Holding

The Designated Judge erred in rejecting the withdrawal application; the appellants are acquitted of TADA charges, while their convictions under the IPC and the Prevention of Damage to Property Act stand.

Summary

The appellants, Ayyub and Abdul Jabbar, were convicted by a Designated TADA Court for throwing bombs at a police picket, causing one death and several injuries, and were sentenced under the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Indian Penal Code and the Prevention of Damage to Property Act. After the trial, the Uttar Pradesh Government, having reviewed the evidence, applied under Section 321 of the Criminal Procedure Code to withdraw prosecution for the offences punishable under TADA, but the Designated Judge rejected the application. The appellants appealed to the Supreme Court, challenging the rejection of the withdrawal application and the admissibility of their confessions recorded under Section 15 of the TADA Act. The Court held that the Designated Judge was not justified in refusing the Government's withdrawal request, as the Government had duly considered the material and there was no mala‑fide intent, and therefore the appellants were acquitted of all TADA charges. However, the Court found the confessions inadmissible due to procedural defects and upheld the convictions under the IPC and the Prevention of Damage to Property Act. Consequently, the appeals were partly allowed: the TADA convictions were set aside, while the other convictions were affirmed.

Issues considered

The appropriateness of the Designated Judge's refusal to grant the State Government's application for withdrawal of prosecution under Section 321 CrPC for TADA offences.
The admissibility of confessions recorded under Section 15 of the TADA Act given alleged procedural irregularities.
The validity of the convictions under the TADA Act in light of the withdrawal application and confession evidence.
The continuance of convictions under the Indian Penal Code and the Prevention of Damage to Property Act.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 321
Indian Evidence Act, 1872s. 25
Indian Penal Code, 1860s. 302, s. 307, s. 34
TADA Rules, 1987s. Rule 15
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3(1)(2)(i)

Subjects

TADAwithdrawal of prosecutionSection 15 confessionSection 321 CrPCconfession admissibilityArticle 20(3) right against self‑incriminationIPC murderidentification paradeconstitutional protection

Judgment

A AYYUB ETC.
v.
STATE OF U.P.

FEBRUARY 28, 2002

B [R.P: SETHI AND K.G.· BALAKRISHNAN, JJ.]

Penal Code 1860/Terrorists and Disruptive Activities (Prevention) Act,
1987 : Sections 302 i-!w 34; 307 r/w 34/Sections 3(1)(2)(i) and 15.

c Charges under TADA Act and IPC-:-Confession made to Police Officer
when made voluntary is admissible in evidence under Section 15 of TADA
Act-Fundamental rule of evidence is that a confession made to a Police
Officer by accused shall not be proved against him_-Strict procedure for
recording of confession need to be followed-Confession recorded in defiance
D thereof becomes inadmissible in evidence.

Criminal Procedure Code, 1973:

Section 164 : Voluntary confession-Requirement of-Discussed

E Section 321: Application/or withdrawal from prosecutionfrom charges
framed under TADA Act-Designated Court not justified in rejecting the
application as the State Government requestedfor withdrawal from prosecution
only after taking into consideration the evidence and available material on
record

F According to the prosecution, appellan~/accused hurled bombs at the
security personnel, the bombs exploded and injured four constables. The.
security personnel opened fire but accused fled away. Informant, Platoon
Commander, took the injured to the hospital and lodged F.1.R. in the Police
Station. One of the injured constables succumbed to his injuries in the hospital.·
G Subsequently, on the basis of secret information, Police raided a house and
nabbed one of the accused, the other a·ccused surrendered in the Court. As
the accused expressed their willingness to. make confession statements,
Superintendent of Police recorded their confession statement. After completion
of investigation in the matter, charge-sheets were filed against appellants and
five others before the Designated Judge, TADA.
H 106
AYYUBv.STATE 107

Before the Designated Judge, Prosecuting Officer sought permission to A
withdraw charges against the five accomplices and the Court granted
permission. Subsequently as per order of the State Government, prosecution
had filed another application for withdrawal of prosecution in respect of
appellants for the charges framed against them under the TADA Act which
was rejected by the Trial Court. Trial Court found them guilty for the offences
punishable under Sections 3(1)(2)(i) of the Terrorists and Disruptive Activities B
(Prevention) Act, 1987, Section 302 and Section 307 read with Section 34 IPC,
and Section 4 of the Prevention of Damages to Property Act, 1984. Aggrieved,
appellants moved this Court. Hence these appeals.

