Holding

A confession made under Section 15 of the TADA Act, even if recorded while the accused was handcuffed and police guards were present, is admissible and can be relied upon for conviction if the statutory safeguards are satisfied, indicating that the confession was voluntary and truthful.

Summary

Gurdeep Singh was convicted under Sections 302, 324 IPC, the Explosive Substances Act and the Indian Explosive Act for a bomb blast that killed three persons. The sole basis of the prosecution was his confessional statement recorded under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act (TADA) before a Superintendent of Police while he was handcuffed, with a constable holding the handcuffs and armed guards outside the room. The appellant argued that the circumstances rendered the confession involuntary. The Supreme Court held that the statutory safeguards under Section 15 and Rule 15 of the TADA Act were complied with, that handcuffing and police presence did not amount to threat or inducement, and that the confession was therefore voluntary, truthful and admissible without further corroboration. Consequently, the conviction and sentence were upheld.

Issues considered

The voluntariness and admissibility of a confession recorded under Section 15 of the TADA Act when the accused was handcuffed and police guards were present.
Whether the prosecution bears the initial burden to prove compliance with Section 15 and Rule 15 of the TADA Act, and when that burden shifts to the accused.
Whether a confession under TADA can be relied upon for conviction without any additional corroboration.

Legislation cited

Explosive Act, 1884s. 9(b)(2)
Explosive Substances Act, 1908s. 5
Indian Evidence Act, 1872s. 24, s. 25, s. 27
Indian Penal Code, 1860s. 302, s. 324
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15

Subjects

TADAconfessionvoluntarinessadmissibilityhandcuffingpolice custodyburden of proofterrorismexplosive offences

Judgment

GURDEEP SINGH @ DEEP A
v.
THE STATE (DELHI ADMN.)

SEPTEMBER 17, 1999

[K.T. THOMAS AND A.P. MISRA, JJ.] B

Terrorist and Disruptive Activities (Prevention) Act, 1987:

S.15.-Confessional statement-Whether voluntarily made-
Determination of-Confession made before Superintendent of Police-No C
threat, inducement or promise in making confession-Confession recorded
while in handcuffs, in the pr:esence of a constable holding handcuffs and
armed guards standing outside the room-Admissibility of-Held; confession
voluntary and truthful-Prosecution can rely upon the confession without
further corroboration-Conviction and sentence confirmed-Terrorist ·and D
disruptive Activities (Prevention) Rules, 1987-Rule 15-Penal Code-Ss.
302 and 324-The Explosive Substances Act, 1908-S.5-Jndian Explosive
Act, 1884-S. 9(b)(2).

- S.15-Confession-Admissibility of-Difference between TADA Act and
other criminal proceedings-Evidence Act, 1872-Ss.25 and 27.

S.15-Confession-Whether voluntarily made._Burden of proof-Held,
.E

initially lies on the prosecution to prove that the requirements under the Act
and Rules were complied with-On discharge of initial burden, it shifts on
the accused person to prove that it was not voluntarily made-Terrorist and
Disruptive Activities (Prevention) Rules, 1987-Rule 15. F
Criminal jurisprudence-Punishment-object of confessional
statement-Need for encouragement through some incentive-Consideration
by legislature-Suggested

Words and Phrases: G

"Voluntary"-Meaning of in the context of S.15 of the TADA Act and
S.24 of the Evidence Act, 1872.

Appellant was prosecuted for offences under Ss.302 and 324 IPC, S.5 H
693
694 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A of the Explosives Substances Act, 1908 and under S.9(b)(2) of Indian Explosive
Act, 1884. The prosecution case was solely based on the confessional statement
of accused made under S.15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987, before the Superintendent of Police. The said
confessional statement was duly corroborated by prosecution witnesses.
B Designated Court convicted and sentenced the accused for the offences
charged. Hence the present appeal.

On behalf of appellant it was .contended that the confessional statement
recorded while in handcuffs, in the presence of a police officer holding the
handcuffs and armed guards standing outside the room cannot be construed
C to be voluntary as threat perception was hanging over his head.

Dismissing the appeal, the Court

HELD: 1.1. Confessional statements of the accused is not only
admissible but was voluntarily and truthfully made by him on which prosecution
D could rely for his conviction without any further corroboration. (709.;A]

1.2. Mere handcuffing of the appellant for another police man being
present in the room with the chain of his handcuff, or arme~ guards present
outside the room could not in fact or law be constituted to be such to hold
that such confessional statement was not made voluntarily. Under the TADA
E Act, a confession recorded before a police officer not below the rank of
Superintendent of Police even under police custody is admissible but not
under other criminal trials. Keeping the accused under police custody in
what manner with what precautions is a matter for the police administration
to decide. It is for them to decide what essential measures are to be taken
in a given case for the purpose of security. What security, in which manner
F are all in the realm of administrative exigencies and would depend on the
class of accused, his antecedents and other information etc. Security is also
necessary for the police personnel keeping him in custody or other personnel
of the police administration including the public at large. Thus what measure
has to be taken is for the police administration to decide and if they feel
G greater security is required in a case of trial under the TADA Act, it is for
them to decide accordingly. [708-A; 707_.E-F-G]

