Supreme Court of India
RAJA @ AYYAPPANversusSTATE OF TAMIL NADU
- Citation
- 2020 INSC 325
- Decided
- 1 April 2020
- Disposal
- Appeal(s) allowed
- Bench
- S ABDUL NAZEER
Holding
A confession recorded under Section 15 of the TADA Act is inadmissible unless the statutory warning is given and the voluntariness of the statement is established, and a co‑accused’s confession is not admissible where there is no joint trial.
Summary
The appellant was arrested in 2007 in connection with a bomb‑defusing case and, while in police custody, gave a confessional statement that was recorded by a Superintendent of Police under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The appellant contended that the confession was not voluntary because the statutory warning required by Section 15 and the TADA Rules was not given, and that the statements of two co‑accused, recorded in separate trials, could not be used against him. The Supreme Court examined the procedural safeguards under TADA, the Code of Criminal Procedure and Article 21 of the Constitution, holding that the absence of a proper warning and lack of contemporaneous record rendered the confession involuntary and inadmissible. It also held that, in the absence of a joint trial, the confessions of the co‑accused could not be admitted against the appellant. Consequently, the conviction based on the appellant’s confession and the co‑accused statements was set aside and the appeal was allowed.
Issues considered
- Whether the confession recorded by the Superintendent of Police under Section 15 of the TADA Act was made voluntarily and is admissible as evidence
- Whether the procedural requirements of Section 15 and the TADA Rules, including the statutory warning, were complied with
- Whether the confessional statements of co‑accused, recorded in separate trials, are admissible against the appellant in the absence of a joint trial
- Whether the conviction based solely on the appellant’s confession and co‑accused statements can be sustained
Legislation cited
- Arms Acts. 25(1)(B), s. 3, s. 7
- Code of Criminal Procedure, 1973s. 164
- Constitution of Indias. Article 21
- Explosive Substances Act, 1908s. 5
- Indian Evidence Act, 1872s. 30
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 15(1), s. 3(3), s. 4(1)
- Unlawful Activities (Prevention) Act, 1967s. 13, s. 2-F(d)(1), s. 2-F(d)(2)
Subjects
TADA Actconfessionvoluntarinessadmissibilityco‑accused confessionjoint trialArticle 21police custodytortureevidence law
Judgment
1112 [2020]
SUPREME COURT 4 S.C.R. 1112
REPORTS [2020] 4 S.C.R.
A RAJA @ AYYAPPAN
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 1120 of 2010)
B APRIL 01, 2020
[S. ABDUL NAZEER AND DEEPAK GUPTA, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987 –
s.15 – Conviction of appellant on the basis of confession – Plea
C of appellant that the alleged confession was not recorded in a free
atmosphere and prescribed procedure under the Act and rules were
not followed while recording confession and, therefore, the
confession was not admissible in evidence as it was not voluntary
– Held: In the instant case, confession was recorded by the
Superintendent of Police (PW-28) – In the evidence of PW-28, there
D
was nothing to show that the appellant-accused was warned as
required u/s.15 of the Act and r.15(3) of TADA Rules – Complying
with these rules is not an empty formality or a mere technicality as
these provisions serve a statutory purpose to ensure a fair trial as
guaranteed u/Art.21 of the Constitution of India – The entire
E proceedings on record should reflect application of mind into
various surrounding circumstances including questions and
answers elicited from the accused – Mere recording in a certificate
will only amount to technical observance of the rule but that will
not prove the voluntariness of the statement – It is evident that from
F out of the questions put by PW-28 and the answers elicited and
the manner in which the appellant has made the statement are all
the foundations upon which it is to be found out as to whether the
statement was made voluntarily or not – PW-28 merely explained
to him that he had been produced only to record the statement –
G He did not explain to the appellant that he had been produced to
record the confession – Thus, there is nothing on record to prove
the voluntariness of the statement – Confessional statement of
appellant rejected – Code of Criminal Procedure, 1973 – s.164 –
Constitution of India – Art.21 – Terrorist and Disruptive Activities
Rules – r.15(3).
H
1112
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1113
Terrorist and Disruptive Activities (Prevention) Act, 1987: s.15 A
– Confessional statement of co-accused made in separate trial –
Admissibility of, in case of appellant – Held: Not admissible – s.15
specifically provides that the confession recorded shall be
admissible in trial of a co-accused for offence committed and tried
in the same case together with the accused who makes the
confession – If for any reason, a joint trial is not held, the B
confession of a co-accused cannot be held to be admissible in
evidence against another accused who would face trial at a later
point of time in the same case – Since the trial of the other two
accused persons was separate, their confessional statements were
not admissible in evidence and the same cannot be taken as C
evidence against the appellant – Designated Court was not justified
in convicting the appellant.
