# DEVENDER PAL SINGH v. STATE N.C.T. OF DELHI AND ANR

- **Citation:** [2002] 2 S.C.R. 767
- **Court:** Supreme Court of India
- **Decided:** 2002
- **Case number:** Criminal Appeal No. 993 of 2001
- **Bench:** M.B. Shah, B.N. Agrawal, Arijit Pasayat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/devender-pal-singh-v-state-n-c-t-of-delhi-and-anr-18608
- **Pages:** 41

## Headnote

Terrorist and Disruptive Activities (Prevention) Act, 1987-Sections
3(2)(1), 4,5, and 15-Penal Code, 1860-Section 120-B read with Section
302, Sections 307, 326, 324, 323, 436 and 427.
Charges under the TADA Act and Penal Code-Objective of enactment
A
B
c
of TADA-To control the menace of terrorism by effectively dealing the
terrorists under the Act-Confessional Statement-Admissibility of-Under
TADA Act and other criminal proceedings-Recorded by the Superintendent
and the above rank Police Officer is admissible under Section 15 of TADA- D
Not admissible in other criminal proceedings unless made before the Magistrate
except to the extent permitted under Section 27 of the Evidence Act-Evidence
Act, 1872-Sections 25 and 27.
Confessional Statement-Voluntary-It should be made out of the free
will of the maker and inspired by the sound of conscience to speak only E
truth-Challenge by the accused that statement is not voluntary-Burden is on
the prosecution to prove that it is recorded as per the provision under TADA!
Evidence Act, then accused has to prove and satis.fY the Court that statement
was not made voluntarily.
Confessional Statement-Corroboration-Requirement of No F
corroboration is necessary if confessional Statement made is voluntary.
Penal Code, 1860-Section 120 B:
Criminal conspiracy-The essence is formation of unlawful combination
and an agreement to do an illegal Act which can be proved by direct or G
circumstantial evidence, overt act is not essential in furtherance of conspiracy.
Evidence Act, 1872: Section / !4(e).
Presumption-Official and Judicial act-Performing of-Official and
H
767
768
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A Judicial acts have been regularly performed/being performed by persons
including Police Officer by acting honestly-Presumption as to.
Appreciation of evidence-Confession of co-accused-On the· basis of.
trustworthy evidence establishing all links of circumstantial evidence, the
confession of co-accused can be taken into consideration even without
B corroboration of evidence.
Sentencing:
. The dastardly acts committed by the accused were diabolic in conception
C and cruel in execution-Any compassion for the accused would amount to
misplaced and unwarranted sympathy and frustrate the purpose of TADAHence death sentence confirmed
Words & Phrases:
D
'Voluntary' in the context of 'Confession'-'Conspiracy' in the context
of 'Criminal Conspiracy'.
r
According to the prosecution on 11.9.1993, there was an attempt to
assassinate the then President of Indian Youth Congress (I) when he came
out of his Office. There was ai:i explosion in a car parked outside his Office
E resulting in the death of9 persons, 29 persons sustained injuries and a number
of vehicles caught fire and damaged. Investigation revealed that three accused
persons/terrorists including appellant were involved in the crime.
Appellant was in the custody of German authorities and on his arrival
in India he was handed over to pol!_ce authorities. He tried to swallow Cyanide
F capsule, but was prevented. Accused were tried under the provisions of TADA
and I.P.C. by the Designated Court. One of the co-accused was acquitted on
the ground that neither there was any evidence found against him nor he had
made any confessional statement. Moreover, there was no material on record
to corroborate the confessional statement made by the appellant against the
G co-accused. The Designated Court found appellant guilty of offence punishable
under Section 3(2)(1) of the Terrorist and Disruptive Activities (Prevention)
Act and Section 120-B read with Section 302, 307, 326, 324, 323, 436 and 427
of the Penal Code and sentenced him to death and to pay fine.
Aggrieved by the Judgment and Order of the Designated Court,
H appellant moved this Court and State filed Death Reference for confirmation
D.P. SINGH v. STATE N.C.T. OF DELHI
769
of death sentence.
It was contended for the appellant that the confessional statement was
neither voluntary nor true and there wa

## Text

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DEVENDER PAL SINGH
v.
STATE N.C.T. OF DELHI AND ANR.
MARCH 22, 20002
[M.B. SHAH, B.N. AGRAWAL AND ARIJIT PASAYAT, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987-Sections
3(2)(1), 4,5, and 15-Penal Code, 1860-Section 120-B read with Section
302, Sections 307, 326, 324, 323, 436 and 427.
Charges under the TADA Act and Penal Code-Objective of enactment
A
B
c
of TADA-To control the menace of terrorism by effectively dealing the
terrorists under the Act-Confessional Statement-Admissibility of-Under
TADA Act and other criminal proceedings-Recorded by the Superintendent
and the above rank Police Officer is admissible under Section 15 of TADA- D
Not admissible in other criminal proceedings unless made before the Magistrate
except to the extent permitted under Section 27 of the Evidence Act-Evidence
Act, 1872-Sections 25 and 27.
