Summary
The CBI's appeals under Section 19 of the TADA Act against the acquittal of the accused in the 1990 kidnapping and murder of the Vice-Chancellor of Kashmir University and his Personal Secretary (and, in the connected appeal, of the General Manager of HMT Watch Factory) were dismissed. The eye-witnesses could not identify the accused and the AK-47 was never recovered, so the case rested entirely on confessions recorded by an SP under Section 15 of TADA; these were vitiated by recording in a BSF camp and Joint Interrogation Centres on the day of production with no time for reflection, no question-and-answer record of voluntariness, a memorandum silent on place and time, and no authorisation, and one confession was also barred by issue estoppel having been rejected in an earlier trial.
Issues
- Whether confessions recorded by a Superintendent of Police under Section 15 of the TADA Act, 1987 read with Rule 15 of the TADA Rules were admissible and reliable when the procedural safeguards and the Kartar Singh guidelines were not followed.
- Whether the confessional statement of an accused that had been held inadmissible and unreliable in an earlier TADA trial resulting in his unchallenged acquittal could be relied upon by the prosecution in a later trial, or whether issue estoppel barred it.
- Whether the Special Court's acquittal, on the ocular evidence failing to identify the accused and the weapon not being recovered, warranted interference in an appeal against acquittal.
Provisions considered
- Section 15, Terrorist and Disruptive Activities (Prevention) Act, 1987A confession before a police officer not below the rank of SP, recorded in writing or on a mechanical device, is admissible against the maker and co-accused tried in the same case, but only if the officer first explains that the maker is not bound to confess and that it may be used against him, and records it only after questioning satisfies him that it is voluntary. The provision departs from Section 25 of the Evidence Act and Section 164 CrPC and must be strictly complied with; the confessions here failed that test. (¶¶ 13, 13.1, 13.2, 15, 16, 22, 22.1, 22.2, 25, 26, 27)
- Rule 15, Terrorist and Disruptive Activities (Prevention) Rules, 1987The confession must be recorded in the maker's language, read back to him, signed by him and the officer, carry the officer's certificate and the prescribed memorandum, and be sent forthwith to the CJM or CMM for transmission to the Designated Court. The memoranda here omitted the place and time of recording, from whose custody the accused were produced and whether any time for reflection was given; no question-and-answer record existed; and the confessions, not accepted by the CJM, were sent directly to the Special Court, infringing the statute. (¶¶ 14, 14.1, 14.2, 14.3, 14.5, 22.1, 22.2, 25, 26)
- Section 19, Terrorist and Disruptive Activities (Prevention) Act, 1987Both appeals by the State (CBI) against the Special Court's acquittals lay directly to the Supreme Court under this provision. (¶¶ 1, 4, 29)
- Sections 118, 302, 365 and 368 (with Sections 120B and 364 in the connected appeal), Ranbir Penal Code, 1932The respondents were charged with conspiracy, kidnapping, wrongful confinement and murder alongside the TADA offences; with the confessions excluded and no other evidence, the acquittal on all counts stood. (¶¶ 1, 3, 11, 28, 29)
- Section 25, Indian Evidence Act, 1872Under the general law a confession to a police officer cannot be proved against the accused; Section 15 of TADA altered this fundamental rule, which is why its safeguards must be scrupulously observed. (¶¶ 16, 19)
- Section 300, Code of Criminal Procedure, 1973Issue estoppel is distinct from double jeopardy under Section 300: a finding of fact in favour of an accused by a competent court precludes the prosecution from leading evidence to disturb that finding in a later trial even for a different offence. (¶¶ 23, 24)
Held
- Section 15 of the TADA Act completely altered the fundamental rules of evidence by making confessions to a police officer admissible; the Kartar Singh guidelines and Rule 15 of the TADA Rules therefore demand strict compliance, and a confession recorded in defiance of those safeguards cannot be relied upon. Recording a confession in a heavily guarded BSF camp or a Joint Interrogation Centre is not recording in a free atmosphere, and sending the confession directly to the Special Court after the CJM declined to accept it infringes Rule 15(5). (¶¶ 16, 17, 17.1, 19, 26)
- A confession is vitiated where it is recorded on the same day the accused is produced before the SP, so that hardly any or no time for reflection is given; where the memorandum does not state the place or time of recording, from whose custody the accused was produced, or whether time for reflection was afforded; where there is no record in question-and-answer form showing that the officer had reason to believe the confession was voluntary; and where no authorisation to the recording officer is placed on record. A discrepancy between the date on the certificate and the date of recording deposed to by the officer is a further grave infirmity. (¶¶ 22.1, 22.2, 25, 25.1)
- Where the same confessional statement of an accused was held inadmissible and unreliable in an earlier trial that ended in an acquittal not challenged by the CBI, the principle of issue estoppel precludes the prosecution from relying on it in a later trial, since its acceptance would disturb a finding of fact already recorded; the Special Court rightly rejected it on that ground as well. (¶¶ 22.3, 23, 24)
- Where the eye-witnesses could not identify the accused, the weapon of offence was not recovered, and the only evidence was confessions recorded with the procedural safeguards given a complete go-bye, the acquittal was not merely a plausible view but the only possible one; the Court observed that truth and justice for both victims and accused remained elusive in a trial that took over nineteen years and noted that such draconian provisions have since been repealed. (¶¶ 9, 10, 11, 27, 28)
- The connected appeal concerning the kidnapping and murder of the General Manager of HMT Watch Factory, which likewise rested only on the confession of the same accused already rejected, failed for the same reasons (the appeal having earlier been dismissed for non-prosecution against the first respondent). (¶¶ 30, 32, 33)
Result
Both appeals by the State (CBI) dismissed; the Special Court's judgment dated 20.04.2009 acquitting the respondents in CBI Case Nos. RC 5(S)/1990 and RC 6(S)/1990 affirmed.