Allowing the appeal, the Court
HELD: 1.1 It is well-settled that a confession which is not
free from doubt about its voluntariness, is not admissible in D
evidence. A confession caused by inducement, threat or promise
cannot be termed as voluntary confession. Whether a confession
is voluntary or not is essentially a question of fact. [Para 16]
[1121-B]
Pakala Narayana Swami v. Emperor 1939 PC 47 ; E
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
600 : [2005] 2 Suppl. SCR 79 – relied on.
1.2 Section 15(1) of the TADA Act is a self-contained
scheme for recording the confession of an accused charged with
an offence under the said Act. This provision of law is a
departure from the provisions of Sections 25 to 30 of the F
Evidence Act. Section 15 of the TADA Act operates
independently of the Evidence Act and the Criminal Procedure
Code. In Kartar Singh, a Constitution Bench of this Court, while
upholding the validity of the said provision, issued certain
guidelines to be followed while recording confession. These G
guidelines were issued 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. [Para 17]
[1121-H; 1122-A-B] H
1114 SUPREME COURT REPORTS [2020] 4 S.C.R.
A 2.1 The appellant (DW-1) in his evidence stated that he
was arrested on 19.05.2007 and was allegedly tortured by the
police. On 22.05.2007, he was produced before the Judicial
Magistrate and was remanded by the court till 25.07.2007. PW-
27 made an application requesting for police custody of the
accused for five days and obtained police custody from
B
25.07.2007 to 27.07.2007. On 25.07.2007, when the appellant
was sitting in the police vehicle, Inspector, told him that he
should sign certain papers, otherwise he would be killed in
police custody. When he was brought before the Designated
Court, on the same day, he informed the same to the Judge and
C gave a petition stating that he was tortured by the police and
that he had nothing to do with the alleged incident. When he
was again produced before the Designated Court, after recording
the confession statement, he gave another petition stating that
he has not made any incriminating statement before PW-28. [Para
19] [1124-G-H; 1125-A-B]
D
2.2 On 26.07.2007, PW-29 produced the appellant before
PW-28, the Superintendent of Police. PW-28 during his cross-
examination stated that until the accused was produced on
26.07.2007, the accused was in police custody. On 26.07.2007,
though it has been recorded that a number of questions were
E put to the accused and the answers were elicited, there is no
record to show that the appellant-accused was warned as
required under Section 15 of the TADA Act and Rule 15(3) of
the TADA Rules. During his cross-examination, PW-28 has
stated that he gave warning to the accused which was not
F supported by any contemporary record. As it is seen in Ex. P-
57, only two questions were asked to the appellant and answers
elicited, which do not reflect any warning as required under the
TADA Act and the TADA Rules. The evidence of PW-28 is that
he gave the same warning which he had given on 26.07.2007.
There are no contemporary records to show that the warning
G was made on 26.07.2007 or 27.07.2007. The second question
asked per Ex. P-57 assumes much importance. In this question,
PW-28 has only explained to the accused that he had been
produced only to record his statement. He did not explain to
the accused that he had been produced to record the confession.
H Complying with the rules is not an empty formality or a mere
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1115
technicality as these provisions serve a statutory purpose to A
ensure a fair trial as guaranteed under Article 21 of the
Constitution of India. In law, it is not the technical observance
of the rules but it is the real satisfaction about the voluntariness
of the confession is sine qua non. [Paras 20, 21] [1125-C-H;
1126-A]
B
3.1 The confession recorded by the police officer is
undoubtedly equated to a confession recorded by a Judicial
Magistrate under Section 164 Cr.P.C. Thus, the said confession
is a substantive piece of evidence. Therefore, all the safeguards
which are to be followed by a Magistrate should have been
followed by the police officer also. It is well-settled that the C
satisfaction arrived at by the Magistrate under Section 164
Cr.P.C. is, if doubtful, then, the entire confession should be
rejected. [Para 22] [1126-B-C]
3.2 In the instant case, it is evident that from out of the
questions put by PW-28 and the answers elicited and the manner D
in which the accused has made the statement are all the
foundations upon which it is to be found out as to whether the
statement was made voluntarily or not. If the certificate is not
supported by any of the above inputs, then the certificate needs
to be rejected. The police officer cannot record such a certificate
E
out of his own imagination and the entire proceedings should
reflect that the certificate was rightly given based on the
materials. In the instant case, there is nothing on record to prove
the voluntariness of the statement. Ex. D-1 and D-2 and other
circumstances would go to show that the appellant could not have
made the statement voluntarily. Therefore, the confession F
statement of the appellant requires to be rejected. [Para 23]
[1126-C-E]
4.1 The second question for consideration is whether the
statement of two other co-accused is admissible in evidence.
