MOHMED AMIN @ AMIN CHOTELI RAHIM MIYAN SHAIKH & ANR. v. C.B.I THROUGH ITS DIRECTOR

Citation: [2008] 16 S.C.R. 155

Court: Supreme Court of India

Bench: B.N. AGRAWAL, G.S. SINGHVI

Case summary

MOHMED AMIN @ AMIN CHOTELI RAHIM MIYAN SHAIKH & ANR. v. C.B.I THROUGH ITS DIRECTOR.pdf

Judgment text

[2008] 16 S. C. R. 155 MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH & ANR. v. C. B. I. THROUGH ITS DIRECTOR (Criminal Appeal No. 473 of 2007) NOVEMBER 18, 2008 [8. N. AGRAWAL AND G. S. SINGHVI, JJ. ] TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987: s. 15 - Confession - HELD: A confession recorded in accordance with the provisions of s. 15 and r.

15 is admissible and can be used in the trial of the maker as also the coaccused, abettor or conspirator not only for an offence under 0 the Actbut also for an offence under /PC or other enactments provided that such co-accused, abettor or conspirator is charged and tried in the same case - Conviction can be based on such confession without its corroboration, if the Court is convinced of its probative value independently - In the instant case, the trial court has rightly relied upon the confessions - Besides, prosecution has also led sufficient corroborative evidence and the trial court did not commit any error in recording the conviction- Terrorist and Disruptive Activities (Prevention) Rules, 1987 - r. 15 - Penal Code, 1860 - ss. 3021120-Bl114 /PC. s. 15 - Confession - HELD: If an accused challenges his confession as having not been made voluntarily, then the initial burden is on the prosecution to prove that all requirements uls 15 and r.

15 have been complied with - Once this is done, burden shifts on the accused to prove his a/legations - In the instant case, there was total compliance of the mandate of law in recording the confessions - Evidence - Burden of proof. 155 H' s. 15 - Confession - HELD: A confession cannot be held to be inadmissible merely because before recording the same the accused was in police custody or that the statement was recorded by the officer supervising the investigation. PENAL CODE, 1860: ss. 3021120-B, 3021120-81114, and s.

120-B - Conspiracy and murder - HELD: To prove a charge of conspiracy, it is not necessary that all conspirators know each and every detail of the conspiracy, so long as they are co-participants in the main object of conspiracy - It is also not necessary that all conspirators should participate from the inception of conspiracy to its end - If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy - In the instant case, the trial court did not commit any error in recording a finding that charges of .. conspiracy and murder are proved against appellants - Arms - Act, 1959 - s. 27 - Bombay Police Act, 1951 - s. 135. The appellants (A-4 to A-8, A-10 and A-11) seven in number, along with 4 others were prosecuted for commission of offences punishable ulss 3(1), 3(3) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, s. 120-8 read with s. 302 IPC, s. 302 read with s. 114 and s. 120-8 IPC and s.

27 of the Arms Act, 1959. The prosecution case was that one 'AL' and his gang had gunned down an illicit liquor supplier· and 8 others on 3. 8. 1992, and planned to make surreptitious surrender of some unimportant members of their party so that the real culprits could go scot free. This was opposed by one 'RV' who was a former Rajya Sabha Member and General Secretary of the State unit of a political party. 'AL' and his gang decided to eliminate 'RV' and create terror among the people so that no one could dare oppose their plan. The task was entrusted to 'R' Party, and his gang of which A-5, A-7, A-8 and A-11 were members, and they shot MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN 157 SHAIKH & ANR. v. C. B. I. THROUGH ITS DIRECTOR ' ----dead the said 'RV' who at the time of occurrence was accompanied by PW-28.

The Designated Court on the basis of the prosecution evidence, the confessions made by the accused-appellants u/s 15 of the Act as also the statements made by them u/s 313 Cr PC found the charges of conspiracy and murder established and ~ convicted A-4 to A-8, A-10 and A-11, inter alia, u/s 302 read withs. 120 IPC and/or u/s 302 read with ss. 114 and 120- B IPC and sentenced all of them to imprisonment for life. It acquitted all the accused of the charges under the TADA Act. In the instant appeals, it was contended for the accused-appellants that they were subjected to physical torture in order to extract confessions and, as such, the confessions alleged to have been made were not ... voluntary; and that the prosecution did not produce any ~ evidence to prove . an agreement or meeting of mind to commit the murder and, therefore, the charge of conspiracy was not established and the appellants could not have been convicted u/s 302 read with s. 120-B IPC.

Dismissing the appeals, the Court HELD: 1. It must be treated as settled law that even if a person is acquitted of the charge under the Terrorist . #' and Disruptive Activities (Prevention) Act, 1987, a confession recorded u/s 15 thereof can be used for convicting him of an offence under other enactments including IPC. [Para 13] [180-F] Prakash Kumar vs. State of Gujarat 2005 (1 ) SCR 408 =2005 (2) SCC 409 and State through Superintendent of Police, CBI/SIT vs. Na/ini and Others 1999 ( 3) SCR 1 = 1999 ' (5) sec 253, relied on. Bilal Ahmad Ka/oo vs. State of A. P. 1997 (7) SCC 431; Rambhai Nathabhai Gadhvi vs. State of Gujarat 1997 (7) sec 744 and Gurprit Singh VS. State of Punjab 2002 (10) sec 201, overruled. ' 2. 1.

A confession recorded u/s 15 of the Act is admissible in the trial of the maker as also the coaccused, abettor or conspirator not only for an offence under the Act but cllso for offence(s) under other enactments, provided that the co-accused, abettor or conspirator is charged and tried in the same case along with the accused dnd the Court is satisfied that 1 requirements of the Act and the Terrorist and Disruptive Activities (Prevention) Rules, 1987 have been complied with. Whether . such f? Onfession requires corroboration depends on the facts of the given case. If the Court is convinced that the probative value of the confession is such that it does not require corroboration then the same can be used for conv)cting the maker and/or co-accused under the Act and/or other enactments, without corroboration. [Para 27] [191-F-H;192-A-B] 1 Gurdeep Singh ;s. State (Delhi Admn. ) 2000 (1) SCC 498; S. N. Dube vs. N. B. Bhoir and Others 2000 (2) SCC 254; Lal Singh vs.

State ot Gujarat 2001 (3) SCC 221; Devender Pal Singh vs. State of NCT of Delhi 2002 (5) SCC 234; Jameel Ahmad vs. State of Rajasthan 2003 (9) SCC 673; Jayawant Dattatray Suryarao vs. State of Maharashtra 2001. (10) SCC 109 and Abdulvahab Abdul Majid Shaikh vs. State of Gujarat, 2007 (9) SCC 293, referred to. 2. 2. If a person accused of committing an offence under the Act challenges his confession on the ground that it was not made voluntarily, then the initial burden is on the prosecution to prove that all requirements u/s 15 of the Act and Rule 15 of the Rules have been complied 'I with. Once this is done, the burden shifts on the accused and it is for him to prove that the confession was not made voluntarily or that the same is not truthful, and if he adduces evidence during the trial to substantiate his MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN 159 SHAIKH & ANR. v. C. B. I.

THROUGH ITS DIRECTOR )~ allegation that the confession was not voluntary then the Court has to carefully scrutinize the entire evidence and surrounding circumstances and determine whether or not the confession was voluntary. [Para 27) [192-B-D] 2;3. Confession made by a person u/s 15 of the Act should not be rejected only on the ground that at the • -~ relevant time he was in police custody. Nor should a .. confession be treated as non-voluntary on the ground that the same was made before the officer who was supervising the investigation. In the instant case, the prosecution evidence shows that the confessing appellants were brought to Delhi pursuant to transit warrant granted by the competent court at Ahmedabad. Therefore, the Investigating Officers were bound to keep their custody till the end of the period specified in the transit warrant and they could not have transferred the ' custody of the accused to any other person. It was ..

during the period of their custody with the Investigating Officers that each of the accused appellants A-4 to A-8 and A-1 O volunteered to confess their role in the commission of crime. Accordingly, they were produced before two Superintendents of Police, CBI, and their confessions were recorded strictly in accordance with the manner and the procedure prescribed in Section 15 of the Act and Rule 15 of the Rules. Further, neither A-10 when he was produced before Chief Metropolitan Magistrate, Delhi, nor at the end of the period specified in transit warrants when all the confessing appellants were produced before the Magistrate concerned at Ahmedabad with an application for their remand to judicial custody, any of them made any grievance of illtreatment, torture (physical or mental), inducement or ... allurement by the Investigating Officers or supervising officers, nor did any of them claim that he had made confession under any other type of compulsion.

