Full Judgement
Manjit Singh @ Mange, through its S.P.Om Prakash Shrivastava @ Babloo
Vs State of U.P. through SP, CBI
K.K. Saini Versus State of UP, through S.P., CBI 1
State of U.P. through S.P., CBI Vs Om Prakash Shrivastava @ Babloo
State of U.P. through S.P.,CBI Vs K.K. Saini and Anr.
JUDGMENT
H.L. Dattu, J.
(1) These appeals are preferred against the common judgment and order passed by the learned Sessions Judge, Designated Court (TADA), Kanpur dated 30.9.2008 in TADA Crl. Case No.3 of 1994 (State vs. K.K. Saini), TADA Crl. Case No. 3A of 1994 (State vs. Manjit Singh @ Mange) and TADA Crl. Case No.1 of 1995 (State vs. Om Prakash Shrivastava @ Babloo). By the impugned judgment of conviction and order of sentence, K.K. Saini, Manjit Singh@ Mange (in short, "Mange") and Om Prakash Shrivastava @ Babloo (in short, "Babloo") have been convicted for offence punishable under Section 302 IPC , Section 302 read with Section 34 IPC and Section 302 read with Section 120B IPC respectively. They have been sentenced to undergo imprisonment for life and to pay fine of `10,000/- each in respect of these offences and in default, undergo rigorous imprisonment for a period of six months each. K.K. Saini and Mange are both acquitted of charges under Sections 3(2) and 3(3) read with Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [hereinafter referred to as, "TADA Act"]. All the sentences were directed to run concurrently.
(2) The accused have filed appeals under Section 19 of the TADA Act against the impugned judgment and order passed by the Designated Court (TADA), Kanpur. State of Uttar Pradesh through CBI has also filed appeals against the judgment and order passed by the Designated Court (TADA) acquitting the accused persons for the offences under Sections 3(2) and 3(3) read with Section 3(1) of the TADA Act and further for the enhancement of sentence imposed under the provisions of IPC to death sentence in view of the seriousness of the offence and the purpose for which it was carried out.
(3) The prosecution case in brief is as follows :- Shri L.D. Arora, Additional Collector of Customs, Allahabad was assassinated on 24.03.1993 at about 07-07.15 p.m. in the area of P.S. Cantonment, Allahabad. The nephew of the deceased Dr. Satish Arora (PW-2) had lodged the First Information Report at P.S. Cantonment, Allahabad at 20.15 p.m. According to his report, on 24.03.1993, Shri L.D. Arora (Deceased) reached his house at HIG flat No.9, ADA Colony, Circular Road, Allahabad by his car. He had gone to his uncle's house on 24.03.1993 at about 07-07.15 p.m. He saw his uncle's car parked at the same place where he used to park his car regularly. After knocking the door, he had entered his uncle's house. Soon after his arrival, the neighbour told him that something has happened to his uncle. He immediately rushed to the place where his uncle had parked his car. Upon arrival at the spot, he saw his uncle was lying unconscious on the driving seat in a pool of blood. He immediately took his uncle to Swaroop Ram Medical Hospital with the help of people from the neighborhood. At the hospital, his uncle was declared brought dead. The investigation was initially taken up by the Cantonment Police Station, Allahabad.
(4) The prosecution has further stated that the post mortem of the dead body was carried out by Dr. A.K. Shrivastav of MLN Hospital on 25.03.1993, who prepared a post mortem report, which was duly countersigned by Dr. S.L. Diwan, Senior Surgeon of the hospital. The post mortem report revealed that there were three entry wounds caused by fire arm and corresponding three exit wounds on the upper parts of the body below the pinna of right ear, below and behind the tip of right mastoid procure and the last was 2 cms below it. The cause of death was ascertained to be ante-mortem head injuries caused by bullets. The time of the death was ascertained to be 7.55 p.m. on 24.03.1993.