Confessional Statement-Voluntary-It should be made out of the free
will of the maker and inspired by the sound of conscience to speak only E
truth-Challenge by the accused that statement is not voluntary-Burden is on
the prosecution to prove that it is recorded as per the provision under TADA!
Evidence Act, then accused has to prove and satis.fY the Court that statement
was not made voluntarily.
Confessional Statement-Corroboration-Requirement of No F
corroboration is necessary if confessional Statement made is voluntary.
Penal Code, 1860-Section 120 B:
Criminal conspiracy-The essence is formation of unlawful combination
and an agreement to do an illegal Act which can be proved by direct or G
circumstantial evidence, overt act is not essential in furtherance of conspiracy.
Evidence Act, 1872: Section / !4(e).
Presumption-Official and Judicial act-Performing of-Official and
H
767
768
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A Judicial acts have been regularly performed/being performed by persons
including Police Officer by acting honestly-Presumption as to.
Appreciation of evidence-Confession of co-accused-On the· basis of.
trustworthy evidence establishing all links of circumstantial evidence, the
confession of co-accused can be taken into consideration even without
B corroboration of evidence.
Sentencing:
. The dastardly acts committed by the accused were diabolic in conception
C and cruel in execution-Any compassion for the accused would amount to
misplaced and unwarranted sympathy and frustrate the purpose of TADAHence death sentence confirmed
Words & Phrases:
D
'Voluntary' in the context of 'Confession'-'Conspiracy' in the context
of 'Criminal Conspiracy'.
r
According to the prosecution on 11.9.1993, there was an attempt to
assassinate the then President of Indian Youth Congress (I) when he came
out of his Office. There was ai:i explosion in a car parked outside his Office
E resulting in the death of9 persons, 29 persons sustained injuries and a number
of vehicles caught fire and damaged. Investigation revealed that three accused
persons/terrorists including appellant were involved in the crime.
Appellant was in the custody of German authorities and on his arrival
in India he was handed over to pol!_ce authorities. He tried to swallow Cyanide
F capsule, but was prevented. Accused were tried under the provisions of TADA
and I.P.C. by the Designated Court. One of the co-accused was acquitted on
the ground that neither there was any evidence found against him nor he had
made any confessional statement. Moreover, there was no material on record
to corroborate the confessional statement made by the appellant against the
G co-accused. The Designated Court found appellant guilty of offence punishable
under Section 3(2)(1) of the Terrorist and Disruptive Activities (Prevention)
Act and Section 120-B read with Section 302, 307, 326, 324, 323, 436 and 427
of the Penal Code and sentenced him to death and to pay fine.
Aggrieved by the Judgment and Order of the Designated Court,
H appellant moved this Court and State filed Death Reference for confirmation
D.P. SINGH v. STATE N.C.T. OF DELHI
769
of death sentence.
It was contended for the appellant that the confessional statement was
neither voluntary nor true and there was no corroborative evidence and so
the Judgment and Order passed by the Designated Court required to be set
aside.
Dismissing the appeal by majority and confirming the death reference,
the Court
HELD: Per majority (Arijit Pasaya!, J for himself and B.N. Agrawal, J)
A
B
1.1. While dealing with an accused tried under the TADA, certain special C
features of the said Statute need to be focused. It is also necessary to find out
the legislative intent for enacting it. The intended object of the said Act was
to deal with persons responsible for escalation of terrorist activities in many
parts of the country. Menace of terrorism is not restricted to this country,
and it bas become a matter of international concern. TADA is applied as an D
extreme measure when police fails to tackle with the situation under the
ordinary penal law. Whether the criminal act was committed with an intention
to strike terror in the people or section of people would depend upon the facts
of each case. [776-E-G; 777-A-B]
Jayawant Dattatray Suryarao etc. etc. v. State of Maharashtra etc. etc. AIR E
AIR (2001) SC 4717 and Hitendra Vishnu Thakur and Ors. v. State of
Maharashtra and Ors., (1994) 4 SCC 602, referred to.
>
1.2. TADA was enacted to meet extraordinary situation existing in the
>
country. Its departure from the law relating to confession as contained in the
Evidence Act is deliberate. The expression "confession" has not been defined F
in the Evidence Act. Broadly speaking, it is an admission made at any time
by a person charged with crime, stating or suggesting the inference that he
committed that crime. Legislature has set different standards of admissibility
of a confessional statement made by an accused under the TADA from those
made in other criminal proceedings. A confessional statement recorded by a
police officer not below the rank of Superintendent of Police under Section G
15 of the TADA is admissible, while it is not so admissible unless made to the
Magistrate under Section 25 of the Evidence Act. It appears consideration of
a confessional statement of an accused to a police officer except to the extent
permitted under Section 27 of the Evidence Act is not permissible.