Therefore, the confessions of A-4 to A-8 and A-10 cannot . r { be held inadmissible on the premise that before recording of confessions they were in police custody or that the statements were recorded by the officers supervising the investigation. [Para 43, 44, 46 and 48] [220-E, F, G; 221-E; 223-F; 224-D-E; 226-C-D] 8 Gurdeep Singh vs. State (Delhi Admn. ) 2000 (1) SCC ·1' 498; S. N. Dube vs. N. B. Bhoir and Others 2000 (2) SCC 254 ' and Lal Singh vs. State of Gujarat, 2001 (3) SCC 221; relied on. 2. 4. Appellants A-4 to A-8 were not produced before , Chief Metropolitan Magistrate because their confessions were recorded before the judgment of Kartar Singh's · case*, but A-10 was so,produced on 25. 7. 1996 as per the guidelines laid down in Kartar Singh's case. It is thus evident that there was total compliance of the mandate of law in recording the confessions of six appellants. ~ [Para 43] [221-C-D] *Kartar Singh vs. State of Punjab 1994 (2) SCR 375 = 1994 (3) sec 569 - referred to.

Raja Khima vs. State of Saurashtra AIR 1956 SC 217; Sarwan Singh Rattan Singh vs. State of Punjab AIR 1957 SC 637; Shankaria vs. State of Rajasthan 1978 (3) SCC 435; Aloke Nath Dutta vs. State of West Bengal 2006 (13) Scale 467 and State of Rajasthan vs. Ajit Singh 2007 (12) Scale 451, held inapplicable. 2. 5. The confessions of A-4 to A-8 and A-10 cannot be discarded on the . allegation that the same had been retracted on the first available opportunity. The only statement made by A-10 before Chief Metropolitan Magistrate, Delhi on 25. 7. 1996 was that he had not made any confession. However, he did not contest his signatures on the confessional statement made before PW-103. When the appellants were produced before the ' Magistrate concerned at Ahmedabad, none of them gave MOHMED AMIN@ AMIN CHOTELI RAHIM MIYAN 161 SHAIKH & ANR. v. C. B. I.

THROUGH ITS DIRECTOR ""'\ ' out that he had not made confessional statement or that his signatures had been obtained on the blank paper or that he was made to sign on the prepared statement or that he had been subjected to torture, or any threat or allurement was given to him to make confession. While· they were in jail, none of the confessing appellants made any application to the Court that he wants to retract the 'tconfession. [Para 49] [226-E-G] 2. 6. If the confessions of the appellants are scrutinized in the light of the factors mentioned in various applications made on their behalf and their statements made u/s 313 CrPC, it becomes clear that the allegations made by them regarding coercion, threat, torture, etc. after more than one year of recording of confessions are after-thought.

The statements made by them u/s 313 CrPC were also the result of after-thought because no ' tangible reason has been put forward by the defense as • to why A-4 to A-8 did not retract from their confessions .. ii when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. Therefore, the trial court did not commit any error by relying upon the confessions of A-4 to A-8 and A-10 and there is no valid ground to discard their confessions. [Para 51] [227-H; 228-A-C] • Bharat vs. State of UP. 1971 (3) SCC 950; Pyare Lal Bhargava vs. State of Rajasthan AIR 1963 SC 1094; Paka/a Narayana Swami vs. Emperor AIR 1939 PC 47 and Bhuboni Sahu vs. The King AIR (36) 1949 PC 257, referred to. 3. 1. For proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are r. oparticipants in the main object of conspiracy.

It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy. [Para 55] (230-F-H] Yash Pal ;~1ittal vs. State of Punjab 1977 (4) SCC 540 and State through Superintendent of Police, CBI/SIT vs. Na/ini and Others 1999 (5) SCC 253, relied on. 3. 2. In the instant case, the prosecution led evidence to show that the public was outraged against the police because it failed to arrest 'AL' and his gang members, who were perceived as culprits responsible for committing murder of nine persons on 3. 8. 1992, and in this backdrop 'AL' planned surrender of some unimportant membe'rs of his gang. The move was opposed by 'RV', a former Member of Rajya Sabha and General Secretary of the State unit of a political party. Therefore, 'AL' and gang decided to eliminate 'RV' and 0, create terror in the mind of the public.

A meeting for this ·purpose was organized by 'AL' and the task of killing 'RV' was assigned to another gang headed by 'R' Party. In their confessions, A-4, A-7 and A-8 have given details of the meeting organized by 'AL', which was attended by 'AL', members of his gang, 'R' Party and associates, the decision taken in tliat meeting to eliminate 'RV', and accordingly, murder of 'RV'. Each of the confessing appellants has candidly acknowledged that he acted as per the instructions and directions given by the 'R' Party for achieving the object of killing 'RV' and how the~· got in collaboration with each other for accomplishment of the task. (Para 56] (231-A-E; 233-D-E] 3. 3. Although, A-11 has not made confessional statement, his role as a collaborator of "R' Party' and his participation in the conspiracy to kill 'RV' as also his role in the actual incident of killing 'RV' are proved from the confessions of A-5,. A-6, A-7 and A-8,, which are candid and unambiguous.

Therefore, keeping (n view the provisions of s. 15 of the Act, the appellants are guilty of MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH & ANR. v. CB. I. THROUGH ITS DIRECTOR \ -'\ offence under Section 302 read with Section 1208 IPC and no independent corroboration is required for sustaining their conviction. [Para 56) [233-E-G] Gurprit Singh vs. State of Punjab, 2002 (10) SCC 201; State through Supreintendent of Police, CB/ST vs. Nalini and Others 1999 (5) SCC 253 S. N. Dube vs. N. B. Bhoir and i.. Others 2000 (2) SCC 254 Lal Singh vs. State of Gujarat 2001 (3) SCC 221; Devender Pal Singh vs. State of NCT of Delhi 2002 (5) SCC 234 and Jameel Ahmad vs. State of Rajasthan 2003 (9) sec 673, relied on. 4. The prosecution has also produced sufficient corroborative evidence and the trial Court did not commit any error in relying upon the same to support its conclusion that the appellants are guilty of offence under · Section 302 read with s. 1208 IPC and other offences.

•' PW 35 who has stated that on 9. 10. 1992 he saw A-5 ~ shooting the deceased while the latter was about to sit in the car of PW 28, and thereafter fleeing away from the spot on the scooter driven by A-6. He also identified A-5 and A-6 in the Test Identification Parade. PW 28 is the complainant and the eye witness. He gave detailed account of his coming with the deceased, handing over of memorandum for the purpose of typing and shooting of the deceased. In the Test Identification Parade held on ~ 19. 8. 1993, he identified A-6. PW 29, who was working as a labour at construction site near the place of occurrence, stated that he saw firing of bullets by a person who was earlier sitting on the pillion of the scooter and then fleeing away of two persons on the scooter. He also saw that the person with bullet injuries fell down on the ground and was taken to the hospital. Besides, PWs 11,44,50,53, .. 5t58,59,88, 111and116 supported the prosecution case.