(5) When the investigation by the State Police was still going on, the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India vide Notification No.228/48/93-A.V.D.-JJ dated 12.07.1993 issued with the consent of the Government of Uttar Pradesh, entrusted the investigation of the case to CBI, pursuant to which R.C. (10) (S)/93-S.J.U.V/C.B.I.,1I/New Delhi dated 13.07.1993 under Section 302 of IPC was registered in SIC.II Branch of CBI. During the course of investigation, offences under Section 120-B of IPC and Sections 3(2) and 3(3) read with Section 3(1) of the TADA Act were added with the permission of Superintendent of Police, CBI, New Delhi.
(6) The prosecution further states that one Mohd. Dosa, Tahir Shah @ Tappu and Babloo entered into criminal conspiracy to eliminate L.D. Arora to strike terror among the customs officials with a view from preventing anyone from passing on information about their smuggling activities or their involvement in the Bombay Blasts on March 12, 1993. Pursuant to this conspiracy hatched, Babloo instructed K.K. Saini and Mange on 20.03.1993, who were with him in Krishna Nagar, Nepal, to assassinate the deceased L.D. Arora. Mangewas further informed that one Alimuddin @ Baba would beavailable at Hotel Finero, Allahabad. Babloo gave them `10-12,000/-, one 9 mm Pistol, 12 cartridges and a Maruti Car, bearing registration No. DNH 8440, to accomplish the task. Thereafter, K.K. Saini and Mange left Nepal with the abovementioned fire arms in the said car. They reached Allahabad and checked into the above mentioned Hotel Finero in Room No.7 and entered their names as A.K. Singh and Harjeet Singh respectively in the hotel register. Thereafter, Alimuddin also checked into Room No. 5 of the same hotel along with a lady named Smt. Arshi. On the same day, there was a meeting between K.K. Saini, Mange and Alimuddin in Room No.7 to chalk out the strategy to kill the deceased on the morning of24.03.1993, i.e. the next day. All three of them reached the office and residence of the deceased on a scooter and conducted a thorough survey. Babloo further contacted K.K. Saini over telephone installed at the hotel in Allahabad, instructing him to kill the deceased that very day as he might leave for Bombay on the next day to disclose information he had gathered regarding the Mumbai serial blasts of 1993. Persuant to these instructions, at around 6.45 p.m., K.K. Saini, Mange and Alimuddin waited near the ADA Colony, Circular Road, Allahabad for the arrival of the deceased in his car. As soon as the car of the deceased was spotted in the vicinity, all three of them took up positions and when the deceased entered the ADA Colony through the main gate in the eastern boundary wall and was about to park his car, K.K. Saini took out his pistol and fired three shots at the deceased, as a result of which, the deceased sustained fatal injuries and collapsed in his seat.
(7) It is further case of the prosecution that during the course of the investigation, they recovered three empty cartridges and one lead from the car of the deceased and one lead from the ground, where the car was parked. The Ballistic Expert of F.S.L., Lucknow opined that the three empty cartridges were fired from the same 9 mm pistol. Investigations disclosed that Mohd. Dosa had entered into criminal conspiracy with Tahir Shah and Babloo to kill the deceased L.D. Arora so that their involvement in the Bombay Bomb Blasts were not revealed. After killing the deceased, the information was relayed to Babloo and later, Mange and K.K. Saini returned to Nepal on 25.03.1993 by crossing the Indo-Nepal border at Krishna Nagar by paying an amount of Rs. 600/- in Nepal currency towards octroi/tax for vehicle No.DNH 8440. The course of investigation further led to information that one Virendra Pant and Sanjay Khanna met Babloo in Al-Rigu Apartments in Dubai where Babloo made an extra judicial confession that he had got the deceased killed through the concerned people as he had information about the activities of Mohd. Dosa and Tahir Shah especially in the smuggling of RDX, weapons and explosives used in the Bombay Bomb Blasts. For this job, he was paid `6,00,000/- by Tahir Shah, out of which `50,000/- was given to K.K. Saini.
