# STATE (N.C.T. OF DELHI) v. NA VJOT SANDHU@AFSAN GURU AGUSUST 4, 2005

- **Citation:** [2005] Supp. 2 S.C.R. 79
- **Court:** Supreme Court of India
- **Decided:** 2002-05-14
- **Case number:** Criminal Appeal Nos. 373-375 of 2004
- **Bench:** P. Venkatarama Redd!, P.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-n-c-t-of-delhi-v-na-vjot-sandhu-afsan-guru-agusust-4-2005-20969
- **Pages:** 228

## Headnote

Pena/Code, 1860-Sections 120-8,121, 123 r/wSection302-Prevention
of Terrorism Act, 2002-Sections 3, 32, 50 & 52-Terrorist attack on·
Parliament House Complex-Conspiracy by accused-Five terrorists killedA
B
)
Eight security personnel and one gardener died-13 security personnel and
C
3 others injured-3 persons convicted and sentenced to death-One acquittedConfirmed by High Court-Justification of-Explosive Substances Act, I 908Sections 3 and 4.
,. -
Penal Code, 1860-Sections 120A & 1208-Evidence Act, 1872Section IO-Criminal Conspiracy-Concept-Proof of by circumstantial D
evidence-Theory of Agency-Applicability of
Prevention of Terrorism Act, 2002-Sections 2(h) and 50-Code of
Criminal Procedure, 1973-Section 196-Sanction orders-Whether
Lieutenant Governor a competent authority-Addition of offence under
Section 120-B JP(' which does not require sanction-Whether reveals nonapplication of mind-Constitution of India, Articles I 20-B, 239 & 239AA.
Prevention of Terrorism Act, 2002-Sections 36 to 48-Telegraph Act!
Rules-Section 5(2)/Rule 419A-lnterception to telephone calls-Legality
E
and admissibility of-Procedure and conditions-Discussed
F
Evidence Act, 1872-Sections 10 and 30-Code of Criminal Procedure,
1973-Section 164-Confession under POTA recorded by a Police OfficerProcedural safeguards-Evidentiary value of-Nature of corroboration
required-Prevention of Terrorism Act, 2002-Sections 32 & 52.
Evidence Act, I 872-Sections 63 and 658-Cellular phone call recordsProof and authenticity of-Admissibility of as secondary evidence.
Evidence Act, 1872-Sections J and 27-Discovery of fact--State of
things or facts-Within the knowledge of accused-Admissibility of79
G
H
•
80
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
Credibility of the information-Extent of necessary caution and care-Joint
disclosures-Admissibility of-Simultaneous disclosures by more than one
accused-Reliance upon by Courts-Discussed.
B
On 13th December, 2001 five heavily armed persons practically
stormed the Parliament House complex and inflicted heavy casualties on
the security men on duty. In the gun battle that lasted for 30 mimutes or
so, these five terrorists who tried to gain entry into the Parliament when
it was i": session, were killed. Nine persons including eight security
personnel and one gardener succumbed to the bullets of the terrorists and
16 persons including 13 security men received injuries. The five terrorists
C
we.re ultimately killed and their abortive attempt to lay a seize of the
D
Parliament House thus came to an end.
After the conclusion of investigation the investigating agency filed
report under Section 173 Cr.P.C. against the four accused persons on
14.5.2002. Charges were framed under various sections of Indian Penal
Code, the Prevention of Terrorism Act, 2002 {'POTA') and the Expiosive
Substances Act, by the designated Court. The trial concluded within a
record period of about six months. 80 witnesses were exami~ed for the
prosecution and 10 witnesses were examined on behalf of the accused. 330
documents were exhibited. The three accused, 'A', 'S' and 'G' were
E
convicted for the offences under Sections 121, 121A, 122, 'Section 120B
read with Sections 302 & 307 read with Section 120-B IPC, sub-Sections
(2), (3) & (5) of Section 3 and Section 4(b) of POTA and Sections 3 &
4 of Explosive Substances Act. Accused 1 & 2 were also convicted under
Section 3(4) of POTA. Accused No. 4 viz., 'AG' was acquitted of all the
F
charges except.the one under Section 123 IPC for which she was convicted
and sentenced to undergo R.I. for five years and to pay fine. Death
G
seutences were imposed on the other three accused for the offence under
Section 302 read with Section 120:-B IPC an~ Section 3(2) of POTA. They
were also sentenced to life imprisonment on as many as eight counts
under the provisions of IPC, POTA and Explosive Substance Act in
addition to varying amounts of fine. The amount of Rs. 10 lakhs, which
was recovered from the possession of two of the ac

## Text

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STATE (N.C.T. OF DELHI)
v.
NA VJOT SANDHU@AFSAN GURU
AGUSUST 4, 2005
[P. VENKATARAMA REDD! AND P.P. NAOLEKAR, JJ.]
Pena/Code, 1860-Sections 120-8,121, 123 r/wSection302-Prevention
of Terrorism Act, 2002-Sections 3, 32, 50 & 52-Terrorist attack on·
Parliament House Complex-Conspiracy by accused-Five terrorists killedA
B
)
Eight security personnel and one gardener died-13 security personnel and
C
3 others injured-3 persons convicted and sentenced to death-One acquittedConfirmed by High Court-Justification of-Explosive Substances Act, I 908Sections 3 and 4.