Section 30 of the Indian Evidence Act mandates that to make G
the confession of a co-accused admissible in evidence, there has
to be a joint trial. If there is no joint trial, the confession of a
co-accused is not at all admissible in evidence and, therefore,
the same cannot be taken as evidence against the other co-
accused. The Constitution Bench of this Court in Kartar Singh
while considering the inter-play between Section 30 of the Indian H
1116 SUPREME COURT REPORTS [2020] 4 S.C.R.
A Evidence Act and Section 15 of the TADA Act held that as per
Section 15 of the TADA Act, after the amendment of the year
1993, the confession of the co-accused, is also a substantive
piece of evidence provided that there is a joint trial. [Paras 24,
28] [1126-F-H; 1127-A-C]
B Kartar Singh v. State of Punjab (1994) 3 SCC 569 :
[1994] 2 SCR 375 – followed.
State v. Nalini and Others (1999) 5 SCC 253 : [1999]
3 SCR 1 ; Jameel Ahmad v. State of Rajasthan (2003)
9 SCC 673 – held inapplicable.
C
4.2 In the instant case, no doubt, the appellant was
absconding. That is why, joint trial of the appellant with the other
two accused persons could not be held. Section 15 of the TADA
Act specifically provides that the confession recorded shall be
admissible in trial of a co-accused for offence committed and
D tried in the same case together with the accused who makes the
confession. If for any reason, a joint trial is not held, the
confession of a co-accused cannot be held to be admissible in
evidence against another accused who would face trial at a later
point of time in the same case. Since the trial of the other two
E accused persons was separate, their confession statements are
not admissible in evidence and the same cannot be taken as
evidence against the appellant. The Designated Court was not
justified in convicting the appellant. [Paras 31, 33, 34] [1128-E-
G; 1129-E-F]
F Ananta Dixit v. The State 1984 Crl. L.J. 1126 –
approved.
Case Law Reference
[1994] 2 SCR 375 followed Para 10
G [2005] 2 Suppl. SCR 79 relied on Para 15
1939 PC 47 relied on Para 16
(2003) 9 SCC 673 held inapplicable Para 18
[1999] 3 SCR 1 held inapplicable Para 29
H 1984 Crl. L.J. 1126 approved Para 32
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1117
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A
No. 1120 of 2010
From the Judgment and Order dated 04.12.2009 of the Presiding
Judge, Designated Court No.2 (Vth Additional Sessions Court, Chennai-
104) in Calendar Case No.1/2007
S. Nagamuthu, Sr. Adv., Y.A. Runagiri, M.P. Parthiban, B
A.S. Vairawan, Hardik Gautam, Rakesh K. Sharma, Advs. for the
Appellant.
Jayant Muth Raj, Sr. Adv., Roy Abraham, P.V. Dinesh,
M. Yogesh Kanna, Advs. for the Respondent.
C
The Judgment of the Court was delivered by
S. ABDUL NAZEER, J.
1. This criminal appeal filed under Section 19 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (in short ‘the TADA
Act’) is directed against the judgment and order dated 04.12.2009 D
passed by the Presiding Judge, Designated Court No.2, Chennai, in
Calendar Case No.1/2007, whereby the Designated Court has convicted
the appellant and sentenced him to undergo rigorous imprisonment for
2 years under Section 120-B IPC and 5 years each under Section
120-B IPC read with Section 3(3) and 4(1) of the TADA Act and under
E
Section 120-B IPC read with Section 5 of Explosive Substances Act,
1908 and all the sentences imposed were ordered to be run concurrently.