(8) Prosecution further states that K.K. Saini, while in police custody, during the period from 06.04.1994 to 04.05.1994 made a confessional statement under Section 15 of the TADA Act, wherein he confessed his own involvement as well as involvement of others in the killing of L.D. Arora. Based on his confession and information, the Maruti Car bearing No. DNH 8440, the vehicle used in the commission of the offence, was also recovered. Later, K.K. Saini refused to join the Test Identification Parade and his refusal was recorded by Shri Rakesh Kapoor, Metropolitan Magistrate, Delhi. The confessional statement of Mange was also recorded on11.07.2001 by S.P., CBI, Delhi. Accordingly, charge sheet against K.K. Saini and Mange was filed in the Designated Court both under the provisions of the IPC and the TADA Acton 26.11.2001, which was registered as Criminal Case No.3 of1994 and Criminal Case No.3A of 1994. It is also relevant to notice that Babloo was arrested in Singapore on 21.04.1995 in response to look out notice issued by Interpol, India. On the request of Govt. of India, he was extradited by the Govt. of Singapore. The Extradition Treaty signed between the two countries provided that the person being extradited could only be tried for criminal acts recognized as offences in both the countries. Since, there was no law in Singapore which corresponds to the TADA Act, though Babloo was extradited, he could only be tried under Section 120-B and 302 of the IPC and, therefore, no charge under Section 3 of the TADA Act was framed against Babloo. After completion of investigation, the investigating agency filed charge sheet before the Designated Court (TADA) for the offences under Section 302 IPC against K.K. Saini and Mange for offences under Section 302 read with Section 34 of the IPC and against Babloo under Section 302 read with Section 120B IPC . K.K. Saini and Mange were also charged under Section 3(2) and 3(3) read with Section 3(1) of the TADA Act. To prove the charges, the prosecution had examined 88 witnesses in the leading criminal case No. 3 of 1994 and 85 witnesses in criminal case No. 3A of 1994 during the trial and relied upon various documents including confessional statements recorded during investigation. All the accused persons abjured their guilt and pleaded innocence and stated that they have been falsely implicated in this case.
(9) The Designated Court (TADA) had framed nearly eleven issues for its consideration. The Court, relying on Section 12 of TADA Act, has held that Babloo was rightly charged for an offence under Section 302 read with Section 120B of the IPC and tried him jointly with the accused K.K. Saini and Mange and for technical reason, he could not be charged under the TADA Act. The Court has further held that since the investigation was handed over to Superintendent of Police, CBI, by the State of Uttar Pradesh by issuing notification, prior approval from S.P., CBI, was sufficient compliance of Section20A of the TADA Act. On the issue of the admissibility of the confessional statement of the accused K.K. Saini and Mange against the co-accused Babloo, the learned Designated Judge, after noticing the language employed in Section 12 and Section15 of the TADA Act, has concluded that merely due to technicality in the Extradition Treaty, Babloo was not charged under TADA Act. However, in the light of the provisions and the decisions of this Court, the confessional statements were held to be admissible against the co-accused even when he was not charged under the TADA Act, but was tried jointly for offences under other law by the Designated Court (TADA).The Designated Court (TADA) did not find any merit in the contention that the confession statements of K.K.Saini andMange were not recorded voluntarily. The Designated Judge(TADA), after carefully considering the evidence on record, has held that the prosecution has successfully proved the recovery of Maruti Car No. DNH 8440 on the information furnished by K.K. Saini. As regards the issue of proving charges of conspiracy under Section 120B of IPC , it was held that from the facts and circumstances and prosecution evidence, it was clear that the three accused namely, K.K. Saini, Babloo and Mange hatched conspiracy to kill L.D. Arora and all the three accused were involved in the conspiracy. Hence, all the three accused were held liable for conviction for the charge under Section120B read with Section 302 of the IPC . As regards the last issue of proving the guilt of all the three accused and the sufficiency of the evidence other than confessional statement, it was observed that the prosecution has proved the same by producing both oral and documentary evidence. The Designated Court(TADA), after considering the material evidence on record, including the Post Mortem Report and the statements made by the accused persons under Section 313 of the Criminal Procedure Code , has concluded that the prosecution has adduced sufficient, reliable oral and documentary evidence, which corroborates the confessional statement of both the accused namely, K.K. Saini and Mange and further concluded that there is enough evidence, other than the confessional statement against Babloo, which proves the prosecution case in so far as charges framed under the provisions of the IPC.
