State of Maharashtra through CBI Vs. Moiddin Abdul Kadar Cheruvattam
EmailAppeal: Criminal Appeal No. 404 of 2011
Petitioner: State of Maharashtra through CBI
Respondent: Moiddin Abdul Kadar Cheruvattam
Apeal: Criminal Appeal No. 404 of 2011
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 15 – Terrorist and Disruptive Activities (Prevention) Rules, Rule 15 – Non-compliance – Bombay blasts case – Confessional statement – Mandatory Requirements – Charge of conspiracy and charge under Section 3(3), TADA – Allegation of collecting funds for terrorist activities and distributing the same for propaganda against Hindus after the riots in Bombay post Babri Masjid demolition – Confessional statements of A-20, A21 A-80 and of respondent (A-48) discarded by Special judge while recording acquittal – Justification – No warning given by Officer recording confessional statement that they were not bound to make a confession and if made, it would be used against them – Justification – First part of the confessional statements of co-accused A-20, A-21 and A-80 very cryptic. Held, Designated Court rightly rejected the confessional statement made by the respondent and the co-accused as the first part of these statements was not recorded in consonance with the requirement of statutory provisions.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 15 – Terrorist and Disruptive Activities (Prevention) Rules, Rule 15 – Non-compliance – Bombay blasts case – Confessional statement – Mandatory Requirements – Charge of conspiracy and charge under Section 3(3), TADA – Allegation of collecting funds for terrorist activities and distributing the same for propaganda against Hindus after the riots in Bombay post Babri Masjid demolition – Confessional statements of A-20, A21 A-80 and of respondent (A-48) discarded by Special judge while recording acquittal – Justification – No warning given by Officer recording confessional statement that they were not bound to make a confession and if made, it would be used against them – Justification – First part of the confessional statements of co-accused A-20, A-21 and A-80 very cryptic. Held, Designated Court rightly rejected the confessional statement made by the respondent and the co-accused as the first part of these statements was not recorded in consonance with the requirement of statutory provisions.
Cases Reffered:
Cases Referred
1. Bharatbhai v. State of Gujarat [JT 2002 (7) SC 529] (Para 50 )
2. Lal Singh v. State of Gujarat & Anr. [JT 2001 (1) SC 410] (Para 49)
3. S.N. Dube v. N.B. Bhoir & Ors. [JT 2000 (1) SC 220] (Para 48)
1. Bharatbhai v. State of Gujarat [JT 2002 (7) SC 529] (Para 50 )
2. Lal Singh v. State of Gujarat & Anr. [JT 2001 (1) SC 410] (Para 49)
3. S.N. Dube v. N.B. Bhoir & Ors. [JT 2000 (1) SC 220] (Para 48)
JUDGEMENT:
Dr. B.S. Chauhan, J.
40. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007, passed by the Special Judge of the Designated Court under the TADA in the Bombay Blast Case No. 1/93, acquitting the respondent of all the charges.
41. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he was also charged under Section 3(3) TADA, for collecting the funds for terrorist activities and distributing the same for propaganda against Hindus after the riots in Bombay after demolishing of Babri Masjid in December 1992.
B. The Special Judge under TADA has discarded all the confessional statements on the ground that the officer who recorded the confessional statement of the respondent and other co-accused did not fulfill the requirement of law by giving any warning to the said persons telling (i) that they were not bound to make a confession and (ii) if made, it could be used against them as evidence, and thus acquitted them of all the charges.
Hence, this appeal.
42. Shri Mukul Gupta, learned senior counsel appearing for the appellant has tried to impress upon us that undoubtedly the warning had not been administered in the first part of any of the said confessional statements but only after reflection period, when the said persons again appeared for making their respective statements they had been warned properly. If Part I and Part II of their statements are read together, it is evident that the said accused persons were fully aware that they were not bound to make the confession and if made, it would be used against them.
43. On the contrary, learned counsel for the respondent (A-48) has opposed the appeal contending that before the confession is recorded, Section 15 TADA and Rule 15(3) of the TADA Rules, require that the maker of the statement must be explained that he was not bound to make such statement and if so made, would be used against him. Thus, no interference is warranted.
44. We have considered the rival submissions made by learned counsel appearing for the parties and perused the record.
45. Evidence against the respondent (A-48):
(a) Confessional statement of respondent (A-48)
(b) Confessional statement of Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @ Salim Tonk (A-20)
(c) Confessional statement of Aziz Ahmed Mohammed Ahmed Shaikh (A-21)
(d) Confessional statement of Ismail Abbas Patel (A-80)
46. First part of the confessional statement of the respondent (A- 48) recorded on 14.5.1993, reads as under:
My name is Mohiuddin Abdul Kadar, age 30 years, occupation Sales Representative, Dubai, Place of residence: 52/5, Zakaria Masjid St., Mumbai-9. I passed S.S.C. in the year 1978.
