Holding

The making of a certificate and memorandum under Rule 15(3)(b) is mandatory; if no contemporaneous record exists, oral evidence cannot cure the defect, rendering the confessional statements inadmissible and the convictions unsustainable.

Summary

The Supreme Court examined appeals by several accused convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA) for murder and related offences. Their convictions were based primarily on confessional statements recorded by a Superintendent of Police under Section 15 of TADA, but the officer failed to comply with Rule 15(3)(b) of the TADA Rules, which requires a memorandum at the end of the confession stating that it was voluntarily made. The Court held that the preparation of a certificate and memorandum is mandatory, though the exact wording is not, and that in the absence of any contemporaneous record the defect cannot be cured by oral testimony. Consequently, the confessional statements were deemed inadmissible, and without them the prosecution case collapsed, leading to the setting aside of the convictions and the release of the appellants.

Issues considered

The admissibility of confessional statements recorded under Section 15 of the TADA Act when Rule 15(3)(b) requiring a memorandum is not complied with.
Whether oral evidence of the recording officer can cure the non‑compliance with Rule 15(3)(b) in the absence of a contemporaneous record.
The mandatory nature of the certificate and memorandum under Rule 15(3)(b) and the relevance of their exact language.
The effect of the inadmissibility of the confessions on the convictions of the accused and co‑accused.

Legislation cited

Code of Criminal Procedure, 1973s. 164
Constitution of Indias. Article 20(3)
Indian Evidence Act, 1872s. 24, s. 25, s. 26
Indian Penal Code, 1860s. 1208, s. 120B, s. 302, s. 307, s. 397
Terrorist and Disruptive Activities (Prevention) Act, 1985s. 15, s. 28, s. 3(1), s. 3(3), s. 3(4), s. 5

Subjects

TADAconfessional statementadmissibilityRule 15(3)(b)memorandumoral evidenceconvictionevidence lawterrorism

Judgment

A BHARATBHAI @ JIM! PREMCHANDBHAI
v.
STATE OF GUJARAT

OCTOBER 3, 2002

B [Y.K. SABHARWAL AND H.K. SEMA, JJ.]

Terrorist and Disruptive Activities Prevention Act, 1985/Terrorist and
Disruptive Activities (Prevention) Rules, 1985 - Sections 3 and 15/Rule I 5(3)(b)
C -Confessional statement-Non compliance of Rule-Admissibility of the
st<:tement - Held, making of memorandum. and certificate under the Rule is
mandatory, though language thereof is not mandatory-The discrepancy can
be cured if contemporaneous record shows substantial compliance, but not by
oral evidence based on the memory ofRecording Officer-Penal Code, 1860-
Sections 302, 307, 397 rlw Section I 20B.
D
Designated Court convicted the appe.llants accused u/ss. 302/1208,
307/1208, 397/1208 IPC and sections 3(1), 3(3), 3(4) and 5 of Terrorist
and Disruptive Activities (Prevention) Act, 1985 r/w Section 1208 !PC
solely on the basis of the confessional statements of accused Nos. 7 and 8
recorded u/s 15 of TADA Act. While recording the confessional statement
E police officer did not comply with the requirement of Rule 15(3)(b).

In appeal to this Court appellant contended that conviction having
been based solely on the confessional statement, non-compliance of Rule
15(3)(b) of Terrorist and Disruptive Activities (Prevention) Rules, 1985
F is fatal to the prosecution case. Respondent contended that in view of the
deposition of police officer recording the confession that it appeared to
him that the averments made by the accused were absolutely true, the non-
compliance is of no consequence.

Allowing the appeals, the Court
G HELD: I.I. The maker of a confessional statement can be convicted
solely on the basis of his confessional statement made under Section 15
of the Terrorist and Disruptive Activities (Prevention) Act, 1985. That
statement is also substantive evidence agains·,t his co-accused. Against the
co-accused, though taken as substantive evidence as a rule of prudence,
H 46
BHARATBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT 47

to get support, the Court would look upon corroborative evidence as well. A
[55-BI

Kartar Singh v. State of Punjab, [19941 3 SCC 569, followed

State through superintendent of Police, CBI/SIT v. Nalini and Ors.,
(19991 5 SCC 253; Davender Pal Singh v. State of NCT of Delhi and Anr., B
(20021 5 SCC 234 and Ravinder Singh@ Bittu v. The State of Maharashtra,
JT 2002 4 SC 470, relied on.

1.2. The fate of not only the accused but the co-accused as well hinges
on the confessional statement recorded by a Police officer under Section
15 of the TADA Act. Such a statement cannot be recorded in a mechanical C
manner. All the safeguards provided in the Act and the Rules have to be
strictly adhered to. There can be no room for any latitude in the matter
and manner of recording of a confessional statement. Any material
discrepancy will be fatal unless satisfactorily explained by the prosecution.
The burden of proving confessional statements always remains on the D
prosecution. It is for the prosecution to prove that the confessional
statement that is being relied upon was voluntary, truthful and all
safeguards were complied with while recording it. The burden of proving
such confessional statement on the prosecution cannot be lightened by
urging that the confession was not retracted or challenged except in the
cross-examination of the witnesses. Undoubtedly, when the confession is E
duly recorded and is proved to be voluntary and truthful, then it can be
taken to be the most reliable piece of evidence coming from the accused
himself and made sole basis of conviction, confession being an admission
of the guilt. [55-C, E [

1.3. Before basing conviction on confessional statement, it is F
necessary to examine whether all conditions for recording of confession
have been fulfilled or not. What is required to be examined is whether
requirements of Section 15 of the TADA Act and Rule 15(3)(b) of Terrorist
and Disruptive Activities (Prevention) Rules,· 1985, when recording the
confessional statements in question, have been complied or not. G
[59-A; 60-DI

2.1. Writing the certificate and making the memorandum under Rule
· 15(3)(b) is mandatory. The language of the certificate and the
memorandum is not mandatory. The making of certificate and
memorandum is not an empty formality of the Rule. It is required to be H
48 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A made at the end of the confession. The officer certifies the manner in
which the statement was given by the accused and was recorded. The
satisfaction as per rule 15(3)(b) of recording officer has substantial
relevance on the aspect of voluntary nature of confession, which is the
heart of confession for it being made the basis of conviction. (65-C, 68-F(