2. The Legislature has conferred different standard of admissibility of
a confessional statement made by an accused under the TADA Act, from
those made in other criminal proceedings. While under s.15 of the TADA
H Act a confessional statement by an accused is admissible even when made
GURDEEPSINGH@DEEPv. THE STATE(DELHIADMN.) 695

to a police officer not below the rank of Superintendent of Police, in other A
criminal proceedings it is not.admissible unless made to a Magistrate. S.25
of the Indian Evidence Act debars from evidence a confession of an accused
to a police officer, except what is permitted under S.27. However, both in S.15
of the TADA Act and S.24 of the Indian Evidence Act, the confession has to
be voluntary. S.24 of the Evidence Act interdicts a confession, if it appears B
to the Court to be the result of any inducement, threat or promise in certain
conditions. The principle therein is that confession must be voluntary. S.15
of the TADA Act also requires the confession to be voluntary. Voluntary
means that one who makes it out of his own free will inspired by the sound
of his own conscience to speak nothing but the truth. So the crux of making
statement voluntarily is, what is intentional, intended, unimpelled by other C
influences, acting on one's own will, through his own conscience. In the
instant case, there was total absence of threat, inducement or promise by any
other word or deed made to the appellant, in any other form; nor was it
contended at any stage of the proceedings culminating into his conviction.
. [707-D-E; 705-C; 706-D; 707-A)
D
Sahib Singh v. State of Haryana, (1997) 7 SCC 231, relied on.

Stroud's Judicial Dictionary, 5th Ed., at page 2633; Words and
Phrases-Permanent Edition, Vol. 44, page 622 and John B. Saunders, 3rd
Edn., Vol. 4 page 401, referred to.
E
3. Whenever an accused challenges that his confessional statement is
not voluntary, the initial burden is on the prosecution and for that it has to
prove that all requirements under S.15 and Rule 15 under TADA Act and
Rules had been complied with . Once this is done, prosecution discharges its
initial burden and then the burden shifts on the accused person. Then it is F
for him to prove through facts that the confessional statement was not made
voluntarily. If such fact was pleaded and brought on record during trial the
Court must test its veracity, whether such fact constitutes to be such as to
make his confessional statement not voluntarily made. In the instant case,
the prosecution has proved to the hilt the initial burden of compliance of both
S.15 and Rule 15 under the TADA Act and Rules. [707-B-C-D] G
4. Punishment to an accused in criminal jurisprudence is nofmerely
to punish the wrong doer but also to strike warning to those who are in the
same sphere of crime or to those intending to join in such crime. This
punishment is also to reform such wrong doers not to commit such offence
in future. The long procedure and the arduous journey of the prosecution H
696 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A to find the whole truth is achieved some time by turning on accused as
approvers. This is by giving incentive to an accused to speak the truth
without fear of conviction. The confessional statement, since it comes from
the core of heart through repentance, where such accused is even ready to
undertake the consequential punishment under the law, it is this area which
needs some encouragement to such an accused through some respite, may
B be by reducing the period of punishment, such incentive would transform
more such incoming accused to confess and speak the truth. This may help
to transform an accused, to reach the truth and bring to an end successfully
the prosecution of the case. [709-C-D-E-F)

C CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
604of1997.

From the Judgment and Order dated 22.7.96 of the Designated Court No.
III, Karkardooma Court, Delhi in F.l.R. No. 451 of 1990.

D P.P. Singh, (A.C.) for the Appellant.

V.N. Saraf, (A.S. Rawat) for Mrs. Sushma Suri for the Respondent.
.
-
The Judgment of the Court was delivered by
t
E MISRA, J. The appellant-convict has filed this appeal against his
conviction under Sections 302, 324 of the Indian Penal Code and Section
5(a)(b) of the Explosive Act, by the Designated Court No. III, Karkardooma
Courts, Delhi which really is under Section 5 of the Explosive Substances Act,
1908. He has been sentenced under Section 302 to undergo life imprisonment
and to pay a fine of Rs. 3 lakhs. Out of which one lakh each is to be paid
F to the nearest relatives of three deceased persons. In the case of default of
this non-payment, he shall also undergo rigorous imprisonment (RI) for a
further period of three years. He is also sentenced RI for a period of three
years under Section 324 IPC with a fine of Rs. 20,000. Out of which Rs. 10,000
each is to be paid to the two injured persons. In the case of default he has
G further to undergo RI for a period of 6 months. He is also sentenced to
undergo RI for two years under Section 9 (b)(2) of the Explosive Substances •,
Act, 1908 which really is under the Indian Explosive Act 1884 with a fine of
Rs. 5,000. In the case of default of this non-payment, he shall further undergo ..... I
RI for two months. ,-

