BHARATBHAI @ JIMI PREMCHANDBHAI v. STATE OF GUJARAT

Citation: [2002] SUPP. 3 S.C.R. 46

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, H.K. SEMA

Judgment text

BHARATBHAI @ JIM! PREMCHANDBHAI v. STATE OF GUJARAT OCTOBER 3, 2002 [Y. K. SABHARWAL AND H. K. SEMA, JJ. ] Terrorist and Disruptive Activities Prevention Act, 1985/Terrorist and Disruptive Activities (Prevention) Rules, 1985 - Sections 3 and 15/Rule I5(3)(b) -Confessional statement-Non compliance of Rule-Admissibility of the st y a police officer not lower in rank than a Superintendent of Police in terms of Section 15(1) only in accordance with the legaHy permissible procedure. The counsel castigated the conduct of the police officers in whisking away the accused either on arrest or on obtaining custody from the court to an unknown destination or unannounced premises for custodial interrogation in order to get compulsory self-incriminating statement as a source of proofto be produced before a court of law. Examples were cited where on several occasions, this Court have ordered exemplary compensation to the victims at the hands of the police officials.

It was submitted therein that the police officer is inherently suspect of implying coercion to obtain confession and, therefore, the confession made to police officer should totally be excluded from evidence. The emphasis was more on the police culture rather than on the person, the contention being that the climate was still not conducive for effecting a drastic change by investing the police officer with a power to record confession and then make it admissible in evidence. It was submitted that without bringing about a change in the outlook of the police, such a drastic departure was not justified. The challenge to the constitutional validity of Section 15 almost succeeded as seems clear from the observations that were made in the majority opinion in Kartar Singh 's case while upholding the constitutional validity of Section 15.

The observations are : "Though we at the first impression thought of sharing the view of the learned counsel that it would be dangerous to make a statement given to a police officer admissible (notwithstanding the legal position making the confession of an accused before the police admissible in some advanced countries like United Kingdom, United States of America, Australia and Canada etc. ) having regard to the legal . A competence of the legislature to make_the l~w prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity of terrorism unleashed by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as well as the public in coming forward, at the risk of their life, to give evidence hold that the impugned section cannot be said to be suffering from any vice of unconstitutionality.

In fact, if the exigencies of certain situations warrant such a legislation then it is . constitutionally permissible as ruled in a number of decisions of this Court provided none of the fundamental rights under Chapter III of the Constitution is infringed. " The two learned Judges, however, expressed the minority opinion that Section 15 is unconstitutional. While upholding the validity of Section 15, a note of caution was added in Kartar Singh 's case in the following terms : "we state that there should be no breach ofprocedure and the accepted norms ofrecording the confession which should reflect only the true and voluntary statement and there should be no room for hyper criticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability as it could be ironically put that when . a Judge remarked , 'Am I not to hear the truth', the prosecution giving a startling answer, 'No Your Lordship is to hear only the evidence'.

" (Emphasis is ours) In the same context, while laying down the guidelines so as to ensure that the confession obtained in the pre-indictment interrogation by a police officer not lower in rank than a Superintendent of Police is not tainted with any vice but is in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness, the Constitution Bench also said that : "Though it is entirely for the court trying the offence to decide the question of admissibility or reliability of a confession in its judicial wisdom strictly adhering to the law, it must, while so deciding the question should satisfy itself that there was no trap, no track and no importune seeking of evidence during the custodial interrogation and BHARATBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT (SABHARWAL, J. ) 59 all the conditions required are fulfilled. " (emphasis is ours) Before basing conviction on confessional statement, it is necessary to .

examine whether all conditions for recording of confession have been fulfilled or not. The requirements of Section 15 have already been noticed earlier. In exercise of the powers conferred by Section 28 of the TADA Act, the Central Government has made the Terrorist and Disruptive Activities (Prevention) Rules, 1987. Rule 15 relates to recording ofconfession made to police officers. It reads as under : "15. Recording of confession made to police officers. -(! ) confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record.

(2) The confessions so recorded shall be shown, read or played back to the person concerned _and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession. (3) The confession shall, if it is in writing, be-- (a) signed by the person who makes the confession; and (b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and such police officer shall make a memorandum at the end ofthe confession to the following effect :- 'I have explained to (name) that he is not bound to make confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made.