B 2.2. In the instant case, Rule 15(3)(b) of TADA Rules has not been
complied with in as much as the memorandum at the end of the confession
has not been appended. The memorandum to be recorded at the end of
the confession requires the recording officer to state that "I believe that
the confession was voluntarily made". Even assuming that oral testimony
C in Court can be a substitute of memorandum, what has been deposed in
Court by recording officer is not the beHef that the confession was
voluntarily made but "it appeared to me that the averments made by him
were absolutely true". If the recording officer without contemporaneous
record is allowed to depose later after lapse of several years in Court, it
would be too hazardous to rely on such testimony as, ordinarily, an officer
D is likely to depose in Court what was left out to be recorded in documents
as per mandatory provisions of the Act and the Ru.les, once he knows that
he had made vital omission. If the contemporan~ous record shows that
in substance though not in form, the requirements of the Rule were
fulfilled, the defect of form can be cured by oral deposition made, may be
E after many years, on the basis of the contemporaneous record. Facts of
the present case do not show, one way or the other, about the existence of
contemporaneous record. [60-D; 64-B, C, G, H; 65-A)

Nazir Ahmad v. King-Emperor, AIR (1938) PC 253 and S.N. Dube v.
NB. Bhoir and Ors., (2000) 2 SCC 254, relied on.
F
Chandran v. The State of Tamil Nadu, (19781 4 SCC 90, distinguished

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
594 of 2002.

G From the Judgment and Order dated 20.4.2002 of the Designated
Court at Ahmedabad in Tada Case No. 3 of 1996.
WITH
(Crl. A. Nos. 720, 721, 731 and 828 of 2002.)

H Yashank Adhyaru, Ranjit Kumar, V.S. Kotwal U.R Lalit, Sushil
BHARA TBHAI @JIM! PREMCHANDBHAI '"STATE OF GUJARAT [SABHARWAL,J.] 49
Kumar, Mahendra Anand, Ashish Wad, Mrs . .I. Wad, Ms. Niharika Bahl, A
Bharat Joshi, Sudeep Pasbola, Sushi! Karanjkar, Venkateswara Rao Anumolu,
Sanjay Jain, Adolf Mathew, Ms. Hemantika Wahi and Ms.Anu Sawhney,
for the appearing parties.

The Judgment of the Court was delivered by
B
Y.K. SABHARWAL, J. Deceased Raghunath Yadav was convicted
and sentenced by the Sessions Court at Varanasi for the murder of father of
Brijesh Singh who is one of the absconding accused in the present case.
While on bail in appeal, Raghunath Yadav, apprehending danger to his life,
came to reside at Mehsana in the State of Gujarat. On 14th June, 1992, C
Raghunath Yadav was murdered at Mehsana.

In TADA case Nos. I, 2 3 and 7 of 1996, twelve accused were tried by
the Designated Judge, Ahmedabad for offences under Sections 302, 397,
307, 120B !PC, Section 3(1), 3(3), 3(4) and 5 of the Terrorist And Disruptive
Activities (Prevention) Act, 1987 (for short 'TADA Act') and under Section D
25(l}(a) and (b) of the Arms Act.

The charge-sheet against accused Nos. I to 3 was filed on 6th April,
1993, against accused Nos. 4 to 6 on !st July, 1994, against accused Nos. 7
to 11 on 15th April, 1996 and against accused No.12 on 26th November,
1996. The charges were that the accused persons and the absconding accused E
Sharifkhan Azizkhan Pathan, Daud Ibrahim Meman, Brijeshsinh Bholansinh,
Radayanarayansinh alias Harinarayansinh alias Bhulansinh Thakur, Unita
Prajapati, deceased accused Sunil Savat and Abdullatif Abdul Vahab Shaikh
had hatched a conspiracy to commit murder of Raghunath Yadav and thereby,
committed criminal acts punishable under Section 120-B of the Indian Penal
Code; as per the above conspiracy on 14th June, 1992, accused Nos. I, 3, 4, F
8, 9 and the absconding accused Radayanarayansinh @ Harinarayansinh @
Bhulvansinh Thakur and Brijeshsinh Bhuvansinh @ Ravinathsinh Thakur
had gone to S.T. Bus stand, Mehsana and after obtaining information about

.\ the identification of the deceased as a part of the conspiracy made firing with
the pistol and caused murder of Raghunath Yadav and created an atmosphere G
of terror and fear at the said place and then fled away in the vehicles and,
thus, committed offences punishable under Section 302 read with Section
120B !PC and under Sections 3(1) and 3(3) of TADA Act read with Section
120B !PC; while fleeing away from Mehsana after firing and committing
murder as aforesaid, Police Sub-Inspector, Zala who tried to arrest the accused
was fired at by the accused causing him injuries and had run away taking the H
50 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Government Maruti Gypsy with them and, thus, committing offence punishable
under Sections 307, 1208 IPC and under Sections 3(1), 3(3), 3(4) and 5 of
the TADA Act read with Section 1208 !PC and Section 397 read with Section
1208 IPC.

The Designated Court, by the impugned judgment and order convicted
B and sentenced accused Nos. 4 Subhashsinh @ Mahesh Shobhnathsinh Thakur,
accused No.5 Abdul Khuddarsh Abdulgani Shaikh, accused No.7 Bharat
Premchandbhai Patel, accused No.8 Ramdularsinh Ramdharisinh Thakur and
accused No.9 Shitalaprasad Devjansinh Thakur for offences punishable under
Sections l 20B, Section 302 read with Section l 20B, Section 307 read with
C Section 120B, Section 397 read with Section 1208 IPC and offence under
Sections 3(1), 3(3) of the TADA Act read with Section 5 read with Section
1208 IPC. All of them have been sentenced to undergo life imprisonment for
offence under Section 1208, offence under Section 302 read with Section
1208 !PC and fine of Rs. 500 each and furth•!r imprisonment of one month
for default in payment of fine. For other offences, varying punishments have
D been awarded. Accused No.12 died <juring trial and the remaining were
acquitted.

The convicted accused have preferred these appeals under Section 19
of TADA Act. We have perused the record and heard Mr. Yashank Adhyaru
for accused No.7 (Crl.A. No.594/2002), Mr. Ranjit Kumar for accused No.9
E (Crl.A. No.720/2002), Mr. V.S. Kotwal for accused No.8 (Crl.A.No.731/
2002), Mr. U.R. Lalit for accused No.4 (Crl.A. No.721/2002), Mr. Sushi!
Kumar for accused No.5 (Crl.A. No.828/2002) and Mr. MahendraAnand for
the respondent.

