# State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors

- **Citation:** 2025 INSC 376
- **Court:** Supreme Court of India
- **Decided:** 2025-03-20
- **Case number:** Criminal Appeal No. 1681 of 2009
- **Bench:** Abhay S. Oka, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-cbi-v-mohd-salim-zargar-fayaz-ors-38880
- **Pages:** 28

## Headnote

Issue arose as regards the correctness of judgment and order of
the Special Court acquitting the respondents for offences under
Ranbir Penal Code, 1932 and Terrorist and Disruptive Activities
(Prevention) Act, 1987.
Headnotes†
Terrorist and Disruptive Activities (Prevention) Act, 1987 - ss.3,
4, 15, 19 - TADA Rules - r.15 - Recording of confessional
statement - Non-compliance - Effect - Complaint alleging
that Vice Chancellor of Kashmir University and his Personal
Secretary were kidnapped by armed terrorists from their official
car and subsequently, their dead bodies were recovered -
Investigation by CBI revealed that the self-styled Chief
Commander of banned militant organization, Jammu & Kashmir
Students Liberation Front-JKSLF, along with other members,
including accused, entered into a conspiracy to kidnap the
deceased to strike terror in the minds of the public, thereby
to compel the Government to release their associates, and
execution of the hostages if their demands were not met - As
the Government did not comply with their demand, hostages
were taken to a field where accused-respondent no. 1 fired
upon with AK-47 rifle causing multiple bullet injuries on their
persons resulting in their death - Special Court discarded the
ocular evidence and confessional statements of the accused
being inadmissible in evidence and acquitted the accused
holding that the prosecution could not prove the guilt of the
accused beyond any reasonable doubt - Correctness:
Held: Testimony of the prosecution witnesses coupled with
non-recovery of the weapon of offence seriously damaged the
prosecution case - As regards recording of confessional statement
of respondent no. 1, there is clear departure from the norms which
* Author
[2025] 4 S.C.R.
157
State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.
renders the confession highly suspect - Record does not contain
any statement in the form of questions and answers wherefrom
it could be deciphered that respondent no.1 was making the
confession voluntarily - Hardly any or no time for reflection
was given which vitiated the said confessional statement - Also
discrepancy in the date of recording of the confessional statement -
This very confessional statement of respondent no.1 was deemed
inadmissible and unreliable and rejected by the Special Court in
a prior case - Acceptance of the same confessional statement of
respondent No.1 would disturb the finding of fact already recorded
in the previous criminal trial relating to killing of one - Also, said
statement clearly vitiated by non-compliance with the procedural
safeguards provided u/r.15 - Furthermore, confessional statements
of respondent no.2 and respondent no.6 recorded in the same
manner as the confessional statement of respondent no.1, hardly
any or no time was given to them for reflection before recording
confessional statement - Most crucial ommission completely vitiated
the said two confessional statements - Procedural safeguards for
recording confessional statement of accused given a complete gobye - Special Court has stopped short of observing that it was a case
of abuse of power and authority - No error or infirmity in the view
taken by the Special Court in acquitting the respondents - Ranbir
Penal Code, 1932 - ss.118, 120-B, 302, 341, 364, 368, 365 - Arms
Act, 1959 - s.3/25. [Paras 11, 22.1-22.3, 24, 25, 25.1, 27, 28]
Terrorist and Disruptive Activities (Prevention) Act, 1987 -
s.15 - TADA Rules - r.15 - Provisions dealing with recording
of confessional statement - Explained. [Paras 13, 14]
Terrorist and Disruptive Activities (Prevention) Act, 1987 -
ss.3(1), 19 - Incident relating to kidnapping and subsequent
murder of General Manager of a company in Srinagar allegedly
by the respondents after entering into a criminal conspiracy to
strike terror in the minds of the general public and thereby to
compel the Government to release their associates - Special
Court acquitted the respondents for the offences u/s.3(1)
of the TADA Act rw ss.120B,

## Text

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[2025] 4 S.C.R. 156 : 2025 INSC 376
State (CBI)
v.
Mohd. Salim Zargar @ Fayaz & Ors.
(Criminal Appeal No. 1681 of 2009)
20 March 2025
[Abhay S. Oka and Ujjal Bhuyan,* JJ.]
Issue for Consideration
Issue arose as regards the correctness of judgment and order of
the Special Court acquitting the respondents for offences under
Ranbir Penal Code, 1932 and Terrorist and Disruptive Activities
(Prevention) Act, 1987.