It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the I statement made by him. Sd/- Police Officer. " (4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-rule (3) in so far as it is applicable and a declaration made by the person making the confession that the s_aid confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession. (5) Every confession recorded under the said Section 15 shall be sent forthwith to the ChiefMetropolitan. Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence.

" What is required to be examined is whether requirements of Section 15 of the_TADA Act and the aforesaid Rule 15 when recording the confessional statements in question, have been complied or not. Let us examine whether requirements of Rule 15 have been complied by PW18 when he recorded confe~s_ional statements of accused Nos. 7 and 8. One of the requirements of Rule 15(3)(b) is making of a memorandum at the end of the confession. It is not in dispute that Rule 15(3)(b) has not been complied with in as much as the memorandum at the end of the confession has not been appended. PW18, the police officer who recorded the confession, admitted in his deposition that such a memorandum was rnot made. The core question is its effect on the admissibility of confession. Learned counsel for the appellants contend that it is fatal to the case of the prosecution.

In absence of such a memorandum, the confession is inadmissible and cannot be relied upon and the conviction, impugned in the present appeals, being based only on confession is liable to be upturned is the contention. On the other hand, counsel for the respondent wouId submit that though no memorandum, as required by Rule 15(3)(b), has been made and appended by PW18, but in substance the rule has been complied with. The contention is that the deposition of PW18 in Court shows that he was satisfied that the confession was voluntarily made and, therefore, the abse11ce of the memorandum is only a defect of form and not of substance. Hence, the nonmaking of memorandum in the present case is of no consequence is the ' BHARATBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J. ] 6J contention.

In the aforesaid light, the vital question to be determined is can the defect of non-making and appending of memorandum, as required by Rule 15(3)(b), be cured by oral deposition of the Superintendent of Police who recorded the confession, while appearing as a witness in court. In other words, can oral evidence in Court be a substitute for a memorandum to be made under Rule 15(3)(b) is the point for determination. The significance of the confessional statement has already been noticed earlier. It is such that the fate of not only the accused but co-accused, abettor and conspirator depends upon it. It can result in the hanging of accused and co-accused etc. Relying on it, punishment upto death penalty can be imposed on the maker as also on others. First of all, let us remind ourselves of the observations that have stood test of time as made in the off-quoted decision of Privy CouncHin Nazir Ahmad v.

King-Emperor, AIR (1936) PC 253 holding that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods ofperformance are necessarily forbidden. In S. N. Dube v. N. B. Bhoir and Ors. , (2000] 2 SCC 254, the trial court had taken the view that the officer recording confession did not write the certificates and the memorandums in the same form and terms as are prescribed by Rule 15 of the Rules framed under the TADA Act and the same were, therefore, inadmissible. Counsel for the accused submitted before this Court that the certificates and the memorandums having not been recorded in identical terms and as Rule 15 is mandatory, the trial Court was right in holding the confessions inadmissible for non-compliance with that mandatory requirement.

While considering the question whether the certificate and the memorandum are required to be written in the same form and terms as required by the Rule, this Court held that : "Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not )' bound to make a confession and that if he made it, it could be used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral evidence alone. The requirement of the rule is preparation of contemporaneous record regarding the manner ofthe recording the confession in the presence of the person making it.

Though giving of the statutory ··~1arning, ascertaining the voluntariness ofthe confession and preparation ofd contemporaneous record in the presence of the person making the confession are mandatory requirements of the rule, we see no good reason why the form and the words ofthe certificate and memorandum sho'uld also be held mandatory. What the mandatory requirements of a . provision are cannot be decided by overlooking the object of that provision. They need not go beyond the purpose sought to be achieved. The purpose ofthe provision is to see that aB formalities are performed by the recording officer himselfand by others to ensure full compliance with the procedure and seriousness of recording a confession. We fail to appreciate how any departure from the form or the words can adversely affect the object of the proviision or the person making the confession so long as the court is able to conclude thanhe requirements have been substantially complied with.

No public purpose is likely to be achieved by holding that the certificate and memorandum should be in the same form and also in the same terms as are to be found in Rule J5(3)(b). We fail to appreciate how the sanctity of the confession would get adversely affected merely because the certificate and the memorandum are not separatdy written but are mixed up or because different words conveying the same thing as is required are used by the recording officer. We hold that the trial court committ~d an error of law in holding that because the certificates and memorandums are not in the same form and words they must be regarded as inadmissible. Having gone through the certificates and ,the memorandums made by Shinde at the end ofthe confessions what we find is that he had mixed up what is required to be stated in the certificate and what is required to be stated in the memorandum.