,. -
Penal Code, 1860-Sections 120A & 1208-Evidence Act, 1872Section IO-Criminal Conspiracy-Concept-Proof of by circumstantial D
evidence-Theory of Agency-Applicability of
Prevention of Terrorism Act, 2002-Sections 2(h) and 50-Code of
Criminal Procedure, 1973-Section 196-Sanction orders-Whether
Lieutenant Governor a competent authority-Addition of offence under
Section 120-B JP(' which does not require sanction-Whether reveals nonapplication of mind-Constitution of India, Articles I 20-B, 239 & 239AA.
Prevention of Terrorism Act, 2002-Sections 36 to 48-Telegraph Act!
Rules-Section 5(2)/Rule 419A-lnterception to telephone calls-Legality
E
and admissibility of-Procedure and conditions-Discussed
F
Evidence Act, 1872-Sections 10 and 30-Code of Criminal Procedure,
1973-Section 164-Confession under POTA recorded by a Police OfficerProcedural safeguards-Evidentiary value of-Nature of corroboration
required-Prevention of Terrorism Act, 2002-Sections 32 & 52.
Evidence Act, I 872-Sections 63 and 658-Cellular phone call recordsProof and authenticity of-Admissibility of as secondary evidence.
Evidence Act, 1872-Sections J and 27-Discovery of fact--State of
things or facts-Within the knowledge of accused-Admissibility of79
G
H
•
80
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
Credibility of the information-Extent of necessary caution and care-Joint
disclosures-Admissibility of-Simultaneous disclosures by more than one
accused-Reliance upon by Courts-Discussed.
B
On 13th December, 2001 five heavily armed persons practically
stormed the Parliament House complex and inflicted heavy casualties on
the security men on duty. In the gun battle that lasted for 30 mimutes or
so, these five terrorists who tried to gain entry into the Parliament when
it was i": session, were killed. Nine persons including eight security
personnel and one gardener succumbed to the bullets of the terrorists and
16 persons including 13 security men received injuries. The five terrorists
C
we.re ultimately killed and their abortive attempt to lay a seize of the
D
Parliament House thus came to an end.
After the conclusion of investigation the investigating agency filed
report under Section 173 Cr.P.C. against the four accused persons on
14.5.2002. Charges were framed under various sections of Indian Penal
Code, the Prevention of Terrorism Act, 2002 {'POTA') and the Expiosive
Substances Act, by the designated Court. The trial concluded within a
record period of about six months. 80 witnesses were exami~ed for the
prosecution and 10 witnesses were examined on behalf of the accused. 330
documents were exhibited. The three accused, 'A', 'S' and 'G' were
E
convicted for the offences under Sections 121, 121A, 122, 'Section 120B
read with Sections 302 & 307 read with Section 120-B IPC, sub-Sections
(2), (3) & (5) of Section 3 and Section 4(b) of POTA and Sections 3 &
4 of Explosive Substances Act. Accused 1 & 2 were also convicted under
Section 3(4) of POTA. Accused No. 4 viz., 'AG' was acquitted of all the
F
charges except.the one under Section 123 IPC for which she was convicted
and sentenced to undergo R.I. for five years and to pay fine. Death
G
seutences were imposed on the other three accused for the offence under
Section 302 read with Section 120:-B IPC an~ Section 3(2) of POTA. They
were also sentenced to life imprisonment on as many as eight counts
under the provisions of IPC, POTA and Explosive Substance Act in
addition to varying amounts of fine. The amount of Rs. 10 lakhs, which
was recovered from the possession of two of the accused, namely, 'A' and
'S' was forfeited to the State under Section 6 of the POT A.
The designated Judge submitted the record of the case to the High
H
Court of Delhi for confirmation of death sentence imposed on the three
f
' "
f
STATE (N.C.T. OF DELHI) v. NAVJOT SANDHU@AFSAN GURU
81
accused. Each of the four accused filed appeals. The State also filed an
A
appeal seeking enhancement of life sentence to death sentence in relation
to their convictions under Sections 121, 121A and 302 !PC. In addition,
the State filed an appeal against the acquittal of the 4th accused on all
the charges other than the one under Section 123 !PC. The Division Bench
of High Court dismissed the appeals of 'A' and 'S' and confirmed the
B
death sentence imposed on them. It allowed the appeal of the State in
regard to sentence under Section 121 IPC and awarded them death
sentence under that Section also. The High Court allowed the appeals of
'G' and 'N' and acquitted them of all charges. Hence these appeals by
the accused and the State.
Dismissing the appeal of' A', partly allowing the appeals of 'S' and
dismissing the States appeal against the acquittal of 'G' and 'AG', the
Court.
HELD: I.I. Sanctions under Section 50 of POTA and Section 196
c
D
Cr.P.C. were accorded by a competent authority. The Lt. Governor who
continues to be the Administrator also derives his or her authority to
grant sanction under Section 50 of POTA by virtue of the legislative
fiction created by Clause (h) of Section 2 read with Article 239. The
Administrator is deemed to be the State Government for the purpose of
Section 50 of POTA. In effect and in substance, there is a clear delegation
E
of power statutorily conferred in favour of the Administrator (designated
as Lt. Governor) in respect of granting sanction under POTA. The fact
that the sanction order carries the designation of the Lt. Governor is of
no consequence and does not in any way impinge on the operation of
Section 2(h) read with Article 239. POTA is a Parliamentary enactment.