Headnotes†
Terrorist and Disruptive Activities (Prevention) Act, 1987 - ss.3,
4, 15, 19 - TADA Rules - r.15 - Recording of confessional
statement - Non-compliance - Effect - Complaint alleging
that Vice Chancellor of Kashmir University and his Personal
Secretary were kidnapped by armed terrorists from their official
car and subsequently, their dead bodies were recovered -
Investigation by CBI revealed that the self-styled Chief
Commander of banned militant organization, Jammu & Kashmir
Students Liberation Front-JKSLF, along with other members,
including accused, entered into a conspiracy to kidnap the
deceased to strike terror in the minds of the public, thereby
to compel the Government to release their associates, and
execution of the hostages if their demands were not met - As
the Government did not comply with their demand, hostages
were taken to a field where accused-respondent no. 1 fired
upon with AK-47 rifle causing multiple bullet injuries on their
persons resulting in their death - Special Court discarded the
ocular evidence and confessional statements of the accused
being inadmissible in evidence and acquitted the accused
holding that the prosecution could not prove the guilt of the
accused beyond any reasonable doubt - Correctness:
Held: Testimony of the prosecution witnesses coupled with
non-recovery of the weapon of offence seriously damaged the
prosecution case - As regards recording of confessional statement
of respondent no. 1, there is clear departure from the norms which
* Author
[2025] 4 S.C.R.
157
State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.
renders the confession highly suspect - Record does not contain
any statement in the form of questions and answers wherefrom
it could be deciphered that respondent no.1 was making the
confession voluntarily - Hardly any or no time for reflection
was given which vitiated the said confessional statement - Also
discrepancy in the date of recording of the confessional statement -
This very confessional statement of respondent no.1 was deemed
inadmissible and unreliable and rejected by the Special Court in
a prior case - Acceptance of the same confessional statement of
respondent No.1 would disturb the finding of fact already recorded
in the previous criminal trial relating to killing of one - Also, said
statement clearly vitiated by non-compliance with the procedural
safeguards provided u/r.15 - Furthermore, confessional statements
of respondent no.2 and respondent no.6 recorded in the same
manner as the confessional statement of respondent no.1, hardly
any or no time was given to them for reflection before recording
confessional statement - Most crucial ommission completely vitiated
the said two confessional statements - Procedural safeguards for
recording confessional statement of accused given a complete gobye - Special Court has stopped short of observing that it was a case
of abuse of power and authority - No error or infirmity in the view
taken by the Special Court in acquitting the respondents - Ranbir
Penal Code, 1932 - ss.118, 120-B, 302, 341, 364, 368, 365 - Arms
Act, 1959 - s.3/25. [Paras 11, 22.1-22.3, 24, 25, 25.1, 27, 28]
Terrorist and Disruptive Activities (Prevention) Act, 1987 -
s.15 - TADA Rules - r.15 - Provisions dealing with recording
of confessional statement - Explained. [Paras 13, 14]
Terrorist and Disruptive Activities (Prevention) Act, 1987 -
ss.3(1), 19 - Incident relating to kidnapping and subsequent
murder of General Manager of a company in Srinagar allegedly
by the respondents after entering into a criminal conspiracy to
strike terror in the minds of the general public and thereby to
compel the Government to release their associates - Special
Court acquitted the respondents for the offences u/s.3(1)
of the TADA Act rw ss.120B, 302, 368 and 364 of the RPC -
Challenge to:
Held: Weapon of assault not recovered and eyewitnesses
deposed that the respondents produced in court were not the
accused persons - Entire prosecution case centered around the
confessional statement of accused SZ which has already been
rejected. [Paras 32, 33]
158
[2025] 4 S.C.R.
Supreme Court Reports
Case Law Cited
Kartar Singh v. State of Punjab [1994] 2 SCR 375 : (1994) 3 SCC
569 - followed.
Sharafat Hussain Abdul Rahaman Shaikh v. State of Gujarat [1996]
Supp. 9 SCR 86 : (1996) 11 SCC 62; SN Dubey v. NB Bhoir [2000]
1 SCR 200 : (2000) 2 SCC 254; Ahmed Hussein Vali Mohammed.
Saiyed v. State of Gujarat [2009] 8 SCR 719 : (2009) 7 SCC 254;
Yakub Abdul Razak Memon v. State of Maharashtra [2013] 15
SCR 1 : (2013) 13 SCC 1; Raja v. State of Tamil Nadu [2020] 4
SCR 1112 : (2020) 5 SCC 118; Ravinder Singh v. Sukhbir Singh
[2013] 1 SCR 243 : (2013) 9 SCC 245 - referred to.
List of Acts
Ranbir Penal Code, 1932; Terrorist and Disruptive Activities
(Prevention) Act, 1987; TADA Rules; Arms Act, 1959.