He has stated in each of the certificates and the memorandums that he had ascertained that the accused was making the confession willingly and voluntarily and that he was under no pressure or enticement. It is further stated therein that he hacl recorded the confession in his own handwriting (except in case ofA-7 whose confession was recorded with the help of a writer). He has also stated that it was recorded as per the say of the accused, that it was read over to the accused completely, that the accused had personally read it, that he had ascertained thereafter that it was recorded as per his say and. that the confession was taken in his presenc:e and recorded by him. It is true ··that he has not specificaUx ~! a~ed'itherein that the record contains "a full and true account of the confession made". The very fact that he BHARATBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT lSABHARWAL, J.

] 63 had recorded the confession in his own handwriting would imply that it was recorded in the certificates and memorandums that the confession was recorded as per the say of the accused, that it was read over to him fu([y, that the accused himself personally read it and that he had ascertained that it was recorded as per his say, that would mean that it contains "a fu([ and true account of the confession" and that the contents were admitted by the accused. Thus, while writing the certificate and the memorandum what Shinde has done is to mix up the two and use his own words to state what he had done. The only thing that we find missing therein is a statement to the effect that he had explained to the accused that he was not bound to make confession and that if he did so the confession might be used as evidence against him. Such a statement instead of appearing at the end of the confession in the memorandum appears in the earlier part ofthe confession in the question and answer form.

Each of the accused making the confession was explained about his right not to make the confession and the danger of its being used against him as evidence. That statement appears in the body of the confession but not at the end of it. Can the confession be regarded as not in conformity with Rule 15(3)(b) only for that reason? We find no good reason to hold like that. We hold that the trial court was wrong in holding that there was a breach of Rule I5(3) and, therefore, the confessions were inadmissible and bad. " (emphasis is ours) Thus, what has been laid in the aforesaid case is that the writing of certificate and making the memorandum are mandatory and these matters are not left to be proved by oral evidence alone. The requirement of the Rule is preparation of contemporaneous record regarding the manner of recording the confession in the. presence of the person making it.

This Court, while holding that making of the memorandum is a mandatory requirement of the Rule, further held that what was not mandatory was the form and words of the certificate and memorandum. Thus, the making of certificate and memorandum was held to be mandatory but not form thereof. In the present case, admittedly no such memorandum has been prepared. That mandatory requirement is sought to be fulfiBed by oral deposition of PW! 8. Reliance has been placed on the testimony of PW! 8 when he stated that : "I again asked him that, whether he is giving this confession under any threat, pressure or temptation and he replied no. I was, therefore, satisfied that he voluntarily wanted to give his statement and thereafter his statement came to be recorded. From the statement recorded it appeared to me that the averments made by him were absolutely true.

" The first part of the aforesaid deposition relates to stage prior to actual recording of the confession and the latter part that has been underlined by us relates to stage after recording of the actual c:onfession. According to Rule 15(3)(b), the satisfaction to be recorded is about the confession having been made voluntarily. The memorandum to be recorded at the end ofthe confession requires the recording officer to state that "I believe that this confession was voluntarily made". For the present, assuming that oral testimony in Court can be substitute of memorandum, what has been deposed in Court by PWJS is not the belief that the confession was voluntarily made but "it appeared to me that the averments made by him were absolutely true". Hopefully the officer knew difference between. the words 'voluntary' and 'truth'. None explained what J>WJS meant. In Chandran v.

The State of Tamil Nadu, [1978] 4 sec 90 in the memorandum that had been made instead ofcertifying that the officer believed that confession was voluntarily made, the Magistrate had stated that "I hope that the statement was made voluntarily". It was noticed that although the Magistrate was examined as a witness at the trial, no attempt was made by the prosecution to establish from his word of mouth that the use of the word "hope" by hirn was inadvertent or accidental. The confession was, therefore, excluded from consideration. At the cost of repetition, we may again note that in Dube 's case, it was held that writing the certificate and making the memorandum are mandatory; these matters are not left to be proved by oral.

evidence alone; the requirement of the rule is preparation of contemporaneous record regarding the manner of recording the confession and the preparation of contemporaneous record in the presence of the person making the confession are mandatory requirement f' but forming and words are not mandatory. Unlike present case, Dube was a case where certificate and memorandum had been prepared though not using exactly same words as required by the Rule. In the present case, PWIS admits that no such document was made and appended at the end of the confession. The contemporaneous record has to support the deposition in Cowrt. If the recording officer without contc:mporaneous record is allowed to depose later after lapse of several years in Court, it would be too hazardous BHARATBHAI@ JIMI PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.

