin English on 13th and 14th January, 1994.  The 3rd Respondent gave a
\nconfessional statement which is recorded in Hindi on 4th and 5th May,
\n1994.\n<\/p>\n
\tThe Designated Court has held that the Superintendent of Police,
\nCBI has failed to ask the accused material questions to satisfy himself
\nas to whether the accused were going to make the confessional
\nstatements voluntarily.\t The Designated Court has held that
\nSuperintendent of Police, CBI has not asked the accused whether they
\nknew before whom they were standing.  It is also held that he had not
\nexplained to the accused that he is the Superintendent of Police, CBI
\nand that if any confessional statement is made before him it will be
\nused as evidence against them.\tIt is further held that during his
\nevidence the Superintendent of Police has stated that the confessional
\nstatements were recorded in his own hand, but in cross-examination
\nhe admitted that the confessional statements had been recorded by his
\nSteno under his dictation.  It is further held that the confessional
\nstatement should be in the language of the accused and if that is not
\npossible then in the official language of the Recording Officer or the
\nlanguage of the Designated Court.   It is held that the confessional
\nstatement of the 3rd Respondent is in Hindi, whereas the official
\nlanguage was Urdu or English.  It is held that the I.O. did not make
\nwritten request to the Superintendent of Police for recording the
\nconfessional statement of the accused and that was a mandatory
\nprovision of law.   It is further held that the Superintendent of Police,
\nCBI, had not asked the accused whether they wanted to add or
\nsubtract anything from their confessional statements.  It was held that
\nthe Superintendent of Police, CBI had therefore not recorded the
\nconfessional statements in conformity with the provision of law and
\nthat therefore the confessional statements could not be considered as
\na substantive piece of evidence against the accused persons.  On this
\nbasis the Respondents were acquitted.\n<\/p>\n
\tIn order to consider the correctness or otherwise of the above
\nfindings, it would be appropriate to set out the relevant provisions.
\nSection 15 and Rule 15 of the TADA Act and the rules framed
\nthereunder read as follows:\n<\/p>\n
“S.15.\tCertain confessions made to police officers to
\nbe taken into consideration.- (1) Notwithstanding
\nanything in the Code or in the Indian Evidence Act, 1872
\n(1 of 1872), but subject to the provisions of this section, a
\nconfession made by a person before a police officer not
\nlower in rank than a Superintendent of Police and recorded
\nby such police officer either in writing or on any
\nmechanical device like cassettes, tapes or sound tracks
\nfrom out of which sounds or images can be reproduced,
\nshall be admissible in the trial of such person or co-
\naccused, abettor or conspirator for an offence under this
\nAct or rules made thereunder:\n<\/p>\n
\tProvided that co-accused, abettor or conspirator is
\ncharged and tried in the same case together with the
\naccused.\n<\/p>\n
\t(2) The police officer shall, before recording any
\nconfession under sub-section (1), explain to the person
\nmaking it that he is not bound to make a confession and
\nthat, if he does so, it may be used as evidence against him
\nand such police officer shall not record any such confession
\nunless upon questioning the person making it, he has
\nreason to believe that it is being made voluntarily.”\n<\/p>\n
“Rule 15. Recording of confession made to
\npolice officers.- (1) A confession made by a person
\nbefore a police officer and recorded by such police officer
\nunder Section 15 of the Act shall invariably be recorded in
\nthe language in which such confession is made and if that
\nis not practicable, in the language used by such police
\nofficer for official purposes or in the language of the
\nDesignated Court and it shall form part of the record.\n<\/p>\n
(2) The confession so recorded shall be shown, read
\nor played back to the person concerned and if he does not
\nunderstand the language in which it is recorded, it shall be
\ninterpreted to him in a language which he understands and
\nhe shall be at liberty to explain or add to his confession.\n<\/p>\n