(10) We have heard Shri K.T.S. Tulsi, learned senior counsel for Mange and Babloo and Shri Amrendra Sharan, learned senior counsel for K.K. Saini and Shri P.P.Malhotra, learned Additional Solicitor General for the CBI.
(11) As these appeals are preferred against the judgment and order of learned Designated Court (TADA) under Section 19 of the TADA Act, therefore, we have to consider these appeals both on facts as well as on question of law for our conclusion and decision.
(12) The learned senior counsel Shri K.T.S. Tulsi and Shri Amrendra Sharan submitted that K.K. Saini and Mange were charged under the TADA Act and not Babloo. It is argued that since there was no terror caused in the society by the acts of the accused, they cannot be charged under Section 3(1) and 3(2) of the TADA Act and, therefore, they could only be tried for committing offence of murder under Section 302 of the IPC . Further, it was argued that prior approval was required to be taken from the Superintendent of Police of the District, as required under Section 20-A of the TADA Act, to try the accused for the offences under the TADA Act and the Superintendent of Police, CBI was not the competent authority to give such permission. It is further submitted that the confessional statements of K.K. Saini and Mange were recorded in complete defiance of provisions of the TADA Act and the rules framed there under and that mandatory provisions have not been followed. Therefore, the confessional statement is to be completely eschewed from consideration. It is also contended that there is no sufficient and reliable evidence against Babloo except the confessional statement of K.K. Sainiand Mange and the prosecution has therefore failed to prove the conspiracy between the accused tried in the present case. ShriK. T.S. Tulsi, learned senior counsel, who also appears for Babloo, submitted that the confessional statement of the co-accused K.K. Saini and Mange recorded under Section 15 of the TADA Act cannot be used against Babloo as he is not charged under the provisions of the TADA Act and also because no prior approval from the prescribed authority, as required under Section 20A of the TADA Act, had been obtained. He also submitted that the penal provisions require to be strictly construed. In support of his submission, the learned senior counsel has placed reliance on several decisions of this Court. We will make reference to the submissions and the decisions while considering the issues raised in these appeals.
(13) Shri P.P. Malhotra, learned Additional Solicitor General, submitted that when the investigation is transferred to the CBI, with the consent of the State, the CBI takes over further investigation of the case. Therefore, Superintendent of Police, CBI, was competent to record the confession made by a person and the same is admissible in the trial of such person for an offence under the TADA Act. He further submits that the aforesaid officer, before recording the confession under Section 15(1) of the TADA Act, had followed the safeguards provided under sub Section (2) of Section 15 of the TADA Act. It is further submitted that the confessional statement of K.K. Saini and Mange recorded before S.P., C.B.I., was admissible in evidence vide Section 15 of the TADA Act, which provides for the recording of the confessional statements before the police officer, not lower in the rank than Superintendent of Police, and it is made admissible even against co-accused, abettor or conspirator and the bar under the Evidence Act and Criminal Procedure Code will not come into play. It was further submitted that the confessions made by K.K. Saini and Mange are admissible as substantive evidence against Babloo. It was also submitted by the learned ASG that there was sufficient evidence adduced by the prosecution to support the correctness of the confessional statements of the two co-accused persons. He further submitted that the Section takes special care to ensure that no court shall take cognizance of any offence under the Act without the previous sanction of the Inspector General of Police or the Commissioner of Police. The safeguard so provided under the Act would protect the rights of an accused of any offence under the Act.
(14) The issues that would arise in these appeals filed by appellants- accused for our consideration and decision are as under :-
i. Whether the confessional statement of the co- accused is admissible against Babloo, who was not charged under the TADA Act.
ii. If for any reason, confession of the co-accused is eschewed against Babloo, whether there is any other evidence against him to sustain the conviction and sentence under Section 302 read with Section 120-B IPC.
iii. Since the TADA Act, being a special statute enacted for a specific purpose and object, whether the interpretation of provisions of the TADA Act requires any specific mode of interpretation.
iv. Whether there is breach of mandatory requirements provided in Section 20A(1) of the TADA Act while recording the commission of an offence under the Act.
v. Whether the conviction of K.K. Saini and Mange for the offences under the provisions of the I.P.C. are sustainable with the available evidence on record.
vi. Whether the learned Designated Judge (TADA) was justified in acquitting all the accused persons for the offences charged and tried under the TADA Act. Case of Babloo
(15) The object and purpose of the TADA Act is explained by this Court in number of decisions. Therefore, it is not necessary for us to repeat and reiterate the same. We will only notice the relevant provisions which are necessary for the purpose of this case.