J 65 to rely on such testimony as, ordinarily, an officer is likely to depose in court what was left out to be recorded in documents as per mandatory provisions of the Act and the Rules, once he knows that he had made vital omission. If the contemporaneous record shows that in substance though not in form, the requirements of the Rule were fulfilled, the defect of form can be cured by oral deposition made, may be after many years, on the basis of the contemporaneous record. The importance of fulfilling all the requirements of the provision while recording confessional statements has already been noticed. As already noticed, the fate of not only the accused but others also hinges on such a confession recorded by a Police officer. Further what heavily weighed with the Constitution Bench when it upheld the constitutional validity of Section 15, is that all requirements in respect of recording of confessional statements will be fulfilled which would act as safeguard to tt,e accused.

The making of certificate and memorandum is not an empty formality of the Rule. It is required to be made at the end of the confession. The officer certifies the manner in which the statement was given by the accused and was recor,ded. The satisfaction as per Rule 15(3)(b) of recording officer has substantial relevance on the aspect of voluntary nature of confession, which is the heart ofconfession for it being made the basis ofconviction. In Chandran (supra) this Court held that the law peremptorily requires that after recording the confession of the accused, the Magistrate must append at the foot of the record a memorandum certifying that he believes that the confession was voluntarily made.

It was further held that the reason for requiring compliance with this mandatory requirement at the close of the recording of confession, appears to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite memorandum certifying the voluntariness of the confession made before him. If, the Magistrate recording a confession of an /' accused person produced before him in the course of police investigation, does not, on the face of the record, certify in clear, categorical terms his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor testifies orally, as to such satisfaction or belief, the defect would be ·. , fatal to the admissibility and use of the confession against the accused at the trial.

As earlier noticed in the said case, the memorandum had been made and the Magistrate in the memorandum appended by him at the foot of the confession had merely expressed a 'hope' that the confession was voluntarily made. Even in his oral evidence at the trial, the Magistrate did not vouch for the voluntariness of the confession. He did not say that use of the word 'hope' by him in the memorandum was due to some accidental slip or heedless error. Under these circumstances, the confessional statement was excluded from consideration. It can, thus, be seen that this was a case where a memorandum was appended but with using different language as abovenoticed.

The argument that the preliminary satisfaction before recording of confession about its voluntary nature can be substitutf: for recording satisfaction after recording ofconfession was not accepted holding that there was no requirement to record satisfaction at the earlier stage whereas there was such a requirement of satisfaction being appended at the foot of the confession. In Ayyub v. State of UP. , [2002] 3 SCC 510, while considering the contention that the police officer, who recorded the confessional statement, had not certified that he believed that the 'confession was voluntarily made, this Court held that as the confession made under Section 15 of the TADA Act is made admissible in evidence, the strict procedure laid down therein for recorlling confession is to be followed. Any confession made in defiance of these' safeguards cannot be accepted by the court as relialJle evidence.

The confession should appear to have been made voluntarily and the police officer who records the confession should satis(y himself that the same had been made . voluntarily by the m2:ker of that statement. The recorded confession must indicate that these safeguards hav'e been fully complied with. The confession was held to be inadmissible evidence as the recorded confessional statement did not show that the officer who recorded the statement had followed the guidelines. After noticing that under Article 20(3) of the Constitution, the accused person has the protection of being compelled to be witness against himself, the Court held that "As the confession made under Section 15 of the TADA Act is made admissible in evidence, the strict procedure laid down therein for recording confession is to be followed. Any confession made in defiance of these safeguards cannot be accepted by the court as reliable evidence......

the police officer who records the confession should satisfy himself that the same has been made voluntarily by the maker of that statement. The recorded confession must indicate that these safeguards have been fully complied with. " 1, Let us now consider the case of State of Maharashtra . v. Bharat " Chaganlal Raghani and Ors. , [200 I] 9 SCC I on which strong reliance was \' placed by the learned counsel for the respondent-State in support of the contention that if there is oral evidence in Court showing substantial compliance with Rule 15(3), the confession cannot be discarded for want of preparation of memorandum. It appears that that was not a case where memorandum was not prepared at all, but was a case where the contention BHARATBHAI @JIMI PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J.