List of Keywords
Recording of confessional statement; Vice Chancellor of Kashmir
University and his Personal Secretary kidnapped by armed
terrorists; Self-styled Chief Commander of banned militant
organization called Jammu & Kashmir Students Liberation Front;
Kidnap to strike terror in the minds of the public; Execution of
hostages; Multiple bullet injuries; Ocular evidence; Confessional
statements; Inadmissible in evidence; Testimony of the prosecution
witnesses; Non-recovery of weapon of offence; No time for reflection
before recording confessional statement; Kidnapping and murder
of General Manager of HMT watch company, Srinagar; Weapon
of assault; Conspiracy; Safeguards for confessional statements;
AK-47 rifle.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1681 of 2009
From the Judgment and Order dated 20.04.2009 of the High Court
of Jammu and Kashmir in RC No. 5 of 1990
With
Criminal Appeal No. 1770 of 2009
[2025] 4 S.C.R.
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State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.
Appearances for Parties
Advs. for the Appellant:
Ms. Sonia Mathur, Sr. Adv., Ms. Shubhi Bhardwaj, Mukesh Kumar
Maroria, Annam Venkatesh, Zoheb Hussain, Rajat Nair, Vivek
Gurnani.
Advs. for the Respondents:
Ms. Kamini Jaiswal, Ms. Rani Mishra, Abani Sahu.
Judgment / Order of the Supreme Court
Judgment
Ujjal Bhuyan, J.
Criminal Appeal No. 1681 of 2009
This is an appeal under Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 by the State (CBI) assailing the
judgment and order dated 20.04.2009 passed by the 3rd Addl.
Sessions Judge, Jammu (briefly 'the Special Court' hereinafter). By
the aforesaid judgment and order, the Special Court acquitted the
respondents in CBI Case No. RC 5(S)/1990 for the offences under
Sections 118, 302, 368 and 365 of the Ranbir Penal Code, 1932
(RPC) and under Sections 3 and 4 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987, hereinafter referred to as the TADA
Act (since repealed).
2.
Genesis of the case can be traced to FIR No. 55/1990 registered at
Police Station Nageen, Srinagar under Sections 364, 341 and 120-B
of RPC read with Section 3(2) of the TADA Act. The FIR was lodged
on the basis of a complaint filed by Shri Ghulam Nabi Dar, a driver
of Kashmir University. Informant alleged that on 06.04.1990 at about
04.20 pm, Dr. Mushir-ul-Haq, Vice Chancellor of Kashmir University,
and his Personal Secretary Shri Abdul Gani Zargar were kidnapped
by armed terrorists from their official car outside the Sadarbal Gate
of the University. After taking them in the said vehicle for a short
distance towards Lal Bazar on Sadarbal Road, they were shifted to
a red Maruti van and taken away.
2.1 Subsequently, dead bodies of Dr. Mushir-ul-Haq and Shri Abdul
Gani Zargar were recovered on 10.04.1990. As a result, Section
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302 RPC and Section 3/25 of the Arms Act, 1959 ('Arms Act'
hereinafter) were added to the FIR.
2.2 Investigation of the case was transferred to the Central Bureau
of Investigation (CBI) on the request of the Jammu and Kashmir
Government. On the CBI taking over investigation, the case
was re-registered as RC 5 (S)/90-SIU.V on 21.04.1990 under
Sections 302, 341 and 364 RPC read with Section 3 of the
TADA Act and Sections 3/25 of the Arms Act.
2.3 Investigation revealed that Hilal Beg was the self-styled Chief
Commander of a banned militant organization called Jammu
& Kashmir Students Liberation Front (JKSLF). He along with
other members of JKSLF, including accused Javed Shala, Tahir
Ahmed Mir, Mushtaq Ahmed Sheikh, Mushtaq Ahmed Khan,
Mohd. Hussain Khan and Mohd. Salim Zargar entered into a
conspiracy between 31.03.1990 and 06.04.1990 to kidnap Dr.
Mushir-ul-Haq, the Vice-Chancellor of Kashmir University and
others to strike terror in the minds of the public, thereby to
compel the Government to release their associates, viz, Nissar
Ahmed Jogi, Gulam Nabi Bhat and Fayyaz Ahmed Wani. The
conspiracy included execution of the hostages if their demands
were not met.