[P ra 57] [233-H; 234-A, F, G, H; 235-A-E] 5. No serious infirmity could be pointed out in the appreciation of the evidence of the prosecution )'- ( witnesses by the trial court and it has not committed any error in recording a finding that charges of conspiracy and murder are proved against the appellants. [Para 57 and 58] [235-E-F] Case Law Reference : 1994 ( 2) SCR ~75 ::. referred to . -- i)ara 4 1999 ( 3 ) SCR 1 relied on para 5 AIR 1956 SC 217 held inapplicable para 6 AIR 1957 SC 637 held inapplicable para 6 1978 (3) sec 435 held inapplicable para 6 2006 (13) Scale 467 held inapplicable para 6 2007 (12) Scale 451 held inapplicable para 6 ' - 2000 (1) sec 498 relied on para 7 ""' 2001 (3) sec 221 relied on para 7 2001 110) sec 109 referred to para 7 2002 (5) sec 234 referred to para 7 2003 (9) sec 673 referred to para 7 2001 (9) sec 293 referred to para 7 ·1 2005 (1) SCR.

408 relied on para 7 1997 (7) sec 431 overruled para 11 1997 (7) sec 744 overruled para 11 2002 (10) sec 201 overruled para 11 AIR 1939 PC 47 referred to para 15 AIR (36) 1949 PC 257 referred to para 16 1971 (3) sec 950 referred to para 17 MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN 165 SHAIKH & ANR. v. C. 8. 1. THROUGH ITS DIRECTOR ) ' AIR 1963 SC 1094 referred to para 18 2000 (2) sec 254 relied on para 21 1977 (4) sec 540 relied on para 53 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 473 of 2007. From the final Judgment and Order dated 6. 2. 2007 in the Court of Addi. Designated Judge (TADA) at Ahmedabad in TADA Case Nos. 176 of 1993, 25 of 1996 & 32 of 1996. WITH Crl. A. Nos. 484, 705 & 582 of 2007. Kamini Jaiswal, Vimal Chandra S. Dave, Neelam Kalsi, Dr. Sushil Kumar Gupta, Kamal Mohan Gupta, Lalit Mittal and ,, Satyendra Kumar for the Appellants. ... A. Sharan, ASG. , Ashok Bhan, Amit Anand Tiwari, Awadhesh Kumar Singh, Sachit Guru, B. K. Prasad and P.

Parmeswaran for the Respondents. The Judgment of the Court was delivered by G. S. SINGHVI, J. 1. These appeals by Mohmed Faruk @ Frauk Baba Alla Rakha Shaikh, Mohmed Umar Majid Ahmed "" Pathan @ Mohmed Fighter @ Mohmed Pahelwan @ Mohmedkhan, Sajidali@ Denny Mohmed Ali Saiyed, Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh, Iqbal Hussain @ Laliyo Dhabi Kasambhai Shaikh, Salimkhan Sikandarkhan Pathan @ Azamkhan Pathan and Gulam Mohmed @ Gulal Kadarbhai Shaikh (hereinafter described as appellant Nos. A- 4, A-5, A-6, A-7, A-8, A-10 and A~11 respectively) are directed ~ against judgment dated 6. 2. 2007 of the Designated Judge (TADA), Ahmedabad (hereinafter referred to as 'trial Court') whereby they were acquitted of charges under Section 3 and 5 of The Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short 'the Act') but were held guilty of different offences under the Indian Penal Code (for short 'IPC') and sentenced to life imprisonment. Appellant Nos.

A-5 and A-8 were also convicted under Section 27 of the Arms Act, 1959 and sentenced to three years rigorous imprisonment and a fine of Rs. 3,000/- and in default to undergo rigorous imprisonment for a further period of six months. They were also convicted -~ under Section 135 of the Bombay Police Act. 2. Background facts (i) On 3. 8. 1992, Hansraj Trivedi, an alleged supplier of illicit liquor and eight others were gunned down at Radhika Gymkhana Club, Ahmedabad. Although the Police registered Criminal Case No. 254 of 1992 in connection with that incident but effective steps were not taken to arrest Abdul Latif and his gang members, who were perceived as the culprits. There was public outcry against the police inaction. This compelled the concerned officers to intensify their efforts to arrest the accused.

In the wake of this development, Abdul Latif and members of his gang planned surreptitious surrender of some unimportant members of their party so that real culprits could go scot-free. For this purpose, he sought help of a local politician Shri Hassankhan Shamsherkhan Pathan @ Hassanlala. The latter appears to have made efforts to facilitate ~urrendw of -under Section 1208 and Section 302 read with Section 1208 IPC. Appellant Nos. A-4 and A-11 were held guilty of offence punishable under Section 114 read with Section 1208 IPC and . " ' Section 302 read with Section 114 IPC. Appellant Nos. A-5 and A-8 were held guilty under Section 27 of the Arms Act and Section 135 of the Bombay Police Act. Abdul Khurdush was acquitted of all the charges but was found guilty under Section 176 IPC. However, all the accused were acquitted of the charge under Sections 3 and 5 of the Act. Abdul Khurdush was sentenced to one months imprisonment with a fine of Rs.

500/ - and in default to undergo further simple imprisonment of one month. Appellant Nos. A-4, A-5, A-6, A-7, A-8, A-10 and A-11 were sentenced to life imprisonment. Each of them ·was also directed to pay fine of Rs. 5000/- and in default to undergo rigorous imprisonment for one year. Appellant Nos. A-5 and A- 8 were sentenced to 3 years imprisonment for offence under Section 27 of Arms Act and in default to undergo 6 months simple imprisonment. For offence under Section 135(1) of Bombay Police Act, appellant Nos. A-5 and A-8 were awarded [) . . sentence of one month with fine of Rs. 500/- and in default to ). undergo simple imprisonment for a period of one month. Arguments 4. Learned counsel for the appellants argued that the impugned judgment is liable to be set aside because the findings recorded by the trial Court on the charges of conspiracy and murder are not based on legally admissible evidence.

They emphasized that the prosecution did not produce any evidence to prove the ingredients of conspiracy i. e. an agreement or meeting of mind to commit the murder of Rauf Valiullah and argued that in the absence of such evidence the appellants could not have been convicted under Section 302 read with Section 120-B IPC. Learned counsel submitted that the language of confessions made by all the appellants is identical and this should have put the trial Judge on guard and a deeper scrutiny was required to be made on the issue of voluntary character of the confessions, which the learned Presiding Officer failed to do and argued that the appellants could not have been convicted by relying on confessions ignoring that the I ' same were not voluntary. Learned counsel extensively referred to the statements made by the appellants under Section 313 Cr. P. C.

to show that they were subjected to physical torture for the purpose of extracting confession and submitted that the same should have been rejected by the trial Court because, (i) All the appellants were brought from Ahmedabad to Delhi within 24 hours of their arrest and they were compelled to make confessions without giving them adequate time to ponder over the consequences. (ii) The appellants were throughout kept in the custody of Shri O. P. Chatwal, Deputy Superintendent of Police and Investigating Officer (for short 'the Investigating Officer') and were deprived of the legal assistance. ~ (iii) The appellants were produced before Shri A. K. Majumdar, PW-104 and Shri Harbhajan Ram, PW- 103 (both Superintendent of Police, CBI) for the purpose of recording their confessions despite the fact that they were directly supervising the investigation and were in a position to dominate the will of the appellants. (iv) After preliminary questioning, .

the concerned Superintendent of Police handed over the appellants to the Investigating Officer, who again produced them for the purpose of making statement and confessions of the appellants were recorded under the dictates of the officers. (v) Shri A. K. Majumdar and Shri Harbhajan Ram did not follow the guidelines laid down by this Court in Kartar Singh vs. State of Punjab [1994 (3) SCC 569], except in the case of appellant No. A-10, inasmuch as they were not produced before Chief ANR. v. C. BJ THROUGH ITS DIRECTOR [G. S. SINGHVI, J. ] Judicial Magistrate, Delhi. (vi) Copies of the confessional statements were supplied to the Investigating Officer even before the same were dispatched to the concerned Court. (viii) The appellants had retracted their confessions on the first available opportunity. 5. Ms. Kamini Jaiswal, learned counsel for appellant Nos. A-7, A-8 and A-11 placed reliance on the judgment of this Court in State through Superintendent of Police, CBI/SIT vs.