H In order to appreciate issues in the appeal we are hereby giving short
GURDEEP SINGH@ DEEP v. THE STATE (DELHI ADMN.) [MISRA, J.] 697
matrix of facts. A
According to the prosecution case on 6th October, 1990 at about 6.10
p.m. a bomb exploded near Chilla Engulator 'T' Point killing three persons and
injuring two persons at NOIDA Road near Samachar Apartments. The deceased
persons were Prit Pal Singh, Jaspal Singh and Satish Bajaj. The information B
about bomb explosion soon thereafter was given by passerby who informed
_,'
the nearest Police Control Room van and from where the message was flashed
to the Police Control Room. Om Pal Tanwar, PW 3, received the said message
on the said date at 6.07 p.m .. Thereafter, Inspector Jeet Singh Joon, PW 15,
proceeded to the spot. He found two dead bodies lying on the spot. These
bodies were split into pieces lying on the road and one three wheeler scooter C
(TSR) was found badly mutilated. One cycle was also found similarly. There
were three injured persons lying near the said spot. They were removed to
JPN Hospital. One of the injured, namely, Satish Bajaj succumbed to his
injuries in the hospital. One of the deceased, namely, Prit Pal Singh was
identified with the help of his driving licence which was in his pocket. Since
driving licence was having his photograph and address, the Investigating D
Officer was able to contact his relative, namely, Pragat Singh, who is one of
the accused in this case. After recording the statement of Pragat Singh and
getting the identification of the deceased persons the aforesaid three dead
bodies were sent for post mortem. It is through Pragat Singh that police was
able to know the involvement of Gurdeep Singh, the present appellant. It is E
significant that out of the three deceased two, namely, Prit Pal Singh and
Jaspal Singh were closely related to the accused Pragat Singh and his wife
Balbir Kaur who was also accused. The deceased Prit Pal Singh was the
adopted son of the accused Pragat Singh and Balbir Kaur, while deceased
Jaspal Singh was the nephew of the accused Pragat Singh.
F
From the investigation of the police and the evidence led by the
prosecution, it was revealed that the present appellant used to go and stay
with Pragat Singh and his wife Balbir Kaur on a number of occasions.
Immediately preceding the incident the appellant again went to live with the
family of Pragat Singh since 4. l 0.1990. The bomb which exploded was carried G
by the two deceased, namely, Prit Pal Singh and Jaspal Singh who were
destinate to go to NOIDA. This bomb was meant for explosion in a bus and
as per the planning also to kill Prit Pal Singh about which the said two
deceased were not aware. This was done in conspiracy with Balbir Kaur wife
of Pragat Singh and hence she was also arrested on her return from Jullundhar
on 8. l 0.1990. The appellant was a terrorist who master minded a few earlier H
698 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A and the present explosion. It is at the instance of the Pragat Singh that the
present appellant was arrested from House No. K- 40, Sector 12, NOIDA.

The significant part in the present case is, when the present appellant
-
·'

was under police custody, the police of Beether (Kamataka) sought his
custody for investigation in another case where he was also involved in a
B bomb explosion in a cinema hall at Beether in Karnataka. He was interrogated
at Beether by the Superintendent of Police, Beether, PW 13, where he made
his confessional statement under Section 15 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987, hereinafter referred to as the 'TADA Act".
Therein he admitted his complicity and involvement in the bomb explosion
C which was carried by him in Delhi at NOIDA Road killing both Prit Pal Singh
and Jaspal Singh. Finally, a challan was filed against the. three accused,
namely, the present appellant, Pragat Singh and his wife Balbir Kaur. The
present appellant was charged under Sections 302, 326, 324, IPC and Section
5 of the Explosive Substances Act. Similarly, charges were also framed against
the said two accused. The said designated Court finally acquitted Ba.lbir Kaur
D but convicted the present appellant and Pragat Singh. The present appeal is
only by the appellant Gurdeep Singh and hence we are not concerned in this
appeal with the other accused, namely, Pragat Singh. The third deceased
person, viz., Satish Bajaj was only a passerby who became victim by chance
of this bomb explosion. It was also not disputed that there was no eye
E witness in the present case. Thus the prosecution case is based on
circumstantial evidence including the confession made by the appellant.

According to the Inspector Jeet Singh Joon, ·pw 15, the Investigating
Officer, he found two dead bodies of Prit Pal Singh and Jaspal Singh split into
pieces which could have happened if these two persons were carrying the
F bomb which exploded. Smt. Kusam, PW 14, is the wife of the deceased Prit
Pal Singh. According to her statement, her husband was driving a three
wheeler and they were living at a different place but during sometime in
September, l 990 they shifted to the house of accused Pragat Singh and Balbir
Kaur who were her father-in-law and mother-in-law respectively. As per her
G .deposition both deceased persons, Prit Pal Singh and Jaspal Singh left the
house of accused Pragat Singh l 5 to 20 minutes before the said explosion
took place. Pragat Singh her father-in-law was also driving a three wheeler.
He had three daughters. Though earlier those three daughters gave statements
which were recorded under Section 164, Cr.P.C. in which they had stated that
the appellant used to visit their house, they turned hostile when examined in
H Court. This left the prosecution to strongly rely on the deposition of Kusam,
- GURDEEPSINGH@; DEEPv. THE STATE(DELHIADMN.)[MISRA,J.] 699