(3) The confession shall, if it is in writing, be –\n<\/p>\n
(a)\tsigned by the person who makes the
\nconfession ; and<\/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
\nby him and that the record contains a full
\nand true account of the confession made
\nby the person and such police officer
\nshall make a memorandum at the end of
\nthe confession to the following effect :-\n<\/p>\n
“I have explained to (name) that
\nhe is not bound to make a confession
\nand that, if he does so, any confession
\nhe may make may be used as evidence
\nagainst him and I believe that this
\nconfession was voluntarily made.  It was
\ntaken in my presence and hearing and
\nrecorded by me and was read over to the
\nperson making it and admitted by him to
\nbe correct, and it contains a full and true
\naccount of the statement made by him.\n<\/p>\n
Sd\/- Police Officer.”\n<\/p>\n
(4) Where the confession is recorded on any
\nmechanical device, the memorandum referred to in sub-
\nrule (3) in so far as it is applicable and a declaration made
\nby the person making the confession that the said
\nconfession recorded on the mechanical device has been
\ncorrectly recorded in his presence shall also be recorded in
\nthe mechanical device at the end of the confession.\n<\/p>\n
(5) Every confession recorded under the said Section
\n15 shall be sent forthwith to the Chief Metropolitan
\nMagistrate or the Chief Judicial Magistrate having
\njurisdiction over the area in which such confession has
\nbeen recorded and such Magistrate shall forward the
\nrecorded confession so received to the Designated Court
\nwhich may take cognizance of the offence.”\n<\/p>\n
\tThis being the legal position one has now to see whether these
\nprovisions have been complied with.  We have seen all the three
\nconfessional statements.  In all the three confessional statements the
\nOfficer has first ascertained whether the Respondent who is making
\nthe statement was making the statement voluntarily.  The
\nRespondents have been informed that the confessional statements
\nmade by them could be used against them as evidence.  They were
\nthen asked whether they still wanted to make the confessional
\nstatements.  They have been told that they are not bound to make the
\nconfessional statements and that if they make the confessional
\nstatements the same would be used against them and that therefore
\nthey should think over the matter and let the Officer know whether
\nthey still wanted to make the confessional statements.\t The
\nSuperintendent of Police, CBI has signed as such.  The Respondents
\nhave also signed.  This clearly shows that the Respondents were aware
\nthat they were making their confessional statements before the
\nSuperintendent of Police, CBI.\n<\/p>\n
The Respondents were then given one day’s time to think over
\nthe matter. On the next day the Superintendent of Police, CBI again
\ninformed them that they were not bound to make the confessions and
\nthat if they make the confessions the same could be used as evidence
\nagainst them.\tIt has been recorded that even after this warning they
\nwere willing to make the confessions.\tIt has been recorded that the
\nSuperintendent of Police, CBI was satisfied that the confession was
\nbeing made voluntarily.\t  This note has been signed by the
\nSuperintendent of Police, CBI as well as the concerned Respondent.
\nIt is only thereafter that the confessional statement has been
\nrecorded.  At the end of each confessional statements it has also been
\nrecorded that the confessional statement had been read over and
\nadmitted to be correct.\t The required memorandum under Rule
\n15(3)(b) of the TADA Act is also  made on each of the confessional
\nstatements.\n<\/p>\n
\tWe are therefore unable to accept the reasoning of the
\nDesignated Court that the confessional statements are not in
\nconformity with the provisions of law.\tThe Designated Court was
\nwrong in holding that it was not explained to the Respondents that he
\nwas a Superintendent of Police or that it was not explained to the
\nRespondents  that the confessional statements could be used as
\nevidence against them.\tThe Designated Court was wrong in
\nconcluding that the Superintendent of Police, CBI did not satisfy