F
Sub-Clause (b) of Clause 3 of Article 239AA makes it explicit that
notwithstanding the law making power conferred on the Legislative
Assembly ofNCT, the Parliament retains its power undor the Constitution
to make laws with respect to any matter for a Union Territory or any part
thereof. (130-A-D]
Goa Sampling Employees' Association v. G.S. Co. of India Pvt. Ltd.,
[19851 1 sec 206, distinguished.
1.2. As regards the sanction under Section 196 Cr.P.C. lt is recited
G
in the sanction order (Ext. Pl 1/2) that the Lt. Governor acted in exercise
H
82
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
of powers conferred by sub-section (1) of Section 196 Cr.P.C. read with
" '
the Government of India, Ministry of Home Affairs notification dated
20th March, 1974. Under that notification, there was delegation of powers
to the Lt. Governor to grant sanction. The said notification which finds
place in the Annexures to the written submissions made on behalf of 'G'
B
shows that it was issued under Article 239(1) of the Constitution enabling
the Administrator of the Union Territory to discharge powers and functions
of the State Government under the Cr.P.C. The delegation of power
contained Jn the said notification will continue to operate unless the
Parliament by law provides otherwise. The Government of NCT of Delhi
Act, 1991 does not in any way affect the validity of delegation contained
c in the Presidential Notification issued under Article 239. (131-E-G)
1.3. The careless and inept drafting of the sanction order has given
scope for some comments. However, this careless drafting cannot deal a
fatal blow to the sanction order. Looking at the substance and reading the
D
entirety of the order, this Court comes to the irresistible conclusion that
the sanction was duly given for the prosecution of the accused for the
offences under POTA after the competent authority (Lt. Governor) had
reached the satisfaction prima facie in regard to the commission of the
POT A offences as well. A specific reference to the POT A offences mentioned
~ ..
in FIR is contained in the opening part of the order. The order then contains
E
the recital that the Lt. Governor was satisfied that the four accused persons
"haveprimafacie committed offences punishable under Sections 121, 121A,
122, 124 and 120B of the IPC being involved in criminal conspiracy to
commit the said offences with intention of waging war against the
Government of India along with other offences." In the context in which
F
the expression 'along with other offences' occurs, it must be reasonably
construed so as to be referable to POT A offences mentioned in the opening
clause. The operative part of the order is more explicit inasmuch as the Lt.
' )
Governor granted sanction for the prosecution of the four accused in a
competent Court "for committing the said offences punishable under
G
Sections 3, 4, 5, 20 & 21 of the POT A". It is pertinent to notice that in the
sanction order under Section 196 Cr.P.C. the POT A offences do not find
specific mention at all. Thus, a distinction was maintained between the
sanction under POT A and the sanction under Cr.P.C. f 132-C-G)
1.4. Though the conspiracy to commit the c.ffences punishable by
~-~
H
Section 121 is covered by Section 121A, probably Section 120-B was also
STATE (N.C.T. OF DELHI) v. NAVJOT SANDHU@ AFSAN GURU 83
-
>
referred to by way of abundant caution though the prosecution for the
A
said offence does not require sanction. At any rate, the insertion of a
seemingly overlapping provision does not and cannot affect the validity
f
of the sanction order. Nor can it be said that the addition of Section 124
which has really no application to the present case by itself vitiates the
sanction order. From the insertion of one inapplicable provision, a
B
reasonable inference cannot be drawn that there was no application of
mind by the competent authority. A meticulous and legalistic examination
as to the offences applicable and not applicable is not what is expected
at the stage of granting sanction. In any case the non-mention of an
inapplicable Section goes to the root of the matter or otherwise makes it
vulnerable to attack. 1133-A-DI
C
Goku/chand Dwarkadas v. The King, AIR (1948) Privy Council 82,
referred to.
1.5. The oral evidence of PW 11 - Deputy Secretary, Home who dealt
with file also reveals that the notes prepared by himself and the Principal
Secretary, Home had drawn the attention of the Lt. Governor to the role
of individual accused and the Principal Secretary's note was approved
D
by the Lt. Governor. Various documents placed before the sanctioning
authority were also mentioned by PW 11. PW! I brought the original
sanction file and it is seen from the judgment of the trial Court that the
E
trial Judge had gone through the file apart from making it available to
the defence counsel. The oral evidence let in by the prosecution by
examining PW 11 dispels any doubt as to the consideration of the matter
by the sanctioning authority before according the sanction. There is no
legal infirmity in the order passed by the Commissioner of Police, which
F
is Ext. PW 11/3. [134-F-H; 135-GI
Jaswant Singh v. State of Punjab, AIR (1958) SC 124; State of Bihar
v. P.P. Sharma, [ 19921Supp.1SCC222; Superintendent of Police v. Deepak
Chowdary, (19951 6 SCC 225 and Rambhai Nathabhai Gadhvi & Ors. v.
State a/Gujarat, 119971 7 sec 744, referred to.