(779-GcH; 780-A; 781-E-F] H
770
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A
State v. Nalini and Ots., (1999) 5 SCC 253; Sahib Singh v. State of
Haryana, (1997) 7 SCC 231 and Gurdeep Singh v. State (Delhi Admn.) (2000) 1
sec 498, referred to.
2.1. There is one common feature, both in Section 15 of the TADA and
Section 24 of the Evidence Act that the confession has to be voluntary. Once
B it is held that the confessional statement is voluntary, it would not be proper
to hold that the police has incorporated certain aspects in the confessional
statement .which were gathered in the investigation conducted earlier.
(780-A; 783-F)
Stroud's Judicial Dictionary, 5th Edn. P. 2633; Words and Phrases,
C Permanent Edition, Vol 44. P. 622 and Words and Phrases by John B. Saunders,
3rd Edn. Vol. 4. P. 401, referred to.
2.2. Confession is a species of admission. A confession or admission is
evidence against its maker, if its admissibility is not excluded by some
D provision of law. Law is clear that a confession cannot be used against an
accused person unless the Court is satisfied that it was voluntary. At that stage
question whether it is true or false does not arise. If the facts and circumstances
surrounding the making of a confession appear to cast a doubt on the
voluntariness of the confession, the Court may refuse to act upon the
confession even if it is admissible in evidence. (781-G-H; 782-A)
E
F
2.3. Whenever an accused challenges that his confessional statement is
not voluntary, the initial burden is on the prosecution for it has to prove that
all requirements under Section 15 of TADA Act and Rule 15 of Terrorist and
Disruptive Activities (Prevention) Rules have been complied with. It is for the
accused to show and satisfy the Court that the confessional statement was
not made voluntarily. The confessional statement of the accused can be relied
upon for the purpose of conviction and no further corroboration is necessary
if it relates to the accused himself. (782-D-E]
Gurdeep Singh v. State (Delhi Admn.) (2000) 1 SCC 498 and State v. Nalini
G and Ors., (1999) 5 sec 253, referred to.
2.4. Merely because no statement has been made by witnesses abou_t the
appelh;mt's attempt to swallow the cyanide, that does not, in any way, dilute -
the evidence recording seizure of a cyanide capsule from the accusedappellant. Mention about the cyanide capsule in the confessional statement
H goes a long way to show that the statement was truthful. When the accused '
,
,
_,.
-\
-.;
-~
•
D.P. SINGH v. STATEN.C.T. OF DELHI
771
was produced before the ACM, he did not make any grievance that his A
confessional statement was not in fact recorded as claimed or that his
signatures were obtained on blank pieces of paper as claimed later. Such a
plea was raised after a long passage of time. It is further relevant to note that
when the accused was produced in Court, he never made any grievance about
any duress or coercion. Merely because the report was sent directly to the B
Designated Court, it does not become a suspicious circumstance. Rather, it
adds to the authenticity of the document. It has been noted by the Trial Judge
that before the accused was produced in Court the confessional statement had
already reached the Designated Court. The purpose of the confessional
statement being sent to the Court by producing the accused for confirmation
of the statement is to ensure that interpolation or manipulation is ruled out c
at a later date. Therefore, in the absence of and prejudice to the accused, nondespatch of the confessional statement to the ACM is really of no consequence.
Jn any event the prescription regarding despatch is directory and not
mandatory. [784-B-C-E-F-G-H; 785-A]
Jayawant Dattatray Suryarao etc. etc. v. State of Maharashtra etc. etc., AIR D
(2001) SC 4717 and Re: Wariyam Singh and Ors. v. State ofU.P., [1995] 6 SCC
458, relied on .
2.5. The accused never made a grievance about any deficiency in the
confessional statement earlier. That is of great significance. Merely because E
the confessional statement was recorded in a computer, it cannot be a ground
for holding that the confessional statements was not voluntary. Similarly, as
DCP has given a certificate in typing when the requirement is that certificate
has to be "under his own hand" that is urged to be illegal. It would be too
technical to discard the confessional statement or doubt its authenticity. This
is merely a procedural requirement. The non-observance does not cause any F
prejudice to the accused. It has not been shown as to how the accused was
prejudiced by the certificate having been typed. Procedure is hand made and
not the mistress of law, intended to subserve and facilitate the cause of justice
and not to govern or obstruct it. Like all rules of procedure, the requirement
of recording "under his own hand" demands an approach which would be G
rational and practical and not otherwise. Such minor deficiency, if any, cannot
be considered to be a fatal factor. [785-D-E-F]
2.6. Appellant's retraction was long after he was taken into judicial
custody, when be made a grievance about the statement having been forcibly
obtained. This is clearly a case of after-thought. Since the confessional H
772
SUPREME COURT REPORTS
[2002] 2 S.C.R.
·> A statement was voluntary, no corroboration for the purpose of its acceptance
B
is necessary. (783-G-H;]
•
Jayawant Dattatray Suryarao etc. etc. v. State of Maharashtra etc. etc., AIR
(2001) SC 4717, relied on.