2. The case of the prosecution in brief is that during June 1988,
the absconding accused, Ilango @ Kumaran @ Ravi @ Santhosh and
Suku @ Sukumaran @ Kumar, had formed an organization at Trichy
under the name ‘Tamilar Pasarai’, with the object of achieving separate F
Statehood for Tamil Nadu and to blast Central and State Government
buildings with bombs with a view to overawe the Government
established by law. The appellant herein and 13 other accused have
enrolled themselves in the said organization and they entered into a
criminal conspiracy during June 1988 to commit an illegal act and to G
blast the State Government building in the Secretariat by name
‘Namakkal Kavignar Maligai’ and in furtherance of the said conspiracy,
Suku and Shanmuga Sundaram had undergone a course in electronics
at Tamil Nadu Advanced Technical Institute, Trichy, and learnt the
mechanism for devising electronic timer, to be used in the time bombs
to be manufactured by them. H
1118 SUPREME COURT REPORTS [2020] 4 S.C.R.
A 3. The further case of the prosecution is that during September
1990, the above said Suku had brought electronic printed circuit board,
integrated circuit switches, resisters and directed Shanmuga Sundram
to device electronic timer device, to be attached to time bomb. The
appellant, along with two other accused, wrote slogans in the paper
(MO-7) hailing ‘Tamilar Pasarai’ and kept it near the time bomb on
B
22.09.1990. The bomb was to be blasted by another accused, namely,
Sukku, in a jerrycan (MO-1) containing explosives with timer devices
(MO-6), near Namakkal Kavignar Maligai on 22.09.1990. The bomb
was noticed before its explosion at about 6.45 a.m. by the Head
Constable, G.M. Rajendran (PW-1), attached to Armed Reserves,
C Madras, and the said bomb was subsequently defused. Thereafter,
information was given by PW-1 to the Assistant Commissioner,
in-charge of the Fort Police Station, who handed over the investigation
to Parthasarathy (PW-21), the then D.S.P., who registered the case
initially under Section 4 of the Explosive Substances Act, 1908 and under
Sections 2-F(d)(1) and (2) read with Section 13 of the Unlawful
D
Activities (Prevention) Act, 1967. Subsequently, during the course of
investigation, the charges were altered against the accused under
Section 120-B IPC read with Sections 3(3) and 4(1) of TADA Act and
under Section 5 of the Explosive Substance Act, 1908.
4. On 24.09.1990, the place of incident was searched by the
E
bomb disposal squad and the seized items were sent for finger print
examination. A request was also made to the Chief Controller of
Explosives for examining the explosive substance.
5. The statements of witnesses were recorded in respect of the
aforesaid offences on the basis of the information received during
F
investigation. The Inspector of Police C.B.C.I.D., Thanjavore, raided
the premises of one Abdul Kalam and handed over his custody to
Inspector Raman of ‘Q’ Branch.
6. On 10.05.1993, PW-26, the then Superintendent of Police,
SBCID, received the case file pertaining to Cr. No.1 GO/90, Fort
G
Station, Chennai. Thereafter, he sent the requisition for the extension
of remand of the accused Sathish @ Vadivelu and Abdul Kalam, on
04.06.1993 and 14.07.1993 respectively. He gave requisition to the
competent authority for sanction to prosecute Abdul Kalam and Vadivelu
and obtained the sanction orders. On receiving the statement of the
H
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1119
[S. ABDUL NAZEER, J.]
accused, Chandran, he obtained sanction for prosecution of Chandran A
under the TADA Act on 02.09.1993.
7. After completion of the investigation, the police on 03.09.1993,
filed the charge-sheet against the accused Nos. 1 to 14 and the
unknown accused, under Section 120-B read with Section 3(3), (4)(1)
of the TADA Act and Section 5 of the Explosive Substance Act and B
Section 7 read with Section 35(1)(A), Section 3 read with Section
25(1)(B) of the Arms Act. Thereafter, the statements of the witnesses
were recorded by the Special Judge in the aforesaid case.
8. It was the further case of the prosecution that on 24.05.2007,
PW-28, Superintendent of Police, Ashok Kumar, ‘Q’ Branch, CID Head C
Quarters, Chennai, came to know about the arrest of the appellant-
accused by the DSP ‘Q’ Branch Tanjavore, in connection with the
Mannarkudi P.S. Cr. No.954/94 and as the appellant was involved in
the subject case, the investigating officer was informed to take
necessary steps for the same. Accordingly, PW-26 took steps for the
police custody of the appellant from 25.07.2007 to 27.07.2007. During D
the police custody, the appellant voluntarily wished to give his
confessional statement and as such he was produced before PW-28,
Superintendent of Police, on 26.07.2007 with a requisition, Ex. P-55 by
PW-27. On 27.07.2007, PW-28 recorded the confession of the accused,
observing the formalities under Section 15 of the TADA Act, as E
Ex. P-56 and P-57. PW-28 made an appendix as per the said provision
and the appellant was handed over to the DSP to be produced before
the Court. All the proceedings were sent in a sealed cover to the Chief
Metropolitan Magistrate through special messenger on 27.07.2007.
9. Thereafter, the charges were framed against the appellant, read F
over and explained to him. However, while questioning, the appellant
denied the charges. The prosecution examined as many as 28 witnesses
to prove the case against the accused. The appellant was examined
under Section 313 of the Code of Criminal Procedure, 1973. The
appellant was permitted to be examined as DW-1. He filed the
documents Ex. DW-1 to DW-7. As stated earlier, the Designated Court G
has convicted the appellant in the aforesaid terms.
