# & ANR v. C.B.I. THROUGH ITS DIRECTOR

- **Citation:** [2008] 16 S.C.R. 155
- **Court:** Supreme Court of India
- **Decided:** 2008-11-18
- **Case number:** Criminal Appeal No. 473 of 2007
- **Bench:** 8.N. Agrawal, G.S. Singhvi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anr-v-c-b-i-through-its-director-23875
- **Pages:** 81

## Headnote

TERRORIST
AND
DISRUPTIVE
ACTIVITIES
(PREVENTION) ACT, 1987:
C
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 Act but 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
E
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.
F
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 -
G
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'
156
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A
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.
B
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
c 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
D 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.
E
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
F 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'
G 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
H 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
A
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
B
~
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 120B IPC and sentenced all of them to imprisonment for life.
It acquitted all the accused of the charges under the TADA
Act.
c
In the instant ap

## Text

_Characters 0–39,570 of 161,159. This is a partial read: ask again with offset=39570 for what follows._

[2008] 16 S.C.R. 155
MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH
A
& ANR.
v.
C.B.I. THROUGH ITS DIRECTOR
(Criminal Appeal No. 473 of 2007)
NOVEMBER 18, 2008
B
[8.N. AGRAWAL AND G.S. SINGHVI, JJ.]
TERRORIST
AND
DISRUPTIVE
ACTIVITIES
(PREVENTION) ACT, 1987:
C
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 Act but 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
E
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.
F
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 -
G
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'
156
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A
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.
B
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
c 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
D 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.
E
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
F 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'
G 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
H 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
A
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
B
~
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 120B IPC and sentenced all of them to imprisonment for life.
It acquitted all the accused of the charges under the TADA
Act.
c
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
D
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.
E
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
F
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 G
'
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)
H
158
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A 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 coB accused, 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
requirements of the A1ct and the Terrorist and Disruptive
C 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
D can be used for conv)cting the maker and/or co-accused
under the Act and/or other enactments, without
corroboration. [Para 127] [191-F-H;192-A-B]
Gurdeep Singh ;s. State (Delhi Admn.) 2000 (1) SCC
E 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.
F (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
G 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
H 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
A
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
B
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 c
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
D
..
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
E
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
F
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 illG
treatment, 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
H
160
SUPREME COURT REPORTS
(2008] 16 S.C.R.
.r {
A 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
'
498; S.N. Dube vs. N.B. Bhoir and Others 2000 (2) SCC 254
·1
'
and Lal Singh vs. State of Gujarat, 2001 (3) SCC 221; relied
on.
c
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
D 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.
E
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
F
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
G 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
'
H 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
A
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
B
'
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 c
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
D
-•
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.
E
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]
•
F
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 G
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
H
162
SUPREME COURT REPORTS
[2008] 16 S. C.R.
A object or purpose, all participating at different stages of the
crime will be guilty of conspiracy. [Para 55] (230-F-H]
B
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
c 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
E 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
F 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
G 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
H provisions of s.15 of the Act, the appellants are guilty of
·-
MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN
163
SHAIKH & ANR. v. CB.I. THROUGH ITS DIRECTOR
\
-'\
offence under Section 302 read with Section 1208 IPC
A
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
B
i..
Others 1999 (5) SCC 253 S.N. Dube vs. N.B. Bhoir and
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.
c
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.
D
•'
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
E
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
F
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
G
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
H
appreciation of the evidence of the prosecution
164
SUPREME COURT REPORTS
[2008] 16 S. C.R.
)'-
(
A 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]
B
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
c
AIR 1957 SC 637
held inapplicable para 6
1978 (3) sec 435
held inapplicable para 6
2006 (13) Scale 467
held inapplicable para 6
D
2007 (12) Scale 451
held inapplicable para 6
' -
2000 (1) sec 498
relied on
para 7
""'
2001 (3) sec 221
relied on
para 7
E
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
F
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
G
2002 (10) sec 201
overruled
para 11
AIR 1939 PC 47
referred to
para 15
AIR (36) 1949 PC 257
referred to
para 16
H
1971 (3) sec 950
referred to
para 17
MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN
165
SHAIKH & ANR. v. C.8.1. THROUGH ITS DIRECTOR
)
'
referred to
para 18
A
AIR 1963 SC 1094
2000 (2) sec 254
relied on
para 21
1977 (4) sec 540
relied on
para 53
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B
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.
c
WITH
Crl. A. Nos. 484, 705 & 582 of 2007.
Kamini Jaiswal, Vimal Chandra S. Dave, Neelam Kalsi,
D
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.
E
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 @
F
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. AG
~
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,
H
166