- PW 14. She deposed that she saw the appellant coming to their house and A
he was. then a clean shaved person. Her husband always objected to Smt.
Balbir Kaur of his coming to her house since young daughters were living
in the house. In spite of all this, she deposed, the appellant used to stay in
their house and was coming and going. The appellant again came back on
4.10.1990. He continued to stay there for the next three days, i.e., till the day
of incident and till a few minutes before the said explosion. She also told her B
father-in-law earlier that the appellant be asked to go away from here. On
5.10.1990 Smt. Kusam, PW 14, was to go to the hospital, her father-in-law took
her there and on the way, at Bangla Sahib Gurudwara he purchased two
plastic cans. It is alleged that they were used in preparation of the bomb
which exploded. On her return by night time, she found that the appellant was C
still in the house and he stayed over-night and even the next day. On the
fateful day, i.e., next day she saw about 5.30 p.m., the appellant brought drinks
and was drinking liquor with her husband, father-in-law, deceased Jaspal
Singh and one Kale (cousin of deceased Prit Pal Singh). It was at this point
that she went to take her bath and on her return she found that all of them
left the house and thereafter, within fifteen to twenty minutes the bomb D
explosion took place in which her husband died. She also deposed that when
the appellant came to their house he was carrying a coloured strips bag which
later is said to have been given by the appellant to, and which was carried
by, the deceased Prit Pal Singh when the explosion took place.

Prosecution in order to establish the antecedents of the appellant, as
E
a terrorist, examined witnesses to show how he worked as a granthi (who
reads religious books) and became a terrorist. Avtar Singh, PW 20, stated that
the appellant was working as Granthi in South Anarkali Gurudwara in 1983
and he continued to be such for two to three years. Similarly, Kuldeep Kaur,
PW 12, also deposed that he was serving as Granthi in 1984. She was his F
landlady as he was in her tenancy prior to the year 1984. At that time the
appellant was keeping a .beard. The evidence of this witness that he was
having beard and the testimony of Kusam, PW 14, that when she saw him
in September, 1990 as a clean shaved person shows how the appellant brought
change in his appearance along with the change from granthi to a terrorist. G
This part of prosecution evidence is used as corroborative of the confessional
statement made by the appellant.

Strong reliance is placed by the prosecution on the testimony of Raj
Shekhar Shetty, PW 13, Superintendent of Police, Core of Detectives Kamataka.
His testimony reveals that the appellant was produced before him and he H
....
700 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A recorded his confessional statement, in another case being Crime No. 177 of
1990, Police Station New Town Beather, Kamataka under Section 15 of the
TADA Act. Before recording this confessional statement he deposed to have
complied with all the requirements under law. This witness asked the appellant
before recording the confession, whether he was giving his confessional
statement voluntarily, without any pressure from any body, to which the
B appellant replied in affirmative and further said that he wanted to give his
statement voluntarily. He was also forewarned that such statement might be
used against him and he was not bound to make a confessional statement.
But in spite of all such warnings the appellant insisted to give his confessional
statement. Even thereafter P. W.13 gave the appellant time for reflection.
c Appellant was then;mfter brought back before PW 13. The appellant was again
asked whether he was still willing to make confessional statement and again
he replied in the affirmative. Thereafter, the confessional statement was recorded
(in Hindi) by PW 13 himself. Then it was read over to him and he admitted
it to be correct and he signed below it. This witness then gave his endorsement
and also gave his certificate on the last page of the statement as required
D under law. A comprehensive statement so recorded was sent in a cover to
Deputy Commissioner of Police of the Sessions Case with the directions that
statement be deposited with the Court. The original statement recorded was
placed in the Sessions Court at Beether. The copy of which is filed in the
present case and is proved by this witness. The confessional statement of
E the appellant is Ex. PZ. But on account of erratic supply of electricity the
video recording could not be properly done.

In his confessional statement, on which strong reliance is placed by
the prosecution, the appellant admitted that he worked as Granthi in Gurudwaras
from 1981 to 1984. In 1983 he developed friendship with one Kashmira Singh.
F In the month of February and March 1983 one Parkash Kaur friend of Smt.
Balbir Kaur got performed Akhand Path at her residence with the intention
to get her brother Ranjit Singh released from Jail in the murder of Baba
Nirankari. He performed the same. Later he at Baba Bakala Gurdwara came into
contact with AISSF leader Sukhwant Singh Atwal and he joined his group
G and offered himself to do any work for the sake of panth. However, later he
was arrested and detained under NSA for two years. Thereafter, he met one
Bhai Manjeet Singh who appointed him as his body guard. Then he again met
Parkash Kaur and asked her to find some place for his hideo~t in Delhi. She
introduced him to Balbir Kaur and since thereafter he used to go to her house
as hideout in Delhi. He also stated how he made attempts to come in clos~
H contact with hard core terrorists which is not necessary for us to give in detail
- GURDEEP SINGH@DEEP v. THE STATE (DELHI ADMN.) [MISRA, J.]