Na/ini and Others [1999 (5) SCC 253] and argued that the trial Court committed serious error by convicting the appellants without requiring the prosecution to produce some evidence to corroborate the confessions. She laid considerable emphasis on the alleged failure of prosecution to explain as to why the appellants were taken from Ahmedabad to Delhi in the guise of conducting Polygraphic test when the facility for that test is available at Ahmedabad and CBI officers of the rank of Superintendent of Police are also stationed at Ahmedabad and argued that the confessions made by the appellants (except appellant No. A-11) ought to have been discarded only on this ground notwithstanding the fact that the prosecution had made an endeavour to show compliance of Section 15 of the Act and Rule 15 of the TADA Rules, 1987 (for short 'the Rules). She invited the Court's attention to the averments contained in Crl. • Misc. No.

2160 of 1994 filed before the High Court on behalf of Abdul Khurdush, Abdul Ghani Khan Sheikh and appellant Nos. A-1, P. ~. l\-7 and A-8, which was dismissed on 6. 2. 1995 and SLP (Crl. ) No. 1582 of 1995 to show that her clients had retracted the confessions at the first available opportunity, reiterated the same in the statements made under Section 313 Cr. P. C. and argued that such type of confessions could not be made basis for convicting them on the charge of murder. 6. Shri Vimal Chandra S. Dave, counsel appearing for appellant Nos. A-4 and A-10 argued that the confessions of the appellants are liable to be rejected because both Shri A. K. Majumdar and Shri Harbhajan Ram, Superintendents of Police, CBI, who were actively supervising the investigation, had successfully tutored the minds of the appellants and induced them to make confessions.

Shri Dave submitted that all the accused were kept in the custody of the Investigating Officer for 10 days before their confessions were recorded but this aspect has been ignored by the trial Court while deciding the issue of voluntary character of the confessions. Shri Dave pointed out that appellant No. A-10 retracted his confession on 25. 7. 1996 itself when he was produced before Chief Judicial Magistrate, Delhi and argued that the trial Court committed serious illegality by relying upon the retracted confession. Dr. Sushil Gupta argued that there is no evidence to link accused with the conspiracy allegedly hatched by Rasool Party and the learned Trial Judge committed serious error by convicting them. In support of their arguments learned counsel relied upon the judgments of this Court in Raja Khima vs. State of Saurashtra [AIR 1956 SC 217), Sarwan Singh Rattan Singh vs. State of Punjab [AIR 1957 SC 637), Shankaria vs. State of Rajasthan [1978 (3) SCC 435), Aloke Nath Dutta vs.

State of West Bengal [2006 (13) Scale 467) and State of Rajasthan vs. Ajit Singh [2007 (12) Scale 451). 7. Shri Amarjit Sharan, learned Additional Solicitor General relied upon Section 15(1) of the Act (as amended in 1993) and the judgments of this Court in Gurdeep Singh vs. State (Delhi Admn. ) [2000 (1) SCC 498], Lal Singh vs. State of Gujarat [2001 (3) SCC 221], Jayawant Dattatray Suryarao vs. State of Maharashtra [2001 (10) SCC 109), Devender Pal Singh vs. State of NCT of Delhi [2002 (5) SCC 234], Jameel Ahmad VS. State of Rajasthan [2003 (9) sec 673) and Abdulvahab Abdul Majid Shaikh vs. State of Gujarat [2007 (9) sec 293) and argued that the confessions made under the Act is a substantive piece of evidence and can be used not only against the maker but also against co-accused, abettor or conspirator.

He submitted that the trial Court did not commit any illegality by relying upon the confessions of the appellants because the same were recorded strictly in accordance with the procedure laid down in Rule 15 of the Rules. On the issue of voluntary character of confessions of the appellants, the learned Additional Solicitor General argued that recording thereof at Delhi under the supervision of Shri AK. Majumdar and Shri Harbhajan Ram cannot lead to an inference that the same were not voluntary. Shri Sharan laid considerable emphasis on the fact that by virtue of order passed under Section 268 Cr. P. C. , the Court had given custody of the appellants to the Investigating Officer and argued that he alone could have produced them before the concerned Superintendent of Police for the purpose of recording confession.

Shri Sharan submitted that handing over of the accused to the Investigating Officer after recording of preliminary statement under Rule 15(1 ), cannot be dubbed as 0 illegal because in terms of the order passed by the competent Court, Investigating Officer was duty bound to keep the custody of the accused. Learned Additional Solicitor General then submitted that the statements contained in discharge application filed before the trial Court and the SLP filed before this Court are per se contradictory arid same cannot be relied upon for declaring the confessions to be non-voluntary. Shri Sharan then referred to the judgment of the Constitution Bench in Prakash Kumar vs. State of Gujarat [2005 (2) SCC 409] and argued that the conviction of the appellants under Section 302 read with Section 1208 IPC cannot be faulted on the ground that they were acquitted of the charge under the Act.

In the end, he argued that para 2 of the guidelines laid down by this Court in Kartar Singh's case which requires that the person who makes confession under Section 15(1) of the Act should be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) of the Rules along with original statement of confession, is not attracted in the present case because confessions of the appellants except appellant no. A-10 were recorded prior to 11. 3. 1994 i. e. the date of judgment and insofar as appellant no. A-10 is concerned, he was produced before the Chief Judicial Magistrate, Delhi on the date his confession was recorded i. e. 25. 7. 1996. 8. We have given serious thought to the entire matter. Section 15 of the Act, as amended by Act No.

43 of 1993 and 8 Rule 15 of the Rules which have bearing on these cases read as under:- Section 15 of the Act "Certain confessions made to Police Officers to be taken into consideration- (1 )Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1of1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than Superintendent of Police and recorded by such police officer in writing or on any mechanical device like cassettes, tapes or sound tracks 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. (2) The police officer shall, before recording any .

confession under sub-section (1 ), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such 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. Rule 15 of the Rules Recording of confession made to police officers. - A confession made by a persons before a police officer and ANR. v. C. BJ THROUGH ITS DIRECTOR [G. S. SINGHVI, J. ] 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 us·ed 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 confession 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 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 of the confession to the following effect: "I have explained to (name) that he is not bound to make a 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 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 _said 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 Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may lake cognizance of the offence. " 9.

The challenge to constitutional validity of the Act was rejected in Kartar Singh's case. While doing so, the Court took ' note of the apprehension expressed by some of the learned _.. ,. counsel that the provisions of the Act are likely to be misused for coercing the accused to make confession and laid down the following guidelines:-. "(1) The confession should be recorded in a free atmosphere 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 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; j....

(3) The Chief Metropolitan Magistrate or the Chief Judicial 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 MOHMED AM1N @AMIN CHOTELI RAHIM MIYAN SHAIKH & 177 --' ' The amendments effected in Section 15(1) and Section 21 (1) of the TADA Act by Act 43 of 1993 may be noticed here. The words "co-accused, abettor or conspirator'' and the proviso are added in sub-section (1) of Section 15; clauses (c) and (d) of sub-section (1) of Section 21 are deleted. Before. the amendment of Sections 15 and 21, the sweep of the legal presumption contained therein was that • in a prosecution for any offence under sub-section (1) of Section 3 of the TADA Act on proof of the facts mentioned "" in clauses (a), (b), (c) and (d) of sub-section (1) of Section 21, it was mandated that the Designated Court shall presume, unless the contrary is proved, that the accused had committed·such offence.

Clauses (c) and (d), which are d\')leted from sub-section (1) of Section 21 by Act 43 of 1993, related to a confession made by a co-accused that the accused had committed the offence and to the confession made by the accused of the offence to any person other than a police officer. The effect of the said clauses was that in the event of the co-accused making confession inculpating the accused or in the event of the accused himself making an extra-judicial confession to any person other than a police officer, the legal presumption that the accused had committed such offence would arise. ~-- I have already pointed out the difference in the phraseology of Section 15 of the TADA Act.