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A 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
B of Rs.3,000/- and in default to undergo rigorous imprisonment
c
D
E
F
G
H
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 <::nme members of Abdul Latif gang but
he could not succeed apparently because Abdul
Rauf Mohmed Bhai @ Rauf Valiullah (former
member of Rajya Sabha and General Secretary of
Gujarat Pradesh Congress (I) Committee) who
came to know of this plan stoutly opposed the same
and is said to have prepared a memorandum,
which was to be submitted to the Central
Government to expose criminal-political nexus in the
,
MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH &
167
ANR. v. C.B.I. THROUGH ITS DIRECTOR [G.S. SINGHVI, J.]
State. In order to prevent him from doing so, Abdul
A
Latif and gang decided to eliminate Rauf Valiullah
and to create terror among the people so that no
one could come forward to oppose the-plan of.
su·rreptitious surrender. The task of'finishing Rauf
Valiullah was entrusted to Rasoolkhan Yakubkhan
B
Pathan @ Rasool Party and his gang. Some
members of Rasool Party followed Rauf Valiullah
from 6.10.1992 to 8.10.1992 but they could not
target him. On 9.10.1992, appellant Nos.A-5, A-7,
A-8 and A-11 were deputed to finish Rauf Valiullah. c
They accomplished the task at around 2.30 p.m.
when A 5 fired three shots with 38-bore revolver
from close range at the deceased while he was
entering Maruti car parked outside Madhuban
Building.
D
(ii)
Pradeep Bhai @ Bakkabhai Nautamlal Dave (PW28), who had accompanied the deceased to
Madhuban building and was present at the site,
lodged F.l.R. (Exh.179) at Ellisbridge Police Station.
Thereupon, a case was registered under Section
E
302 read with Section 120B IPC, Section 25(1) (a)
and (b) of the Arms Act and Sections 3 and 5 of
the Act.
(iii)
The investigation of the case was initially ronducted
F
by a police team headed by Assistant
Commissioner of Police, 'D' Division, Ahmedabad,
Mr. Makbulahmed Mohd. Hanif Anarwala, but in
furtherance of Notification dated 12.2.1993 and
corrigendum dated 17 .2 .1993 issued by the
Government of India under Section 5 of the Delhi
G
Special Police Establishment Act, 1946, with the
consent of the Government of Gujarat, the case was
entrusted to the Central Bureau of Investigation
(CBI). After completing investigation and obtaining
H
A
B
c
D
E
168
SUPREME COURT REPORTS
[2008] 16 S.C.R.
sanction from
Commissioner of Police,
Ahmedabad, the CBI filed charge-sheet under
Section 3(1), 3(3) and (5) of the Act, Section 1208
read with Section 302 IPC, Section 302 read with
Sections 34 IPC, Section 302 read with Section 114
IPC, Section 302 IPC and Section 27 of the Arms
Act. The case was committed to Designated Court
and was numbered as TADA Case No.176 of
1993. Subsequently, two more charge-sheets were
submitted and the same were numbered as TADA
Cases No. 25 of 1996 and 32 of 1996. All the
cases were consolidated and were tried together.
(iv)
The charges were framed on 2.7.1998 against 11
accused. All of them pleaded not guilty. The
prosecution examined 124 witnesses and
produced 147 documents. which were duly
exhibited. Thereafter, statements of the accused
were recorded under Section 313 of Code of
Criminal Procedure (Cr.P.C.). They alleged that the
police has foisted false cases against them to· avoid
embarrassment for having failed to solve the
mystery surrounding the murder of Rauf Va1iullah
and that confessions were extracted from them by
using coercion and threats.
F
3. After analyzing the evidence produced by the
·•
prosecution and considering the confessions made by the
appellants except appellant No.A-11, under Section 15 of the
Act as also the statements made by them under Section 313
Cr.P.C., the trial Court concluded that the prosecution has been
G able to establish· the charges of conspiracy and murder and
held Javedkhan@ Jaid Azizkhan Pathan, Mohd. Taslim Mohd
H
Umar Shaikh, appellant Nos.A-6, A-7, A-8 and A-10 guilty
>--
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
MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH &
169
ANR. v. C.B.I. THROUGH ITS DIRECTOR [G.S. SINGHVI, J.]
'
. "
Section 302 read with Section 114 IPC. Appellant Nos.A-5 and
A
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
B
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 c
rigorous imprisonment for one year. Appellant Nos.A-5 and A8 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
E
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
F
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
G
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
H
170
SUPREME COURT REPORTS
[2008] 16 S.C.R.
I
'
A 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,
B
(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
c
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
D
assistance.
(iii)
The appellants were produced before Shri A.K.
~
Majumdar, PW-104 and Shri Harbhajan Ram, PW103 (both Superintendent of Police, CBI) for the
E
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
F
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.
G
Shri A.K. Majumdar and Shri Harbhajan Ram did
(v)
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,
H
inasmuch as they were not produced before Chief
•
MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH &
171
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.
A
(viii) The appellants had retracted their confessions on
B
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.
C
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
D
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
E
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
F
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
G
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
H
172
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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
H conspirator. He submitted that the trial Court did not commit any
MOHMED AMIN@AMIN CHOTELI RAHIM MIYAN SHAIKH &
173
ANR. v. C.B.I. THROUGH ITS DIRECTOR [G.S. SINGHVI, J]
illegality by relying upon the confessions of the appellants
A
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
B
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 c
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
E
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
F
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
G
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
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174
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A 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.
8 Section 15 of the Act, as amended by Act No.43 of 1993 and
Rule 15 of the Rules which have bearing on these cases read
as under:-
c
D
E
. F
G
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
a 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
H
confession made by a persons before a police officer and
MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH &
175
ANR. v. C.BJ THROUGH ITS DIRECTOR [G.S. SINGHVI, J.]
recorded by such police officer under Section 15 of the Act
A
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.
B
(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
C
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
D
(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
E
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
F
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
G
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
H
176
SUPREME COURT REPORTS
[2008] 16 S.C. R.
A
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
B
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
c
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
D rejected in Kartar Singh's case.