(16) Section 12 of the TADA Act speaks of the power of the Designated Courts with respect to other offences. By virtue of this Section, the Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. Sub-section (2) further empowers the Designated Court that in the course of the trial under the TADA Act of any offence, if it is found that the accused person has committed any other offence under the TADA Act or any rule made there under or under any other law, the Designated Court may convict such person of such other offence and pass any sentence authorized under this Act or such rule or such other law for the punishment thereof. A Designated Court constituted under Section 9 of the TADA Act or a transferee Designated under Section 11 of the TADA Act is vested with the jurisdiction to try all the offences punishable under the provisions of the TADA Act. While trying such offence, if the accused is charged for offence punishable under the provisions of any other law connected with such offence, the Designated Court has power to try the accused in such offence also during trial, if it is found that the accused has also committed other offence punishable under any other law, the Designated Court can convict the accused for such offence also. The Designated Court can pass any sentence, on conviction of the accused, as authorized in the respective statute for punishment of such offence.
(17) Section 15 of the TADA Act commences with a non obstinate clause by stating that notwithstanding anything contained in the IPC or the Evidence Act, the 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 etc., shall be admissible in the trial of such person, co-accused, abettor or conspirator for an offence under the TADA Act or rules made there under. The proviso appended to the Section carves out an exception to the main Section. It says that the confession made by a person accused of an offence under the Act or the rules framed there under can be used against co- accused, abettor or conspirator, provided he is charged for any offence under the Act or the rules framed there under and tried in the same case together with the accused. It was contended by Shri K.T.S. Tulsi, that Babloo was not charged under the provisions of the TADA Act or the rules framed there under. Therefore, the confession statement made by co-accused i.e. K.K. Saini and Mange cannot be used against Babloo and if the confessional statement of the co-accused is eschewed, then there is no other evidence to implicate Babloo for the offence alleged to have been committed under the Indian Penal Code and, therefore, the conviction and sentence imposed by the Designated Court cannot be sustained.
(18) The main question before us is whether the confessional statement made by K.K. Saini and Mange can be used against co-accused Babloo in the light of the fact that Babloo was not charged and tried for any offence under the TADA Act or the rules framed there under.
(19) This issue was raised before the learned Designated Judge (TADA). The learned Judge has answered the issue and in his opinion, Babloo was not tried for offences under the TADA Act, only due to the extradition terms that were agreed by Union of India with Singapore Government. He has further stated that it was only due to this technicality that Babloo was not tried for offences under the Act, though his actions fully justified a trial for offences under the Act. It is this reasoning of the learned Designated Judge that was commented and taken exception to by learned senior counsel Shri K.T.S. Tulsi. We have already noticed that the submission of the learned senior counsel is that confession made by the co-accused charged under the TADA Act cannot be used against co-accused who is not charged and tried under the TADA Act. The learned senior counsel, while relying on the observations made by this Court in the case of Baba Peer Paras Nath vs. State of Haryana, (1996) 10 SCC 500, in aid of his submission, would further contend that this Court in the case of State vs. Nalini, (1999) SCC 253 and the Constitution Bench decision of this Court in the case of Prakash Kumar@Prakash Bhutto vs. State of Gujarat, (2005) 2 SCC 409, did not deal with the admissibility of a confession statement made by an accused under the TADA Act against co-accused not charged under the Act or the rules framed there under and therefore not applicable to the facts of the case.
(20) Shri P.P. Malhotra, learned Additional Solicitor General, submits that all the three accused were being tried in the same case by the Designated Court (TADA). Therefore, the confession of the accused K.K. Saini and Mange, charged for the offence under the TADA Act, could be used against Babloo, who was charged for the offence under Section 302 read with Section 120B of the IPC . The learned ASG would further contend that Section 15 of the Act is a rule of procedure and no one has any vested rights in the procedural provisions.