10. Shri S. Nagamuthu, learned senior counsel appearing for the
appellant, has submitted that the Designated Court has relied on the
confession (Ex. P-57) of the appellant for his conviction. PW-28 who
recorded the alleged confession, had not scrupulously followed the H
1120 SUPREME COURT REPORTS [2020] 4 S.C.R.
A guidelines laid by this Court in Kartar Singh v. State of Punjab1. The
confession had not been recorded in a free atmosphere. The prescribed
procedure under the TADA Act and the rules made thereunder had
not been followed while recording the confession. It was also submitted
that the confession was not admissible in evidence as it was not
voluntary. In this connection, he has taken us through the oral evidence
B of the parties. It was further submitted that the accused had retracted
the confession subsequently. Therefore, even if the confession is
admissible, it is a weak piece of evidence and the same cannot be the
sole evidence for conviction in the absence of corroboration from
independent sources. It was also submitted that the confession of the
C co-accused (Ex. P-26 and P-27) are not admissible in evidence because
there was no joint trial of those two accused with the appellant. The
confession of the co-accused is not substantive piece of evidence. The
proviso to Section 15(1) of the TADA Act, introduced by amending the
said section in the year 1993 which, in fact, supplements Section 30 of
the Evidence Act, mandates that there should be a joint trial. Therefore,
D he submits that the conviction of the appellant by the Designated Court
is unsustainable in law.
11. On the other hand, Shri Jayant Muth Raj, learned Additional
Advocate General, appearing for the respondent-State, has supported
the impugned judgment of the Designated Court.
E 12. We have carefully considered the submissions of the learned
senior counsel made at the Bar and perused the materials placed on
record.
13. The Designated Court has convicted the appellant on the basis
of the confession of the appellant made on 27.02.2007 (Ex. P-57) and
F the confession statement of the two other co-accused (Ex. P-26 and
P-27).
14. Therefore, the first question for consideration is whether the
appellant has made the confession (Ex. P-57) voluntarily and truthfully.
15. The law of confession is embodied in Sections 24 to 30 of
G the Indian Evidence Act, 1872. The confession is a form of admission
consisting of direct acknowledgment of guilt in a criminal charge. In
this connection, it is relevant to notice the observations of Privy Council
in Pakala Narayana Swami v. Emperor2which is as under:
1
1994 (3) SCC 569
H 2
1939 PC 47
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1121
[S. ABDUL NAZEER, J.]
“…..a confession must either admit in terms of an offence, or A
at any rate substantially all the fact which constitute the offence.
An admission of a gravely incriminating fact, even a conclusively
incriminating fact is not by itself a confession….”
16. It is well-settled that a confession which is not free from
doubt about its voluntariness, is not admissible in evidence. A confession B
caused by inducement, threat or promise cannot be termed as voluntary
confession. Whether a confession is voluntary or not is essentially a
question of fact. In State (NCT of Delhi) v. Navjot Sandhu3 this
Court has elaborately considered this aspect as under:
“29. Confessions are considered highly reliable because no C
rational person would make admission against his interest unless
prompted by his conscience to tell the truth. “Deliberate and
voluntary confessions of guilt, if clearly proved are among the
most effectual proofs in law.” (Vide Taylor’s Treatise on the
Law of Evidence, Vol. I.) However, before acting upon a
confession the court must be satisfied that it was freely and D
voluntarily made. A confession by hope or promise of advantage,
reward or immunity or by force or by fear induced by violence
or threats of violence cannot constitute evidence against the
maker of the confession. The confession should have been made
with full knowledge of the nature and consequences of the
E
confession. If any reasonable doubt is entertained by the court
that these ingredients are not satisfied, the court should eschew
the confession from consideration. So also the authority recording
the confession, be it a Magistrate or some other statutory
functionary at the pre-trial stage, must address himself to the issue
whether the accused has come forward to make the confession F
in an atmosphere free from fear, duress or hope of some
advantage or reward induced by the persons in authority.
Recognising the stark reality of the accused being enveloped in
a state of fear and panic, anxiety and despair while in police
custody, the Evidence Act has excluded the admissibility of a
confession made to the police officer.” G
17. Section 15(1) of the TADA Act is a self-contained scheme
for recording the confession of an accused charged with an offence
under the said Act. This provision of law is a departure from the
3
(2005) 11 SCC 600 H
1122 SUPREME COURT REPORTS [2020] 4 S.C.R.
A provisions of Sections 25 to 30 of the Evidence Act. Section 15 of the
TADA Act operates independently of the Evidence Act and the Criminal
Procedure Code. In Kartar Singh (supra) a Constitution Bench of this
Court while upholding the validity of the said provision has issued certain
guidelines to be followed while recording confession. These guidelines
have been issued to ensure that the confession obtained in the pre-
B
indictment interrogation by a police officer not lower in rank than a
Superintendent of Police is not tainted with any vice but is in strict
conformity with the well-recognised and accepted aesthetic principles
and fundamental fairness. These guidelines are:
“(1) The confession should be recorded in a free atmosphere
C
in the same language in which the person is examined
and as narrated by him;
(2) The person from whom a confession has been recorded
under Section 15(1) of the Act, should be produced
before the Chief Metropolitan Magistrate or the Chief
D
Judicial Magistrate to whom the confession is required
to be sent under Rule 15(5) along with the original
statement of confession, written or recorded on
mechanical device without unreasonable delay;
(3) The Chief Metropolitan Magistrate or the Chief Judicial
E
Magistrate should scrupulously record the statement, if
any, made by the accused so produced and get his
signature and in case of any complaint of torture, the
person should be directed to be produced for medical
examination before a Medical Officer not lower in rank
F than of an Assistant Civil Surgeon;
(4) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, no police officer below the
rank of an Assistant Commissioner of Police in the
Metropolitan cities and elsewhere of a Deputy
G Superintendent of Police or a police officer of equivalent
rank, should investigate any offence punishable under
this Act of 1987.