3. The accused was a fugitive and :ras on the run. At the Airport he
was arrested for travelling on a forged passport. It has been accepted by the
accused in his statement recorded under Section 313 Cr. P.C. that he had
sought asylum in Germany and was deported from there on refusal of as;-lum.
The accused wanted his statement to be recorded under Section 15 of TADA
C .and requested the concerned Police Officer to do the needful. After ensuring
that all procedure and safeguards have been observed the statement of the
accused was recorded by the Police Officer. A mere statement that requisite
procedure and safeguards were not observed or that statement was recorded
under duress or coercion, is really of no consequence. Such a stand can be
taken in every case by the accused after having given the confessional
D statement It could not be shown as to why the officials would falsely implicate
the accused. There is a statutory presumption under Section 114 of the
Evidence Act that judicial and official acts have been regularly performed.
The accepted meaning of Section 114(e) is that when an official act is proved
to have been done, it will be presumed to have been regularly done. The
E presumption that a person acts honestly applies as much in favour of a police
officer as of other persons, and it is to judicial approach to distrust and suspect
him without good grounds therefore. Such an attitude can do neither credit
to the magistracy nor good to the public. {785-G-H; 786-A-B-C-D]
F
Aher Raja Khima v. State ofSaurashtra, AIR (1956) SC 217, relied on.
4.1. The essence of a criminal conspiracy is the unlawful combination
and ordinarily the offence is complete when the combination is framed. From
this, it necessarily follows that unless the statute so requires, no overt act need
be done in furtherance of the conspiracy, and that ttoe object of the
G combination need not be accomplished, in order to constitute an indictable
offence. Also, the essence of criminal conspiracy is an agreement to do an
illegal act and such an agreement can be proved either by direct evidence or
by circumstantial evidence or by both, and it is a matter of common experience
that direct evidence to prove conspiracy is rarely available. Therefore, the
circumstances proved before, during and after the occurrence have to be
H considered to decide about the complicity of the accused. The provisions of
,•
D.P. SINGH v. STATE N.C.T. OF DELHI
773
.J
Sections 120-A and 120-B IPC have brought the law of conspiracy in India A
i~ line with the English Law by making the overt act unessential when the
conspiracy is to commit any punishable offence.
(787-B-C-G-H; 788-A-H; 789-A]
SC. Bahri v. State of Bihar, AIR (1994) SC 2420; American Jurisprudence B
Vol. II Sec. 23. P. 559; Ha/sbury's Laws of England 4th Ed., Vol. II Page 44
Para 58; Russell on Crime 12 Ed. Vol. I, P. 202 and Regina v. Murphy, (1837)
173 ER 502, referred to.
4.2. Conspiracies are not hatched in open; by their nature, they are
secretly planned, they can be proved even by circumstantial evidence, the lack
of direct evidence relating to conspiracy had -no consequence. Where c
trustworthy evidence establishing all links of circumstantial evidence is
available, the confession of a co-accused as to conspiracy even without
corroborative evidence can be taken into consideration. (790-E; 791-D]
'\
E.K Chandrasenan v. State of Kera/a, AIR (1995) SC 1066 and Kehar D
Singh and Ors., v. State (Delhi Administration), AIR (1988) SC 1883, referred
~
to.
~
4.3. Exaggerated devotion to the rule of benefit of doubt must not
nurture fanciful doubts or lingering suspicions and thereby destroy social
defence. Justice cannot be made sterile on the plea that it is better to let E
hundred guilty escape than punish an innocent. Letting guilty escape is not
doing justice according to law. If a case is proved perfectly it is argued that
).
it is artificial; if a case has some flaws, -inevitable because human beings are
...
prone to err, it is argued that it is too imperfect. Proof beyond reasonable
doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial F
evaluation. The plea that acquittal of co-accused has rendered prosecution
version brittle, has no substance, since the acquittal of co-accused was on the
ground of non-corroboration. (791-F-H; 792-C]
Gurbachan Singh v. Satpal Singh and Ors., AIR (1990) SC 209; State of
UP. v. Ashok Kumar Srivastava, AIR (1992) SC 840; Inder Singh and Anr. v. G
-...,
State Delhi Administration, AIR (1978) SC 1091 and State ofU.P. v. Anil Singh,
AIR (1988) SC 1998, r~lied on.
-
5. As the factual scenario of the instant case shows, at least nine persons
died, several persons were injured, a number of vehicles caught fire and were
destroyed on account of the perpetrated acts. The dastardly acts were diabolic H
774
SUPREME COURT REPORTS
(2002) 2 S.C.R.