\nhimself whether the accused were going to make the confessional
\nstatements voluntarily.\n<\/p>\n
  We are also unable to appreciate the relevance of the
\nobservations of the Designated Court that the Superintendent of
\nPolice, CBI stated that the statements were in his hand-writing but in
\ncross-examination admitted that they had been recorded by his Steno
\nunder his dictation.  In our view, when a confessional statement is
\ndictated to a  Steno and typed on a typewriter, the same amounts to a
\nconfessional statement being in writing.  This view is supported by an
\nauthority of this Court in the case of State of Tamil Nadu versus
\nSivarasan reported in (1997) 1 SCC 682.\t In this case it has been held
\nthat the words “recorded in writing” in Section 15 includes a type-
\nwritten confessional statement.\t It is held that the Police Officer need
\nnot record the statement in his own hand-writing, but can take the
\nhelp of a Steno or use a type-writer.\n<\/p>\n
At this stage, it would be appropriate to mention that in the case
\nof  Devender Pal Singh Vs. State of NCT of Delhi\t     reported in
\n2002 (5) SCC 234, a confessional statement was recorded on a
\ncomputer by a Steno under dictation of the D.C.P.   The certificate
\nrequired to be given by the D.C.P. was type-written.  It is held that the
\nconfessional statement could not be discarded or its authenticity
\ndoubted on these grounds. It is held that non-observance of
\nprocedural requirements, as laid down in Rule 15, does not cause any
\nprejudice to the accused.  It is held that procedure is the hand-maid
\nand not the mistress of law.  It was held that procedures are intended
\nto subserve and facilitate the cause of justice and not govern or
\nobstruct it.  It is held that minor deficiencies, if any, cannot be
\nconsidered to be fatal for the prosecution.\n<\/p>\n
In the case of State through Superintendent of Police, CBI\/SIT
\nvs. Nalini and others reported in 1999(5) SCC 253 a confessional
\nstatement was recorded on 18 pages.  The first 16 pages contained
\nsignatures but the last two pages did not have any signatures.\tAn
\nargument that the confessional statement should be discarded was
\nrepelled with the following observations:\n<\/p>\n
“125.  The requirement that a confessional
\nstatement shall be signed by the maker has been
\nsubstantially complied with despite the slip in
\nobtaining the signatures in the last two pages.
\nAccording to PW 52 – the Superintendent of Police
\nwho recorded it – the said slip was an inadvertent
\nomission.  But that omission does not mean that the
\nconfession was not signed by her at all.  The
\ncertificate which is required by Rule 15(3) has also
\nbeen made at the foot of Ext.P-77, but that
\nhappened to be made on one of the two pages where
\nthe signature of A-1 is absent.\n<\/p>\n
126. On the facts we are not persuaded to uphold
\nthe contention that Rule 15(3) has not been
\ncomplied with.\tThat apart, even if there was such an
\nomission the question is whether it would have
\ninjured the accused in her defence.  Section 463 of
\nthe Code permits such an approach to be made in
\nregard to the omissions in recording the confession
\nunder Section 164 of the Code.\tThat approach can
\nbe adopted in respect of the confession recorded
\nunder Section 15 of TADA as well.  The resultant
\nposition is that the said omission need not be
\ncountenanced since it was not shown that the
\nomission has caused any harm to the accused.”\n<\/p>\n
The observations of the Designated Court that the Respondents
\nhad not been asked whether they wanted to add or subtract anything
\nappear to have been made on a misunderstanding of Rule 15(2).
\nUnder Rule 15(2) the recorded confession has to be (where it is in
\nwriting) shown and read back to the person concerned and if he does
\nnot understand the language in which it is recorded it has to be
\ninterpreted to him in a language he understands.  That person is at
\nliberty to explain or add to his confession.  In this case the
\nconfessional statements were shown and read back to the
\nRespondents.  If they wanted they could have explained or added to
\nthese confessional statements.\tThey chose not to do so.  Thus the
\nrequirement of Rule 15(2) was fully complied with.