This is necessary in view of the drastic provisions of this Act.
More so when the Prevention of Corruption Act, 1988 under
H Section 17 and the Immoral Traffic Prevention Act, 1956 under
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1123
[S. ABDUL NAZEER, J.]
Section 13, authorise only a police officer of a specified rank to A
investigate the offences under those specified Acts.
(5) The police officer if he is seeking the custody of any
person for pre-indictment or pre-trial interrogation from
the judicial custody, must file an affidavit sworn by him
explaining the reason not only for such custody but also B
for the delay, if any, in seeking the police custody;
(6) In case, the person, taken for interrogation, on receipt
of the statutory warning that he is not bound to make a
confession and that if he does so, the said statement may
be used against him as evidence, asserts his right to C
silence, the police officer must respect his right of
assertion without making any compulsion to give a
statement of disclosure.”
18. In Jameel Ahmad v. State of Rajasthan4 this Court has
held that when an accused charged with an offence under the provisions D
of the TADA Act, is voluntarily willing to make a confessional
statement and if such statement is made and recorded by an officer
not below the rank of Superintendent of Police in a manner provided
in that section, is admissible in evidence. The findings recorded in this
case are as under:
E
“35. To sum up our findings in regard to the legal arguments
addressed in these appeals, we find:
(i) If the confessional statement is properly recorded,
satisfying the mandatory provision of Section 15 of the
TADA Act and the Rules made thereunder, and if the F
same is found by the court as having been made
voluntarily and truthfully then the said confession is
sufficient to base a conviction on the maker of the
confession.
(ii) Whether such confession requires corroboration or not,
G
is a matter for the court considering such confession on
facts of each case.
(iii) In regard to the use of such confession as against a co-
accused, it has to be held that as a matter of caution, a
4
(2003) 9 SCC 673 H
1124 SUPREME COURT REPORTS [2020] 4 S.C.R.
A general corroboration should be sought for but in cases
where the court is satisfied that the probative value of
such confession is such that it does not require
corroboration then it may base a conviction on the basis
of such confession of the co-accused without
corroboration. But this is an exception to the general rule
B
of requiring corroboration when such confession is to
be used against a co-accused.
(iv) The nature of corroboration required both in regard to
the use of confession against the maker as also in regard
to the use of the same against a co-accused is of a
C general nature, unless the court comes to the conclusion
that such corroboration should be on material facts also
because of the facts of a particular case. The degree
of corroboration so required is that which is necessary
for a prudent man to believe in the existence of facts
D mentioned in the confessional statement.
(v) The requirement of sub-rule (5) of Rule 15 of the TADA
Rules which contemplates a confessional statement
being sent to the Chief Metropolitan Magistrate or the
Chief Judicial Magistrate who, in turn, will have to send
the same to the Designated Court is not mandatory and
E
is only directory. However, the court considering the
case of direct transmission of the confessional statement
to the Designated Court should satisfy itself on facts of
each case whether such direct transmission of the
confessional statement in the facts of the case creates
F any doubt as to the genuineness of the said confessional
statement.”
19. Bearing these principles in mind, let us consider as to whether
the confession of the appellant was voluntary and truthful. The appellant
was examined as DW-1. In his evidence he has stated that he was
G arrested on 19.05.2007, when he was returning from Chennai airport.
He was detained for two days and was taken to Trichi, “Q” branch
office and was kept there for one day. During this period, he was
allegedly tortured by the police. On 22.05.2007 he was produced before
the Judicial Magistrate, Trichi, and was remanded by the court till
25.07.2007. PW-27 made an application requesting for police custody
H of the accused for five days and obtained police custody from
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1125
[S. ABDUL NAZEER, J.]
25.07.2007 to 27.07.2007. On 25.07.2007, when the appellant was sitting A
in the police vehicle, Mr. Rajendran, ‘Q’ Branch Inspector, told him that
he should sign certain papers, otherwise he would be killed in police
custody. When he was brought before the Designated Court, on the
same day, he informed the same to the learned Judge and gave a
petition (Ex. D-1) stating that he was tortured by the police and that
he had nothing to do with the alleged incident. When he was again B
produced before the Designated Court, after recording the confession
statement, he gave a petition (Ex. D-2) stating that he has not made
any incriminating statement before PW-28.