It was contended for the appellants that the State Government after C
considering the various aspects of the matter had requested for withdrawal
from prosecution in respect of the offence charged ·under the TADA Act and
the Designated Judge could have allowed the same.

On behalf of Respondent-State, it was contended that as the appellants
had not challenged the order passed by the Designated Judge declining the D
withdrawal from prosecution they should not be allowed to be heard against
the said Order before this Court.

Partly allowing the appeals, the Court

HELD : 1.1. There are stringent provisions in the Terrorists a.nd E
Disruptive Activities (Prevention) Act (TADA Act) and in the Government
Order it is stated that the Government after proper discussion on the facts
of the case and the evidence/reports/letters available on the record decided
to waive the TADA Sections in these cases. When the Government Order itself
states that all records were perused and considered, Designated Judge was
not justified in rejecting the application for withdrawal from prosecution. It F
cannot be said that the Senior Prosecuting Officer had filed the application
without consideration of the relevant facts. It cannot also be said that
application was filed with any malafide intention to save some of the culprits
from the clutches of I.aw. The request was made only to withdraw from
prosecution as against the offences punishable under the TADA Act. Charges · G
in respect of other offences punishable under Indian Penal Code remained
and the accused had to face trial for that. Government must have thought
that the stringent and harsh provisions of TADA Act were not necessary to
deal with such situations. Therefore, the applicatioA for withdrawal of cases
from prosecution against offence punishable under the TADA Act is allowed
and the appellants shall stand acquitted of all the charg~.framed against them. H
l

108 SUPREME COURT REPORTS [2002) 2 S.C.R.

A under the TADA Act. The order passed by the Designated Judge, TADA, is
set aside. [115-A-B-C]

State ofBihar v. Ram Naresh Pandey and Anr., AIR (1957) SC 389; State
ofOrissa v. Chandrika Mahapatra and Ors., [1976) 4 SCC 250 and Kartar Singh
v. State of Punjab, [1994) 3 SCC 569, referred to. .
B
R.N Tewari, Advocate·v. State (NCT of Delhi) and Ors. etc. etc., [1996] 2
sec 610, relied on.
2. Charge of murder and other allied offences against the appellants is
held to have been proved by the prosecution from the evidence of the ~
C eyewitnesses, the circumstantial evidence and the confession made by these
appellants under Section 15 of the TADA Act. (115-E]

3.1. In view of the infirmity in recording the confession statements, these
are not admissible in evidence as the confession statements of appellants were
recorded not in accordance with law and that there is nothing on record to
D show that the same was voluntarily made by these appellants. It is pertinent
to note that under Section 15 of the TADA Act, it is specifically stated that
the Police Officer who is recording the confession shall not record the same
unless he has reason to believe that it was being made voluntarily.(115-F-G)

Kartar Singh v. State of Punjab, [1994) 3 SCC 569, followed.
E
3.2. Confession made by the two appellants does not indicate that the
same was voluntary in nature and the police officer who recorded the same
has not certified that he believed that the confession was voluntarily made.
[116-F)
F Shara/at Hussain Abdul Rahaman Shaikh and Ors. v. State of Gujarat and
Anr., (1996) 11 SCC 62, relied on.

3.3. Section 15 of the TADA Act has altered the fundamental rules of
evidence given in the Evidence Act, which stood the test of time for over a
G century. Under Section 25 of the Evidence Act, a confession made to a police ·~
officer by a person accused of an offence shall not be proved against him.
The power to record judicial confession is given to Magistrate and strict and
rigorous guidelines have been laid down in Section 164 Cr.P.C. [117-G]

Swaran Singh Rattan Singh v. State of Punjab etc. etc. and Shivappa v.
H State of Karnataka, [1995) 2 sec 76, relied on.
AYYUBv. STATE 109
•'
4. Under Article 20(3) of the Constitution, accused person has a A
protection from being compelled to be a witness against himself. As the
confession made under Section 15 of the TADA Act is made admissible in
evidence, the strict procedure laid down therein for recording confession is
to be followed. Any confession made in defiance of these safeguards cannot
be accepted by the Court as reliable evidence. The recorded confession must
indicate that these safeguards have been folly complied with. (118-A-B] B
S. In the site plan prepared later, an electric pole is shown very near to
the place of incident and when as many as three of the witnesses deposed that
they had identified the assailant in the electric light, there is no justifiable
reason to reject their evidence. [118-G] C
6. The test identification parade as such is not a substantive piece of
evidence, but it is done only for the satisfaction of the prosecution that the
investigation was moving in the right direction. In the instant case, the test
identification parade was held under the snpervision of a Judicial Magistrate,
but as he passed away subsequently, he could not be examined. Prosecution D
witnesses were examined to prove that the identification parade was conducted
in a fair manner. Thus there is no apparent defect in the test identification
conducted by the prosecution. [119-B-C)