for the purpose of disposal of this case. In the confessional statement the
701

accused also disclosed that on 6.10.1990, the day of incident, he handed over
A

a bomb to Prit Pal Singh in a bag and told him to reach it at NOIDA by a
bus. He said he quietly switched on a plastic switch of the bomb so that bomb
should explode in the bus after some time. However, both deceased Prit Pal
Singh and Jaspal Singh went by scooter instead by bus. It is also clear that B
neither Prit Pal Singh nor Jaspal Singh were aware of the switch on of the
bomb made by the appellant. The relevant portion of his confession is
reproduced below:

"On 23.7.90 I reached Delhi by train and went to Balbir Kaur's house.
I called Parkash Kaur there. Parkash Kaur got annoyed with me after C
seeing me clean shaven. Then I told her about the bomb blast in Bidar
and only then she was pacified. Next day I went to Rayya and met
with Fauji and narrated about the bomb blast in Bidar. In the mon~h
of Oct. on 6th day there was a bomb blast in a TSR on Delhi Noida
Road which was also caused by me. In this explosion Pritapal Singh
@ Bitto and Jaspal Singh @ Kala died. They were directed to carry D
the bomb by bus to Noida so that the bomb may be exploded but
before handing the bomb to them I secretly switched on the bomb and
it was done on the advice of Smt. Balbir Kaur. Balbir Kaur had illicit
relations with Pritpal Singh but Pritpal Singh developed sexual relations
with her younger daughter due to which she got pregnant so she E
planned to take revenge with my connivance. I while giving bomb to
Pritapal Singh @ Bitto and directing him to reach Noida by bus I
wanted to kill two birds with one stone with the connivance of Pargat
Singh and his wife. But Jaspal Singh @ Kala got down from Pargat
Singh's Auto and accompanied him. For reaching early to Noida both
hired a TSR and thus the bomb exploded on the way as the time had F
already been fixed fifteen minutes for explosion and expired in this
blast. Thereafter, I was arrested by Delhi Police and I disclosed the
incident of Bidar."

The prosecution, based on the aforesaid evidence and the confessional G
statement made by the appellant, strongly defended the conviction passed by
the Designated Court. Learned counsel for the respondent, Mr. V.N. Saraf,
submits, the confessional statement by itself under Section 15 of the TADA
. Act is sufficient and the appellant was rightly convicted by the Designated
Court. He also supported the findings of the Designated Court that the
circumstantial evidence proves to the hilt that appellant had committed the H
702 SUPREME COURT REPORTS l1999] SUPP. 2 S.C.R.

A offence. He further submits that the prosecution witnesses corroborated the
confessional statement of the appellant.

On the other hand, learned counsel for the appellant, Mr. P.P. Singh,
appearing as Amicus Curaie, submits that there is no corroboration of the
prosecution story from the prosecution witnesses. Some of the witnesses
B turned hostile. The only evidence on which strong reliance is placed by the
prosecution, i.e. the testimony ofSmt. Kusam, PW 14, the wife of the deceased
Prit Pal Singh, is neither useful for any corroboration of the prosecution story
on the material particulars nor does it add to the chain of circumstances, to
prove the guilt of the appellant. Hence in a case of circumstantial evidence,
C unless the prosecution establishes the chain of circumstances beyond all
reasonable doubt no conviction can be made. The prosecution has failed to
provide this in the present case according to the counsel. With reference to
the confessional statement the submission is that it was not voluntary as it
was made under threat. To substantiate this he refers to the facts that his
confession was recorded by S.P. Raj Shekhar Shetty, PW 13, when he was in
D handcuffs, there was another policeman in the same room holding the chain
of his handcuff, and even outside the room, in which his confession was
recorded, there were armed guards. Such set up, reveals by itself that threat
perception existed which was hanging over his head, thus such confession
cannot be construed to be voluntary under Section 15 of the TADA Act,
E contended the counsel.

This takes us to the question whether the confession made by the
appellant under Section 15 of the TADA Act was voluntary? It is not in
dispute that a confession was made by the appellant before P. W.13, Raj
Shekhar Shetty,
F Superintendent of Poli& (COD) Core of Detectives, Kamataka in Crime
No. 177 of 1990 of Police State New Town Beather, Karnataka. It is also not
in dispute that he followed the procedure prescribed under the TADA Act
and Rules before recording the confession. He, before recording the
confession, explained to the appellant that he was not bound to make a
G confession and if he would make, it could be used against him.