2.4 On 06.04.1990, at approximately 09.00 a.m., the accused
persons grouped together at Aftab's house. They left the house
of Aftab in a red Maruti van bearing registration No. JKD-9394
and proceeded towards Kashmir University. They were fully
armed. At about 01.20 p.m., the accused persons saw the car
of the Vice-Chancellor coming out of the University campus
towards the Sadarbal Gate. The vehicle had to stop as the
gate was being opened. As it came out from the gate, some
of the accused persons forcibly got inside the car of the ViceChancellor brandishing their weapons. They overpowered the
driver, the Vice-Chancellor, his Personal Secretary and Jamadar,
Malook Khan. The vehicle of the Vice-Chancellor was driven
towards the Sadarbal side followed by accused Javed Shala
and Mushtaq Sheikh in the red Maruti van.
2.5 After travelling some distance, the said vehicle was stopped
whereafter the accused persons forced the Vice-Chancellor
and his Personal Secretary to come out of the car. The Vice-
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State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.
Chancellor and his Personal Secretary were thereafter taken to
the red Maruti van. Subsequently the two kidnapped persons
were taken to different locations and ultimately were taken to
the residence of Mohd. Sadiq Rather at Natipura. From there
the two kidnapped persons were shifted to the house of accused
Shabir where they were kept confined.
2.6 Accused Hilal Beg claimed responsibility for the abduction
of Dr. Mushir-ul-Haq, the Vice-Chancellor, and his Personal
Secretary Abdul Gani Zargar. In this connection, accused Hilal
Beg issued a press release.
2.7 As the Government did not comply with their demand, accused
Hilal Beg and his associates convened a meeting on 09.04.1990
at 03.00 p.m. to decide the fate of the hostages.
2.8 On 10.04.1990, the two hostages were taken to a field.
Accused Salim Zargar fired upon with an AK-47 rifle causing
multiple bullet injuries on their persons as a result of which
both of them died on the spot. Local police came to the crime
scene and recovered 9 empty cartridges of an AK-47 rifle
but the AK-47 rifle could not be recovered. On conclusion of
investigation (after transfer of the same to the CBI), charge
sheet was filed implicating Hilal Beg, Javed Ahmed Shala,
Mushtaq Ahmed Sheikh, Mohd. Salim Zargar, Mohd. Hussain
Khan, Aftab Lach Khan, Mushtaq Ahmed Khan, Shabir Butt,
Hilal Sheikh, Mohammad Ashraf Butt and Gulam Qadir Mir as
the accused for committing an offence under Sections 120B
read with Section 365 RPC. All the above, except Aftab Lach
Khan, were accused of committing an offence punishable under
Sections 3(1) and 3(3) of the TADA Act. Accused Aftab Lach
Khan was charged with committing an offence under Section
3(3) of the TADA Act. Additionally, Hilal Beg, Javed Ahmed
Shala, Mushtaq Ahmed Sheikh, Mohd. Salim Zargar, Mushtaq
Ahmed Khan and Tahir Mir were charged under Section 4(2) of
the TADA Act. Accused Mohd. Salim Zargar was further charged
for committing an offence punishable under Section 302 RPC
while accused Hilal Beg was charged under Section 32 read
with Section 34 of the RPC.
3.
Vide order dated 22.04.2000 accused Abdul Aziz Dar, Gulam Qadir
Mir, Shabir Ahmed Bhat, Mohd. Sadiq Rather, Mushtaq Ahmed Khan
162
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Supreme Court Reports
and Mohd. Salim Zargar (respondents in the present appeal) were
charged for committing an offence under Sections 118/302/368/365
of the RPC read with Sections 3/4 of the TADA Act.
3.1 Accused denied their guilt and claimed to be tried. One of
the accused persons Tahir Ahmed Mir was discharged on the
same day but proceedings were initiated against the other
accused persons. During pendency of the trial, accused Hilal
Beg passed away.
3.2 To prove its case, prosecution examined a number of witnesses.
After considering the evidence and other materials on record,
the Special Court vide the judgment and order dated 20.04.2009
acquitted the accused persons holding that the prosecution
could not prove the guilt of the accused beyond any reasonable
doubt. The Special Court discarded the ocular evidence of
PW-2, PW-3 and PW-6 as well as the confessional statements
of the accused which were held to be inadmissible in evidence.
4.
Aggrieved thereby, appellant (State) has approached this Court by
filing criminal appeal under Section 19 of the TADA Act, being Crl.
Appl. No. 1681/2009. Crl. Appl. No. 1681/2009 was admitted by this
Court vide the order dated 28.08.2009.
5.
We have heard Mrs. Sonia Mathur, learned Senior Counsel for
the appellant and Ms. Kamini Jaiswal, learned counsel for the
respondents.
6.