G
1.6. No fault could be found with the Investigating Officers
in going slow in bringing POTA into picture. At any rate, it may be a case
,
of bona fide error or overcautious approach. Once the action of the police
authorities in deferring the invocation of POT A is held to be not ma/a fide,
H
84
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
it is not possible to countenance the contention that the provisions· of
POT A especially those contained in Chapter V and. Se.ction 52 ought to
have been complied with earlier. [139-B, C]
B
Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijiaya,
[1990) 4 SCC 76; Usmanbhai Dawoodbhai Memon v. State. of Gujarat,
[ 1988) 2 SCC 271 and State of West Bengal v. Mohammed Khaleed, [1995]
1 sec 684, referred to.
2.1. It is settled law that a 'fundamental defect' should be found in
the charges if the Court has to quash it. Whether the accused was misled
C
and whether there was reasonable possibility of prejudice being caused
to the accused on account of defective charges are relevant considerations
in judging the effect of wrong or deficient charges. Section 215 ofCr.P.C.
makes it clear that no error or omission in stating either the offence or
the particulars required to be stated shall be regarded material unless
D
the accused was in fact misled by such error or omission and it has
occasioned a failure of justice. [140-A, B]
William Salaney's case, AIR (1956) SC 116 and State of A.P. v.
C. Ganeswar Rao, [19641 3 SCR 297, referred to.
E
2.2. It is not always "to give affirmative evidence about the date of
formation of the criminal conspiracy". This Court does not think that if
instead of mentioning. the first week of December, 2001' the wording
'before December, 2001' is employed, the prosecution should .fail merely
for that reason. The accused cannot be said to have been misled or
F
prejudiced on that account. On the othec hand, it is more than clear that
the accused did understand the case they were called upon fo meet. The
question whether Section 1208 applies to POT A offences or Section 3(3)
alone applies is not a matter on which a definite conclusion should be
reached ahead of the trial. It is not uncommon that the offence alleged
might seemingly fall under more than one provision and sometimes it may
G . not be easy to form definite opinion as to the Section in which the offence
appropriately falls. Hence, charges are often framed by way of abundant
caution. Assuming that an inapplicable provision has been mentioned, it
is no ground to set aside the charges and invalidate the trial. [140-E-G]
H
£sher Singh v. State of A.P., [2004) 1 sec 585, 607, relied on.
•
..
STATE (N.C.T. OF DELHI) v. NAY JOT SANDHU@AFSAN GURU 85
3.1. The confession ofa co-accused ought not be brought within the
A
sweep of Section 32(1). As a corollary, it follows that the confessions of
the 1st and 2nd accused in this case recorded by the police officer under
Section 32(1), are of no avail against the co-accused or against each other.
The High Court was right that such confessions cannot be taken into
consideration by the Court under Section 30 of the Indian Evidence Act.
The reason is that the confession made to a police officer or the confession
made while a person is in police custody, cannot be proved against such
person, not to speak of the co-accused, in view of the mandate of Sections
25 and 26 of the Evidence Act. If there is a confession which qualifies for
proof in accordance with the provisions of Evidence Act, then of course,
B
the said confession could be considered against the co-accused facing trial
C
under POTA. But, that is not the case here. [154-H; 155-A-C]
P. Narayana Swami v. Emperor, AIR (1939) PC 47; Bharat v. State
of U.P., [197113 S~C 950; Haroom Hazi Abdulla v. State of Maharashtra,
[1968] 2 SCR 641; Pyare Lal v. State of Assam, AIR (1957) SC 216;
Subramania Gounden 's case, [ 19581 SCR 428; Shankaria v. State of Rajasthan,
D
11978] 3 SCC 435; Parmanand Pegu v. State of Assam, 120041 7 SCC 779;
Kashmira Singh v. State of Madhya Pradesh, AIR (1952) SC 159; Bhuboni
Shau v. King, AIR (1947) PC 257; Haricharan Kurmi v. State of Bihar,
[19641SCR623 and Jameel Ahmed & Anr. v. State of Rajasthan, [20031 9
sec 673, referred to.
3.2. The contention for the State that even if the confession of coaccused is not covered by Section 32(1), it can still be taken into account
by the Court under Section 30 for the limited purpose of corral.orating
or lending assurance to the other evidence on record, cannot be accepted.
[155-DI
3.3. As the law now stands, the confession recorded by the police
officer under Section 32(1) of POTA is admissible in evidence. The
voluntariness and reliability of confession can of course be tested by the
court. The admission of such confession would also be subject to the
observance of the other provisions of Section 32 of POTA which are in
E
F
the nature of procedural safeguards aimed at ensuring that the confessions
G
are made by the accused in an atmosphere free from threat and inducement.
[160-F-GI
3.4. The mere fact that the expression 'admissible only' is used
without being followed by the words 'in evidence', does not, by any
cannon of construction, deprive the confession recorded under Section 32
H
A
B
c
D
E
F
G
86
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
of POT A its evidentiary value; otherwise Section 32(1), more especially
the expression 'admissible' contained therein will become ineffectual and
senseless. [161-B, CJ
Naranjan Singh v. Jitendra, (19901 4 SCC 76; Kartar Singh v. State of
Punjab, [19941 3 SCC 569; People's Union/or Civil Liberties v. Union of
India, [2004) 9 SCC 580 and Nandini Satpathy v. P.L. Dani, [1978) 2 SCC
424, referred to.