Rule 15 of the TADA Rules, 1981 laid down the modalities as to how
a coqfession is to be recorded. Sub-Rule I of this Rule requires the conf~ssion
invariably to be recorded in the language in which it is made and if it is not
practical, in the langauge used by such officer for official purpose or in the
H language of the Designated Court. Sub-rule 2 requires that such recorcjed
GURDEEPSINGH@DEEPv. THE STATE(DELHI ADMN.)[MISRA.J.] 703

confession should be shown, read or played back to such accused who made A
the confession, as the case may be, and in case he does not understand the
language in which it is recorded, it has to be interpreted to him in the
language which he understands and thereafter such accused has the liberty
to add .to such confession or to explain any part of it. Sub-rule 3 says that
when the confession is recorded in writing it shall be signed by the person B
making the confession and there has to be certification by the police officer
before whom such confession is made that such confession was recorded in
his presence and recorded by him and it contains full and true account of the
confession. The said police officer has to make a memorandum at the end of
the confession as provided therein. Under sub-rule 4, when the confession
is recorded on any mechanical device, the memorandum referred to in sub- C
rule (3) in so far as it is applicable has to be recorded by such police officer
at the end of the confession in the mechanical device. In the present case,
as we have pointed out the confessional statement was made in writing
though during the investigation in another case. But copy of it was brought
as evidence in the case and proved through PW 13 and is exhibited Ex.PZ.
It is not the case of the appellant that any procedure as required under Rule D
15, as aforesaid, or what is contained in Section 15 of the TADA Act was not
followed. The limited area of challenge to the said confessional statement is
that the same was not made voluntarily as required under Section 15(2) of the
TADA Act. For ready reference Section 15 is quoted hereunder :

"15. Certain confessions made to police officers to be taken into E
consideration - (1) Notwithstanding anything in the Code or in the
Indian Evidence Act, 1872 (1 of 1872) but subject to the provisions
of this section, a confession made by a person before a police officer
not lower in rank than a Superintendent of Police and recorded by
such police officer either in writing or on any mechanical device like F
cassettes, tapes or sound tracks from out of which sounds or images
can be reproduced, shall be admissible in the trial of such person for
an offence under this Act or rules made thereunder.

(2) The police officer shall, before recording any confession under
sub-section (1 ), explain to the person making it that he is not bound G
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."

ft is also not in dispute, nor was there any contention that the disclosure H
704 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A therein does not make out all the essential ingredients of the offence for· '
which he is convicted. So the confession reveals, the planning and the
subsequent handing over of the bomb etc. by the appellant in the commission
of the said offence. lt is also not in dispute that PW13 who recorded the
confession was then a Superintendent of Police and he recorded it in his own
handwriting.
B
It was contended before us that P. W.13 should not have recorded the
confession as it was not voluntary. Before we enter into this sphere of
controversy to adjudicate on this issue, we may point out that PW13 has not
recorded anywhere that it was not being made voluntarily, officer could only
C record such confession when he has reasons to believe that it is being made
voluntary. In other words, it puts an obligation on such officer, who on
questioning felt that he was not going to give the confession voluntarily, not
to record such confession. But when he recorded the confession the
presumption is he was satisfied that the accused was going to make his
confession voluntarily.
D
The legislature has conferred a different standard of admissibility of a
confessional statement by an accused under the TADA Act, from those made
in other criminal proceedings. While under Sec. 15 of the TADA Act a
confessional statement by an accused is admissible even wheri made to a
police officer not below the rank of Superintendent of Police, in other criminal
E proceedings it is not admissible unless made to a Magistrate. Section 25 of
the Indian Evidence Act debars from evidence a confession of an accused
to a police officer, except what is permitted under Sec. 27.

In Sahib Singh v. State of Haryana, [ 1997) 7 SCC 23 l, this Court while
dealing with TADA Act held that ,the meaning of confession as under the
F Indian Evidence Act shall also apply to confession made under TADA Act:

"46. The Act, like the Evidence Act, does not define 'confession'
and, therefore, the principles enunciated by this Court with regard to
the meaning of 'confession' under the Evidence Act shall also apply
to a 'confession' made under this Act. Under this Act also, 'confession'
G has either to be an express acknowledgement of guilt of the offence
charged or it must admit substantially all the facts which constitute .
the offence. Conviction of 'confession' is based on the maxim
'habemus optimum. testem, confitentem reum' which means that
confession of an accused is the best evidence against him. The
H rationale behind this rule is that an ordinary, normal and sane person
GURDEEPSINGH@DEEPv. THE STATE(DELHIADMN.)[MlSRA,J.] 705
would not make a statement which would incriminate him unless urged A
by the prompting of truth and conscience.