\nThere is one other aspect, which is required to be clarified.  As
\nthe confessional statements were in writing Sub-rule (4) of Rule 15 of
\nthe TADA Act was not applicable at all.\t Sub-rule (4) of Rule 15 would
\nonly come into play if the confessional statement was not in writing
\nbut was recorded on some mechanical device like a cassette, tape or
\non sound tracks.   In this case the confession being in writing Sub-rule
\n(3) would be applicable.   The requirements of Sub-rule (3) have been
\nfully complied with.\n<\/p>\n
The other ground on which the Designated Court has held that
\nthe requirements of law were not complied with is that the
\nconfessional statement of 3rd Respondent is in Hindi.  The Court has
\nheld that this is not the language of the Designated Court, i.e. Urdu or
\nEnglish, and therefore it was not according to law.   Under Rule 15(1)
\nthe confessional statement must be recorded in the language in which
\nthe confession is made.\t It is nobody’s case that 3rd Respondent did
\nnot know Hindi or that that was not the language in which he made
\nthe confessional statement.   A confessional statement is to be in a an
\nofficial language or a language of the Designated Court only, provided
\nit is not the language in which it was made.\n<\/p>\n
\tThus none of the reasons given by the Designated Court can be
\nsustained.  It is thus held that these confessional statements, could
\nunder Section 15 of the said Act, be used against the Respondents.
\n\tWe have read all the confessional statements.  In the
\nconfessional statements each of the Respondents admits that they
\nwere part of the organisation and that they had taken part in the
\nconspiracy to eliminate Mr. H. N. Wanchoo.  So far as 3rd Respondent
\nis concerned he had actually participated in the kidnapping of\tH. N.
\nWanchoo and had then given orders in writing that H. N. Wanchoo be
\nkilled.\t  Therefore, the offence under Section 3 of the TADA Act as well
\nas under Sections 302 read with 120B of the Indian Penal Code is
\nmade out.  We therefore convict the Respondents under Section 3 of
\nthe TADA Act and under Section 302 read with 120B IPC.
\n\tMr. B. B. Singh submitted that leniency should be shown whilst
\nsentencing the Respondents.  He submitted that the 2nd Respondent
\nwas a lecturer who had been forced to join the terrorist group because
\nof threats of torture.\tHe submitted that the occurrence had taken
\nplace on 5th December, 1992.  He submitted that the 2nd Respondent
\nhad been arrested on 29th December, 1993 and was in jail till 14th July,
\n2001 when he was acquitted by the Designated Court.  He submitted
\nthat thereafter, pursuant to an Order of this Court, he surrendered on
\n26th November, 2001 and was granted bail by this Court on 14th
\nDecember, 2001.\t  He submitted that after being released on bail he
\nhas not participated in the activities of the terrorist group and there is
\nno allegation that he has done any other illegal act.\tHe submits that
\nthe same set of circumstances would apply to 1st Respondent also.
\nHe submitted that so far as Respondents 1 and 2 are concerned, this
\nCourt should show leniency, particularly in view of the fact that at
\npresent the trend of the Government is to have a healing touch.\t He
\nsubmitted that such a healing touch would give these persons an
\nopportunity to reform themselves.   He submitted that the Court
\nshould sentence Respondents 1 and 2 to the term already undergone
\nby them.\n<\/p>\n
\tIn our view, having seen the activities which had been carried on
\nby the Respondents and that they had conspired and murdered Mr. H.
\nN. Wanchoo, this is a fit case where the sentence should be life
\nimprisonment.\n<\/p>\n
\tAccordingly, the Appeal is allowed.  The Judgment of the
\nDesignated Court is set aside.\tThe Respondents are sentenced to life
\nimprisonment.  Their bail bonds shall stand cancelled.\t They shall be
\ntaken into custody forthwith.  They shall be given benefit of the period
\nalready undergone by them.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Central Bureau Of Investigation vs Ashiq Hussain Faktoo & Ors on 30 January, 2003 Author: S N Variava Bench: S. N. Variava, B. N. Agrawal. CASE NO.: Appeal (crl.) 889 of 2001 PETITIONER: Central Bureau of Investigation RESPONDENT: Ashiq Hussain Faktoo & Ors. DATE OF JUDGMENT: 30\/01\/2003 BENCH: S. N. VARIAVA […]<\/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-202349","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCentral Bureau Of Investigation vs Ashiq Hussain Faktoo & Ors on 30 January, 2003 - 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\/central-bureau-of-investigation-vs-ashiq-hussain-faktoo-ors-on-30-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Central Bureau Of Investigation vs Ashiq Hussain Faktoo & Ors on 30 January, 2003 - 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