F The conviction of the appellants is primarily based on the two
confessional statements. One made by accused No.7 Bharatbhai and the other
by accused No.8 Ramdularsinh Thakur. These• statements were recorded by
Mr. A.S. Bhatia, Superintendent of Police (PWI 8) under Section 15 of TADA
Act. In respect of the conviction of accused Nos.4, 5 and 9 which is also
based mainly on these confessional statements,. according to the prosecution, I •
G there is also sufficient .corroborative evidence against them.
The fate of the entire case rests on th1! legality of the confessional
statements. If the confessional statements are held as inadmissible, the
prosecution case against all the appellants will fail. It has not been disputed
and, in our opinion, rightly, by Mr. Anand, learned counsel for the respondent-
H State that in case the confessional statements are held inadmissible and,
BHARATBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.] 5 J

·· therefore, discarded, it would not be possible to sustain the conviction of the A
appellants. The learned counsel has, however, strenuously urged that no
provision of the TADA Act or rules framed thereunder has been violated in
recording of the confessional statement and submitted that the confessional
statements of accused Nos. 7 and 8 have been rightly relied upon by the
Designated Court in convicting all the appellants. The facts leading to the
recording of the confessional statements and what is contained therein may B
be briefly noticed.

Raghunath Yadav was murdered on 14th June, 1992. Accused No.7
was arrested on 13th December, 1995. His remand had been obtained upto
29th December, 1995. He was produced before PW18 A.S. Bhatia, on 27th C
December, 1995 at 7.30 p.m. PW18 is competent to record the confessional
statement under Section 15 of the TADA Act. The accused was told by
PW 18 that he was not legally bound to give confession and the same shall
be used against him. The accused stated that still on his own and without any
sort of pressure, threats or mental/physical harassment, he intended to give
the confessional statement. The confessional statement was, howeyer, not D
recorded on 27th December, 1995. He was given time to think over. His
confessional statement was recorded on the next date, i.e., 28th December
from 10.45 upto 11.45 hours.

Similar is the position in respect of the confessional statement of accused
No.8 Ramdularsinh Thakur. He was first produced before PW18 at 8 p.m. on E
27th December, 1995. The confession was recorded on 28th December from
11.45 upto 12.15 hours. His arrest was also on 13th December, 1995. His
remand was obtained upto 29th December, 1995.

The English translated typed copy of the confessional statement of F
PW7 runs into 35 pages whereas that of PW8 runs into 12 pages.

The identical statement of accused Nos. 7 and 8 that were recorded on
27th December, 1995 read as under :

"In connection with the Mehsana City police station Cr.R. No.1-197/ G
92 for the offence punishable under sections 147, 148, 149. 307, 397,
120-B of the Indian Penal Code and under section 25(i)B, A and
u/s 3 of the TADA Act. I have been arrested by the police on 13/J 2/
95, and a remand has been obtained upto 29/12/95.

Since I intend to voluntarily give my confessional statement as H
52 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A · regards the facts of this offence known to me and the parts which I
did play therein, I have been today produced before you. I have been
·given understanding by you that I am legally not bound to give this
confession and that the same shall be used against me. Still, however,
I on my own and without any sort of pressure, threats or mental/
. physical harassment, intend to give this confessional statement.
B
I state that I have been given sufficient time to think over giving
this confessional statement by you, and after due and thoughtful
consideration, I have been produced before you to give this
confessional statement."

C The first paragraph of the statement of accused No.7 that was recorded
on 28th December, 1995 reads as under :

"Upon being personally interrogated, I state that I am residing at the
above address for the last one and half years and doing the work of
filing share issues forms, purchase and sale of shares, purchase and
D sale of small big properties and playing cards (gambling). Since I am
fond of gambling since my childhood, I also gain or lose money in
it."

In respect of accused No.8 that paragraph reads as under :

E "Upon being inter~ogated personally, I state that I am residing at the
above address and running a flour mi.II. My wife and children are
residing at the above address of my na.tive place and they are doing
the agriculture work and I many times go to my native place once or
twice in a year. l am residing here since last 19 years and l have
F studied upto Std.7 in Hindi medium. I know, understand and speak
Gujarati language very well."

In the confessional statement, accused No. 7 has given a detailed account
as to how he came in contact with the absco1~ding accused and the other
accused persons; how and when they had been coming to his house and
G making telephone calls; his going to Ahmedabacl Airport with Bachchisinh in i -

the car of Sunil Savat to receive Subhashsinh Thakur who came from Delhi
along with Brijeshsinh Thakur. That was on 10th June, 1992. Sunil Savat,
Brijeshsinh Thakur and Bachchinsinh came to his house from hotel and Sunil
Savat had talked to Daud at Dubai and told him to make all arrangements.
The talks were in code words. Thereafter, after five minutes, a phone call was
H received from Abdul Latif who talked with Sunil Savat. Latif stated that he
BHARATBHAI @JIMI PREMCHANDBHAI v. STA TE OF GUJARAT [SABHARWAL, J.] 53

will make all the arrangements. All persons went to the house of uncle of A
Subhashsinh named S.D. Thakur. Subhashsinh introduced all with him PSI
S.D. Thakur and talked with him as regards their going to Mehsana on the
next day. S.D. Thakur gave the name and address of another 'Bhaiya' to
Subhashsinh. Thereafter all went to the house of Latif where Sharifkhan and
Abdul Khudarsh accused No.5 were also present. As per the talk between
Sunil Savant and Latif, since murder of one 'Bhaiya' was to be committed B
at Mehsana, Latif told that arrangements of car and persons shall be made by
him and that two cars and persons would reach the hotel. Sunil Savant told
him to come to the hotel on the next day at about 6.30 hours in the morning.
He went there at about 7.00 a.m. All 6 persons were ready at the Natraj
Hotel. After some time two cars sent by Latif came to hotel out of which one C
was Maruti 1000 of metallic blue colour wherein Abdul Khudarsh, Sunil
Savant, Brijeshsing and one boy out of the two sat. It was told that car should
stop at Nandsan Hotel. Latif s persons came in the Maruti Fronti wherein
Subhashsinh and two other persons sat. He and Bachchisinh were in Hyundai
car. Bachchisinh was having the address of Anupam Cinema and, therefore,
their car was kept ahead where Ramdularsinh (accused No.8) met them. On D
finding Ramdularsinh on road, Bachchisinh was dropped there and he (accused
No.7) returned home in the Hyundai car. Bachchisinh and Ramdularsinh sat
in the Maruti Fronti car which had followed the car of accused No.7 from the
hotel. After taking Ramdularsinh, they went in the Maruti Fronti to take S.D.
Thakur. From there, all were to gather at Nandasan Hotel. He did not see as E
to which weapons were kept in which car. At 4.30 p.m. in the evening, Sunil
Savant and Brijeshsinh Thakur came to his house in a frightened condition.
Su nil Savant informed accused no. 7 that "he has been finished, but quandary
(lafada) occurred, many bullet shots were fired, everything has been disturbed,
we left the cars and returned." Sunil Savant talked to Daud and informed him
about this incident and also informed that the work is over and the cars were F
left there only. He also talked about the incident with Latif over telephone
in Hindi. Latif told him that whatever has happened, has already happened,
don't worry. He also stated about going to the house of S.D. Thakur with
Subhashsinh and others on the next day and Subhashsinh informing his uncle
that the work is over. He has further stated about going to Nepal with Sunil G
Savant and Bachchisinh. He has also made statement about the boys of Mumbai
having accepted 'supari' for N.G. Patel for a big amount and his being
frightened on that account.