Regina v. Middleton, [1975) All E.R. 191; Miranda v. Arizona, 384 US
436 and Escobedo v. Linnaeus, 378 US 478, referred to.
4. The confessional statement (Ext. 88) made by one of the parties
to the conspiracy was made use of against the other parties/accused. It
is interesting to note that the decision in State of Gujarat v. Mohammed
Atik rendered by one of the Judges, was noticed but the crucial part of
the observation therein ruling out the applicability of Section 10 was not
adverted to. The 2nd Coveeshar case AIR (1965) SC 682 was also noticed.
This Court is unable to give effect to the law laid down :n these two cases
which runs counter to the larger Bench decisions especially when the
previous decisions bearing on the point were not discussed. No boubt the
judgment in 2nd Caveeshar case was of three Judges but the 4th proposition
laid down therein is not so categorical as to convey the idea that even the
confessional statement recorded after the arrest, could be used against
the co-conspirators. However, in view of the fact that confessional statement
is not being relied on, the question of applicability of Section I 0 fades into
insignificance. [168-G, H; 169-A, Fl
Kehar Singh & Ors. v. State (Delhi Administration), [ 1988) 3 SCC 609;
Mirza Akbar v. King Emperor, AIR (1940) PC 176; Sardul Singh Caveeshar
v. State of Bombay, [1958) SCR 161; State of Gujarat v. Mohammed Atik
and Ors., (1998) 4 SCC 351; Mohd. Khalidv. State of West Bengal, [20021
7 SCC 334; Bhagwan Swarup v. State of Maharashtra, AIR (1965) SC 682;
Ammini & Ors. v. State of Kera/a, (1998) 2 SCC 301; Tribhuvan v. State of
Maharashtra, [1972) 3 SCC 51t; Bhagwandas Keshwani & Anr. v. State of
Rajasthan, [1974) 4 SCC 611 and State of Maharashtra v. Damu, (2000) 6
sec 269, referred to.
Queen v. Blake, 115 ER 49 and Mirza Akbar, AIR (1940) PC 176,
H
referred to.
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• .Ji
J
;
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STATE (N.C.T. OF DELHI) v. NAVJOT SANDHU@AFSAN GURU 87
5.1. One more principle which deserves notice is that cumulative
A
effect of the proved circumstances should be taken into account in
determining the guilt of the accused rather than adopting an isolated
approach to each of the circumstances. Of course, each one of the
circumstances should be proved beyond reasonable doubt. Lastly, in
regard to the appreciation of evidence relating to conspiracy, the Court
B
must take care to see that the acts or conduct of the parties must be
conscious and clear enough to inter their concurrence as to the common
design and its execution. fl 75-F)
5.2. The theory of agency can be extended too far to find all the
conspirators guilty of the actual offences committed in execution of the
common design even if such offences were ultimately committed by some
of them, without the participation of others. Those who committed the
Offences pursuant to the conspiracy by indulging in various overt acts will
be individually liable for those offences in addition to being liable for
criminal conspiracy; but, the non-participant conspirators cannot be
found guilty of the offence or offences committed by the other conspirators.
There is hardly any scope for the application of the principle of agency
in order to find the conspirators guilty of a substantive offence not
committed by them. Criminal offences and punishments therefor are
governed by statute. The offender will be liable only if he comes within
the plain terms of the penal statute. Criminal liability for an offence
cannot be fastened by way of analogy or by extension of a common law
principle. fl 76-C-E)
5.3. It is only in order to prove the existence of conspiracy and the
parties to the conspiracy, a rule of evidence is enacted in Section 10 based
on the principle of agency. Section 10 of the Evidence Act provides that
anything said, done or written by one of the conspirators in reference to
the common intention of all of them can be proved as a relevant fact as
against each of the conspirators, subject to the condition prescribed in the
opening part of the section. Thus, the evidence which is in the nature of
hearsay is made admissible on the principle that there is mutual agency
amongst the conspirators. [178-F-H)
5.4. It may be noted that by the 1977 Act, the offence of conspiracy
at common law was abolished and a statutory definition of 'conspiracy
to commit the offence' \Vas enacted. The provision that was interpreted
c
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G
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SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
by the House of Lords is not in pari materia with the provision in the
Indian Penal Code. However, one clarification is needed. If there is proof
to the effect that the accused played a role, attended to certain things or
took steps cons.istent with the common design underlying the conspiracy,
that will go a long way in establishing the complicity of the accused,
B
c
D
E
F
G
though it is not a legal requirement that the conspirator should do any
particular act beyond the agreement to commit the offence. [18!-F-G)
Major E.G. Barsay v. State of Bombay, AIR (1961) SC 1762; Kehar
Singh & Ors. v. State (Delhi Administration), [1988) 3 SCC 609; Yashpal
Mittal v. State of Punjab, [1977) 4 SCC 540; State of H.P. v. Krishan Lal
Pradhan, [1987) 2 SCC 17; State v. Nalini, [1999) 5 SCC 253; Mohd Khalid
v. State of W.B., [2002) 7 SCC 334; Mohammed Usman v. State of
Maharashtra, [198J] 2 SCC 443; Tanibeert Pankaj Kumar, [1997] 7 SCC
156; VC Shukla v. State, (1980) 2 SCC 665; Noor Mohammad Yusuf Momin
v. State of Maharashtra, AIR (1971) SC 885; Esher Singh v. State of A.P.,
(2004) 11 SCC 585; Firozuddin Basheeruddin v. State of Kera/a, (2001) 7
SCC 596; Ajay Aggarwal v. Union of India, [1993) 3 SCC 609 and Babu
Lal v. Emperor, AIR (1938) PC 130, referred to.