(21) We are of the view that the issue raised needs to be appreciated in the light of several decisions of this Court and principles of statutory interpretation. For appreciating the contention of the learned counsel Shri K.T.S. Tulsi, firstly we need to notice the provision which empowers the police officer to record the confessional statement of the accused.
(22) Section 15 of the TADA Act was amended by Act No. 43 of 1993 with effect from 22.05.1993. By this amendment, not only some changes are brought in the main Section but also the proviso is added to sub-section (1) of Section 15. The amended provision reads: "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 either 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 there under: 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."
(23) Under the amended provision of Section 15 of the TADA Act, the confession of a co-accused recorded under Section 15 of the TADA Act is made admissible subject to certain conditions. The confession recorded under Section 15 of the TADA Act by a co-accused could be made use of against that accused provided the co-accused is charged and tried in the same case together with the accused. Section 15 of the TADA Act is amended by Act No. 43 of 1993, which clearly stipulates that the confession recorded under Section 15 of the TADA Act is admissible only if the confessor is charged and tried in the same case together with the co-accused. After the amendment of 1993, the addition of the words `co-accused, abettor or conspirator is charged or tried together with the accused' clearly shows that the confession could be considered by the Court only when the co-accused, who makes the confession, is charged and tried along with the other accused.
(24) This Court in the case of Kartar Singh vs. State of Punjab, (1994) 3 SCC 569 considered the validity of Section 15 of the TADA Act. While considering the question whether the procedural law is oppressive and violates the principles of just and fair trial offending Article 21 of the Constitution and is discriminatory violating the equal protection of laws offending Article 14 of the Constitution, and therefore, whether Section15 of the TADA Act needs to be struck down, this court held Section 15 of the TADA Act stands good on the test of constitutional validity as the classification of offenders and offences to be tried by the Designated Court under the TADA Act or by the Special Courts under the Act of 1984 are not left to the arbitrary and uncontrolled discretion of the Central Govt., but the Act itself has made a delineated classification of the offenders as terrorists and disruption lists in the TADA Act and the terrorists under the Special Courts Act, 1984 as well as classification of offences under both the Acts. This Court also stated that the Act also provides for procedural safeguards to be followed by the police officers with regard to mode of recording the confession and, therefore, Section is not liable to be struck down as it does not offend either Article 14 or 21 of the Constitution of India. The Court further observed as under :- "255. As the Act now stands after its amendment consequent upon the decision of Section 21(1)(c), a confession made by a person before a police officer can be made admissible in trial of such person not only against the person but also against the co-accused, abettor or conspirator, provided that co-accused, abettor or conspirator is charged in the same case together with the accused, namely the maker of the confession. The present position is in conformity with Section 30 of the Evidence Act."
(25) The scope of Section 15 of the TADA Act was considered by a three Judge Bench of this Court in State vs. Nalini (supra). The three learned Judges were pleased to deliver three separate judgments. We shall extract the relevant portion of the judgments. While answering this question, K.T. Thomas, J. opined: "81. Section 15 of TADA enables the confessional statement of an accused made to a police officer specified therein to become admissible "in the trial of such a person". It means, if there was a trail of any offence under TADA together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences." "...The correct position is that the confessional statement duly recorded under Section 15 of TADA would continue to remain admissible as for the other offences under any other law which too 27 were tried along with TADA offences, no matter that the accused was acquitted of offences under TADA in that trial." (Para 82) "...In other words, after the amendment a Designated Court could not do what it could have done before the amendment with the confession of one accused against a co-accused. Parliament has taken away such empowerment. Then what is it that Parliament did by adding the words in Section 15(1) and by inserting the proviso? After the amendment the Designated Court could use the confession of one accused against another accused only if two conditions are fulfilled: (1) The co-accused should have been charged in the same case along with the confessor. (2) He should have been tried together with the confessor in the same case." (Para 90) "92. While considering the effect of the non obstante limb we can see that Section 15(1) of TADA was given protection from any contrary provision in the Evidence Act. But what is it that Parliament did through Section 15(1) regarding a confession made to a police officer? It has only made such confession "admissible" in the trial of such person or the co-accused etc." "...It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a co-accused, abettor or conspirator tried in the same case." (Para 97)
(26) In other words, Thomas, J. took the view that the confession of another person is weak evidence and hence the confession made by one co accused was admissible in evidence against another, but would be conclusive only if the same was corroborated, even if such person was acquitted of charges under the TADA Act in joint trial. It must be noted that the majority view is not in concurrence with this opinion.