Parliament used the expression "shall be admissible in the trial of such person \ ' or co-accused, abettor or conspirator" in Section 15 which is different from the language employed in Section 30 of the Evidence Act which says that the court may take into consideration such confession as against such other person as well as against the person who makes such confession. It has to be presumed that Parliament was aware of the interpretation placed by the courts including y the Privy Council and the Supreme Court on Section 30 of the Evidence Act but chose to frame Section 15 differently obviously intending to avoid the meaning glven to the phrase "the court may take into consideration such confession as against such other person ... " used in Section 30 of the Evidence Act. On the language of Section 15(1 ), it is clear that the intention of Parliament is to make the confession of an accused substantive evidence both against the accused as well as the coaccused. " • f 21. In S. N.

Dube vs. N. B. Bhoir and Others (2000 (2) SCC 254], the Court referred to the judgment of the Constitution Bench in Kartar Singh's case and observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision rather than frustrate it. 22. In Lal Singh's case, the Court referred to the earlier judgments in Kartar Singh's case, Nalini's case, S. N. Dubey's case and held: "23 .......... Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines ..... ; suggested by this Court in Kartar Singh (1994 (3) SCC 569) were not followed.

In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i. e. before 11-3-1994. Further, f despite the suggestion made by this Court in Karlar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Karlar Singh case that if ·suggested guidelines are not followed then confessional statement would be inadmissible in evidence. Similar contention was negatived by this Court in S. N. Dube v. N. B.

Bhoir (2000 (2) SCC 254) by holding that a police officer recording the confession under Section 15 is really not bound to follow any other procedure and the rules or the guidelines framed by the Bombay High Court for recording the confession by a Magistrate under Section 164 CrPC; the said guidelines do not by themselves apply ' ... to recording of a confession under Section 15 of the TADA Act and it is for the court to appreciate the confessional statement as the substantive piece of evidence and find out whether it is voluntary and truthful. Further, by a majority decision in State v. Nalini (1999 (5) SCC 253) the Court negatived the contentions that confessional statement is not a substantive piece of evidence and cannot be used against the co-accused unless it is corrob.

orated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another, by holding that to that extent the provisions of the Evidence Act including Section 30 would not be applicable. " 23. In Jayawant Dattatraya Suryarao's case, the Court reiterated the rule that if conditions emb9died in Section 15 of r-the Act and Rule 15 of the Rules for recording confession of a person by a police officer are complied with, then such statement is admissible in evidence not only against the maker ~ ' but also against co-accused, abettor or conspirator. The Court then observed that "irregularities here and there would not make such confessional statement inadmissible in evidence.

If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used in evidence, it would not be just reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed. " 24. In Devender Pal Singh's case majority of three-Judges Bench made a reference to Gurdeep Singh's case, Nalini's case and held that whenever an accused challenges the voluntary character of his confession recorded under Section 15(1) of the Act, the initial burden is on the prosecution to prove > that all the condiiions specified in that Section read with Rule .. ,. 15 of the Rules have been complied with and once that is done, it is for the accused to show and satisfy the Court that the confession was not made voluntarily.

The Court further held that the confession of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself. However, as a matter of prudence the Court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence. 25. In Jameel Ahmad's case, two-Judges Bench after discussing, considering and analyzing several precedents on the subject, including Oevender Pal Singh's case, culled out the following propositions: "(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 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, 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 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 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 coaccused is of a 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 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 t-· turn, will have to send the same to the Designated Court is not mandatory and 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 ANR. v. C. 8. 1. THROUGH ITS DIRECTOR [G. S. SINGHVI, J. ] each case whether such direct transmission of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement. " [Emphasis supplied] .. , 26.

In Abdulvahab Abdul Majid Shaikh's case, this Court rejected the argument raised on behalf of the appellant that the confession made by him cannot be treated as voluntary because the same had been retracted and observed:- "... The police officer was empowered to record the confessional and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact that A-9 Musakhan @ Babakhan retracted subsequently is not a valid ground to reject the confession. • ;:,- The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion, threat or any undue influence or was offered any inducement to give any confession. There is nothing in the evidence to show that there was any coercion, threat or any undue influence to the accused to make the confession. " 27.

The ratio of the above noted judgments is that if a person accused of an offence under the Act makes confession before a police officer not below the rank of Superintendent of Police and the same is recorded by the concerned officer in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, then such confession is admissible in the trial of the maker as also the co-accused, abettor or -- . on which date their statements were recorded. Appellant No. A- 5 Mohmed Umar Majid Ahmed Pathan @ Mohmed Fighter@ Mohmed Pahelwan @ Mohmedkhan disclosed how after leaving studies he started work in 1978-79 and how he joined Amba Bhai Purani Gym, Kankaria, Ahmedabad, where he met Hamid Khan Party (brother of Rasool Khan @ Rasool Party).

He then stated that he felt obliged to Rasool Party because the ~~ \ latter helped him in his dispute with Shyam Sindhi and Bashir Madrasi and agreed to work for him; that Rasool contacted him on telephone on 9. 10. 1992 and told that Gulal (appellant No. A- 11) will give something and after taking the same he should go to under-bridge and give it to Azam Khan and another boy, who will be on a scooter; that Gulal gave him revolver and then he realized that the work assigned by Rasool was to murder someone; that after taking revolver he reached under-bridge on bullet motorcycle bearing No. GAC-6005, where Azam contacted him and took motorcycle; that thereafter he sat on • ).. the scooter with the boy who, later on, pointed out that the person with beard who had come out of Madhuban building is to be killed; that after shooting the man having beard he fled on the scooter along with the boy and came to Kakoriwala Ki Pole, where Rasool Party and his gang members were sitting.

The relevant portions of his statement read as under:- "It was Friday the 9th October, 1992 when Rauf Valiullah was murdered. After talking my bath etc. , I was standing on the corner of the lane below my house at about 10. 30 a. m. in the morning. One boy working in the opposite shop came to me and told me that there is a phone call for me. ...... When I attended the phone, I came to know that it was the phone call of Rasool. Rasool after wishing me good day, asked me what I am doing. I told him that I have just taken my bath. He asked me whether I have any vehicle --. \ with me. I replied that I have my own motor cycle. Rasool · told me to go to Rosy Cinema hall in Sarangpur and meet Gulal there......... Gulal met me outside Rosy Cinema. When I reached near him, he asked me to park my motor cycle nearby on one side and therafter took me to the office of a transport company nearby........ ........... After about 5-10 minutes, Rasool called on the said telephone. Firstly Gula!

attended the said phone and thereafter Gula! gave the receiver to me. Rasool Khan asked me whether I have seen the under bridge behind . l' Mangaldas Town, Ellis Brdige. I told him that I have seen this bridge. Thereupon Rasool told me tha! Gulal will give me something and I should take that something and go· to under bridge and give it to Azam Khan and one other boy who are on a scooter and will meet me at Teen Rasla 'near Gujarat College ahead of the under bridge. I knew Azam from before because he used to come to Lal Darwaja for swimming. Rasool also told me that I should hand over that something to the boy accompanying Azam and also hand over my motor cycle to Azam. Rasool told me that the said boy will execute the work and I should """ drive the scooter and after the work is over, I should leave the place with the said boy on the scooter. However, Rasool did not tell as to what work is to be executed. Rasool asked me whether I will be able to do all this.

I said Yes because I was indebted to him. Thereafter Rasool talked with Gula! on telephone. After completing the talks, Gulal gave me a revolver and told me that it is loaded. When Gulal gave me the revolver, I realized that work means murdering someone. I asked Gulal as to who is to be murdered. Upon which he said I will myself come to know about it later on. Thereafter I reached under bridge on my Buie! Motor Cycle No. GAC-6005 via Sarangpur-Raipur- Ellis Bridge. After crossing the under-bridge, I saw Azam sitting on a Bajaj Super Scooter with one boy on the left side of road. There was no number plate on that scooter. >--- Immediately on seeing me, Azam stood up and came near me and took my motor cycle. I took Sun glasses of Azam from him and thereafter Azam went towards Gujarat College on my motor cycle. I sat with the boy on his ANR. v. CB. I. THROUGH ITS DIRECTOR (G. S. SINGHVI, J. ] scooter..... .........