Under this Act, although a confession recorded by a police officer,
not below the rank of Superintendent of Police, is admissible in
evidence, such confessional statement, if challenged, has to be shown,
before a conviction can be based upon it, to have been made voluntarily B
and that it was truthful."

rn other words, there is one common feature, both in Section 15 of the
TADA Act and Section 24 of the Indian Evidence Act that the confession has
to be voluntary. Section 24 of Evidence Act interdicts a confession, if it
appears to the Court to be the result of any inducement, threat or promise C
in certain conditions. The principle therein is that confession must be voluntary.
Section 15 of the TADA Act also requires the confession to be voluntary.
Voluntary means that one who makes it out of his own free will inspired by
the sound of his own conscience to speak nothing but the truth. As per
Stroud's Judicial Dictionary, 5th Ed., at P.2633, threat means:
D
"It is the essence of a threat that it be made for the purpose of
intimidating, or overcoming, the will of the person to whom it is
addressed (per Lush J., Wood V. Bowron L.R. 2 Q.B. 21, cited
Intimidate)."

- Words and Phrases - Permanent Edition, Vol. 44 page 622, voluntary
defines:
E

"Voluntary" means a statement made of the free will and accord of
accused, without coercion, whether from fear of any threat of harm,
promise, or inductment or any hope of reward - State V. Mullin. 85
N.W. 2d. 598, 600, 249, lown 10."
F

At page 629 - 'confession' defines:·

"where used in connection with statements by accused, words
'voluntary' and 'involuntary' import statements made without
constraint or compulsion by others and the contrary. Commonwealth G
V. Chin kee, 186, N.E. 253, 260, 283 Mass. 248."

In words and phrases by John B. Saunders, 3rd Edn., Vol. 4, page 401,
'Voluntary' defines:

"The classic statement of the principle is that the Lord Sumner in H
706 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Ibrahim v. Regem, (1914) AC 599 at 609 where he said, "It has long
been established as a positive rule of English criminal law that no
statement by an accused is admissible in evidence against him unless
it is shown by the prosecution to be a voluntary statement, in the
sense that it has not been obtained from him either by foar of prejudice
or hope of advantage exercised or held out by a person in authority.
The principle is as old as Lord Hale. "However, in five of the eleven
text books cited to us .... support is to be found for a narrow and rather
technical meaning of the word 'voluntary'. According to this view
'voluntary' means merely that the statement has not been made in
consequence of (i) some promise of advantage or some threat (ii) of
c a temporal character (iii) held pout or made by a person in authority,
and (iv) relating to the charge in the sense that it implies that the
accused's position in the contemplated proceedings will or may be
better or worse according to whether or not the statement is made."
R. v. Harz, R v. Power (1966) 3 All ER 433 at 454, 455, per Cantley V."

D So the crux of making statement voluntarily is, what is intentional,
intended, unimpelled by other influences, acting on one's own will, through
his own conscience. Such confessional statements are made mostly out of a
thirst to speak the truth which at a given time predominates in the heart of
the confessor which impels him to speak out the truth. Internal compulsion
of the conscience to speak out the truth normally emerges when one is in
E despondency or in perilous situation when he wants to shed his cloak of guilt
and nothing but disclosing the truth would dawn on him. It sometimes
becomes so powerful that he is ready to face all consequences for clearing
his heart.

Thus from the aforesaid premise it has to be seen, whether on the facts
F
and circumstances of this case the appellant's confession was voluntary or
not? Learned counsel for the appellant has submit_ted the following three
reasons for holding the same to be not voluntary:

(a) The confessional statement was made when the appellant was

G
(b)
under hand cuffs;
While recording the confession another police man in the room
·-
at some distance was present who was holding the chain of his
hand cuffs; and
~
(c) Outside the room where his confession was recorded it was '
H surrounded by armed guards.
GURDEEPSINGH@DEEPv. THE STATE(DELHI ADMN.)[MISRA,J.] 707

No other, as a fact, th~eat, inducement or promise by any other word A
or deed is said to have been made to the appellant, in any other form nor it
was contended at any stage of the proceedings culminating into his conviction.
The only ground that the confessional statement was not voluntary are the
three factual situations, as aforesaid.