20. On 26.07.2007, PW-29 produced the appellant before PW-
28. PW-28 during his cross-examination has stated that until the accused C
was produced on 26.07.2007, the accused was in police custody. On
26.07.2007, though it has been recorded that a number of questions were
put to the accused and the answers were elicited, there is no record to
show that the appellant-accused was warned as required under Section
15 of the TADA Act and Rule 15(3) of the TADA Rules. During his D
cross-examination PW-28 has stated that he gave warning to the
accused which was not supported by any contemporary record, namely,
Ex. P-56 dated 26.06.2007. As it is seen in Ex. P-57, only two questions
were asked to the appellant and answers elicited, which do not reflect
any warning as required under the TADA Act and the TADA Rules.
The evidence of PW-28 is that he gave the same warning which he E
had given on 26.07.2007. There are no contemporary records to show
that the warning was made on 26.07.2007 or 27.07.2007. The second
question asked on 27.07.2007 (per Ex. P-57) assumes much importance.
In this question PW-28 has only explained to the accused that he had
been produced only to record his statement. He did not explain to the
F
accused that he had been produced to record the confession.
21. It was contended by the learned Additional Advocate General,
appearing for the respondent, that the footnote appended to Ex. P-56
would satisfy Section 15 of TADA Act and Rule 15 of TADA Rules.
It is necessary to notice here that complying with these rules is not an
empty formality or a mere technicality as these provisions serve a G
statutory purpose to ensure a fair trial as guaranteed under Article 21
of the Constitution of India. The entire proceedings on record should
reflect application of mind into various surrounding circumstances
including questions and answers elicited from the accused. Mere
recording in a certificate will only amount to technical observance of H
1126 SUPREME COURT REPORTS [2020] 4 S.C.R.
A the rule but that will not prove the voluntariness of the statement. In
law, it is not the technical observance of the rules but it is the real
satisfaction about the voluntariness of the confession is sine qua non.
22. It is also necessary to state here that the confession recorded
by the police officer is undoubtedly equated to a confession recorded
B by a Judicial Magistrate under Section 164 Cr.P.C. Thus, the said
confession is a substantive piece of evidence. Therefore, all the
safeguards which are to be followed by a Magistrate should have been
followed by the police officer also. It is well-settled that the satisfaction
arrived at by the Magistrate under Section 164 Cr.P.C. is, if doubtful,
then, the entire confession should be rejected.
C
23. In the instant case, it is evident that from out of the questions
put by PW-28 and the answers elicited and the manner in which the
accused has made the statement are all the foundations upon which it
is to be found out as to whether the statement was made voluntarily or
not. If the certificate is not supported by any of the above inputs, then
D the certificate needs to be rejected. The police officer cannot record
such a certificate out of his own imagination and the entire proceedings
should reflect that the certificate was rightly given based on the
materials. In the present case, there is nothing on record to prove the
voluntariness of the statement. Ex. D-1 and D-2 and other
circumstances would go to show that the appellant could not have made
E
the statement voluntarily. Therefore, the confession statement of the
appellant requires to be rejected.
24. The second question for consideration is whether the
statement of two other co-accused (Ex. P-26 and P-27) is admissible
in evidence.
F
25. The confession statement of the co-accused was recorded
by the Superintendent of Police (PW-20) in Crime No.160/1990. The
appellant was absconding, hence the proclamation order was issued by
the trial court and thereafter the case was split against the appellant.
A separate trial was conducted against the appellant and the impugned
G judgment convicting the appellant-accused has been passed by the
Designated Court.
26. The contention of the learned Additional Advocate General,
appearing for the appellant, is that the appellant cannot take the
advantage of his own wrong to thwart the object and purpose of Section
H 15 of the TADA Act.
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1127
[S. ABDUL NAZEER, J.]
27. Learned senior counsel appearing for the appellant has A
submitted that the confession statements of the two co-accused are
not at all admissible in evidence because there was no joint trial of those
two co-accused with the appellant. Therefore, Ex. P-26 and Ex. P-27
are not admissible in evidence.
28. Section 30 of the Indian Evidence Act mandates that to make B
the confession of a co-accused admissible in evidence, there has to be
a joint trial. If there is no joint trial, the confession of a co-accused is
not at all admissible in evidence and, therefore, the same cannot be
taken as evidence against the other co-accused. The Constitution
Bench of this Court in Kartar Singh (supra), while considering the
inter-play between Section 30 of the Indian Evidence Act and Section C
15 of the TADA Act held that as per Section 15 of the TADA Act,
after the amendment of the year 1993, the confession of the
co-accused, is also a substantive piece of evidence provided that there
is a joint trial.