Quinn v. Leathern, [1901] AC 495; Mulcahy v. Queen, [1868) 3 HL
306; Van Riper v. United States, 13 F 2d. 961; R. v. Anderson, (1985) 2 All
E.R. 961; Alvin Krumlewitch v. United States of America, (93 L.Ed. 790);
Regina v. Murphy, (1837) 173 ER 502 and US. v. Falcone, (109 F. 2d, 579),
referred to.
Halsbury's Laws of England; Ameican Jurisprudence, 2nd Edn., Vol.
16, pg. 129 and Dr. Hari Singh Gour: 'Commentary on Penal Law of India,
(Vol. 2, 11th Edn. Pg. 1138), referred to.
6.1. The decision of the Privy Council in Katayya's case, which has
been described as a locus classicus, had set at rest much of the controversy
that contered round the interpretation of Section 27. To a great extent
the legal position ha~ got crystallized with the rendering of this decision.
The authority of Privy Council's decision has not been questioned in any
of the decisions of the highest Court either in the pre or post independence
era. Right from 1950s, till the advent of the new century and till date, the
passages in this famous decision are being approvingly quoted and
H
teiterated by the Judges of the Apex Court. Yet, there remain certain
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STATE (N.C.T. OF DELHI) v. NAVJOT SANDHU@ AFSAN GURU 89
grey areas. (186-D-F]
Pu/ukuri Kotayya v. Emperor, AIR (1947) PC 67, relied on.
!nayatullah v. State of Maharashtra. [1976) 1 SCC 828; State of
Maharashtra v. Damu, [2000) 6 SCC 269; Sukhan v. Emperor, AIR (1929)
Lahore 344; Ganuchandra v. Emperor, AIR (1932) Bombay 286 and
Queen Empress v. Babu Lal. 1884, Indian Decisions, 6 Allahabad 510,
referred to.
6.2. Katayya's case is an authority for the proposition that 'discovery
A
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of fact' cannot be equated to the object produced or found. It is more than
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that. The discovery of fact arises by reason of the fact that the information
given by the accused exhibited the knowledge or the mental awareness
of the informant as to is existence at a particular place. [190-G]
Pu/ukuri Kotayya v. Emperor, AIR (1947) PC 67, relied on.
6.3. Though in m-0st of the cases the person who makes the disclosure
himself leads the Police Officer to the place where an object is concealed
and points out the same to him, however, it is not essential that there
should be such pointing out in order to make the information admissible
under Section 27. It could very well be that on the basis of information
furnished by the accused, the Investigating Officer may go to the spot in
the company of other witnesses and recover the material object. By doing
so, the Investigating Officer will be discovering a fact viz., the concealment
of an incriminating article and the knowledge of the accused furnishing
D
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the information about it. Of course, it is subject to the rider that the
information so furnished was the immediate and proximate cause of F
discovery. If the Police Officer chooses not to take the informant-accused
to the spot, it will have so bearing on the point of admissibility under
Section 27, though it may be one of the aspects that goes into evaluation
of that particular piece of evidence. How the clause-"as relates distinctly
to the fact thereby discovered" has to be ·understood deserves consideration.
The interpretation of this clause is not in doubt. Apart from Kotayya's
case, various decisions of this Court have elucidate and clarified the scope
and meaning of the said portion of Section 27. [197-F-H; 198-A;C)
Sukhan v. Emperor; AIR (1929) Lahore, 344; Ganuchandrav. Emperor,
G
AIR (1932) Bombay 286; Attappa Goundan v. Emperor, ILR(l937) Madras H
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SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.
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695; Emperor v. Ramanuja Ayyangar, AIR (1935) Madras 528; Omprakash,
(1972) 1SCC249; Mohmed Inayatullah v. The State of Maharashtra, (1976)
1 SCC 828; Udai Bhan v. State of Uttar Pradesh, AIR (1962) SC 1116;
Himachal Prdesh Administration v. Om Prakash, (1972) 1 SCC 249;
Eerabhadrappa v. State of Karnataka, (1983) 2 SCC 330; Pandurang Kalu
B
Patil v. State of Maharashtra, [2002) 2 SCC 490 and Bodhraj v. State of J
& K, [2002] 8 SCC 45, referred to.
c
6.4. Joint disclosures-to be more accurate, simultaneous disclosures,
per se, are not inadmissible under Section 27. 'A person accused' need
not necessarily be a single person, but it could be plurality of accused. It
seems that the real reason for not acting upon the joint disclosures by
taking resort resort to Section 27 is the inherent difficulty in placing
reliance on such information supposed to have emerged from the mouths
of two or more accused at a time. In fact, joint or simultaneous disclosure
is a myth, because two or more accused persons would not have uttered
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informatory words in a chorus. At best, one person would have made the
statement orally and the other person would have stated so substantially
in similar terms a few seconds or minutes later, or the second person
would have given unequivocal nod to what has been said by the first
person. Or, two 'persons in custody may be interrogated separately and
E
simultaneously and both of them may furnish similar information leading
to the discovery of fact. Or, in rare cases, both the accused may reduce
the information into writing and hand over the written notes to tt,e police
officer at the same time. It is not that such disclosures by two or more
persons in police custody go out of the purview of Section 27 altogether.