A in conception and cruel in execution. The "terrorists" who are sometimes
~
described as "death merchants" have no respect for human life. Innocent
persons lose their lives because of mindless killing by them. Any compassion
for such persons would frustrate the purpose of enactment of TADA, and
would amount to misplaced and unwarranted sympathy. Death sentence is
B
the most appropriate sentence in the case at hand, and the trial Judge has
rightly awarded it. [793-G-H; 794-A]
Bachan Singh v. State of Punjab, AIR (1980) SC 898; Machhi Singh and
Ors. v. State of Punjab, [1983] 3 SCC 470 and Ramdeo Chauhan v. State of
>--
Assam, [2001] 5 SCC 714, relied on.
c
Per Shah J. (Dissenting):
1.1. It is apparent that Investing Officer has improved his version by
.stating that accused tried to swallow Cyanide capsule when he was arrested.
On the other hand P.Ws. stated that accused was handed over to them by
D the staff of Lufthansa Airlines and nowhere they stated that at that time
accused tried to swallow any pill. It appears that 1.0. tried to give colour to
..,,.-
the story that appellant tried to sallow the Cyanide pill. If that story was
J ,..
genuine, necessary panchnama of the Cyanide pill would have been made at
..
the spot. Further, it is admitted position on record that during the course of
investigation of the bomb blast, the police had learnt that accused persons
E were members of a terrorist organisation who were behind the blast.
Therefore, it would be difficult to believe that the 1.0. had gone to the Airport
only for keeping a watch. On the contrary, one of the Police Officers, has
admitted that on his instructions, 1.0. had gone to the Airport to arrest the
.....
accused on the basis of intelligence reports of involvement of accused and his
group in the bomb blast case. Therefore, the version of 1.0. that he had gone
~.
F to the Airport to check the incoming passengers from Germany cannot be
relied upon. [800-D-E-F]
1.2. It is difficult to believe that the accused who was arrested for
travelling on a forged passport after landing at the Airport, would make a
G disclosure statement involving himself in various crimes including the bomb
blast. There was no earthly reason to make such disclosure so that accused
could be arrested by 1.0. for the alleged involvement in the offence under
yTADA. It is also admitted that when the accused was p'roouced before ACMM,
the confessional statement was not produced for the perusal of the ACMM
~
and the ACMM only asked appellant the question-Whether he admitted
H ·making confession statement before 1.0. It would be difficult to accept that
D.P. SINGH v. STATEN.CT. OF DELHI
775
if confessional stat~ment was recorded and when the accused was produced A
~
before the Magistrate, he would be taken there without the said confessional
statement. Rule 15(5) of TADA requires that every confession recorded un\fer
Section 15 shall be sent forthwith to the CMM of the CJM having jurisdiction
over the area in which such confession has been recorded and such Magistrate
shall forward the confession so received to the Designated Court which may B
take cognizance of the offence. In this view of the matter there was no reason
to produce the accused before the ACMM without the so-ealled confessional
statement. (800-H; 801-A-B-C)
1.3. From the evidence, it is apparent that the confessional statement
of the appellant is recorded by 1.0. (PW). When the accused was in police c
custody. Therefore he was handed over to the Punjab Police. Further, from
the record it appears that accused was wanted in bomb blast case since 1993
and as soon as he arrived at the Airport, he was arrested and was handed
over to the Police. It is stated that the 1.0. also recorded the disclosure
statement of the appellant wherein he admitted his involvement in the bomb D
....
blast case. Thereafter, confessional statement under Section 15 of TADA was
recorded by the DCP. In such state of affairs, doubt may arise-whether the
>
accused has made any confessional statement at all. 1801-F-Gl
J.
Kartar Singh v. State of Punjab, (1994) 3 SCC 569, relied on.
2.1. There must be some reliable independent corroborative evidence E
to ascertain the truthfulness of confessional statement. In the present case,
co-accused who was tried together with the appellant was acquitted on the
>
grounds that there was no evidence against him and that he had not made
: ..
any confessional statement. However, for connecting the appellant, the
Designated Court relying upon the decision in Gurdeep Singh 's case wherein F
it was held that when the confessional statement is voluntary, corroboration
is not required. It appears that the Court has not read the entire paragraph
of the said judgment. From the aforesaid judgment, it is clear that before solely
relying upon the confessional statement, Court has to find out whether it is
made voluntarily and truthfully by the accused Even if it is made voluntarily, G
the Court has to decide whether it is made truthfully or not.
-....
(802-D-E-H; 803-AJ
....
3. The role assigned to the other accused in the confessional statement
is major one. There is nothing on record to corroborate the confessional
statement by the appellant. Police could have easily verified the hospital record H
776
SUPREME COURT REPORTS
[2002] 2 S.C.R.
A to find out whether co-accused went to the hospital and registered himself
under a fictitious name on the date ofincident and left the hospital after getting
First Aid. In any set of circumstances, none of the main culprits is convicted.
In these set of circumstances, without there being corroborative evidence, it
would be difficult to solely rely upon the so-called confessional statement and
convict the accused and that too when the confessional statement is recorded
B by the police officer. When rest of the accused who are named in the
confessional statement are not convicted or tried, this would not be a fit case
for convicting the appellant solely on the basis of so-called confessional
statement recorded by the police officer, and such type of confessional
statement cannot be the basis for awr -1ing death sentence.