At the end the confession reads that "The above facts as narrated by me
are true and correct". It has been signed by accused No.7. The signatures of H
54 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A PWl8 appear below the words 'Before me'.
In the same manner as above, the confessional statement of accused
No.8 at the end records that "The above facts as narrated by me are true and
correct which has been read over to me". It has also been signed by the
accused. The signatures of the Superintendent of Police (PW! 8) appear in a
B similar fashion as above.

Accused No. 8 has, inter a/ia, stated thait he had not known Brijeshsinh
Thakur but heard his name and had got th1: information that he has been
doing the activities of murders etc. in Banaras, Lucknow and the surrounding
areas. He knew Subhashsinh Thakur for the last 4-5 years and also accused
C No.9 for the past 10-12 years; the disputes/quarrels between Yadav's of the
Dhavarhara village of Brijeshsinh and Thakurs were going on since years. At
about 12 midnight, accused No.9 came to his house and informed him that
they have to go to Mehsana next day in the morning and on asking for the
purpose for going there, accused No.9 stated that he will tell him the next day
D morning. On the next day morning Subhashsinh Thakur came in Maruti
Fronti car and with him, he went to accused No.9 who told him that to take
revenge of the murder of father of Brijeshsinh, the murder of Raghunath
Yadav is to be committed and accused No.8 knows him and, therefore, he
should ipentify him at Mehsana. Accused No.8 agreed to go with accused
No.9 to Mehsana. In that car, Subhashsinh and accused Nos. 8 and 9 were
E sitting. In another car that was following thi:m 6-7 persons were sitting. On
reaching Mehsana, they went to bus stand; there was rush at sugarcane juice
stall. On his asking as to where is Yadavji, he was told that he was getting
his beard shaved in the nearby cabin. On looking into the cabin, he found that
Raghunath Yadav was getting his beard shaved. He told Subhashsinh as to
F the person who was getting shaved was Raghunath Yadav. After showing
Raghunath Yadav, he and accused No.9, afte1r consulting Subhashsinh left the
bus stand and Subhashsinh and other persons in the car waited there. He and
accused No.9 came to Ahmedabad after taking a jeep from Mehsana Highway
bus stand where they reached by taking a rickshaw. The passenger and the
jeep driver were discussing on the way that firing had taken place at Mehsana
G S.T. bus stand. Therefore, we knew that Subhashsinh and his other companions
had made firing.

The confessional statement recorded under Section 15 of TADA Act by
a Police Officer authorized therein is admissible in evidence. It is also no
H more res integra that a confession recorded under Section 15 is a substantive
BHARA TBHA!@ JIM! PREM CHA NOB HA! v. STATE OF GUJARAT [SABHARWAL, J.] 55

piece of evidence [State through Superintendent of Police, CBI/SIT v. Nalini A
and Ors., [ 1999] 5 SCC 253; Devender Pal Singh v. State of NCT of Delhi
and Anr., (2002] 5 SCC 234 and Ravinder Singh @ Bittu v. The State of
Maharashtra, JT (2002) 4 SC 470.

The maker of a confessional statement can be convicted solely on the
basis of his confessional statement made under Section 15 of the TADA Act. B
That statement is also substantive evidence against his co-accused. Against
the co-accused, though taken as substantive evidence as a rule of prudence,
to get support, the Court would look upon corroborative evidence as well.

Thus, the fate of not only the accused but the co-accused as well hinges
on the confessional statement recorded by a Police officer under Section 15 C
of the TADA Act. Such a statement cannot be recorded in a mechanical
manner. All the safeguards provided in the Act and the Rules have to be
strictly adhered to. There can be no room for any latitude in the matter and
manner of recording of a confessional statement. Any material discrepancy
will be fatal unless satisfactorily explained by the prosecution. The burden of D
proving confessional statements always remains on the prosecution. It is for
the prosecution to prove that the confessional statement that is being relied
upon was voluntary, truthful and all safeguards were complied with while
recording it. The burden of proving such confessional statement on the
prosecution cannot be lightened by urging that the confession w;:is not retracted
or challenged except in the cross-examination of the witnesses. Undoubtedly, E
when the confession is duly recorded and is proved to be voluntary and
truthful, then it can be taken to be the most reliable piece of evidence coming
from the accused himself and made sole basis of conviction in the manner
stated earlier, confession being an admission of the guilt.

The conviction in the present case is based mainly, if not entirely, on F
the strength of what is stated in the confessional statements made by accused
Nos. 7 and 8. The confessional statements have been recorded by a police
officer. It was not contended for the State that the conviction could be
supported even if the confessions were inadmissible.
G
The admissibility in evidence of confessional statements made by an
accused before a police officer has for long been an anathema to the rule of
law. The police has. o•dinarily, been suspect of using third degree methods
in obtaining confession. Section 25 of the Evidence Act stipulates that no
confession made to a police officer, shall be proved as against a person
act:used of any offence. Section 26 provides that no confession made by any H
56 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A person whilst he is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against such person.
Section 24 provides that a confession made by an accused person is irrelevant
in a criminal proceeding, if the making of the confession appears to the Court
to have been caused. by any inducement, thr<:at or promise, having reference
B to the charge against the accused person, proc(:eding from a person in authority
and sufficient in the opinion of the Court, to give the accused person grounds,
which would appear to him reasonable, for supposing that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him. Article 20(3) of the Constitution of India
provides that no person accused of any offence shall be compelled to be a
C witness against himself.