F
If information is given one after the other without any break-almost
simultaneously, and if such information is followed up by pointing out the
material thing by both of them, there is no good reason to eschew such
evidence from the regime of Section 27. However, there may be practical
difficulties in placing reliance on such evidence. It may be difficult for the
witness (generally the police officer), to depose which accused spoke what
G
words and in what sequence. In other words, the deposition in regard to
the information given by the two accused may be exposed to criticism
from the stand point of credibility and its nexus with discovery.
Admissibility and credibility are two distinct aspects. Whether and to
what extent such a simultaneous disclosure could be relied upon by the
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Court is really a.matter of evaluation of evidence. (199-H; 200-A-D)
' '
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STATE (N.C.T. OF DELHI) r. NAVJOT SANDHU@AFSAN GURU 91
Mohd Abdul Hafeez v. State of Andhra Pradesh, AIR (1983) SC 367;
Ramkishan v. Bombay State, AIR (1955) SC 104 and Lachhman Singh v. The
State, [1952] SCR 839, referred to.
7.1. It is contended on behalf of accused 'S' that the call records
relating to the cellular phone No. 919811573506 said to have been used
by •s• have not been proved as per the requirements of law and their
genuineness is in doubt. The call records relating to the other mobile
number related to 'G' and 'A' are also subject to the same criticism. It
A
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is the contention of the counsel that in the absence of a certificate issued
under sub-Section (2) of Section 65B of the Evidence Act with the
particulars enumerated in clauses (a) to (e), the information contained in
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the electronic record cannot be adduced in evidence and in any case in
the absence of examination of a competent witness acquainted with the
functioning of the computers during the relevant time and the manner
in which the printouts were taken, even secondary evidence under Section
63 is not admissible. Two witnesses were examined to prove the printouts
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of the computerized record furnished by the cellular service providers
namely AIRTEL (Bharti Cellular Limited) and ESSAR Cellphone. The
call details of the mobile No. 9811573506 (which was seized from the
house of 'S') are contained in Exhibits 36/1 to 36/2. The covering letters
signed by the Nodal Officer of Sterling Cellular Limited are Ext.P36/6
and P36/7 bear the dates 13th & 18th December respectively. The call
E
details of mobile No. 9811489429 attributed to 'A' are contained in Ext.
P36/3 and the covering letter addressed to the Inspector (Special Cell}-
PW66 signed by the Nodal Officer is Ext.36/5. The call details of
9810081228 belonging to the subscriber 'G' are contained in Exts. 35/8.
The above two phones were obtained on cash card basis. The covering
F
letter pertaining thereto and certain other mobile numbers was signed by
the Security Manager of Bharti Cellular Limited. The call details relating
to another cellphone number 9810693456 pertaining to 'M' is Ext. 35/5.
These documents i.e. Ext.35 series were filed by PW 35 who is the person
that signed the covering letter dated 17th December bearing Ext. 35/1.
PW35 deposed that "all the call details are computerized sheets obtained
G
from the computer". He clarified that "the switch which is maintained
in the computer in respect of each telephone receives the signal of the
telephone number, called or received and serves them to the Server and
it is the Server which keeps the record of the calls made or received. In
case where· call is made and the receiver does not pick up the phone, the
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SUPREME COURT REPORTS [2005] SUPP. 2 S.CR.
serve which makes a loop of the route would not register it". As far as
PW36 is concerned, he identified the signatures of the General Manager
of his Company who signed Ext.P36 series. He testified to the fact that
the call details of the particular telephone numbers were contained in the
relevant exhibits produced by him. It is significant to note that no suggestion
was put to these. two witnesses touching the authenticity of the call records
or the possible tempering with the entries, although the arguments have
proceeded on the lines that there could have been fabrication. In support
of such argument, the duplication of entries in Exts. 36/2 and 36/3 and
that there was some discrepancy to the Cell I.D. and IMEi number of the
handset at certain places was pointed out. The factum of presence of
duplicate entries was elicited by the counsel appearing for' AG' from PW
36 when PW36 was in the witness box. The evidence ofDWlO-a technical
expert, was only to the effect that it was possible to clone a SIM by means
ofa SIM Programmer which to his knowledge, was not available in Delhi
or elsewhere. His evidence was only of a general nature envisaging a
theoretical possibility and not with reference to specific instances. It is not
in dispute that the information contained in the call records is stored in
hi.tge serv~rs which cannot be easily moved and produced in the Court.
That is what the High Court has also observed. Hence, printouts taken
form the computers/servers by mechanical process and certified by a
responsible official of the service providing company can be led into
evidence through a witness who can. identify the signatures of the certifying
officer or otherwise speak to the facts based on his personal knowledge.
Irrespective of the compliance of the requirements of Section 65B which
is a provision dealing with admissibility of electronic records, there is no
·bar to adducing· secondary evidence under the other provisions of the
Evidence Act, namely Sections 63 & 65. It may be that the certificate
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containing the details in sub-Section (4) of Section 65B is not filed in the
instant case, but that does not mean that secondary evidence be given
even if the law permits such evidence to be given in the circumstances
mentione~ in the relevant provisions, namely Sections 63 & 65.