C
[803-G; 805-G-H; 806-A; 807-B-C]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
993 of 2001.
From the Judgment arid Order dated 24.8.200 I of the Designated Court,
D New Delhi in S.C. No. 4 of 2000.
WITH
Death Reference Case (Cr!.) No. 2 of 2001.
E
Ms. Nitya Ramakrishnan and Ms. Neeru Vaid for the Appellant.
Anoop G. Chaudhry, Ms. Sunita Shrama, Avtar Singh Rawat and D.S.
Mehra for the Respondents.
The Judgments of the Court were delivered by :
F
ARIJIT PASAYAT, J. Notwithstanding my profound respect for
Brother Shah's erudition, 1 am unable to agree with his conclusions. While
dealing with an accused tried under the TADA, certain special features of the
said Statute need to be focused. It is also necessary to find out the legislative
intent for enacting it. It defines' "terrorist acts" in Section 2(h) with reference
to Section 3(1) and in that context defines a terrorist. It is not possible to
G define the expression 'terrorism' in precise terms. It is derived from the word
'terror'. As the Statement of Objects and Reasons leading to enactment of the
TADA is concerned, reference to The Terrorist and Disruptive Activities
(Prevention) Act, 1985 (hereinafter referred to as the 'Old Act') is necessary.
It appears that the intended object of the said Act was to deal with persons
H responsible for escalation of terrorist activities in many parts of the country.
'.
-
D.P. SINGH v. STATEN.C.T. OF DELHI [ARJJITPASAYAT,J.J
777
It was expected that it would be' possible to control the menace within a A
period of two years, and life of the Act was restricted to the period of .two
years from the date of its commencement. But noticing the continuance of
menace, that too on a larger scale TADA has been enacted. Menace of terrorism
is not restricted to our country, and it has become a matter of international
concern and the attacks on the World Trade Centre and other places on I Ith
September, 2001 amply show it. Attack on the Parliament on 13th December, B
200 I shows how grim the situation is. TADA is applied as an extreme measure
when police fails to tackle with the situation under the ordinary penal law.
Whether the criminal act was committed with an intention to strike terror in
the people or section of people would depend upon the facts of each case. As
was noted in Jayawant Dattatray Suryarao etc. etc. v. State of Maharashtra C
etc. etc., (2001) AIR SCW 4717, for finding out the intention of the accused,
there would hardly be a few cases where there would be direct evidence. It
has to be mainly inferred from the circumstances of each case.
In Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors.,
[1994] 4 sec 602, this Court observed that "the legal position remain D
unaltered that the crucial postulate of judging whether the offence is a terrorist
act falling under Act or not is whether it was done with the intent to overawe
the Government as by law established or to strike terror in the people etc.: A
'terrorist' activity does not merely arise by causing disturbance of law and
order or of public order. The fall out of the intended activity is to be one that E
it travels beyond the capacity of the ordinary law enforcement agencies to
tackle it under the ordinary penal law. It is in essence a deliberate and
systematic use of coercive intimidation
11
• As was noted in the said case, it is
a common feature that hardened criminals today take advantage of the situation
and by wearing the cloak of terrorism, aim to achieve acceptability and
respectability in the society, because in different parts of the country affected F
by militancy, a terrorist is projected as a hero by a group and often even by
many misguided youth. As noted at the outset, it is not possible to precisely
define "terrorism',_ Finding a defmition of "terrorism" has haunted countries
for decades. A first attempt to arrive at an internationally acceptable definition
was made under the League of Nations, but the convention drafted in 1937 G
never came into existence. The UN Member States still have no agreed-upon
definition. Terminology consensus would, however, be necessary for a single
,. comprehensive convention on terrorism, which some countries favour in place
of the present 12 piecemeal conventions and protocols. The lack of agreement
on a definition of terrorism has been a major obstacle to meaningful
international countermeasures. Cynics have often commented that one State's H
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[2002] 2 S.C.R.
A "terrorist" is another State's "freedom fighter". If terrorism is defined strictly
in terms of attacks on non-military targets, a number of attacks on military
installations and soldiers' residences could not be included in the statistics. In
order to cut through the Guardian definitional knot, terrorism expert A. Schmid
suggested in 1992 in a report for the then UN Crime Branch that it might be
a good idea to take the existing consensus on what constitutes a "war crime"
B as a point of departure. If the core of war crimes-deliberate attacks on civilians,
hostage taking and the killing of prisoners - is extended to peacetime, we
could simply define acts of terrorism as "peacetime equivalents of war crimes".
c
D
E
F
G
H
1. League of Nations Convention (1937) :
"All criminal acts directed against a State along with intended or
calculated to create a statute of terror in the minds of particular persons
or a group of persons or the general public"
(GA Res. 51/210 Measures to eliminate international terrorism) as
"l. Strongly condemns all acts, method and practices ofterrorism·as
criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that criminal acts intended or calculated to provoke a
state of terror in the general public, a group of persons or particular
persons for political purposes are in any circumstances unjustifiable,
whatever the considerations of a political, philosophical, ideological,
racial, ethnic, religious or other nature that may be invoked to justify
them".