7. It is proved beyond reasonable doubt that the appellants came to the E
police picket and hurled bombs at police personnel present there and thereby
caused the death of one constable and also caused injuries to others. The
conviction and sentence of the appellants, except under TADA Act, are
mairrtained. [120-A-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. p
906 of 2002.

From the Judgment and Order dated I I & 12.7.2000 of the Designated
Judge (Sessions Court) at Meerut ill Crl. C. No. 15 of 1993.

WITH G
Crl. A. No. 804 of 200 I.

K.T.S. Tulsi, Anoop G. Chaudhary, Himanshu Munshi, Ms. Sophia
Baman, Ranjan Narain, T.N. Singh, A.S. Pundir, Prakash Kumar Sing)! for
the appearing parties. H
110 SUPREME COURT REPORTS [2002] 2 S.C.R.

A The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, J. The appellants in these two appeals were
found guilty by the Designated Judge (TADA), Meerut, for the offences
punishable under Sections 3(1)(2)(i) of the Terrorists and Disruptive Activities
[Prevention] Act, 1987 (hereinafter called as the 'TADA Act') and also for
B offences punishable under Section 302 and Section 307 ·read with Section 34
of Indian Penal Code. The appellants were sentenced to undergo imprisonment
for life and a fine of Rs. 5,0001- u/s 3(1 )(2)(i) of TADA and in default of
payment of fine to undergo imprisonment for a period of one year. The
appellants were sentenced to imprisonment for life and a fine of Rs. 5000 and ~
C in default to undergo imprisonment for one year under Section 302 read with
Section34 I.P.C. The appellants were also sentenced to rigorous imprisonment
of five years and a fine of Rs. 3,000 under Section 307 read with Section 34
IPC and in default of payment of fine to undergo imprisonment for six
months. The appellants were further found guilty and sentenced to .
imprisonment for a period of two years for the offences under Section 4 of
D the Prevention of Damages to Property Act 1984.

The prosecution case against the two appellants was that on 26.1.1993
at about 7.45 p.m., the appellants came running to the police picket at Hapur
Road, near Veterinary Hospital, Meerut and hurled bombs at the security
personnel. A PAC compariy including the·informant Platoon Commander,
E Ramvir Singh (PWJ), Head Constable Rohitash Singh & N.K. Mahender
Prasad Sharma, Constable Pramod Kumar, Constable Desh. Raj Singh (PW
2), Constable Atar Singh, Constable Rambir Singh, Constable Sarvesh Singh
(PW 3) and Constable Sanjiv Kumar were posted at the said picket near the
Veterinary Hospital, Meerut. The bombs hurled by the appellants exploded
F and Constable Pramod Kumar and three others sustained injuries. Constable
Pramod Kumar and N.K. Mahender Prasad Sharma fired shots from their
firearms, but the two appellants managed to escape from the scene. Government
vehicles parked nearby were also damaged and the incident created a terror
in the vicinity.

G The Platoon Commander Ramvir Singh (PW 1) took the injured to the·
hospital. Later, he gave a report before the Police Station, Civil Lines, Meerut.
The F.I. Statement was recorded at 10.15 p.m. on 26.1.1993 whereafter
Inspector Ranvir Pratap Singh, Incharge of the Police Station (PW 38), took
.+ over the investigation. Injured N.K. Mahender Prasad Sharma died at the
hospital and an inquest.report was prepared by Sri B.R. Arya (PW 41). PW
H 4 Dr. Ramender Singh conducted the post-mortem examination. The
AYYUB v. STATE [K.G. BALAKRISHNAN, J.] 111