He also told me that they are two persons and out of them one is having beard and other is wearing white Kurta Pyjama and that both of them will sit in their Maruti car after coming out of the big building. He also told me -f that the person wearing Kurta Pyjama is to be murdered. I do not remember the colour and number of said Maruti car at present. The said boy asked me whether I have brought that something with me. Uponwhich I told him that I have brought that something with me which is a revolver. On this he asked me to hand over the revolver to him and told me that he will execute the work. I asked him there is . nothing so and kept the revolver with me. Actually at that time two things were striking in my mind i. e. firstly that perhaps we will return back without executing anything and • secondly that whether I drive the scooter or shoot the ). _ person, my involvement is sure. In fac;:t, I wanted to repay obligations done by Rasool upon me.

We remaining sitting there for 1 and 1/2 hours. The said boy, whose name I came to know later on was Sajid, was wearing a plan Zero number eye glass...... When more than 1 and 1/2 hours passed and we kept waiting, then at about 2. 30 p. m. Sajid suddenly told me that they are coming. I saw that two persons, one having beard J. and other wearing a white Kurta Pyjama were going towards Maruti Car parked there in front and suddenly I crossed the road and walked towards Maruti car. Person with beard opened the door of driver side and sat inside and the person wearing white kurta-pyjama walked behind the car and reached the left side door of the car and put ___, G, something in his mouth. By that time, I had reached very ,, near to him and immediately on reaching there I took out the revolver which I had tucked in the belt of my pant below my shirt and fired three rounds continuously on the head of the persqn wearing white kurta pyjama. In fact, I was so , ),.

and went to the house of Azam in Mujahid Ki Pole. Mujahid is living on the upper floor of house. After some time, Azam came prepared and gave me a steel knives made of Japan. This knife was covered. He kept on knife with him. Both of us concealed our knives in the pants below our shirts. Thereafter we came out of Mujahid Ki Pole and went to Peer Mohammad Shah Dargah Trust on Relief Road. I was driving the scooter. Azam told me that he has been keeping a watch on this person since many days and the said person was coming trust. Azam went inside to search for that man and after some time r,ame out of the Trust. He told me that the person for whom we are searching, is not there......... On the next day, I along with Azam again went out on my scooter for keeping a watch. Azam again gave the knife __, to me.

First of all we went to the Trust where Azam went inside and thereafter we went to Congress Bhawan and when we found that the car is not there also, we went behind Gujarat College and saw that Fiat car was standing inside the Compound of the house....... We kept watch upto 4. 00 p. m. and thereafter came back and again Azam Khan gave a report of our watch to Rasool Khan. Similarly on third day also,! and Azam first went to Trust and thereafter Congress Bhawan and thereafter behind Gujarat College and again took tea there. We again saw that the car was standing there upto afternoon. Thereafter both of us came back for eatin'g our meals. I dropped Azam at the Pole of -j• Mujahid and thereafter went to my house for taking my meals. ·······'······ After. some time Azam came there hurriedly and told me that the said person has come to the Karora Ki Pole. After saying so, he went inside the Kankori Wala Ki Pole near Rasool Khan. After some time, Rasool Khan signaled me and called me inside.

By that time Gulal had also brought Amin Chauteli there. Rasool asked me, Azam and Chotel to immediately go to the Karora Ki Pole and also said that he himself is also reaching there. He • had told us that as soon as the said person comes out of .. the house, he ,should . be stabbed with knives. Thereafter all three of us. went to. Karora Ki Pole on the scooter and after parking the . Scooter outside Karora Ki Pole, we went inside the Pole and distanced ourselves from each other. Rasool Khan too had reached the Pole and went to the Mujahid Pole from there. We had reached there at about 4 p. m. and after keeping a watch for long time, we saw that three persons, one of whom had a beard, two ladies . F and 1-2 children came out of the house. Azam asked me to move and thereafter all three of us went to Rasool in Mujahid Ki Pole and told him that the work cannot be executed here because entire family had come out of the house........

When we were talking with each other, I saw the fiat car going towards Kalupur Tower. One driver was driving the car and the said person was sitting on the back f- seat. On that day I came to know that we have to murder of Rauf Valiullah......... We continued to chase the car and reached Lal Darwaja via Relief Road. There was a huge traffic jam there because of a procession of Hindus. ANR. v. C. BJ THROUGH ITS DIRECTOR [G. S. SINGHVI, J. ] Therefore, we could not cross Ellis bridge and therefore took Nehru Bridge route and reached the house of Rauf Valiullah. At that time the car of RaufValiullah was entering inside the compound and therefore we could not do anything........ On the next day i. e. on 9. 10. 1992 it was Friday. Like before, -;- after 10 a. m. we again went out on Scooter No. 9655 for keeping a watch. First of all we went to Trust and Azam went inside the Trust. One can easily the office of Trust if he enters the Trust.

After some time Azam came back and asked me to move to Congress Bhawan. When we reached Congress Bhawan, we did not find the car of Rauf Valiullah there and. then we went to tea vendor outside house of Rauf Valiullah and took tea and read newspaper there.......... When we were passing in front of his house, we saw one blue colour Maruti car standing outside the ' house. Azam said - perhaps Rauf Valiullah has come out ).. of the house. ........ After some time i. e. at about 11-11. 30 we saw the same blue colour maruti car coming out of the house of Rauf Valiullah. A bearded person was driving the car and Rauf Valiullah was sitting on the side of the driver in the front seat. Azam asked me to chase the car. I immediately started my scooter and chased the car. The car after taking under bridge route, stopped in the parking on the road outside one 7-8 storey building. I took my scooter on one side and parked it there.

We saw that the bearded man was wearing shirt pant whereas Rauf Valiullah was wearing a white kurta-pyjama and he was holding a packet in his hand...... After about 30-45 minutes one Mohd. Fighter came to us on a motor cycle ......... Azam had told me his name. Mohd. Fighter had come on a black colour Bullet motor cycle. -~ ....... After Mohd. Fighter reached there, Azam took his motor cycle and left Fighter there and went towards Gujarat College. Fighter was wearing pant shirt and white colour Jsports shoes on that day.......... Fighter sat with me on the scooter after Azam left us. I had told him that the person who is to be eliminated has gone inside the building and he is wearing a white kurta-pyjama and one bearded person is also with him and both of them had come here in blue colour Maruti car. ........ -1- While we were sitting on our scooter, then we saw Rauf Valiullah and the bearded man coming out of the building at about 2-2. 30 p. m.

I do not remember now whether Rauf Valiullah was holding any packet in his hands or not. Immediately after Rauf Valiullah came out, I showed him to Mohd. Fighter. The bearded man opened the gate of the car and sat inside whereas Rauf Valiullah Sahib was going towards the side gate of the car from the right side and when he had just reached the gate of the car, Mohd. Fighter too crossed the road and reached very near to him • and immediately I also started my scooter and took my -4. scooter behind the car and kept my scooter in starting position. Suddenly I saw Rauf Valiullah putting something in his mouth. Immediately thereafter Mohd. Fighter fired three shots in the head of Rauf Valiullah from a very close range. These shots were fired quickly one after the other. Thereafter Fighter immediately sat on my scooter and we ran towards Ellis Bridge. I did not see bearded man coming out of the car.

I was driving scooter very fast and -\therefore I could not hear the noises behind me........ I parked my scooter outside the Press of Gulal Bhai. GulaI and Rasool Party were inside the press at that time. Mohd. Fighter and myself went inside the Press and informed Rasool that the work has been done. Rasool became very happy and he shook his hands with me and fighter. Rasool took back ttie revolver from fighter and also took my ~--scooter and said that now he will keep the same with him because scooter should not be driven now. After some time Amin Chauteli and Lalia Dhobi also reached there. Amin Chotel told Rasool Khan that murder was committed within the time when he had gone to cover the number plan and came back after covering the number plate. After some time Azam too came there on Scooter No. 515. Azam immediately on coming said that Rauf Valiullah has been eliminated i. e. killed. Police has already reached there and also said that the police has seen his scooter.