Whenever an accused challenges that his confessional statement is not B
voluntary, the initial burden is on the prosecution for that it has to prove that
all requirements under Section 15 and Rule 15 under TADA Act and Rules
are been complied with. Once this is done prosecution discharges its initial
burden and then the burden shifts on the accused person. Then it is for him
to prove through facts that the confessional statement was not made C
voluntarily. If such fact was pleaded and brought on record during trial the
-r. court must test its veracity, whether such fact constitutes to be such as to
make his confessional statement not voluntarily made. Returning to the facts
of the present case the prosecution has proved to the hilt the initial burden
of compliance of both Section 15 and Rule 15 under the TADA Act and Rules.
We may at the outset record that it is also not in dispute that the appellant D
was hand cuffed while confessional statement was recorded and there was
another policeman with the chain of his handcuff at some distance in the room
and there were armed guard outside the room, where confessional statement
was recorded. This leaves us to consider the question, whether this set of
situation could be construed to be such as to infer that the confessional
statement recorded was not voluntary? In considering this we have to keep E
in mind the distinction between the TADA Act and the other criminal trial.
While a confession recorded under the TADA Act before a police officer not
below the rank of Superintendent of Police even under police custody is
admissible but not under other criminal trials. Keeping an accused under
police custody in what manner with what precautions is a matter for the police F
administration to decide. It is for them to decide what essential measures are
to be taken in a given case for the purpose of security. What security, in
which manner are all in the realm of administrative exigencies and would
depend on the class of accused, his antecedents and other information etc.
The security is also necessary for the police personnel keeping him in custody
..... or other personnel of the police administration including the public at large. G
Thus what measure has to be taken is for the police administration to decide
and if they feel greater security is required in a case of trial under the TADA
Act, it is for them to decide accordingly. The preamble of the TADA Act itself
reveals that this Act makes special provisions for the prevention of and
forthwith keeping with terrorists and disruptive activities. In fact earlier TADA H
708 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Act of 1985 was repealed to bring in the present Act to strengthen the
prosecution to bring to the books those involved under it without their
filtering out, by bringing in more stringent measures under it. In this
background, we do not find the handcuffing of the appellant or another police
man being present in the room with the chain of his handcuff or armed guards
present outside the room to be such to constitute that the appellant
B confessional statement was not made voluntary. It has to be kept in mind that
Section 15 and Rule 15 of the TADA Act and the Rules have taken full
precaution to see that confessional statement is only recorded when he makes
it voluntarily. First, confession could only be recorded by a police officer to
the rank of Superintendent of Police or above. Such police officer has to
C record in his own hand writing, he has to clearly tell such accused person
that such confession made by him shall be used against him and if such
police officer after questioning comes to the conclusion that it is not going
·to be voluntarily he shall not record the same. Keeping this in the background
which is complied in the present case and keeping the administrative exigencies
under which an accused is kept under handcuff with armed guards etc. which
D may be for the antecedents activities of the appellant as terrorist, for the
purpose of security, then this could in no way be constituted to be a threat
or coercion to the accused for making his confessional statement. The
policeman holding his chain of his handcuff was only a constable and the
per~on recording his confession was of the rank of Superintendent of Police.
E The Superintendent of Police conveyed confidence to the appellant and made
it clear to the appellant as aforesaid. After all this, if the appellant was still
ready and made his confessional statement, then merely presence of a
constable a subordinate of Superintendent of Police, who was holding chain
cannot be constituted to be such to be a threat which could induce him not
to make any voluntary statement. Hence, we have no hesitation to hold that
F the presence of a constable in a room could not in fact or law be constituted
to be such to hold that such confessional statement was not made voluntarily.
Mere handcuffing and presence of a policeman we fail to understand in what
way could it be said to be a threat to the accused appellant. It is not the case
that before making confessional statement any inducement, threat or promise
G by any other word or deed was made to him by any person which resulted
into his making the said confessional statement. Firstly, we find total absence ··-
of inducement, threat or promise in the present case as against the appellant
and as we have said handcuffing, presence of a policeman holding chain of
handcuff or even keeping armed guard outside the room which being parts
of the security measure by itself cannot penetrate into the realm as to make
H a confessional statement not to be voluntarily made.
GURDEEPSINGH@DEEPv. THE STATE(DELHIADMN.)[MISRA.J.] 709

For the aforesaid reasons and on the facts and circumstances of this A
case, we have no hesitation to hold that the confessional statement of the
appellant is not only admissible but was voluntarily and truthfully made by
him on which prosecution could rely for his conviction. Such confessional
statement does not require any further corroboration. Before reliance could
be placed on such confessional statement, even though voluntarily made, it
has to be seen by the court whether it is truthfully made or not. However, B
in the present case we are not called upon nor is it challenged that confessional
statement was not made truthfully. So for all these reasons we hold that the
impugned judgment passed by the designated court was just and proper
which does not require any interference by this Court. We confirm the
conviction and sentence. The appeal is accordingly dismissed. C

Before concluding we would like to record our conscientious feeling
for the consideration by the legislature, if it deem fit and pro~er. Punishment
to an accused in criminal jurisprudence is not merely to punish the wrong
I
doer but also j6 strike warning to those who are in the same sphere of crime
or to those µ{tending to join in such crime. This punishment is also to reform D
such wrong doers not to commit such offence in future. The long procedure
and the arduous journey of the prosecution to find the whole truth is achieved
some time by turning on a,ccused as approvers. This is by giving incentive
to an accused to speak the truth without fear of conviction. Now turning to
' the confessional statement, since it comes from the core of heart through E
repentance, where such accused is even ready to undertake the consequential
punishment under the law, it is this area which needs some encouragement
to such an accused through some respite may be by reducing the period of
punishment, such incentive would transform more such incoming accused to
confess and speak the truth. This may help to transform an accused, to reach
the truth and bring to an end successfully the prosecution of the case.. F
In view of the finding, as aforesaid, we uphold the judgment and order
passed by the Designated Court No. III and uphold the conviction of the
appellant under the aforesaid Sections. The appeal is accordingly dismissed.

S.V.K Appeal dismissed. G