Investigating Officer prepared the site plan of the place of occurrence. A dog A·
was found lying dead on the spot. The remnants of exploded bombs were
collected by the Investigating Officer. On 28.1.1993, PW 16, the Station
Officer of P.S. Lisari Gate, Meerut received secret information that the accused
who was involved in the bomb blast at the PAC picket on 26.1.1993 was
staying with one Ameer Hamza in Mohalla Kidwai Nagar. PW 16 Station
Officer along with other police personnel raided the house of Ameer Hamza B
and found the accused Abdul Jabbar lying on a cot with multiple injuries and
one doctor by name Dr. Mohd. Jmran was found treating him for the injuries.
Appellant Abdul Jabbar was brought to the Police Station and this information
was passed on to PW 15 Superintendent of Police (City), Meerut, and he was
informed that appellant Abdul Jabbar was prepared to give a confession C
statement. Superintendent of Police (City), Meerut recorded the confession of
the appellant Abdul Jabbar on 29.1.1993 and he was produced before the
then Designated Judge. Meanwhile, the other Appellant Ayyub surrendered
before the Court on 1.3 .1993 and expressed his willingness to make a
confession statement. He was produced before PW 15 Superintendent of
Police (City), Meerut. The Identification parade was held on 10.3.1993 and D
some of the witnesses identified both the appellants. After the completion of
the investigation, charge sheets were filed against these two appellants and
five others who had allegedly committed the crime or helped the appellants
in the commission of the crime.
E
During the course of the trial before the Designated Judge, Senior
Prosecuting Officer sought permission to withdraw from the prosecution
against the five other accused who had been charged along with the appellants.
As against those persons, permission was granted by the Designated Judge to
withdraw from the prosecution by order dated 27.4.1995. Pursuant to the
Order of the Govt. of Uttar Pradesh, the Senior Prosecuting Officer had also F
filed an application for withdrawal of prosecution in respect of the present
two appellants so far as the charges framed against them under the TADA
Act. The learned Designated Judge declined sanction for withdrawal from
prosecution in respect of these two appellants and they were accordingly
tried by the Judge and found guilty as afore-stated. G
In Criminal Appeal No. 906 of 2000, Mr. Himanshu Munshi, learned
Counsel appeared on behalf of the appellant and Mr. Anoop G. Chaudhary,
learned Senior Counsel appeared on behalf of the State while in Criminal
Appeal No. 804 of200l, Mr. K.T.S. Tulsi, learned Senior Counsel appeared
on behalf of the appellant. H

l
112 SUPREME COURT REPORTS [2002) 2 S.C.R.

A Mr. K.T.S. Tulsi, learned Senior Counsel on behalf of the appellant,
argued that the Designated Judge seriously erred in not allowing the withdrawal
from prosecution in respect of these appellants. It was pointed out that the
State Government after considering the various aspects of the matter had
requested the Senior Prosecuting Officer for withdrawal from prosecution in
B respect of the offences charged under various provisions of the TADA Act.
Mr. Tulsi argued that when such an application was filed, the Court should
have normally accepted that plea as it was not tainted with any mala fide
intention. The learned Senior Counsel on behalf of the State of U.P., Shri
Anoop G. Chaudhary, however, stated that these appellants had not challenged
the order passed by the Designated Judge declining the withdrawal from
C prosecution and therefore, the appellants cannot now be heard to say that the
Designated Judge went wrong in passing the said order. We do not find much
force in this contention as the order passed by the Designated Judge was only
interim in nature and it is doubtful whether an appeal would lie against that
order. This Court has expressed its doubt whether an appeal would lie against
such an order and the question is still left open. The learned Senior Counsel
D Mr. K.T.S. Tulsi has rightly contended that the appellants are entitled to
challenge the same in these proceedings.

This Court in State of Bihar v. Ram Naresh Pandey and Anr., AIR
(1957) SC 389 had made following observations while dealing with an
E application under Section 494 of the old Cr. P.C., which enabled the
prosecution to withdraw from the prosecution. Section 321 of the new Cr.P.C.
is similarly worded with slight modifications. This Court observed as follows:-