Learned Senior Counsel for the appellant-State submits that the
Special Court relied on a previous decision dated 21.12.2002 in
the case of State through CBI Vs. Mohd. Salim Zargar wherein
the confessional statement of Mohd. Salim Zargar was held to be
inadmissible. In the present proceedings, besides the confessional
statement of Mohd. Salim Zargar, there were confessional statements
of two other accused persons, namely, Mushtaq Ahmed Khan and
Mohd. Sadiq Rather. However, the confessional statements of both
the accused persons were rejected due to the following reasons:
i)
No statements in the form of questions and answers were
recorded by the Recording Officer to conclude that his
satisfaction was based on sound material;
ii)
No record was maintained by the Recoding Officer to
ascertain if the confessional statement was voluntary;
[2025] 4 S.C.R.
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State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.
iii)
No effort was made to find out if any other Superintendent of
Police was available to record the confessional statements;
iv)
No letter was written by the Investigating Officer to the
Recording Officer requesting the later to record the
confessional statements of the aforesaid two accused
persons;
v)
It is not mentioned that the Recording Officer had given
time to the accused persons and at what time the accused
persons were produced before him;
vi)
Confessions of the accused persons were recorded
on the same day when they were produced before the
Superintendent of Police;
6.1 Learned Senior Counsel for the appellant submits that for
the aforesaid lacunae the Special Court did not accept the
confessional statements of Mushtaq Ahmed Khan and Mohd.
Sadiq Rather.
6.2 Referring to Section 15 of the TADA Act, learned Senior
Counsel submits that if a confessional statement is established
as voluntary, truthful and relates to the accused directly, it
holds sufficient evidentiary value. In such a case, no further
corroboration is necessary. Conviction of the accused can
be based solely on such confession. In the present case, the
confessions of the accused persons were voluntary, true and
those corroborated with each other. Recording Officer Shri
AK Suri, PW-12, had followed the procedure mandated under
Section 15 of the TADA Act and Rule 15 of the TADA Rules.
Therefore, the Special Court was not justified in rejecting the
confessional statements of the aforesaid two accused persons.
6.3 Adverting to the rejection of the confessional statement of
Mohd. Salim Zargar, learned Senior Counsel submits that the
doctrine of issue estoppel cannot be applied in the present
case. Salim Zargar was acquitted in a different proceeding
vide the judgment and order dated 21.12.2002 which was not
challenged by CBI. Barring Salim Zargar, parties are different
in both the cases. Present trial had arisen out of a completely
different incident i.e. kidnapping of Dr. Mushir-ul-Haq, the ViceChancellor of Kashmir University, and his Personal Secretary,
164
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Supreme Court Reports
Abdul Gani Zargar, from the Sadarbal Gate of the University
on 06.04.1990. Therefore, the Special Court fell in error in
rejecting the confessional statement of Salim Zargar relying
on the doctrine of issue estoppel.
6.4 In any case, in addition to the confessional statement of Salim
Zargar, there were confessions of two other accused persons,
viz, Mushtaq Ahmed Khan and Mohd. Sadiq Rather which were
recorded by the Superintendent of Police on 14.08.1990 and
25.08.1990 respectively. In view of the joint trial of the accused
persons, confessions of the aforesaid two accused persons
which were made voluntarily and corroborated with each other
should have been relied upon.
6.5 It is further submitted that confessions of the accused persons
were recorded in the year 1990 when there were no guidelines
prescribed for recording of statements under Section 15 of the
TADA Act. Judgment in the case of Kartar Singh Vs. State of
Punjab,1 came much later. Therefore, the procedure prescribed
in Kartar Singh (supra) could not have been followed in the
present case.
6.6 Learned Senior Counsel submits that Section 15 of the TADA
Act provides the substantive legal frame work for recording
confessions while Rule 15 of the TADA Rules lays down the
procedural safeguards necessary to uphold the validity of such
confessional statements. Section 15(2) of the TADA Act should
be read with Rule 15 of the TADA Rules. Notably, sub-rule 3(b)
of Rule 15 mandates the police officer recording a confession
to append a memorandum at the end of the confession. In the
present case, Shri AK Suri, PW-12, ensured before recording
the confessional statements that the accused were doing
so voluntarily and they were duly warned about the legal
consequences of such confession. The accused signed every
page of the statements and the Recording Officer appended
the mandatory memorandum confirming the voluntary nature
of the confessions. The certificates, duly signed and sealed,
were forwarded to the competent authority. Hence the issuance
of the certificates complied with Rule 15(3) of the TADA Rules
1
(1994) 3 SCC 569
[2025] 4 S.C.R.
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State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.
reflecting the officer's satisfaction regarding the voluntariness
of the confessions.