29. In State v. Nalini and others5 Justice Quadri has held that D
a confession of an accused made under Section 15 of the TADA Act
is admissible against all those tried jointly with him. It has been held
thus:
“688. Having excluded the application of Sections 24 to 30 of
the Evidence Act to a confession recorded under Section 15(1) E
of the TADA Act, a self-contained scheme is incorporated therein
for recording the confession of an accused and its admissibility
in his trial with co-accused, abettor or conspirator for offences
under the TADA Act or the Rules made thereunder or any other
offence under any other law which can jointly be tried with the
offence with which he is charged at the same trial. There is thus F
no room to import the requirements of Section 30 of the Evidence
Act in Section 15 of the TADA Act.
689. Under Section 15(1) of the TADA Act the position, in my
view, is much stronger, for it says,
‘ G
“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
5
(1999) 5 SCC 253 H
1128 SUPREME COURT REPORTS [2020] 4 S.C.R.
A device like cassettes, tapes or soundtracks from out of which
sounds or images can be reproduced, shall be admissible in
the trial of such person or co-accused, abettor or conspirator
for an offence under this Act or Rules made thereunder,
provided that co-accused, abettor or conspirator is charged
and tried in the same case together with the accused.”
B
On the language of sub-section (1) of Section 15, a confession
of an accused is made admissible evidence as against all those
tried jointly with him, so it is implicit that the same can be
considered against all those tried together. In this view of the
matter also, Section 30 of the Evidence Act need not be invoked
C for consideration of confession of an accused against a
co-accused, abettor or conspirator charged and tried in the same
case along with the accused.”
30. In Jameel Ahmad (supra), this Court has reiterated the above
position as under:
D
“30……Therefore we notice that the accepted principle in law
is that a confessional statement of an accused recorded under
Section 15 of the TADA Act is a substantive piece of evidence
even against his co-accused provided the accused concerned are
tried together.”
E 31. In the instant case, no doubt, the appellant was absconding.
That is why, joint trial of the appellant with the other two accused
persons could not be held. As noticed above, Section 15 of the TADA
Act specifically provides that the confession recorded shall be admissible
in trial of a co-accused for offence committed and tried in the same
F case together with the accused who makes the confession. We are of
the view, that if for any reason, a joint trial is not held, the confession
of a co-accused cannot be held to be admissible in evidence against
another accused who would face trial at a later point of time in the
same case. We are of the further opinion that if we are to accept the
argument of the learned counsel for the respondent-State, it is as good
G as re-writing the scope of Section 15 of the TADA Act as amended in
the year 1993.
32. In Ananta Dixit v. The State6 the Orissa High Court was
considering a similar case under Section 30 of the Evidence Act. The
6
H 1984 Crl. L.J. 1126
RAJA @ AYYAPPAN v. STATE OF TAMIL NADU 1129
[S. ABDUL NAZEER, J.]
appellant, in this case, was absconding. The question for consideration A
was whether a confession of one of the accused persons who was tried
earlier, is admissible in evidence against the appellant. The Court held
that the confession of the co-accused was not admissible in evidence
against the present appellant. The Court held:
“7. As recorded by the learned trial Judge, the accused Narendra B
Bahera, whose confessional statement had been relied upon, had
been tried earlier and not jointly with the appellant and the co-
accused person Baina Das. A confession of the accused may
be admissible and used not only against him but also against a
co-accused person tried jointly with him for the same
offence. Section 30 applies to a case in which the confession is C
made by accused tried at the same time with the accused person
against whom the confession is used. The confession of an
accused tried previously would be rendered inadmissible.
Therefore, apart from the evidentiary value of the confession of
a co-accused person, the confession of Narendra Behera was D
not to be admitted under Section 30 of the Evidence Act against
the present appellant and the co-accused Baina Das.”
We are in complete agreement with the view of the High Court.
33. We are of the view that since the trial of the other
two accused persons was separate, their confession statements E
(Ex.P-26 and P-27) are not admissible in evidence and the same cannot
be taken as evidence against the appellant.
34. In view of the discussion made above, the Designated Court
was not justified in convicting the appellant. The appeal is accordingly
allowed. The judgment and order dated 4.12.2009 passed by the F
Presiding Judge, Designated Court No.2, Chennai, in Calendar Case
No.1/2007, is hereby set aside and the appellant-accused is acquitted
for the offence for which he was tried. This Court by order dated
25.10.2010 had granted the bail to the appellant. Hence, the question
of releasing him does not arise. The bail bond executed by the appellant G
and the surety, if any, stands cancelled.
Devika Gujral Appeal allowed.
H
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