"The section is an enabling one and vests in the Public Prosecutor
the discretion to apply to the Court for its consent to withdraw from
F the prosecution of any person. The consent, if granted, has to be
followed up by his discharge or acquittal, as the case may be. The
section gives no indication as to the grounds on which the Public
Prosecutor may make the application, or the considerations on which
the Court is to grant its consent.. ............ The function of the Court,
therefore, in granting its consent may well be taken to be a judicial
G
function. It follows that in granting the consent the Court must exercise
a judicial discretion. But it does not follow that the discretion is to be
exercised only with reference to material gathered by the judicial
method. Otherwise the apparently wide language of Section 494,
Criminal P.C. would become considerably narrowed down in its
H application. In understanding and applying the section, two main
A YYUB v. STATE [K.G. BALAKRISHNAN, J.] I 13
features thereof have to be kept in mind. The initiative is that of the A
Public Prosecutor and what the Court has to do is only to give its
consent and not to determine any matter judicially ................... The
judicial function, therefore, implicit in the exercise of the judicial
discretion for granting the consent would normally mean that the
Court has to satisfy itself that the executive function of the Public B
Prosecutor has not been improperly exercised, or that it is not an
attempt to interfere with the normal course of justice for illegitimate
reasons or purposes.~'

In State of Orissa v. Chandrika Mohapatra and Ors., [1976] 4 SCC
~ 250, P.N. Bhagwati, J. as he then was speaking for the three Judge bench C
regarding withdrawal from the prosecution, said: _ .. ~

" ........the paramount consideration in all those cases must be the interest
of administration of justice. No hard and fast rule can be laid down
nor can any categories of cases be defined in which consent should
be granted or refused. It must ultimately depend on the facts and the D
circumstances of each case in the light of what is necessary in order
to promote the ends of justice, because the objective of every judicial
process must be the attainment of justice."

In Kartar Singh v. State ofPunjab, [ 1994] 3 sec 569, the constitutional E
validity of some of the provisions contained in the TADA Act was challenged.
The Constitution Bench of this Court while upholding most of the provisions
contained in the TADA Act, suggested that in order to ensure higher level of
scrutiny and applicability of TADA Act, there must be a Screening Committee
or a Review Committee constituted by the Central Government consisting of
the Home Secretary, Law Secretary and other Secretaries cnncerned of the F
various Departments to review all the TADA cases instituted by the Central
Government as well as to have a quarterly administrative review. In respect
of the States also, a similar suggestion was made. Pursuar.t to the
recommendations of the Review Committee, some of the cases filed under
the TADA Act were proposed to be withdrawn from further prosecution. But G
the court passed orders under Section 321 of the Criminal Procedure Code
declining permission to withdraw from prosecution. These orders were
challenged in R .M. Tewari, Advocate v. State (NCT of Delhi) and Ors. etc.
etc., [ 1996] 2 SCC 61 O and the scope of Section 321 of the Code of Criminal
Procedure, 1973 came up for consideration. This Court, in paragraph 10 &
11 of the judgment, observed as under:- H
114 SUPREME COURT REPORTS (2002] 2 S.C.R.

A "The observations in Kartar Singh have to be understood in the
context in which they were made. It was observed that a review of
the cases should be made by a Hi~ Power Committee to ensure that
there was no misuse of the stringent provisions of the TADA Act and
any case in which resort to the TADA Act was found to be
unwarranted, the necessary remedial measures should be taken. The
B Review Committee is expected to perform its functions in this manner.
If the recommendation of the Review Committee, based on the material
present, is, that resort to provisions of the TADA Act is unwarranted
for any reason which permits withdrawal from prosecution for those
offences, a suitable application made under Section 321 Cr.P.C. on
c that ground has to be considered and decided by the Designated
Court giving due weight io the opinion formed by the public prosecutor
on the basis of the recommendation of the High Power Committee.

It has also to be borne in mind that the initial invocation of the
stringent provisions of the TADA Act is itself subject to sanction of
D the Government and, therefore, the revised opinion of the Government
formed on the basis of the recommendatiOn of the High Power
Committee after scrutiny of each case should not be lightly disregarded
by the court except for weighty reasons such as mala tides or manifest
arbitrariness. The worth of the material to support the charge under
the TADA Act and the evidence which can be produced, is likely to
E
be known to the prosecuting agency and, therefore, mere existence of
prima facie material to support the framing of the charge should not
by itself be treated as sufficient to refuse the consent for withdrawal
from prosecution. It is in this manner an application made to withdraw
the charges of offences under the TADA Act pursuant to revi·ew of
F a case by the Review Committee has to be considered and decided by
the Designated Courts."