6.7 That apart, it is further submitted that the confessional statement
of Mohd. Salim Zargar was additionally recorded under Section
164 of the Code of Criminal Procedure, 1973 (Cr.PC) which
was duly exhibited during the trial.
6.8 Thus, the confessional statements of Mohd. Salim Zargar,
Mushtaq Ahmed Khan and Mohd. Sadiq Rather were recorded
following the legal procedure mandated by the statute. Therefore,
the Special Court was not at all justified in discarding the
confessional statements of the abovenamed accused persons.
On the basis of such confessional statements, the guilt of
the accused persons stood conclusively established. In the
circumstances, learned Senior Counsel submits that the appeal
may be allowed setting aside the impugned judgment of the
Special Court.
6.9 In support of her submissions, learned Senior Counsel has
placed reliance on the following decisions:
i)
Kartar Singh (supra);
ii)
Sharafat Hussain Abdul Rahaman Shaikh Vs. State
of Gujarat;2
iii)
SN Dube Vs. NB Bhoir;3
iv)
Ahmed Hussein Vali Mohammed. Saiyed Vs. State of
Gujarat;4
v)
Yakub Abdul Razak Memon Vs. State of Maharashtra;5
and,
vi)
Raja Vs. State of Tamil Nadu;6
7.
Per contra, learned counsel for the respondents submits that Special
Court had acquitted all the accused persons as the only actionable
2
(1996) 11 SCC 62
3
(2000) 2 SCC 254
4
(2009) 7 SCC 254
5
(2013) 13 SCC 1
6
(2020) 5 SCC 118
166
[2025] 4 S.C.R.
Supreme Court Reports
evidence were the alleged confessional statements of the three
accused persons. In so far the confessional statement of Mohd.
Salim Zargar is concerned, the same was already rejected by the
Special Court vide the judgment and order dated 21.12.2002 in a
separate TADA proceeding. No appeal was preferred by the CBI
against the said acquittal order which was passed following rejection
of the confessional statement of Mohd. Salim Zargar. Thus, the said
finding had become final. In the present proceeding, prosecution relied
upon the same confessional statement which was rightly rejected
by the Special Court.
7.1 Learned counsel submits that trial in this case took more than
19 years to complete as the prosecution was very tardy in
producing the witnesses before the Court while the accused
persons remained in custody as under-trial prisoners. The
alleged confessional statements were recorded by one Shri AK
Suri, PW-12, who was holding the post of Superintendent of
Police, CBI at the relevant point of time and was also supervising
the investigation of the present case. Prosecution could not
produce any authorization whereby PW-12 was authorized to
record the confessional statements. After due consideration,
the Special Court discarded the confessional statements of all
the three accused persons. While the confessional statement of
Mohd. Salim Zargar was rejected because the same confessional
statement was relied upon by the prosecution in another trial
where it was rejected, in so far the confessional statements of
Mushtaq Ahmed and Mohd. Sadiq Rather are concerned, the
Special Court expressed serious doubt about the voluntary
nature of such confessions.
7.2 Elaborating further, learned counsel for the respondents submits
that PW-12 did not testify as to how the accused persons had
appeared before him on their own. He was also silent about
the production of the accused persons before him and also in
respect of any request regarding recording of such confessional
statements made to him by the Investigating Officer. The
Investigating Officer deposed that he had never arrested the
accused persons and had not even produced the accused
before the Court. He further stated that he did not ask the
SP, CBI (Shri AK Suri) to come for recording the statement of
the accused persons. There is no record to show from whose
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State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.
custody the accused persons were produced before Shri Suri
when the alleged confessions were recorded or whether the
accused persons made any desire in writing or orally to get
their confessions recorded. The testimony of Shri AK Suri also
shows that no questions were put to and answers sought from
the accused persons before recording their confessions. There
is no contemporaneous record to show that questions were put
to the accused persons by Shri AK Suri before the statements
were recorded. No satisfaction was recorded that the confessional
statements were made voluntarily and were truthful. Admittedly,
the confessional statements were recorded under compelling
circumstances in places which were fortified and heavily guarded,
such as, BSF camp and Joint Interrogation Centres.
7.3 Learned counsel for the respondents submits that it is not the
case of the prosecution that no other Superintendent of Police
was available at the relevant point of time and that only Shri
AK Suri was available which necessitated him to record the
confessional statements. Learned counsel asserts that Shri Suri
was keen and overzealous to get the confessional statements
recorded by himself for more than one reason. There is nothing
on record to show from whose custody the accused persons
were produced before Shri Suri for recording of the confessional
statements in the BSF camp and at the Joint Interrogation
Centres and at whose instance. There was no independent
evidence to support the prosecution case and, therefore, the
only way the prosecution could succeed in proving the guilt
of the accused persons was to resort to the draconian law for
getting the confessions recorded by themselves.