(27) Now we will notice the observations made by D.P. Wadhwa, J. "415. When Section 15 TADA says that confession of an accused is admissible against a co-accused as well, it would be substantive evidence against the co-accused as well, it would be substantive evidence against the co-accused. It is a different matter as to what value is to be attached to the confession with regard to the co-accused as that would fall in the realm of appreciation of evidence."
(28) The learned Judge further went on to observe that the confession made by the accused can be used as a substantive piece of evidence against another accused in the light of Section 15 of the TADA Act. This view was supported by S.S.M. Qadri, J. in a concurring opinion. In other words, this Court took the view that even if a person is acquitted of the TADA charges, the confession recorded under Section 15 of the TADA Act would be admissible.
(29) The majority view in this case is that confessional statement is a substantive piece of evidence and can be used against the co- accused. The decision in Nalini's case was considered in S.N. Dube vs. N.B. Bhoir, (2000) 2 SCC 254. The Court observed that Section 15 of the TADA Act is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co- accused also, if held to be admissible, voluntary and believable.
(30) In Jameel Ahmed vs. State of Rajasthan, AIR 2004 SC 588, it is observed: ". ...............Herein it is relevant to note that S. of TADA Act by the use of non-obstante clause has made confession recorded under S.15 admissible notwithstanding anything contained in the Indian Evidence Act or the Code of Criminal Procedure. It also specifically provides that the confession so recorded shall be admissible in the trial of a co-accused for offence committed and 30 tried in the same case together with the accused who makes the confession."
(31) In Esher Singh vs. State of A.P. (2004) 11 SCC 585, it is stated: "19. Crucial words in the provision are "charged and tried". The use of the expression "charged and tried" imposes cumulative conditions. Firstly, the two persons who are the accused and the co- accused in the sense used by the legislature under Section 15, must be charged in the same trial, and secondly, they must be tried together. Kalpnath Rai case has been overruled in Nalini case making the position clear that the confession of a co- accused is substantive evidence. 20. Section 2(b) of the Code of Criminal Procedure, 1973 (in short "the Code") defines "charge" as follows: "2. (b) `charge' includes any head of charge when the charge contains more heads than one;" The Code does not define what a charge is. It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used in Section 224 IPC. 31 21. Chapter XVII of the Code deals with "charge". Section 211 thereof deals with content of charge. Section 273 appearing in Chapter XXIII provides that evidence is to be taken in the presence of the accused. The person becomes an accused for the purpose of trial after the charges are framed. The expression used in Section 15 of TADA is "charged and tried". The question of having a trial before charges are framed does not arise. Therefore, the only interpretation that can be given to the expression "charged and tried" is that the use of a confessional statement against a co-accused is permissible when both the accused making the confessional statement and the co- accused are facing trial after framing of charges. In State of Gujarat v. Mohd. Atik this position was highlighted. Unless a person who is charged faces trial along with the co-accused the confessional statement of the maker of the confession cannot be of any assistance and has no evidentiary value as confession when he dies before completion of trial. Merely because at some stage there was some accusation, unless charge has been framed and he has faced trial till its completion, the confessional statement, if any, is of no assistance to the prosecution so far as the co-accused is concerned. In fact, in para 10 in Mohd. Atik case it was observed that when it was impossible to try them together the confessional statement has to be kept out of consideration. 22. So far as application of Section 30 of the Evidence Act is concerned, in Nalini case this question was examined and it was held in SCC pp. 306-07, paras 90 and 91 as follows: "90. But the amendment of 1993 has completely wiped out the said presumption against a co- accused from the statute-book. In other words, after the amendment a Designated Court could not 32 do what it could have done before the amendment with the confession of one accused against a co- accused. Parliament has taken away such empowerment. Then what is it that Parliament did by adding the words in Section 15(1) and by inserting the proviso? After the amendment the Designated Court could use the confession of one accused against another accused only if two conditions are fulfilled: (1) The co-accused should have been charged in the same case along with the confessor. (2) He should have been tried together with the confessor in the same case. Before amendment the Designated Court had no such restriction as the confession of an accused could have been used against a co-accused whether or not the latter was charged or tried together with the confessor. 91. Thus the amendment in 1993 was a clear climbing down from a draconian legislative fiat which was in the field of operation prior to the amendment insofar as the use of one confession against another accused was concerned. The contention that the amendment in 1993 was intended to make the position more rigorous as for a co-accused is, therefore, untenable."