] 67 for the accused was that the mandate of Rule 15(3) had not been complied with because the recording officer has not made the memorandum in the fonn specified therein and, therefore, confessional statement cannot be held admissible in evidence arid relied upon as a piece of evidence against the accused person. Under these circumstances, the Court held that though· the memorandum was not recorded as desired by the Rule but, at the same time, from the questions put by the recording officer to the accused, the trial court was satisfied and so was this Court that the confessional statements were made voluntarily without any threat, inducement or pressure and strictly in accordance with the mandate of the TADA Act as interpreted by this Court from time to time. That does not appear to be a case where the memorandum was not prepared at all. In Shara/at Hussain Abdul Rahaman Shaikh and Ors. v. State ofGujarat and Anr.

, [1996] 11 SCC 62, the conviction of the appellant was primarily based on confessions of each of them. Allowing the appeal and setting aside the judgment of conviction passed by the Designated Court and citing with approval Chandran 's case (supra), this Court held that : "4. Admittedly, in none of the four confessions (Ext. 72, 73, 75 and 76), with which we are concerned in this appeal, such a memorandum finds place. The question, therefore, that falls for our consideration is what is the value of such a memorandum and, for that matter, the effect of absence thereof. The answer to this question has been given by this Court in Chandran v. State of T. N. while dealing with subsection (4) of Section 164 Cr. P. C. , which lays down the procedure to be followed by a Magistrate in recording a confession and is pari material with the above-quoted Rule 15(3), with the following words: (SCC p.

101, para 31} 'But the law does peremptorily require that after recording the confession of the accused, the Magistrate must append at the foot of the record a memorandum certifying that he believes that the confession was voluntarily made. The reason for requiring compliance \ with this mandatory requirement at the close of the recording of the confession, appears to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite memorandum certifying the voluntariness of the confession made before him.

If, the Magistrate recording a confession of an accused person produced before him in the course of police investigation, does not, on the face ' ' of the record, certify in clear, categorical terms his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor testifies orally, as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the triaL' (emphasis supplied) 5. Apart from the fact that PW6 did not give any certificate, in accordance with the earlier quoted Rule 15(3) of his satisfaction or b'elief about the voluntariness of the 1;onfessions aft~r the same were recorded, it is also an admitted fact that while being examined as a witness he did not testify about his such satisfaction or belief.

Resultantly, in view of the above-quoted observations of this Court, with which we are in complete agreement, the confessions allegedly made by the four appellants cannot be pressed into service to prove the charges leveled against them. Since there is no other evidence on record from which it could be said that the appellants are guilty ofthe offences for which they were charg(:d and convicted the appeal must succeed. " Learned counsel for the State submitted that the observations in para 5 above show that by oral evidence in court,. prosecution can show that Rule 15(3)(b) was complied with. While making this submission·what is being missed by the learned counsel is that facts of the case do not show, one way or the other, about the existence of contemporaneous record. As noticed above, in Chandran 's case there was contemporaneous record in the form of memorandum itself though using different words.

Sharafat Hussain's case is not a decision which holds that without conteniporan~ous record, oral evidence can be led to establish the fulfillment of mandatory requirement of the Rule. ,It may also be stated that harsher the consequences, the stricter is the need to comply with the requirement of the Rules. In view of aforesaid discussion, our conclusions are as follows : A. Writing the certificate and making the memorandum under Rule 15(3)(b) is mandatory. B. The language of the certificate and the memorandum is not mandatory. ~ c. In case the certificate and memorandum is not prepared but the contemporaneous record shows substantial compliance of what SHARATBHAI @JIM! PREMCHANDBHAI v. STATE OF GUJARAT [SABHARWAL, J. ] 69 is required to be contained therein, the discrepancy can be cured if there is oral evidence of recording officer based on such contemporaneous record. .. D.

In absence of contemporaneous record, discrepancy cannot be cured by oral evidence based on memory ofthe recording officer. In the present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the rec9rding officer after writing of confession that the confession has been voluntarily made, The confession of accused No. 7 does not even state that it was read over to him. Thus, confessional statements are inadmissible and cannot be made basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained: ~. Further, in view of the above, oral evidence could not be led to show compliance of Rule 15(3)(b). That apart, as earlier noticed, in fact, even oral evidence of PW! 8 does not satisfy the requirement of the Rule.

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