7.4 Learned counsel for the respondents submits that no offence
under the TADA Act was made out or proved as against the
respondents. It is evident that the accused persons were
subjected to harsh interrogation, treatment and unlawful
incarceration to make out a case of TADA but without any
evidence. Special Court rightly acquitted the respondents. There
is no illegality or perversity in the order of acquittal. No case is
made out to reverse the order of acquittal.
7.5 Learned counsel has relied upon the decisions of this Court in
Kartar Singh (supra), SN Dube (supra) and also in the case
of Raja (supra) which clearly lay down the proposition that the
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guidelines prescribed by this Court for recording of confessional
statements under Section 15 of the TADA Act and Rule 15 of the
TADA Rules are mandatory in nature which have to be followed
if such confessions are to be relied upon. If the guidelines or
conditions are not complied with, such confessional statements
cannot be relied upon to convict the accused.
7.6 In the circumstances, learned counsel for the respondents
submits that there is no merit in the appeal which should,
therefore, be dismissed.
8.
Submissions made by learned counsel for the parties have received
the due consideration of the Court.
9.
Prosecution presented PW-2, Ghulam Mohiuddin Khan, PW-3, Molu
Khan, and PW-6, Ghulam Nabi Dar, the driver, as the eyewitnesses.
PW-2 and PW-3 in their evidence described the kidnappers as young
men with moustaches but could not identify them. PW-6 detailed
how armed individuals hijacked the vehicle and later transferred the
kidnapped persons to another car but he could not recognize the
individuals. Therefore, evidence of the aforesaid witnesses are of
not much assistance to the prosecution.
10. Though the medical and forensic evidence confirmed that both the
deceased were killed by bullets fired from AK-47 rifle, the weapon
(AK-47 rifle) used in the crime could not be recovered. In fact, PW11 Shri Roop Singh, a Senior Scientific Officer from the Central
Forensic Science Laboratory, New Delhi testified that the cartridges
recovered and sent to him for forensic examination were from a 7.62
mm AK-47 rifle. However, during cross-examination, he admitted that
he had not seen the AK-47 rifle from which the cartridges were fired.
11. It is evident that the aforesaid testimony of the prosecution witnesses
coupled with non-recovery of the weapon of offence seriously
damaged the prosecution case. Prosecution therefore relied entirely
on the confessional statements of Mohd. Salim Zargar, Mushtaq
Ahmed Khan and Mohd. Sadiq Rather to prove the case against
the respondents.
12. Before we deal with the admissibility or otherwise of the aforesaid
confessional statements, it would be apposite to analyse the relevant
legal provisions under the TADA Act and the TADA Rules dealing
with recording of confessional statements.
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13. TADA Act was a special legislation enacted to make special provisions
for the prevention of and for coping with terrorist and disruptive
activities and for matters connected therewith or incidental thereto.
Section 15 provides for certain confessions made to police officers
to be taken into consideration. Section 15 is as under:
15. Certain confessions made to Police Officers to be
taken into consideration.-
(1) Notwithstanding anything in the Code or in the
Indian Evidence Act, 1872 (1 of 1872), 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.
13.1 Sub-section (1) starts with a non-obstante clause. It says
that notwithstanding anything contained in the Cr.P.C. or in
the Indian Evidence Act, 1872 ('Evidence Act' hereinafter)
but subject to the provisions of Section 15 of the TADA Act,
a confession made by a person before a police officer not
lower in rank than a Superintendant of Police (SP) shall be
admissible in the trial of such person or that of co-accused,
abettor or conspirator for an offence under the TADA Act or
under the TADA Rules. The recording may be by such a police
officer or on any mechanical device, like, cassettes, tapes etc.
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Proviso to sub-section (1) says that the confessional statement
made under sub-section (1) shall be admissible with regard
to the co-accused, abettor or conspirator if they are charged
and tried in the same case together with the accused. Subsection (2) of Section 15 mandates that before recording
any confession under sub-section (1), the police officer shall
explain to the person making it that he is not bound to make
a confession but if he does so, it may be used as evidence
against him. Such a 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.
13.2 Thus, sum and substance of Section 15 of the TADA Act is that
a confessional statement made voluntarily by a person before
a police officer not below the rank of SP shall be admissible
in the trial of such person for an offence under the TADA Act.