3. Short legal definition proposed by A.P. Schmid to United Nations
Crime Branch (1992) :
Act of Terrorism = Peacetime Equivalent of War Crime
4. Academic Consensus Definition :
"Terrorism is an anxiety-inspiring of repeated violent action, employed
by (semi-) clandestine individual, group or state actors, for
idiosyncratic, criminal or political reasons, whereby - in contrast to
assassination - the direct targets of violence are not the main targets.
The immediate human victims of violence are generally chosen
randomly (targets of opportunity) or selectively (representative or
symbolic targets) from a target population, and serve as message
generators. Threat- and violence-based communication processes
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D.P. SINGH v. STATEN.C.T. OF DELHI [ARlllT PASAYAT.J.]
779
between terrorist (organization), (imperiled) victims, and main targets A
are used to manipulate the main target (audience (s)), turning it into
a target of terror, a target of demands, or a target of attention,
depending on whether intimidation, coercion, or propaganda is
primarily sought" (Schimid, 1988).
Definitions :
B
Terrorism by nature is difficult to define. Acts of terrorism conjure
emotional responses in the victims (those hurt by the violence and
those affected by the fear) as well as in the practitioners. Even the
U.S. government cannot agree on one single definition. The old adage,
"One man's terrorist is another man's freedom fighter" is still alive C
and well. Listed below are several definitions of terrorism used by
the Federal Bureau of Investigation.
Terrorism is the use or threatened use of force designed to bring
about political change. - Brain Jenkins
Terrorism constitutes the illegitimate use of force to achieve a political
objective when innocent people are targeted. - Walter Laqueur.
Terrorism is the premeditated, deliberate, systematic murder, mayhem,
D
and threatening of the innocent to create fear and intimidation in
order to gain a political or tactical advantage, usually to influence an E
audience. - James M. Poland
Terrorism is the unlawful use or threat of violence against persons or
property to further political or social objectives. It is usually intended
to intimidate or coerce a government, individuals or _groups, or to
modify their behaviour or politics. - Vice-President's Task Force, F
1986. Terrorism is the unlawful use of force or violence against persons
or property to intimidate or coerce a government, the civilian
population, or any segment thereof, in furtherance of political or
social objectives. - FBI Definition.
The main plea of accused-appellant is that there was no corroboration G
to the alleged confessional statement. Various circumstances, according to
him, clearly show that it was not voluntary. Strong reliance is placed in State
v. Nalini and Ors., [1999] 5 SCC 253 to contend that corroboration is
necessary. It is to be noted that legislature has set different standards of
admissibility of a confession statement made by an accused under the TADA
from those made in other criminal proceedings. A confessional statement H
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[2002] 2 S.C.R.
A recorded by a police officer not below the rank of Superintendent of Police
under Section 15 of the TADA is admissible, while it is not so admissible
unless made to the Magistrate under Section 25 of the Indian Evidence Act,
1872 (in short the 'Evidence Act'). It appears consideration of a confessional
statement of an accused to a police officer except to the extent permitted
B under Section 27 of the Evidence Act is not permissible. These aspects are
noted by this Court in Sahib Singh v. State of Haryana, [1997] 7 SCC 231
and Gurdeep Singh 's case (supra). There is one common feature, both is
Section 15 of the TADA and Section 24 of the Evidence Act that the confession
has to be voluntary. Section 24 of the Evidence of the Evidence Act interdicts
~
a confession, if it appears to the court to be the result of any inducement,
C threat or promise in certain conditions. The principle therein is that confession
must be voluntary. Section 15 of the TADA also requires the confession to
be voluntary. Voluntary means that one who makes it out of his own free will
inspired by the sound of his own conscience to speak nothing but the truth.
As per Stroud's Judicial Dictionary, 5th Edn., at 2633, threat means:
D
"It is the essence of a threat that it be made for the purpose of
intimidating, or overcoming, the will of the person to whom it is
addressed [per Lush, J., Wood v. Bowron, (1866) 2 QB 21 cited
Intimidate."
Words and Phrases, Permanent Edition, Vol. 44, p. 622, defines
E
"voluntary" as:
F
G
"'Voluntary' means a statement made of the free will and accord
of accused, without coercion, whether from fear of any threat of
harm, promise, or inducement or any hope ofreward--State v. Mullin
85 NW 2d 598, 600, 249 !own 10."
At p. 629, "confession" is defined as:
"where used in connection with statements by accused, words
'voluntary' and 'involuntary' import statements made without
constraint or compulsion by others and the contrary. Commonwealth
v. Chin Kee, (186 NE 253, 260 283 Mass 248.)"