In Kartar Singh v. State of Punjab, [1994] 3 SCC 569, a serious
challenge was made to the constitutional validity of Section 15 of the TADA
Act which contained a drastic departure from the existing provisions of the
Evidence Act, in particular Section 25 thereof, and provided that
D notwithstanding anything contained in the Indian Evidence Act, 1872, but
subject to the provisions of that section, a confession made by a person
before a police officer not lower in rank than a Superintendent of Police and
recorded in the manner provided in the section shall be admissible in the trial
of such person or co-accused, abettor or conspirator for an offence under the
E TADA Act or rules made thereunder. The co-accused, abettor or conspirator
is required to be charged and tried in the same case together with the accused
for the applicability of Section 15(1) of the TADA Act. Section 15 (2) stipulates
that the police officer shall, before recording any confession under Section
15(1), explain to the person making it that he is not bound to make a confession
and that, if he does so, it may be used as evidence against him and such
F 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,
Thus, this provision was made in consonance with Article 20(3) of the
Constitution as the compulsion on an accused to make a statement against
him has been interdicted by the Constitution.

G In Kartar Singh 's case, it was contended that the procedure prescribed
in the TADA Act is the antithesis of the just, fair and reasonable procedure.
A blistering attack was made on the validity of Section 15. It was, inter alia,
contended that the existing Codes of law which have a life history of more
than a century proceed on the footing that police confessions are untrustworthy
H and, thus, Section 15 gives a death-knell to the very basic principle hitherto
BHARA TBHAI @JIMI PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.] 57

recognized and fo][owed that a confession made btfore a police officer under A
any circumstance as well as a confession to a Magistrate or a third party
while in police custody is totally inadmissible and that such a confession
cannot be proved as against a person accused of any offence. It was contended
in the said case that oppressive behaviour and excessive naked abuse and
misuse of power by the police in extorting confession by compelling the
accused to speak under the untold pain by using third degree methods with B
diabolical barbarity in utter violation of human rights, cannot be lost sight of
or consigned to oblivion and the courts would not be justified by showing a
volte-face and turning a blind eye to the above reality and drawing a legal
presumption that the confession might have been obtained l>y a police officer
not lower in rank than a Superintendent of Police in terms of Section 15(1) C
only in accordance with the legaHy permissible procedure. The counsel
castigated the conduct of the police officers in whisking away the accused
either on arrest or on obtaining custody from the court to an unknown
destination or unannounced premises for custodial interrogation in order to
get compulsory self-incriminating statement as a source of proof to be produced
before a court of law. Examples were cited where on several occasions, this D
Court have ordered exemplary compensation to the victims at the hands of
the police officials. It was submitted therein that the police officer is inherently
suspect of implying coercion to obtain confession and, therefore, the confession
made to police officer should totally be excluded from evidence. The emphasis
was more on the police culture rather than on the person, the contention E
being that the climate was still not conducive for effecting a drastic change
by investing the police officer with a power to record confession and then
make it admissible in evidence. It was submitted that without bringing about
a change in the outlook of the police, such a drastic departure was not
justified.
F
The challenge to the constitutional validity of Section 15 almost
succeeded as seems clear from the observations that were made in the majority
opinion in Kartar Singh 's case while upholding the constitutional validity of
Section 15. The observations are :

"Though we at the first impression thought of sharing the view of the G
learned counsel that it would be dangerous to make a statement given
to a police officer admissible (notwithstanding the legal position
making the confession of an accused before the police admissible in
some advanced countries like United Kingdom, United States of
America, Australia and Canada etc.) having regard to the legal H
58 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

.A competence of the legislature to make_the l~w prescribing a different
mode of proof, the meaningful purpose and object of the legislation,
the gravity of terrorism unleashed by the terrorists and disruptionists
endangering not only the sovereignty and integrity of the country but
also the normal life of the citizens, and the reluctance of even the
victims as well as the public in coming forward, at the risk of their
B life, to give evidence hold that the impugned section cannot be said
to be suffering from any vice of unconstitutionality. In fact, if the
exigencies of certain situations warrant such a legislation then it is
. constitutionally permissible as ruled in a number of decisions of this
Court provided none of the fundamental rights under Chapter III of
c the Constitution is infringed."

The two learned Judges, however, expressed the minority opinion that
Section 15 is unconstitutional.

While upholding the validity of Section 15, a note of caution was
D added in Kartar Singh 's case in the following terms :
"we state that there should be no breach ofprocedure and the accepted
norms of recording the confession which should reflect only the true
and voluntary statement and there should be no room for hyper
criticism that the authority has obtained an invented confession as a
E source of proof irrespective of the truth and creditability as it could
be ironically put that when .a Judge remarked , 'Am I not to hear the
truth', the prosecution giving a startling answer, 'No Your Lordship
is to hear only the evidence'."
(Emphasis is ours)
F In the same context, while laying down the guidelines so as to ensure
that the confession 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, the Constitution Bench also
G said that :

"Though it is entirely for the court trying the offence to decide the
question of admissibility or reliability of a confession in its judicial
wisdom strictly adhering to the law, it must, while so deciding the
question should satisfy itself that there was no trap, no track and no
H importune seeking of evidence during the custodial interrogation and
BHARA TBHAI @JIM! PREMCHANDBHAI v. STA TE OF GUJARAT (SABHARWAL, J.) 59

all the conditions required are fulfilled." A
(emphasis is ours)

Before basing conviction on confessional statement, it is necessary to
. examine whether all conditions for recording of confession have been fulfilled
or not. The requirements of Section 15 have already been noticed earlier. In
exercise of the powers conferred by Section 28 of the TADA Act, the Central B
Government has made the Terrorist and Disruptive Activities (Prevention)
Rules, 1987. Rule 15 relates to recording of confession made to police officers.
It reads as under :

"15. Recording of confession made to police officers.-(!) A
confession made by a person before a police officer and recorded by C
such police officer under Section 15 of the Act shall invariably be
recorded in the language in which such confession is made and if that
is not practicable, in the language used by such police officer for
official purposes or in the language of the Designated Court and it
shall form part of the record. D
(2) The confessions so recorded shall be shown, read or played back
to the person concerned _and if he does not understand the language
in which it is recorded, it shall be interpreted to him in a language
which he understands and he shall be at liberty to explain or add to
his confession. E
(3) The confession shall, if it is in writing, be--
(a) signed by the person who makes the confession; and
(b) by the police officer who shall also certify under his own hand
that such confession was taken in his presence and recorded by F
him and that the record contains a full and true account of the
confession made by the person and such police officer shall
make a memorandum at the end of the confession to the following
effect :-
'I have explained to (name) that he is not bound to make a G
confession and that, if he does so, any confession he may make may
be used as evidence against him and I believe that this confession
was voluntarily made. It was taken in my presence and hearing and
recorded by me 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
H
I-

60 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A statement made by him.