Upon this Rasool asked Gulal to immediately remove away the scooter from there......... " ~1. Appellant No. A-10 was produced before Shri Harbhajan Ram on 24. 7. 1996. In reply to the first question put to him, appellant No. A-10 gave out that he was arrested by ATS from Dani Limra, Ahmedabad on 13. 6. 1996 and on that very day he was taken into custody by CBI. In reply to another question, appellant No. A-10 stated that he was aware of the fact that he was not bound to give statement and that he was voluntarily making confession after having thought about it. Thereafter, Shri Harbhajan Ram recorded satisfaction about the voluntary character of the statement made by appellant No. A- 10 expressing his desire to confess his role in the crime. Appellant No. A-10 was again produced before Shri Harbhajan Ram on 25. 7. 1996. He reiterated his wish to voluntarily make the statement. At that stage, Shri Harbhajan Ram recorded note as per the requirement of Rule 15 of the Rules.

Thereafter, Appellant No. A-10 made statement disclosing his acquaintance with Abdul Latif and his gang, Rasool Khan @ Rasool Party, Mohammad Farukh (appellant No. A-4), Mohmed Umar @ Mohammad Pahelwan @ Mohammad Fighter (appellant No. A-5), Sajidali @ Danny (appellant No. A-6), Mohmed Amin @ Amin Choteli (appellant No. A-7), Iqbal Hussain@ Lalia Dhobi (appellant No. A-8) and Gulam Mohmed @ Gulal (appellant No. A-11), who were members of Rasool Party gang and were accomplices of Abdul Latif in the business of illicit liquor. He further stated that about 7-8 days prior to the killing of Rauf Valiullah, Rasool Party called him and told about • the decision to eliminate Rauf Valiullah because he was creating hurdles in the affairs of the company. According to appellant No. A-10, Rasool Party asked him and Sajidali to keep strict watch on RaufValiullah and kill him with knives. Rasool Party also gave scooter belonging to Sajidali for the purpose of keeping watch on Rauf Valiullah.

Appellant No. A- 10 also gave details of how he, Sajidali {appellant No. A-6) and Amin Choteli (appellant No. A-7) tracked the movements of Rauf . Valiullah but failed to kill him due to the intervening factors. As regards the incident of 9. 10. 1992 and his subsequent arrest, appellant No. A-10 made the following statement: · "....... On 9. 10. 1992, i. e: the day on which Raufwaliullah was murdered, myself and Sajid Ali were keeping a watch on Raufwaliullah from the' morning itself on our scooter no. GJ- IM~9655. We saw a blue coloured Maruti car standing outside the house of Raufwaliullah behind Gujarat College. When Raufwaliullah came out of his house alongwith his driver Pradip Dave and left in said blue colour Maruti car No. GCB-4591, we chased him on our scooter and reached in frontof Madhuban Building. When Raufwaliullah .

and Pradip Dave went inside Madhuban Building, I immediately went to a PCO situated at a distance from Madhuban Building and informed Rasool Khan alias Rasool Party on telephone. Rasool Party told me that he is sending his man for murdering Raufwaliullah. I can accompany and identify the said PCO from where I had telephoned Rasool Party. When myself and Sajid Ali alias Danny were watching outside Madhuban Building, then Mohd. Umar alias Mohd. Fighter came there on a black colour bullet motor cycle No. GAC-6005 and gave me his motor cycle and asked me to take the motor cycle to Rasool party. I took the Motor Cycle and went to the den of Rasool Party at Baluchawad and handed over the said Motor Cycle to Rasool Party. Rasool Party gave me his Scooter No. 515 and asked me to go back again to Madhuban Building. I took the scooter. ANR. v. C. B. L THROUGH ITS DIRECTOR [G. S. SINGHVI, J. ] But instead of going to Madhuban Building, I went to my house.

After taking my meal, when I left my house, I found that there was rampant fear and panic amongst general public and everyone was discussing murder of Raufwaliullah. I immediately went to the den of Rasool Party on the aforesaid scooter. Sajid Ali alias Danny, Mohd. Umar alias Mohd. Fighter, Amin Choteli, Gulal and Lalio ·Dhobi were also present there. I told Rasool Party that Raufwaliullah has been eliminated i. e. killed and handed over the scooter to Rasool Party. Rasool Party asked me to go home and instructed me not to discuss/talk with anyone about murder of Raufwaliullah......... In June, 1993, after arrest of Mohd. Fighter by the Police, I went to Bombay for some days to avoid my arrest and in Bombay I stayed in Gujarat Momin Guest House near Central Arbi Hotel. After the pressure of Police and CBI ,. subsided, I came back to Ahmedabad and mostly lived in .... _ the Masjid of my locality and lmambara of Babaji. On 13. 7.

1996, when I was in Dani Limra, Ahmedabad, ATS of Gujarat Police came there and arrested· me......... " 42. From what has been noticed above, it is crystal clear that before recording confessions of appellant Nos. A-4 to A-8 and A~10, the two officers viz. Shri A. K. Majumdar and Shri Harbhajan Ram explained to each of them separately that he is not bound to make confession and that if he does so, the same may be used as evidence against him. The concerned officers also recorded their satisfaction that the appellants were making confessions voluntarily and that no threat or allurement was given to any of them and nobody had coerced them to make confession. Each of the six appellants was given time to think on the issue of making confession and having felt convinced that they were doing so out of their volition, the officers recorded their statements. The confessions of six appellants were typed by the stenographer on Hindi typewriter.

The same were read over to the accused who admitted that the recording contains full and true account of his statement and then signed it. The officers also recorded their observations about voluntary character of the confessions and then singed the same. The statements of the six appellants were immediately sent to Chief Metropolitan Magistrate, Delhi for onward transmission to the Designated Court at Ahmedabad. All this shows that there was total compliance of Section 15 of the Act and Rule 15 of the Rules. 43. The argument of the learned counsel for the appellants that the trial Court comn:iitted grave. error in relying upon the confessions of appellant Nos.

A-4 to A-8 and A-1 O for the purpose of their conviction under Section 302 and 1208 IPC read with Section 1208 IPC ignoring that at the relevant time they were in the custody of the Investigating Officer and did not have access to legal assistance and also because the confessions were recorded by the officers who were actively supervising investigation of the case and were in a position to influence the appellants, lacks merit and deserves to be rejected. The prosecution evidence shows that the confessing appellants were brought to Delhi pursuant to transit warrant granted by the competent court at Ahmedabad. Therefore, the Investigating Officers were bound to keep their custody till the end of the period specified in the transit warrant and they could not have transferred the· custody of the accused to any other person. It was during the period of their custody with the Investigating Officers that appellant Nos.

A-4 to A-8 and Ac10 and some other accused, with whose cases we are not concerned, expressed desire to confess their role in the commission of crime. Accordingly, they were produced before two Superintendents of Police, CBI and their confessions were recorded in accordance with the provisions of Section 15 of the Act and Rule 15 of the Rules. At the cost of repetition, it deserves to be mentioned that before recording confession, each of the appellants was told by the concerned officers that he is not bound to make confession and that if he does so, it may be used as evidence against him. The concerned officers ~ also recorded their satisfaction in writing that the accused was making confession voluntarily. The statements of the confessing appellants were recorded in a room where no one except the concerned Superintendents of Police, CBI and stenographer& were present.

After completion of recording, statement made by the individual accused was read over to him and he ~ appended the signatures after finding that the recording was ,. correct. Thereafter, the concerned . officers again noted that the confessions have been made voluntarily, appended their signatures and sent confessional statements to the Chief Metropolitan Magistrate, Delhi for being forwarded to the Designated Court at Ahmedabad. Appellant Nos. A-4 to A-B were not produced before Chief Metropolitan Magistrate because their confessions were recorded before the judgment of Kartar Singh's case but appellant No. A-10 was so produced on 25. 7. 1996 as per the guidelines laid down in Kartar Singh's > case. It is thus evident that there was total compliance of the }mandate of law in recording the confessions of six appellants. 44.