In Words and Phrases by Jhon B. Saunders, 3rd Edn., Vol. 4 p.
401, "voluntary" is defined as:
" .... The classic statement of the principle is that Lord Summer in
Ibrahim v. Regem (1914) AC 599 at p. 609 where he said, "It has
H
long been established as a positive rule of English criminal law that
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D.P. SINGH v. STATE N.C.T. OF DELHI [AR!JIT PASAYAT, J.]
781
no statement by an accused is admissible in evidence against him A
unless it is shown by the prosecution to be a voluntary statement, in
the sense that it has not been obtained from him either by fear of
prejudice or hope of advantage exercised or held out by a person in
authority. The principle is as old as Lord Hale". However, in five of
the eleven textbooks cited to us ... support is to be found for a narrow B
and rather technical meaning of the word "voluntary''. According to
this view "voluntary" means merely that the statement has not been
made in consequence of (i) some promise of advantage or some
threat (ii) of a temporal character (iii) held out or made by a person
in authority, and (iv) relating to the charge in the sense that it implies
that the accused's position in the contemplated proceedings will or C
may be better or worse according to whether or not the statement is
made." R. v. Harz, R. v. Power, (1966) 3 All ER 433 (at pp. 454,
455) per Cantley, V."
So the crux of making a statement voluntarily is, what is intentional,
intended, unimpelled by other influences, acting on one's own will, D
through his own conscience. Such confessional statements are made
mostly out of a thirst to speak the truth which at a given time
predominates in the heart of the confessor which impels him to speak
out the truth. Internal compulsion of the conscience to speak out the
truth normally emerges when one is in despondency or in a perilous
situation when he wants to shed his cloak of guilt and nothings but
disclosing the truth would dawn on him. It sometimes becomes ·so
powerful that he is ready to face all consequence for clearing his
heart.
EAs was observed in Nalini's case (supra) TADA was enacted to meet
_ extraordinary situation exiting in the country. Its departure from the law F
relating to confession as contained in the Evidence Act is deliberate. Section
24 of the Evidence Act deals with confession caused by inducement, threat
or promise, which is irrelevant in criminal proceedings. The expression
"confession" has not been defined in the Evidence Act. Broadly speaking it
is an admission made at any time by a person charged with crime, stating or G
suggesting the interference that he committed that crime. Law relating to
confession is to be found generally in Section 24 to 30 of the Evidence Act,
and Section I 62, and 164 of the Code of Criminal Procedure, 1898 (hereinafter
\
described as "old Code") corresponding to identical provisions of Code of
\Criminal Procedure, 1973 (described as "Code" hereinafter). Confession is a
species of admission. A confession or admission is evidence against maker H
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of it, if its admissibility is not excluded by some provision of law. Law is
clear that a confession cannot be used against an accused person unless the
Court is satisfied that it was voluntary. At that stage question whether it is
true or false does not arise. If the facts and circumstances surrounding the
making of a confession appear to cast a doubt on the voluntariness of the
confession, the Court may refuse to act upon the confession, even if it is
admissible in evidence. The question whether a confession is voluntary or
not is always a question of fact. A free and voluntary confession is deserving
of highest credit, because it is presumed to flow from the highest sense of
guilt. In Principle and Digest of Law of Evidence, Volume I, New Edition by
Chief Justice M. Monir, after noticing conflicting views and discussing various
authorities, the learned author summarized the position as follows:
"The rule may therefore, be stated to be that whereas the evidence
in proof of a confession having been made is always to be suspected
the confession, if once proved to have· been made and made voluntarily,
is one of the most effectual proofs in the law."
As was noted in Gurdeep Singh 's case (supra), whenever an accused
challenges that his confessional statement is not voluntary, the initial burden
is on the prosecution for it has to prove that all requirements und_er Section
15 of TADA and Rule 15 of Terrorist and Disruptive Activities (Prevention)
Rules, 1987 (hereinafter referred to as "Rules") have been complied with.
Once this is done the prosecution discharges its burden and then it is for
accused to show and satisfy the Court that the confessional statement was not
made voluntarily. The confessional statement of the accused can be relied
upon for the purpose of conviction, and no further corroboration is necessary
if it relates to the accused himself. It has to be noted that in Nalini 's case
(supra), by majority it was held that 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. It is
relevant to note that in Nalini's case (supra), the Court was considering the
permissibility of conviction of a co-accused on the confessional statement
made by another accused. In this -case, we are concerned with the question
as to whether the accused making the confessional statement can be convicted
on the basis of that alone without any corroboration. The following
observations in Jayawant Dattataray 's case (supra) are relevant:
"Confessional statement before the police officer under Section
15 of the TADA is substantive evidence and it can be relied upon in
H
the trial of such person or co-accused, abetter or conspirator for an
"--
.,,
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.J,
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D.P. SINGH v. STATE N.C.T.