Sd/- Police Officer."

(4) Where the confession is recorded on any mechanical device, the
memorandum referred to in sub-rule (3) in so far as it is applicable
and a declaration made by the person making the confession that the
B
s_aid confession recorded on the mechanical device has been correctly
recorded in his presence shall also be recorded in the mechanical
device at the end of the confession.

(5) Every confession recorded under the said Section 15 shall be sent
c forthwith to the Chief Metropolitan.Magistrate or the Chief Judicial
Magistrate having jurisdiction over the area in which such confession
has been recorded and such Magistrate shall forward the recorded
confession so received to the Designated Court which may take
cognizance of the offence."

D What is required to be examined is whether requirements of Section 15
of the_ TADA Act and the aforesaid Rule 15 when recording the confessional
statements in question, have been complied or not. Let us examine whether
requirements of Rule 15 have been complied by PW18 when he recorded
confe~s_ional statements of accused Nos.7 and 8. One of the requirements of
Rule 15(3)(b) is making of a memorandum at the end of the confession. It
E is not in dispute that Rule 15(3)(b) has not been complied with in as much
as the memorandum at the end of the confession has not been appended.
PW18, the police officer who recorded the confession, admitted in
his
deposition that such a memorandum was rnot made. The core question is its
effect on the admissibility of confession.
F
Learned counsel for the appellants contend that it is fatal to the case of
the prosecution. In absence of such a memorandum, the confession is
inadmissible and cannot be relied upon and the conviction, impugned in the
present appeals, being based only on confession is liable to be upturned is the
contention. On the other hand, counsel for the respondent wou Id submit that
G though no memorandum, as required by Rule 15(3)(b), has been made and
appended by PW18, but in substance the rule has been complied with. The
contention is that the deposition of PW 18 in Court shows that he was satisfied
that the confession was voluntarily made and, therefore, the abse11ce of the
memorandum is only a defect of form and not of substance. Hence, the non-
H making of memorandum in the present case is of no consequence is the
'
BHARATBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.] 6 J

contention. A
In the aforesaid light, the vital question to be determined is can the
defect of non-making and appending of memorandum, as required by Rule
15(3)(b), be cured by oral deposition of the Superintendent of Police who
recorded the confession, while appearing as a witness in court. In other
words, can oral evidence in Court be a substitute for a memorandum to be B
made under Rule 15(3)(b) is the point for determination.

The significance of the confessional statement has already been noticed
earlier. It is such that the fate of not only the accused but co-accused, abettor
and conspirator depends upon it. It can result in the hanging of accused and C
co-accused etc. Relying on it, punishment upto death penalty can be imposed
on the maker as also on others. First of all, let us remind ourselves of the
observations that have stood test of time as made in the off-quoted decision
of Privy CouncHin Nazir Ahmad v. King-Emperor, AIR (1936) PC 253
holding that where a power is given to do a certain thing in a certain way,
the thing must be done in that way or not at all. Other methods of performance D
are necessarily forbidden.

In S.N. Dube v. N.B. Bhoir and Ors., (2000] 2 SCC 254, the trial court
had taken the view that the officer recording confession did not write the
certificates and the memorandums in the same form and terms as are prescribed E
by Rule 15 of the Rules framed under the TADA Act and the same were,
therefore, inadmissible. Counsel for the accused submitted before this Court
that the certificates and the memorandums having not been recorded in
identical terms and as Rule 15 is mandatory, the trial Court was right in
holding the confessions inadmissible for non-compliance with that mandatory
requirement. While considering the question whether the certificate and the F
memorandum are required to be written in the same form and terms as
required by the Rule, this Court held that :

"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 G
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 the recording the confession in the presence H
62 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A of the person making it. Though giving of the statutory ··~1arning,
ascertaining the voluntariness of the confession and preparation of d
contemporaneous record in the presence of the person making the
confession are mandatory requirements of the rule, we see no good
reason why the form and the words of the certificate and memorandum
sho'uld also be held mandatory. What the mandatory requirements of
B a .provision are cannot be decided by overlooking the object of that
provision. They need not go beyond the purpose sought to be achieved.
The purpose of the provision is to see that aB formalities are performed
by the recording officer himself and by others to ensure full compliance
with the procedure and seriousness of recording a confession. We fail
c to appreciate how any departure from the form or the words can
adversely affect the object of the proviision or the person making the
confession so long as the court is able to conclude thanhe requirements
have been substantially complied with. No public purpose is likely to
be achieved by holding that the certificate and memorandum should
be in the same form and also in the same terms as are to be found
D in Rule J5(3)(b). We fail to appreciate how the sanctity of the
confession would get adversely affected merely because the certificate
and the memorandum are not separatdy written but are mixed up or
because different words conveying the same thing as is required are
used by the recording officer. We hold that the trial court committ~d
E an error of law in holding that because the certificates and
memorandums are not in the same form and words they must be
regarded as inadmissible. Having gone through the certificates and
, the memorandums made by Shinde at the end of the confessions what
we find is that he had mixed up what is required to be stated in the
certificate and what is required to be stated in the memorandum. He
F has stated in each of the certificates and the memorandums that he
had ascertained that the accused was making the confession willingly
and voluntarily and that he was under no pressure or enticement. It
is further stated therein that he hacl recorded the confession in his
own handwriting (except in case of A-7 whose confession was recorded
G with the help of a writer). He has also stated that it was recorded as
per the say of the accused, that it was read over to the accused
completely, that the accused had personally read it, that he had
ascertained thereafter that it was recorded as per his say and.that the
confession was taken in his presenc:e and recorded by him. It is true
··that he has not specificaUx ~!a~ed'itherein that the record contains "a
H full and true account of the confession made". The very fact that he
BHARA TB HAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT lSABHARWAL, J.] 63

had recorded the confession in his own handwriting would imply that A
it was recorded in the certificates and memorandums that the
confession was recorded as per the say of the accused, that it was
read over to him fu([y, that the accused himself personally read it and
that he had ascertained that it was recorded as per his say, that would
mean that it contains "a fu([ and true account of the confession" and
that the contents were admitted by the accused. Thus, while writing B
the certificate and the memorandum what Shinde has done is to mix
up the two and use his own words to state what he had done. The
only thing that we find missing therein is a statement to the effect that
he had explained to the accused that he was not bound to make a
confession and that if he did so the confession might be used as C
evidence against him. Such a statement instead of appearing at the
end of the confession in the memorandum appears in the earlier part
of the confession in the question and answer form. Each of the accused
making the confession was explained about his right not to make the
confession and the danger of its being used against him as evidence.
That statement appears in the body of the confession but not at the D
end of it. Can the confession be regarded as not in conformity with
Rule 15(3 )(b) only for that reason? We find no good reason to hold
like that. We hold that the trial court was wrong in holding that there
was a breach of Rule I 5(3) and, therefore, the confessions were
inadmissible and bad." E
(emphasis is ours)