In the instant case, the learned Designated Judge rejected the application
for withdrawal from prosecution indicating that tht; State Government had
G not given any reason for withdrawal from prosecution and that mere use of
the expression "Janhit" was not sufficient for according consent in a mechanical
manner. The learned Judge wa.s also of the view that it cannot be said that
ends of public interest and administration of justice would be served by the
withdrawal from prosecution. The learned Judge was of the view that material
records might not have been placed before the Government while taking a
H decision in the matter.
AYYUB v. STATE [K.G. BALAKRISHNAN, J.] 115

We do not find any merit in the reasons given by the Designated Judge. A
There are stringent provisions in the TADA Act and in the Government
Order, it is stated that the Government after proper discussion on the facts of
the case and the evidence/reports/letters available on the record decided to
waive the TADA Sections in the cases recorded in the enclosed list. When
the Order itself states that all records were perused and considered, we do not B
think that the learned Designated Judge was justified in rejecting the
application. It cannot be said that the Senior Prosecuting Officer had filed the
application without consideration of the relevant facts. It cannot also be said
that application was filed with any mala fide intention to save some of the
culprits from the clutches of law. The request was made only to withdraw
from prosecution as against the offences punishable under the TADA Act. C
Charges in respect of other offences punishable under Indian Penal Code
remained and the accused had to face trial for that. Government must have
thought that the stringent and harsh provisions of TADA Act were not
necessary to deal with such situations.

We are of the view that the learned Designated Judge should have D
accepted the application for withdrawal from prosecu(ion as against the
offences charged against the appellants under the TADA Act. Therefore, we
--<
allow that application and the appellants shall stand acquitted under Section
32l(b) of Cr. P.C of all the charges framed against them under the TADA
'Act.
E
The charge of murder and other allied offences against these appellants
is held to have been proved by the prosecution from the evidence of the
eyewitnesses, the circumstantial evidence and the confession made by these
appellants under Section 15 of the TADA Act.

As regards their confession statements, the Special Court accepted the F
same and held that they are reliable. Even if the appellants are acquitted of
the charges under the TADA Act, the confession recorded by the police
officer could have been of some assistance to the prosecution, but in view of
the infirmity in recording the confession the same is not admissible in evidence.
The confession statements of appellants were recorded not in accordance G
with law and that there is nothing on record to show that the same was·
voluntarily made by these appellants. It is pertinent to note that under Section
15 of the TADA Act, it is specifically stated that the Police Officer who is
recording the confession shall not record the same unless he has reason to
believe that it was being made voluntarily. The relevant portion of Section
15 of the TADA Act, as amended, is as under: - H
116 SUPREME COURT REPORTS (2002] 2 S.C.R.

A 15. Certain confessions made to police officers to be taken into
consideration ..

(I)
(2) The police officer shall, before recording any confession under
sub-section· (1), explain to the person makin~ it that .he is not
B bound to make a confession and that, if he does so, it may be
used as evidence against him and such police officer shall not
record any such confession unless upon questioning the person
making it, he has reason to believe that it is being made
voluntarily."
c The cqnstitutionality of Section 15 of the TADA Act was challenged in
Kartar Singh v. State of Punjab (supra) and the Constitution Bench of this
Court considered the matter in detail and upheld the same. If was pointed out
by this Court that sufficient safeguards have been made to see that powers
given under Section 15 are not being misused by the police and the Court
D also noticed Rule 15 of the Terrorists and Disruptive Activities (Prevention)
Rules 1987 dealing with the mode of recording of a confession made to
police officers. Under that rule, the confession shall, if it is in writing be
signed· by the person who makes the confession and the police officer shall
also certify under his own hand that such confession was taken in his presence
and recorded by him and that the record contains full and true accounts of
E the confession made by the person and such police officer shall make a
memorandum at the end of the confession. In that memorandum, he has to
state that it was taken in his presence and hearing and recorded by him and
was read over to the person making it and admitted by him to be correct, and
it contains a full and true account of the statemen.t made by him. It also states
p that the officer who is recording the confession should explain that he is not
bound to make a confession and that, if he does so, the confession made by
him would be used against him and the police officer should also certify that
he has reason to believe that it is being voluntarily made. In the instant case,
the confession made by these two appellants does not indicate that the same
was voluntary in nature and the police officer who recorded the same has not
G certified that he believed that the confession was voluntarily made; In Shara/at
Hussain Abdul Rahaman Shaikh and Ors. v. State of Gujarat and Anr.,
(1996] 11 sec 62, it was held that ~f there is no certificate by the police
officer who is recording confession, in a~cordance with sub-rule 3(b) of Rule
15, TADA Rules, 1987, the same is not admissible in evidence.