The question whether confession made by a person under Section 15 of the Act should be rejected only on the ground that at the relevant time he was in police custody, was considered an answer in negative in Gurdeep Singh's case, Lal Singh's case and S. N. Dube's case. In Gurdeep Singh's case, it was argued that the confession of the accused should be discarded because he was handcuffed andwhile recording the confession, another policeman was present in the room at some distance holding the chain of the handcuff and that armed guards were outside the room where confession was recorded. While rejecting this plea, the Court held:- "Keeping an 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 are a11 · in the realm of administrative exigencies and would. I ;.

· 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. 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 for coping with terrorists and disruptive activities. In fact the earlier TADA Act of 1985 was repealed to bring in the present Act to strengthen the prosecution to bring to book 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 policeman being present in the • room with the chain of his handcuffs or armed guards .... present outside the room to be such as to constitute (sic conclude) that the appellant's confessional statement was not made voluntarily. " In Lal Singh's case the Court held: "In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr. Sushi! Kumar that as the i.! Ccused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arisen out of terrorism unleased by terrorist activities by persons residing within or outside the country. " In S. N. Oube's case, the Court observed: Jo~.

"In this case there is nothing on record to show, except that the confessions were recorded by Shinde in the police station, that they were not recorded in a free atmosphere. No other person was allowed to remain present at that time i ANR. v. C. 8. 1. THROUGH ITS DIRECTOR [G. S. SINGHVI, J. ] and all the accused were given time to reconsider their willingness. After they were produced again Shinde had ascertained whether they were still willing to make · confessions. All the accused were previously told that they were not bound to make a confession. Each one of them was warned that if he made a confession then it could be · used against him........ Shinde had tried to ascertain if any threat or inducement was given to them or whether they were ill-treated or press'urised. All the accused had · categorically stated that no such thing had happened.

From the answers given by the accused it can be said that Shinde had good reason to believe that the accused were making confessional statements voluntarily........ lt was not even the case of the accused that they were not taken to Shinde for recording their confessions. The only suggestion that was made in his cross-examination was that he had 0 obtained those confessions after exerting influence, coercion and physical and mental torture. We have already pointed out earlier that in the absence of any specific act suggested by the defence it is not possible to accept the belated allegation made by those accused that their ·confessions were obtained in that manner........ " 45. In view of the above stated legal position, no fault can be found in the recording of confessions of appellant Nos. A-4 + to A-8 and A-10 while they were in the custody of the Investigating Officer. 46. The question whether confessions of the. appellant Nos.

A-4 to A-8 and A-10 should be treated as non-voluntary and held inadmissible on the ground that the same were made before the officers who were supervising the investigation . ~ _. deserves to be considered in the backdrop of the following facts:- (i) Each of the confessing appellants had volunteered to confess his role in the crime. (ii) Their confessions were recorded strictly in accordance with the manner and procedure prescribed in Section 15 of the Act and Rule 15 of the Rules. (iii) In reply to the questions put by Shri A. K. Majumdar and Shri Harbhajan Ram, each of the confessing appellants replied that he was aware of the fact that he was under no -{compulsion to make confession and that the same can be used against him and that there was no threat, coercion or allurement for making confession. • (iv) When appellant No. A-10 was produced before Chief . ~ Metropolitan Magistrate, Delhi on 25. 7.

1996, he did state /" that he has not made any confessional statement but did not utter a word about any threat, coercion, inducement or allurement by Shri Harbhajan Ram (PW-103) for making ' confession. · ... \ (v) At the end of period specified in transit warrants, all the confessing appellants were produced before the ~ concerned Magistrate at Ahmedabad with an application for their remand to judicial custody. None of them made any grievance of ill treatment, torture (physical or mental), inducement or allurement by the Investigating Officers or supervising officers or claimed that he had made confession under any other type of compulsion. Even when they were in judicial custody, none of the appellants made + a grievance that he was tortured, threatened or coerced by the Investigating Officers or supervising officers or that any allurement was given to him to make confession.

(vi) All the confessing appellants were facing trial in number of other cases [this is evident from the statement of PW- 100, Mr. Satyakant, the then Deputy Inspector General of . - Police, CID, Crime (Exh. 430)] in which they were duly represented by advocates but till the recording of the statements under Section 313 Cr. P. C. , neither they nor their advocates made a grievance regarding denial of legal assistance or alleged that any threat was given to either of them or they were subjected to physical or mental torture or that undue influence was exercised by the Investigating Officers or the supervising officers or any allurement was given for the purpose of making confession. -~ 47. Both the Investigating Officers, namely, Shri R. K. Saini (PW-122) and Shri O. P. Chatwal (PW-123) were subjected to lengthy cross-examination. Shri R. K. Saini denied the suggestion that appellant No.

A-10, Salimkhan was never willing to give any confessional statement and his statement was not recorded. He also denied the suggestion that appellant No. A- 10 had complained to the Chief Metropolitan Magistrate that he was ill-treated by the officers while in custody. In his crossexamination, Shri O. P. Cha! Vi(al (PW-123) categorically denied , the suggestion that Shri A. K. Majumdar had instructed him to >- ill-treat the accused. He further stated that none of the accused was ill-treated mentally or physically by the CBI. Shri Chatwal also denied the suggestion that the confessional statements of the accused were prepared by him and their signatures were obtained on the same. In reply to another question, he denied that the accused had sought for the presence of advocate but the same was declined. 48. In their statements, PW-103, Shri Harbhajan Ram and + PW-104, Shri A. K. Majumdar explained the details of the mode and manner in which confessions of the accused were recorded.

Both of them categorically stated that before recording confession each of the accused was told that he is not bound to make confession and that the same can be used against him and whether there was any threat, coercion or allurement for making confession. According to the two _, witnesses, each of the accused expressed unequivocal willingness to confess his role in the crime by stating that he knew that the confession can be used against him, that there was no threat, coercion or allurement and that he was making confession voluntarily. According to PWs 103 and 104, the statements of the accused were recorded by the stenographers at verbatim and each one of them appended signatures after satisfying that the same was correctly recorded. In reply to the suggestion made to him in cross-examination that the accused had been subjected to torture, PW-104 categorically stated that none of the accused was ill-treated by him or any other officer/ ~· official.

The defense had made suggestion about the nature and extent of supervision exercised by PW 104 but it was not put to them that either instructed the Investigating Officers to torture the accused and forced them to confess their guilt. In this view of the matter, the confessions of appellant Nos. A-4 to A-8 and A-10 cannot be held inadmissible on the premise that before recording of confessions they were in police custody and the statements were recorded by the officers supervising the investigation. 0 49. Likewise, there is no substance in the argument of the learned counsel that the confessions of the appellant Nos. A-4 to A-8 and A-10 should be discarded because the same had been retracted on the first available opportunity. As mentioned above, the only statement made by appellant No. A-10 before Chief Metropolitan Magistrate, Delhi on 25. 7. 1996 was that he had not made any confession.

However, he did not contest his signatures on the confessional statement made before PW- 103, Shri Harbhajan Ram. When the appellants were produced before the concerned Magistrate at Ahmedabad, none of them gave out that he had not made confessional statement or that his signatures had been obtained on the blank paper or that he was made to sign on the prepared statement or that he had been subjected to torture, or any threat or allurement was given to him to make confession. While they were in jail, none of the confessing appellants made any application to the Court that he wants to retract the confession. 50. In the bail application dated 21. 10. 1994 (in paragraph 'L'), filed on behalf of appellant Nos. A-4, A-7, A-8 and Abdul '. "" Khurdus Abdul Ganikhan Shaikh, under Sections 437 and 439 Cr. P. C.

read with Section 20(8) of the Act, it was averred that the only evidence against them is in the nature of confessional· statements which are not admissible because the procedure prescribed for recording of the confessional statement has not been followed. For the first time an i