Thus, what has been laid in the aforesaid case is that the writing of
certificate and making the memorandum are mandatory and these matters are
not left to be proved by oral evidence alone. The requirement of the Rule is F
preparation of contemporaneous record regarding the manner of recording
the confession in the. presence of the person making it. This Court, while
holding that making of the memorandum is a mandatory requirement of the
Rule, further held that what was not mandatory was the form and words of
the certificate and memorandum. Thus, the making of certificate and
memorandum was held to be mandatory but not form thereof. G
In the present case, admittedly no such memorandum has been prepared.
That mandatory requirement is sought to be fulfiBed by oral deposition of
PW! 8. Reliance has been placed on the testimony of PW! 8 when he stated
that :
H
64 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A "I again asked him that, whether he is giving this confession under
any threat, pressure or temptation and he replied no. I was, therefore,
satisfied that he voluntarily wanted to give his statement and thereafter
his statement came to be recorded. From the statement recorded it
appeared to me that the averments made by him were absolutely
true."
B
The first part of the aforesaid deposition relates to stage prior to actual
recording of the confession and the latter part that has been underlined by us
relates to stage after recording of the actual c:onfession. According to Rule
15(3)(b), the satisfaction to be recorded is about the confession having been
C made voluntarily. The memorandum to be recorded at the end of the confession
requires the recording officer to state that "I believe that this confession was
voluntarily made". For the present, assuming that oral testimony in Court can
be a substitute of memorandum, what has been deposed in Court by PWJS
is not the belief that the confession was voluntarily made but "it appeared to
me that the averments made by him were absolutely true". Hopefully the
D officer knew difference between. the words 'voluntary' and 'truth'. None
explained what J>WJS meant. In Chandran v. The State of Tamil Nadu,
[ 1978] 4 sec 90 in the memorandum that had been made instead of certifying
that the officer believed that confession was voluntarily made, the Magistrate
had stated that "I hope that the statement was made voluntarily". It was
E noticed that although the Magistrate was examined as a witness at the trial,
no attempt was made by the prosecution to establish from his word of mouth
that the use of the word "hope" by hirn was inadvertent or accidental. The
confession was, therefore, excluded from consideration.

At the cost of repetition, we may again note that in Dube 's case, it was
F held that writing the certificate and making the memorandum are mandatory;
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 and the preparation of contemporaneous record in
the presence of the person making the confession are mandatory requirement
but forming and words are not mandatory. Unlike present case, Dube was a f'

G case where certificate and memorandum had been prepared though not using
exactly same words as required by the Rule. In the present case, PWIS
admits that no such document was made and appended at the end of the
confession. The contemporaneous record has to support the deposition in
Cowrt. If the recording officer without contc:mporaneous record is allowed to
H depose later after lapse of several years in Court, it would be too hazardous
BHARA TBHAI@ JIMI PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.J 65

to rely on such testimony as, ordinarily, an officer is likely to depose in court A
what was left out to be recorded in documents as per mandatory provisions
of the Act and the Rules, once he knows that he had made vital omission. If
the contemporaneous record shows that in substance though not in form, the
requirements of the Rule were fulfilled, the defect of form can be cured by
oral deposition made, may be after many years, on the basis of the
contemporaneous record. The importance of fulfilling all the requirements of B
the provision while recording confessional statements has already been noticed.
As already noticed, the fate of not only the accused but others also hinges on
such a confession recorded by a Police officer. Further what heavily weighed
with the Constitution Bench when it upheld the constitutional validity of
Section 15, is that all requirements in respect of recording of confessional C
statements will be fulfilled which would act as safeguard to tt,e accused.

The making of certificate and memorandum is not an empty formality
of the Rule. It is required to be made at the end of the confession. The officer
certifies the manner in which the statement was given by the accused and was
recor,ded. The satisfaction as per Rule 15(3)(b) of recording officer has D
substantial relevance on the aspect of voluntary nature of confession, which
is the heart of confession for it being made the basis of conviction. In Chandran
(supra) this Court held that the law peremptorily requires that after recording
the confession of the accused, the Magistrate must append at the foot of the
record a memorandum certifying that he believes that the confession was E
voluntarily made. It was further held that the reason for requiring compliance
with this mandatory requirement at the close of the recording of confession,
appears to be that it is only after hearing the confession and observing the
demeanour of the person making it, that the Magistrate is in the best position
to append the requisite memorandum certifying the voluntariness of the
confession made before him. If, the Magistrate recording a confession of an F
/ ' accused person produced before him in the course of police investigation,
does not, on the face of the record, certify in clear, categorical terms his
satisfaction or belief as to the voluntary nature of the confession recorded by
him, nor testifies orally, as to such satisfaction or belief, the defect would be
·., fatal to the admissibility and use of the confession against the accused at the G
trial. As earlier noticed in the said case, the memorandum had been made and
the Magistrate in the memorandum appended by him at the foot of the
confession had merely expressed a 'hope' that the confession was voluntarily
made. Even in his oral evidence at the trial, the Magistrate did not vouch for
the voluntariness of the confession. He did not say that use of the word
'hope' by him in the memorandum was due to some accidental slip or heedless H
66 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A error. Under these circumstances, the confessional statement was excluded
from consideration. It can, thus, be seen that this was a case where a
memorandum was appended but with using different language as abovenoticed.
The argument that the preliminary satisfaction before recording of confession
about its voluntary nature can be substitutf: for recording satisfaction after
recording of confession was not accepted holding that there was no requirement
B to record satisfaction at the earlier stage whereas there was such a requirement
of satisfaction being appended at the foot of the confession.