H Even as regards the confession made under Section 164 Cr.P.C., this
A YYUB v. STATE [K.G. BALAKRISHNAN, J.] 117
Court as early as in Sarwan Singh Rattan Singh v. State of Punjab, etc. etc., A
AiR (1957) SC 637 held that in order to make the confession statement under
the Act, it must be proved that the same was voluntarily made by the maker.
It would, of course, be necessary in every case to put the questions prescribed
by the High Court circulars but the ~uestions intended to be put under sub
section (2) of Section 164 should not be allowed to become a matter of a
mere mechanical enquiry. No element of casualness should be allowed to B
creep in and the Magistrate should be fully satisfied that the confessional
statement which the accused wants is in fact and in substance voluntary.

In Shivappa v. State of Karnataka, [1995] 2 sec 76, while considering
the question of a confession recorded under Section 164 Cr.P.C., it was
observed as under:- c
" ......... .it is manifest that the said provisions emphasise an inquiry by
the Magistrate to ascertain the voluntary nature of the confession.
This inquiry appears to be the most significant and an important part
of the duty of the Magistrate recording the confessional statement of D
an accused under Section 164 Cr.P.C. The failure of the Magistrate
to put such questions from which he could ascertain the voluntary
nature of the confession detracts so materially from the evidentiary
value of the confession of an accused that it would not be safe to act
upon the same ......... "

~t was further observed in paragraph 7 as under:
E
" ............ Moreover, the Magistrate must not only be satisfied as to the
voluntary character of the statement, he should also make and leave
such material on the record in proof of the compliance with the
imperative requirements of the statutory provisions, as would satisfy
the court that sits in judgment in the case, that the confessional
F
statement was made by the accused voluntarily and the statutory
provisions were strictly complied with."

Section 15 of the TADA Act altered the fundamental rules of evidence
given in the Evidence Act, which stood the test of time for over a century.
Under Section 25 of the Evidence Act, a confession made to a police officer
G
by a person accused of an offence shall not be proved against him. The
power to record judicial confession is given to Magistrate and strict and
rigorous guidelines have been laid down in Section 164 Cr.P.C. That apart
many High Courts also have framed rules giving detailed procedure for
recording confession. Confession is an admission of guilt. Normally, nobody H
118 SUPREME COURT REPORTS [2002] 2 S.C.R.

A would like to admit his guilt as he is fully aware that the same would be used
against him. That apart, there is constitutional right for the accused that he
shall not be subjected to any "testimonial compulsion". Under Article 20(3)
of the Constitution, accused person has a protection from being compelled to
be a witness against himself. As the confession made under Section 15 of the
TADA Act is made admissible in evidence, the strict procedure laid down
B therein for recording confession•is to be followed. Any confession made in
defiance of these safeguards cannot be accepted by the Court as reliable
evidt:nce. The confession should appear to have been made voluntarily and
the p~lice officer who records the confession should satisfy himself that the
same had been made voluntarily by the maker of that statement. The recorded
C confession must indicate that these safeguards have been fully complied with.
In this case, the recorded confession statements do not show that the officer
who recorded the statement had followed those guidelines. Therefore, it is
inadmissible in evidence.

According to the prosecution, these two appellants hurled bombs at the
D police picket and they were identified by eyewitnesses, namely, PW2 Desh
Raj Singh, PW 3 Sarvesh Singh and PWI Platoon Commander Ramvir Singh.
PWI Platoon Commander Ramvir Singh deposed that two boys came running
and threw bombs one after another and that he could see them in the electric
light. At the relevant time, he was standing outside the tent and the appellants
E were seen at a distarice of ten to fifteen paces away. He also deposed that he
noticed these appellants while they were coming towards them. Constable
Desh Raj Singh, PW-2 also deposed that while h~ was standing outside the
tent he saw the appellants coming and throwing bombs at them. The counsel
for the appellants contended that there was. no source of light available for
these witnesses to see the appellants and as the incident happened at about
F 7.45 P.M., the assailants might not have been identified by the, witnesses. The
counsel also argued that no reference was made regarding the source of light
in the First Information Report. But, it is important to note that. in the site
plan prepared later, an electric pole is shown very near to the place of incident
and when as many as three of the witnesses deposed that they had identified
G the assailant in the electric light, we do not find any justifiable reason .to
reject their evidence.