I myself informed the Inspector of Crime Branch that I wanted to make the confessional statement voluntarily. I was arrested by the Bombay Police on 3.4.93 from my residence at Dongri in connection with the Bombay bomb Blast case. For this reason, I wanted to give my confessional statement.
I have been explained about my making the confessional statement that the confessional statement, which I am going to make will be used against me.
In this connection, I was given 48 hours. For reflection, I will be produced on 17.5.93, if I want to make the confessional statement.
Sd/- Sd/-
DCP Accused
47. Similarly the first part of the confessional statements of co- accused Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @ Salim Tonk (A-20), Aziz Ahmed Mohammed Ahmed Shaikh (A-21) and Ismail Abbas Patel (A-80) are very cryptic. Further, there is no explanation or warning therein as required by law. Therefore, such confessions are liable to be discarded.
48. This Court in S.N. Dube v. N.B. Bhoir & Ors., [JT 2000 (1) SC 220 : (2000) 2 SCC 254] held that the compliance of Section 15 TADA and Rule 15 of TADA Rules, is mandatory. It is necessary before making of the confessional statement that the accused must be warned that confessional statement if made will be used against him and further that he is not bound to make the same.
Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it, it could be used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral evidence alone. The requirement of the rule is preparation of contemporaneous record regarding the manner of recording the confession in the presence of the person making it.
48.1 The court further clarified that a confessional statement would not be adversely affected if the certificate and memorandum are mixed or the format so prescribed is not used by the recording officer.
49. This Court in Lal Singh v. State of Gujarat & Anr. [JT 2001 (1) SC 410 : (2001) 3 SCC 221] held that:
23. In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr. Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh v. State of Punjab JT 1994 (2) SC 423, were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e. before 11-3-1994. Further, despite the suggestion made by this Court in Kartar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Singh case that if suggested guidelines are not followed then confessional statement would be inadmissible in evidence. Similar contention was negatived by this Court in S.N. Dube (supra), by holding that a police officer recording the confession under Section 15 is really not bound to follow any other procedure and the rules or the guidelines framed by the Bombay High Court for recording the confession by a Magistrate under Section 164 CrPC; the said guidelines do not by themselves apply to recording of a confession under Section 15 of the TADA Act and it is for the court to appreciate the confessional statement as the substantive piece of evidence and find out whether it is voluntary and truthful. Further, by a majority decision in State v. Nalini, [JT 1999 (4) SC 106], Court negatived the contentions that confessional statement is not a substantive piece of evidence and cannot be used against the co-accused unless it is corroborated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another, by holding that to that extent the provisions of the Evidence Act including Section 30 would not be applicable. The decision in Nalini (supra) was considered in S.N. Dube (supra). The Court observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that the correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co- accused also.
50. In Bharatbhai v. State of Gujarat, [JT 2002 (7) SC 529 : (2002) 8 SCC 447], this Court held:
46. In view of the aforesaid discussion, our conclusions are as follows:
A. Writing the certificate and making the memorandum under Rule 15(3)(b) is mandatory.
B. The language of the certificate and the memorandum is not mandatory.
C. In case the certificate and memorandum is not prepared but the contemporaneous record shows substantial compliance with what is required to be contained therein, the discrepancy can be cured if there is oral evidence of the recording officer based on such contemporaneous record.
D. In the absence of contemporaneous record, discrepancy cannot be cured by oral evidence based on the memory of the recording officer.
47. In the present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession has been voluntarily made. The confession of Accused 7 does not even state that it was read over to him. Thus, the confessional statements are inadmissible and cannot be made the basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained.
51. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
52. In view of the above, we are of the considered opinion that the learned Designated Court rightly rejected the confessional statement made by the respondent and the co-accused as the first part of these statements has not been recorded in consonance with the requirement of statutory provisions.
52.1 We concur with the view taken by the Special Judge. The appeal lacks merit, and is accordingly, dismissed.
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40. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007, passed by the Special Judge of the Designated Court under the TADA in the Bombay Blast Case No. 1/93, acquitting the respondent of all the charges.
41. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he was also charged under Section 3(3) TADA, for collecting the funds for terrorist activities and distributing the same for propaganda against Hindus after the riots in Bombay after demolishing of Babri Masjid in December 1992.
B. The Special Judge under TADA has discarded all the confessional statements on the ground that the officer who recorded the confessional statement of the respondent and other co-accused did not fulfill the requirement of law by giving any warning to the said persons telling (i) that they were not bound to make a confession and (ii) if made, it could be used against them as evidence, and thus acquitted them of all the charges.
Hence, this appeal.
42. Shri Mukul Gupta, learned senior counsel appearing for the appellant has tried to impress upon us that undoubtedly the warning had not been administered in the first part of any of the said confessional statements but only after reflection period, when the said persons again appeared for making their respective statements they had been warned properly. If Part I and Part II of their statements are read together, it is evident that the said accused persons were fully aware that they were not bound to make the confession and if made, it would be used against them.