In Ayyub v. State of UP., [2002] 3 SCC 510, while considering the
contention that the police officer, who recorded the confessional statement,
C had not certified that he believed that the 'confession was voluntarily made,
this Court held that as the confession made under Section 15 of the TADA
Act is made admissible in evidence, the strict procedure laid down therein for
recorlling confession is to be followed. Any confession made in defiance of
these' safeguards cannot be accepted by the court as relialJle evidence. The
confession should appear to have been made voluntarily and the police officer
D who records the confession should satis(y himself that the same had been
made .voluntarily by the m2:ker of that statement. The recorded confession
must indicate that these safeguards hav'e been fully complied with. The
confession was held to be inadmissible evidence as the recorded confessional
statement did not show that the officer who recorded the statement had
E followed the guidelines. After noticing that under Article 20(3) of the
Constitution, the accused person has the protection of being compelled to be
witness against himself, the Court held that "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
F court as reliable evidence ......the police officer who records the confession
should satisfy himself that the same has been made voluntarily by the maker
of that statement. The recorded confession must indicate that these safeguards
have been fully complied with."

Let us now consider the case of State of Maharashtra .v. Bharat
1, "
G Chaganlal Raghani and Ors., [200 I] 9 SCC I on which strong reliance was \'
placed by the learned counsel for the respondent-State in support of the
contention that if there is oral evidence in Court showing substantial
compliance with Rule 15(3), the confession cannot be discarded for want of
preparation of memorandum. It appears that that was not a case where
H memorandum was not prepared at all, but was a case where the contention
BHARATBHAI @JIMI PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.] 67

for the accused was that the mandate of Rule 15(3) had not been complied A
with because the recording officer has not made the memorandum in the
fonn specified therein and, therefore, confessional statement cannot be held
admissible in evidence arid relied upon as a piece of evidence against the
accused person. Under these circumstances, the Court held that though· the
memorandum was not recorded as desired by the Rule but, at the same time,
from the questions put by the recording officer to the accused, the trial court B
was satisfied and so was this Court that the confessional statements were
made voluntarily without any threat, inducement or pressure and strictly in
accordance with the mandate of the TADA Act as interpreted by this Court
from time to time. That does not appear to be a case where the memorandum
was not prepared at all. C
In Shara/at Hussain Abdul Rahaman Shaikh and Ors. v. State ofGujarat
and Anr., [1996] 11 SCC 62, the conviction of the appellant was primarily
based on confessions of each of them. Allowing the appeal and setting aside
the judgment of conviction passed by the Designated Court and citing with
approval Chandran 's case (supra), this Court held that : D
"4. Admittedly, in none of the four confessions (Ext. 72, 73, 75 and
76), with which we are concerned in this appeal, such a memorandum
finds place. The question, therefore, that falls for our consideration is
what is the value of such a memorandum and, for that matter, the
effect of absence thereof. The answer to this question has been given E
by this Court in Chandran v. State of T.N. while dealing with sub-
section (4) of Section 164 Cr.P.C., which lays down the procedure to
be followed by a Magistrate in recording a confession and is pari
material with the above-quoted Rule 15(3), with the following words:
(SCC p.101, para 31} F
'But the law does peremptorily require that after recording the
confession of the accused, the Magistrate must append at the foot of
the record a memorandum certifying that he believes that the
confession was voluntarily made. The reason for requiring compliance
\
with this mandatory requirement at the close of the recording of the G
confession, appears to be that it is only after hearing the confession
and observing the demeanour of the person making it, that the
Magistrate is in the best position to append the requisite memorandum
certifying the voluntariness of the confession made before him. If,
the Magistrate recording a confession of an accused person produced
before him in the course of police investigation, does not, on the face H
68 '' SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A of the record, certify in clear, categorical terms his satisfaction or
belief as to the voluntary nature of the confession recorded by him,
nor testifies orally, as to such satisfaction or belief, the defect would
be fatal to the admissibility and use of the confession against the
accused at the triaL'
B (emphasis supplied)

5. Apart from the fact that PW6 did not give any certificate, in
accordance with the earlier quoted Rule 15(3) of his satisfaction or
b'elief about the voluntariness of the 1;onfessions aft~r the same were
recorded, it is also an admitted fact that while being examined as a
c witness he did not testify about his such satisfaction or belief.
Resultantly, in view of the above-quoted observations of this Court,
with which we are in complete agreement, the confessions allegedly
made by the four appellants cannot be pressed into service to prove
the charges leveled against them. Since there is no other evidence on
record from which it could be said that the appellants are guilty of the
D offences for which they were charg(:d and convicted the appeal must
succeed."

Learned counsel for the State submitted that the observations in para 5
above show that by oral evidence in court,. prosecution can show that Rule
E 15(3)(b) was complied with. While making this submission·what is being
missed by the learned counsel is that facts of the case do not show, one way
or the other, about the existence of contemporaneous record. As noticed
above, in Chandran 's case there was contemporaneous record in the form of
memorandum itself though using different words. Sharafat Hussain's case is
not a decision which holds that without conteniporan~ous record, oral evidence
F can be led to establish the fulfillment of mandatory requirement of the Rule.

,It may also be stated that harsher the consequences, the stricter is the
need to comply with the requirement of the Rules. In view of aforesaid
discussion, our conclusions are as follows :

G 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
H contemporaneous record shows substantial compliance of what
SHARA TBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.] 69

is required to be contained therein, the discrepancy can be cured A
if there is oral evidence of recording officer based on such
contemporaneous record.
.. D. In absence of contemporaneous record, discrepancy cannot be
cured by oral evidence based on memory of the recording officer.

In the present case, admittedly Rule 15(3)(b) has not been complied.
B
No memorandum as required was made. There is also no contemporaneous
record to show the satisfaction of the rec9rding officer after writing of
confession that the confession has been voluntarily made, The confession of
accused No.7 does not even state that it was read over to him. Thus,
confessional statements are inadmissible and cannot be made basis of C
upholding the conviction. Once confessional statements are excluded the
conviction cannot be sustained:
~.

Further, in view of the above, oral evidence could not be led to show
compliance of Rule 15(3)(b). That apart, as earlier noticed, in fact, even oral

- evidence of PW! 8 does not satisfy the requirement of the Rule.

For the reasons aforesaid, we set aside the impugned judgment of the
Designated Court, allow the appeals and direct the appellants to be set free
forthwith, if not required in any other case.
D

K.K.T, Appeals allowed.