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[201-F-H; 202-A-H; 203-A-E)
7.2. Both the witnesses were responsible officials of the concerned
Companies who deposed to the fact that they were the printouts obtained
from the computer records. In fact the evidence of PW35 shows that he
is fairly familiar with the computer system and its output. If there was
some questioning vis-a-vis specific details or suggestion of fabrication of
H
printouts, it would have been obligatory on the part of the prosecution
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STATE (N.C.T. OF DELHI) v. NAVJOT SANDHU@AFSAN GURU 93
to call a technical expert directly in the know of things. [203-F-H)
A
7.3. As regards the presence of duplicate entries in Ext.36/2 and
36/3, it seems an innocuous error in the computer recording is being
magnified to discredit the entire document containing the details without
any warrant. As explained by the counsel for the State, the computer, at
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the first instance, instead of recording the IMEi number of the mobile.
instrument, had recorded the IMEi and cell ID (location) of the person
calling/called by the subscriber. The computer rectified this obvious error
immediately and modified the record to show the correct details viz., the
IMEi and the cell l.D. of the subscriber only. The document is selfexplanatory of the error. A perusal of both the call records with reference
C
to the call a 11:19:14 hours exchanged between 9811489429 ('S's') and
9811573506 ('A's') shows that the said call was recorded twice in the call
records. The fact that the same call has been recorded twice in the call
records of the calling and called party simultaneously demonstrates beyond
doubt that correctness or genuineness of the call is beyond doubt. Further'. D
on a comparative perusal of the two call records, the details of Cell I.D.
and IMEi of the two numbers are also recorded. Thus, the same call has
been recorded two times, first with the cell ID and IMEi number of the
calling number (9811484929). The same explanation holds good for the
call at 11:32:40 hours. Far from supporting the contention of the defence,
the above facts, evident from the perusal of the call records, would clearly
E
show that the system was working satisfactorily and it promptly checked
and rectified the mistake that had occurred. It was not suggested nor
could it be suggested that there was any manipulation or material deficiency
in the computer on account of these two errors. Above all, the printouts
pertaining to the call details exhibited by the prosecution are of such
F
regularity and continuity that it would be legitimate to draw a presumption
that the system was functional and the output was produced by the
computer in regular use, whether this fact was specifically deposed to by
the witness or not. Thus, the call records are admissible and reliable and
rightly made use of by the prosecution. [204-D-H; 205-A-C)
R. v. Shepard, [1993) AC 380, referred to .
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8. It is not shown by the prosecution that the Joint Director,
Intelligence Bureau who authorized the interception, holds the rank of
Joint Secretary to the Government of India. Secondly, the confirmation
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SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R.
A
orders passed by the Home Secretary (contained in volume 7 of lower
Court record, Page 447) would indicate that the confirmation was
prospective. It is distressing to note that the confirmation orders should
be passed by a senior officer of the Government oflndia in such a careless
manner, that too, in an important case of this nature. HoweHr, these
B
deficiencies or inadequacies do not, preclude ihe admission of intercepted
telephonic communication in evidence. It is to be note that unlike the
proviso to Section 45 of POTA, Section 5(2) of the Telegraph Act or Rule
419A does not deal with any rule of evidence. The non-compliance or
inadequate compliance with the provisions of the Telegraph Act does not
per se affect the admissibility. The legal position regarding the question
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of admissibility of the tape recorded conversation illegally collected or
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obtained is no longer res integra. [206-D-G)
R.M Malkani v. State of Maharashtra, (1973) 1 SCC 471, relied on.
Pooranmal v. Director of Inspection, (1974) 2 SCR 704; State v. NMT
Joy Immaculate, [2004] 5 SCC 729; Ali Musfata v. State of Kera/a, (1994)
6 SCC 569 and Ramsingh v. Ramsingh, (1985) Suppl. SCC 611, referred
to.
9.1. POT A has absorbed into it the guidelines spelt out in Kartar
Singh 's case and D.K. Basus 's case in order to impart an element of
fairness and reasonableness into the stringent provisions of POTA in tune
with the philosophy of Article 21 and allied constitutional provisions.
These salutary safeguards are contained in Sections 32 and 52 of POTA.
[208-C, DJ
9.2. The mandate of sub-sections 2 & 3 is not something new. Almost
similar prescriptions were there under TADA also. In fact, the fulfillment
of such mandate is inherent in the process of recording a confession by
a statutory authority. What is necessarily implicit is, perhaps, made
explicit. But the notable safeguards which were lacking in TADA are to
be found in sub-sections 4 & 5. 1208-G-H; 209-AJ
9.3. The lofty purpose behind the mandate that the maker of confession
shall be sent to judicial custody by tht CJM before whom he is produced
is to provide an atmosphere in which he would feel free to make a complaint
H
against the police, if he so wishes. The feeling that he will be free from the
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STATE (N.C.T. OF DELHI) v. NAVJOT SANDHU@AFSAN GURU 95
.
~
shackles of police custody after production in the Court will minimize, if A
not remove, the fear psychosis by which he may be gripped.