TMI Blog2020 (4) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... ariness, is not admissible in evidence. A confession caused by inducement, threat or promise cannot be termed as voluntary confession. Whether a confession is voluntary or not is essentially a question of fact. In the instant case, it is evident that from out of the questions put by PW-28 and the answers elicited and the manner in which the Accused has made the statement are all the foundations upon which it is to be found out as to whether the statement was made voluntarily or not. If the certificate is not supported by any of the above inputs, then the certificate needs to be rejected. The police officer cannot record such a certificate out of his own imagination and the entire proceedings should reflect that the certificate was rightly given based on the materials - In the present case, there is nothing on record to prove the voluntariness of the statement. Ex. D-1 and D-2 and other circumstances would go to show that the Appellant could not have made the statement voluntarily. Therefore, the confession statement of the Appellant requires to be rejected. Whether the statement of two other co-Accused is admissible in evidence? - HELD THAT:- In the instant case, no doubt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... richy under the name 'Tamilar Pasarai', with the object of achieving separate Statehood for Tamil Nadu and to blast Central and State Government buildings with bombs with a view to overawe the Government established by law. The Appellant herein and 13 other Accused have enrolled themselves in the said organization and they entered into a criminal conspiracy during June 1988 to commit an illegal act and to blast the State Government building in the Secretariat by name 'Namakkal Kavignar Maligai' and in furtherance of the said conspiracy, Suku and Shanmuga Sundaram had undergone a course in electronics at Tamil Nadu Advanced Technical Institute, Trichy, and learnt the mechanism for devising electronic timer, to be used in the time bombs to be manufactured by them. 3. The further case of the prosecution is that during September 1990, the above said Suku had brought electronic printed circuit board, integrated circuit switches, resisters and directed Shanmuga Sundram to device electronic timer device, to be attached to time bomb. The Appellant, along with two other Accused, wrote slogans in the paper (MO-7) hailing 'Tamilar Pasarai' and kept it near the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7 read with Section 35(1)(A), Section 3 read with Section 25(1)(B) of the Arms Act. Thereafter, the statements of the witnesses were recorded by the Special Judge in the aforesaid case. 8. It was the further case of the prosecution that on 24.05.2007, PW-28, Superintendent of Police, Ashok Kumar, 'Q' Branch, CID Head Quarters, Chennai, came to know about the arrest of the Appellant-Accused by the DSP 'Q' Branch Thanjavur, in connection with the Mannarkudi P.S. Cr. No. 954/94 and as the Appellant was involved in the subject case, the investigating officer was informed to take necessary steps for the same. Accordingly, PW-26 took steps for the police custody of the Appellant from 25.07.2007 to 27.07.2007. During the police custody, the Appellant voluntarily wished to give his confessional statement and as such he was produced before PW-28, Superintendent of Police, on 26.07.2007 with a requisition, Ex. P-55 by PW-27. On 27.07.2007, PW-28 recorded the confession of the Accused, observing the formalities Under Section 15 of the TADA Act, as Ex. P-56 and P-57. PW-28 made an appendix as per the said provision and the Appellant was handed over to the DSP to be produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignated Court. 12. We have carefully considered the submissions of the learned senior Counsel made at the Bar and perused the materials placed on record. 13. The Designated Court has convicted the Appellant on the basis of the confession of the Appellant made on 27.02.2007 (Ex. P-57) and the confession statement of the two other co-Accused (Ex. P-26 and P-27). 14. Therefore, the first question for consideration is whether the Appellant has made the confession (Ex. P-57) voluntarily and truthfully. 15. The law of confession is embodied in Sections 24 to 30 of the Indian Evidence Act, 1872. The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge. In this connection, it is relevant to notice the observations of Privy Council in Pakala Narayana Swami v. Emperor 1939 PC 47 which is as under: ..... a confession must either admit in terms of an offence, or at any rate substantially all the fact which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not by itself a confession.... 16. It is well-settled that a confession which is not free from doubt about its vol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fession obtained in the pre-indictment interrogation by a police officer not lower in rank than a Superintendent of Police is not tainted with any vice but is in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness. These guidelines are: (1) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him; (2) The person from whom a confession has been recorded Under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent Under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay; (3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the Accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon; (4) Notwithstanding anything contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-Accused without corroboration. But this is an exception to the general Rule of requiring corroboration when such confession is to be used against a co-Accused. (iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-Accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement. (v) The requirement of Sub-rule (5) of Rule 15 of the TADA Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, which do not reflect any warning as required under the TADA Act and the TADA Rules. The evidence of PW-28 is that he gave the same warning which he had given on 26.07.2007. There are no contemporary records to show that the warning was made on 26.07.2007 or 27.07.2007. The second question asked on 27.07.2007 (per Ex. P-57) assumes much importance. In this question PW-28 has only explained to the Accused that he had been produced only to record his statement. He did not explain to the Accused that he had been produced to record the confession. 21. It was contended by the learned Additional Advocate General, appearing for the Respondent, that the footnote appended to Ex. P-56 would satisfy Section 15 of TADA Act and Rule 15 of TADA Rules. It is necessary to notice here that complying with these Rules is not an empty formality or a mere technicality as these provisions serve a statutory purpose to ensure a fair trial as guaranteed Under Article 21 of the Constitution of India. The entire proceedings on record should reflect application of mind into various surrounding circumstances including questions and answers elicited from the Accused. Mere recording in a certificate will on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvantage of his own wrong to thwart the object and purpose of Section 15 of the TADA Act. 27. Learned senior Counsel appearing for the Appellant has submitted that the confession statements of the two co-Accused are not at all admissible in evidence because there was no joint trial of those two co-Accused with the Appellant. Therefore, Ex. P-26 and Ex. P-27 are not admissible in evidence. 28. Section 30 of the Indian Evidence Act mandates that to make the confession of a co-Accused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a co-Accused is not at all admissible in evidence and, therefore, the same cannot be taken as evidence against the other co-Accused. The Constitution Bench of this Court in Kartar Singh (supra), while considering the inter-play between Section 30 of the Indian Evidence Act and Section 15 of the TADA Act held that as per Section 15 of the TADA Act, after the amendment of the year 1993, the confession of the co-Accused, is also a substantive piece of evidence provided that there is a joint trial. 29. In State v. Nalini and Ors. (1999) 5 SCC 253 Justice Quadri has held that a confession of an Accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TADA Act specifically provides that the confession recorded shall be admissible in trial of a co-Accused for offence committed and tried in the same case together with the Accused who makes the confession. We are of the view, that if for any reason, a joint trial is not held, the confession of a co-Accused cannot be held to be admissible in evidence against another Accused who would face trial at a later point of time in the same case. We are of the further opinion that if we are to accept the argument of the learned Counsel for the Respondent-State, it is as good as re-writing the scope of Section 15 of the TADA Act as amended in the year 1993. 32. In Ananta Dixit v. The State 1984 Crl. L.J. 1126 the Orissa High Court was considering a similar case Under Section 30 of the Evidence Act. The Appellant, in this case, was absconding. The question for consideration was whether a confession of one of the Accused persons who was tried earlier, is admissible in evidence against the Appellant. The Court held that the confession of the co-Accused was not admissible in evidence against the present Appellant. The Court held: 7. As recorded by the learned trial Judge, the Accused Narend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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