14. Rule 15 of the TADA Rules lays down the procedure regarding
recording of confession made to police officers. Rule 15 reads thus:
15. Recording of confession made to police officers.-(1)
A confession made by a person before a police officer and
recorded by such police officer under Section 15 of the
Act shall invariably be recorded in the language in which
such confession is made and if that is not practicable,
in the language used by such police officer for official
purposes or in the language of the Designated Court and
it shall form part of the record.
(2) The 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
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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) insofar
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 take
cognizance of the offence.
14.1 While sub-rule (1) mandates that the confession under Section
15 of the TADA Act should be recorded in the language in
which the confession is made, but if that is not practical, then
it should be recorded in the language used by such police
officer for official purposes or in the language of the designated
court. In any case, the confessional statement shall form part
of the record.
14.2 As per sub-rule (2), the confession so recorded shall be shown,
read or played back to the person concerned. If he does not
understand the language in which it is recorded, it shall be
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interpreted to him in a language which he understands. At that
stage, the person making the confession shall be at liberty to
explain or add to his confession.
14.3 The requirement of sub-rule (3) is that the confession if it is in
writing shall be signed by the person who makes the confession
as well as by the police officer. Additionally, the police officer
shall certify under his own hand that such confession was taken
in his presence and recorded by him. He shall also certify that
the record contains a full and true account of the confession
made by the person. At the end of the confession, the police
officer is required to make a memorandum, the substance of
which is that the police officer had explained to the person
concerned that he is not bound to make a confession but if he
does so, the same may be used against him as evidence. The
memorandum should contain a certificate of the police officer
that he believes that the confession was made voluntarily in
his presence and recorded by him; that it was read over to
the person concerned who admitted the same to be correct
containing a full and true account of the statement made by him.
14.4 Sub-rule (4) deals with a situation where the confession is
recorded on any mechanical device. Since in the present
case, the confessional statements were not recorded on
any mechanical device, this provision may not have much
relevance.
14.5 Sub-rule (5) mandates that every confession recorded under
Section 15 of the TADA Act shall be sent forthwith to the
jurisdictional Chief Judicial Magistrate or the Chief Metropolitan
Magistrate, as the case may be, who shall forward the recorded
confession so received to the designated court (special court)
which may take cognizance of the offence.
14.6 Thus, Rule 15 deals with the procedural aspect regarding
recording of confession made to police officers under
Section 15.
15. As noticed above, TADA Act was enacted by the Parliament to deal
with the menace of terrorism and related disruptive activities. It
contained a special provision in the form of Section 15 which permitted
confessional statement recorded by a police officer not below the
rank of SP to be admitted as evidence in the trial of the person
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making the confessional statement or the trial of the co-accused,
abettor or conspirator if they are tried together in the same case as
the person making the statement.
16. In criminal jurisprudence, developed over a century, confessions
made to a police officer are inadmissible in evidence. Under Section
25 of the Evidence Act, a confession made to a police officer by
a person accused of an offence shall not be proved against him.
Power to record confessions is given to a Judicial Magistrate. Strict
and rigorous guidelines have been laid down to record such judicial
confessions under Section 164 Cr.P.C. Such safeguards are founded
on the well-settled principle that confession is an admission of guilt.
Ordinarily, nobody would like to admit his guilt as he is fully aware
that the same would be used against him. That apart, an accused
has a constitutional and fundamental right against testimonial
compulsion. Therefore, Section 15 of the TADA Act completely altered
the fundamental rules of evidence.
17. Vires of the TADA Act was challenged before the Supreme Court
in Kartar Singh (supra). A Constitution Bench of this Court while
upholding the validity of Section 15 of the TADA Act as well as the
entirety of the Act, however, laid down certain guidelines so as to
ensure that confession obtained in the pre-indictment interrogation by
a police officer not lower in rank than a Superintendent of Police is not
tainted with any vice but is in strict compliance with well-recognized
and accepted aesthetic principles and fundamental fairness. These
guidelines are as follows:
263. However, we would like to lay down following
guidelines so as to ensure that the confession obtained
in the pre-indictment interrogation by a police officer
not lower in rank than a Superintendent of Police is not
tainted with any vice but is in strict conformity with the
well-recognised and accepted aesthetic principles and
fundamental fairness:
(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
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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;
(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
person should be directed to be produced for medical
examination before a Medical Officer not lower in rank
than of an Assistant Civil Surgeon;
(4) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973, no police officer below
the rank of an Assistant Commissioner of Police in
the metropolitan cities and elsewhere of a Deputy
Superintendent of Police or a police officer of equivalent
rank, should investigate any offence punishable under
this Act of 1987.
This is necessary in view of the drastic provisions of this
Act.