The counsel for the appellants further contended that the test
identification parade was conducted belatedly and no evidentiary value could
be attached to it. It was submitted that in the case of appellant-Abdul Jabbar,
H the t~st identification parade was done 43 days after his arrest and in the case
AYYUB v. STATE [K.G.BALAKRJSHNAN,J.] 119
of appellant Ayyub the same was done I 0 days after he surrendered in the A
court.

The test identification parade as such is not a substantive piece of
evidence, but it is done only for the satisfaction of the prosecution that the
investigation was moving in the right direction. In the instant case, the test
identification parade was held under the supervision of a Judicial Magistrate, B
but as he passed away subsequently, he could not be examined. PW-6, K.P.
Agarwal and PW-34, B.B. Chatul}'edi were examined to prove that the
identification parade was conducted in a fair manner. Both these PWs deposed
in detail regarding the various steps taken by them to see that the identification
parade was done properly and their evidence shows that all necessary C
precautions were taken by them. We do not find any apparent defect in the
test identification conducted by the prosecution.

There are various other pieces of circumstantial evidence to prove the
· complicity of these appellants. Appellant Abdul Jabbar was arrested on
28.1.1993 pursuant to an information that he was undergoing treatment in the D
house of one Ameer Hamza. He was taken into custody immediately and
subjected to medical examination by PW 20, Dr. R.P. Mishra. This appellant
/
had 7 injuries on his body. Injury nos. 5 & 6 were scabbed bum injuries, and
in all probability, these injuries must have been caused due to handling of
some explosive substance. Appellant Abdul Jabbar was produced before PW-
10, Shri R.C. Chaturvedi, the then Designated Judge. on 29.1.1993 itself. The E
learned Judge recorded his ·observations and also the statement made by
appellant Abdul Jabbar at that time. The statement was marked as Ex. Ka-1 l.
In support of this document, PW- I 0 gave evidence in court. In ,Ex. Ka-11, the
appellant made a confession of his guilt and he also made a statement to the
effect that a fellow named, Saleem, forced him to indulge jn the bomb-
F
throwing on 26.1.1993 evening and he also stated about his accomplice. PW-
10 deposed that when appellant Abdul Jabbar was pf9duced before him he
had injuries on his body and that he had noted this in -1',x. Kjl-11. Appellant
Abdul Jabbar when questioned under Section 313 Cr.P.C., could not give
justifiable explanation for the injuries found on his body. This is a clear
incriminating circumstance to prove the guilt of appellant Abdul Jabbar. G
In this case, PW-4 conducted the post-mortem examination on the
body of deceased N.K. Mahender Prasad Sharma and he found 13 ante-
mortem injuries. Most of the injuries were lacerated injuries and PW-4, the
doctor, deposed that the a)lrasions on the body of the deceased could have
been caused by splinters as a result of bomb explosion. H
120 SUPREME COURT REPORTS [2002] 2 S.C.R.

A Learned Special Judge considered all items of evidence and came to the
conclusion that the two appellants have committed offences punishable under
Section 302 read with Section 34 IPC. It is proved beyond reasonable doubt
that the appellants came to the police picket and hurled bombs at police
personnel present there and thereby caused the death. of N.K. Mahender
B Prasad Sharma and also caused injuries to others. The appellants have been
rightly c.onvicted under Section 302 read Section 34 IPC and Section 307
read with Section 34 IPC. Their conviction and sentences under Section 4 of
the Prevention of Damage to Propert~: Act, 1984 is also confirmed. The
prayer of the respondent-State ofU.P. to withdraw from prosecution as regar2s
charges under Section 3(1)(2)(i) is granted and as directed earlier in this
C judgment the appellants are acquitted of the charges framed against them
under the provisions of the TADA Act. As regards the conviction and sentences
awarded to the appellant on various other counts under the Indian Penal Code
and Prevention of Damage to Property Act, we see no reason to interfere
therewith. The conviction and sentence of the appellants under Section 302
read with Section 34 and Section 307 read with Section 34 IPC as also under
D Section 4 of the Prevention of Damage to Property Act, 1984 are f!laintajned.
Consequently, these appeals shall stand partly allowed.

S.K.S. Appeals partly allowed.