43. On the contrary, learned counsel for the respondent (A-48) has opposed the appeal contending that before the confession is recorded, Section 15 TADA and Rule 15(3) of the TADA Rules, require that the maker of the statement must be explained that he was not bound to make such statement and if so made, would be used against him. Thus, no interference is warranted.
44. We have considered the rival submissions made by learned counsel appearing for the parties and perused the record.
45. Evidence against the respondent (A-48):
(a) Confessional statement of respondent (A-48)
(b) Confessional statement of Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @ Salim Tonk (A-20)
(c) Confessional statement of Aziz Ahmed Mohammed Ahmed Shaikh (A-21)
(d) Confessional statement of Ismail Abbas Patel (A-80)
46. First part of the confessional statement of the respondent (A- 48) recorded on 14.5.1993, reads as under:
My name is Mohiuddin Abdul Kadar, age 30 years, occupation Sales Representative, Dubai, Place of residence: 52/5, Zakaria Masjid St., Mumbai-9. I passed S.S.C. in the year 1978.
I myself informed the Inspector of Crime Branch that I wanted to make the confessional statement voluntarily. I was arrested by the Bombay Police on 3.4.93 from my residence at Dongri in connection with the Bombay bomb Blast case. For this reason, I wanted to give my confessional statement.
I have been explained about my making the confessional statement that the confessional statement, which I am going to make will be used against me.
In this connection, I was given 48 hours. For reflection, I will be produced on 17.5.93, if I want to make the confessional statement.
Sd/- Sd/-
DCP Accused
47. Similarly the first part of the confessional statements of co- accused Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @ Salim Tonk (A-20), Aziz Ahmed Mohammed Ahmed Shaikh (A-21) and Ismail Abbas Patel (A-80) are very cryptic. Further, there is no explanation or warning therein as required by law. Therefore, such confessions are liable to be discarded.
48. This Court in S.N. Dube v. N.B. Bhoir & Ors., [JT 2000 (1) SC 220 : (2000) 2 SCC 254] held that the compliance of Section 15 TADA and Rule 15 of TADA Rules, is mandatory. It is necessary before making of the confessional statement that the accused must be warned that confessional statement if made will be used against him and further that he is not bound to make the same.
Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it, it could be used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral evidence alone. The requirement of the rule is preparation of contemporaneous record regarding the manner of recording the confession in the presence of the person making it.
48.1 The court further clarified that a confessional statement would not be adversely affected if the certificate and memorandum are mixed or the format so prescribed is not used by the recording officer.
49. This Court in Lal Singh v. State of Gujarat & Anr. [JT 2001 (1) SC 410 : (2001) 3 SCC 221] held that:
23. In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr. Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh v. State of Punjab JT 1994 (2) SC 423, were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e. before 11-3-1994. Further, despite the suggestion made by this Court in Kartar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Singh case that if suggested guidelines are not followed then confessional statement would be inadmissible in evidence. Similar contention was negatived by this Court in S.N. Dube (supra), by holding that a police officer recording the confession under Section 15 is really not bound to follow any other procedure and the rules or the guidelines framed by the Bombay High Court for recording the confession by a Magistrate under Section 164 CrPC; the said guidelines do not by themselves apply to recording of a confession under Section 15 of the TADA Act and it is for the court to appreciate the confessional statement as the substantive piece of evidence and find out whether it is voluntary and truthful. Further, by a majority decision in State v. Nalini, [JT 1999 (4) SC 106], Court negatived the contentions that confessional statement is not a substantive piece of evidence and cannot be used against the co-accused unless it is corroborated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another, by holding that to that extent the provisions of the Evidence Act including Section 30 would not be applicable. The decision in Nalini (supra) was considered in S.N. Dube (supra). The Court observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that the correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co- accused also.
50. In Bharatbhai v. State of Gujarat, [JT 2002 (7) SC 529 : (2002) 8 SCC 447], this Court held:
46. In view of the aforesaid discussion, our conclusions are as follows:
A. Writing the certificate and making the memorandum under Rule 15(3)(b) is mandatory.
B. The language of the certificate and the memorandum is not mandatory.
C. In case the certificate and memorandum is not prepared but the contemporaneous record shows substantial compliance with what is required to be contained therein, the discrepancy can be cured if there is oral evidence of the recording officer based on such contemporaneous record.
D. In the absence of contemporaneous record, discrepancy cannot be cured by oral evidence based on the memory of the recording officer.
47. In the present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession has been voluntarily made. The confession of Accused 7 does not even state that it was read over to him. Thus, the confessional statements are inadmissible and cannot be made the basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained.
51. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
52. In view of the above, we are of the considered opinion that the learned Designated Court rightly rejected the confessional statement made by the respondent and the co-accused as the first part of these statements has not been recorded in consonance with the requirement of statutory provisions.
52.1 We concur with the view taken by the Special Judge. The appeal lacks merit, and is accordingly, dismissed.
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