(32) A two Judge Bench of this Court, doubting the correctness of the decision in State vs. Nalini (supra), had referred the matter to three Judge Bench of this Court. Since Nalini's case (supra) was decided by three Judge Bench of this Court, the three Judge Bench had referred the matter to Constitution Bench in Prakash Kumar @Prakash Bhutto vs. State of Gujarat, (2005) 2 SCC 409.The primary question referred to the Bench, as noticed by the Constitution Bench itself is, as to whether confessional statement duly recorded under Section 15 of the TADA Act would continue to remain admissible as for the offences under any other law which were tried along with TADA offences under Section 12 of the Act, notwithstanding the fact that the accused was acquitted of offences under the TADA Act in the said trial. "18. The questions posed before us for the determination are no more res integra. In our view, the same have been set at rest by the three- Judge Bench decision rendered in Nalini. The rigours of Sections 12 and 15 were considered in Nalini case and a finding rendered in paras 80, 81 and 82 (SCC p. 304) as under: "80. Section 12 of TADA enables the Designated Court to jointly try, at the same trial, any offence under TADA together with any other offence `with which the accused may be charged' as per the Code of Criminal Procedure. Sub-section (2) thereof empowers the Designated Court to convict the accused, in such a trial, of any offence `under any other law' if it is found by such Designated Court in such trial that the accused is found guilty of such offence. If the accused is acquitted of the offences under TADA in such a trial, but convicted of the offence under any other law, it does not 34 mean that there was only a trial for such other offence under any other law. 81. Section 15 of TADA enables the confessional statement of an accused made to a police officer specified therein to become admissible `in the trial of such a person'. It means, if there was a trial of any offence under TADA together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences. 82. The aforesaid implications of Section 12 vis-`- vis Section 15 of TADA have not been adverted to in Bilal Ahmed case. Hence the observations therein (at SCC p. 434, para 5) that `while dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it since he was acquitted of all offences under TADA' cannot be followed by us. The correct position is that the confessional statement duly recorded under Section 15 of TADA would continue to remain admissible as for the other offences under any other law which too were tried along with TADA offences, no matter that the accused was acquitted of offences under TADA in that trial."(emphasis supplied) We are in respectful agreement with the findings recorded by a three-Judge Bench in Nalini case. 40. For the reasons aforestated, we are of the view that the decision in Nalini case has laid down correct law and we hold that the confessional statement duly recorded under Section 15 of TADA and the Rules framed thereunder would continue to remain admissible for the offences under any 35 other law which were tried along with TADA offences under Section 12 of the Act, notwithstanding that the accused was acquitted of offences under TADA in the same trial."
(33) In view of the decisions rendered by this Court in the aforementioned cases, it is settled law that the confession of an accused can be used against him as well as other co-accused, even if they are acquitted for offences under the TADA Act.
(34) In the present case, the question that needs to be answered is the admissibility of such confession against the co-accused not charged under the TADA Act. Shri K.T.S. Tulsi brought to our notice the decision of this Court in the case of Baba Peer Paras Nath (supra), wherein the issue that was considered was whether the confessional statement of the co-accused is admissible against co-accused if not tried for offences under TADA Act. This Court distinguished the Constitutional Bench decision of Kartar Singh vs. State of Punjab, (1994) 3 SCC 569 stating that the observation of this Court in that decision is not about the admissibility of the confessional statement recorded under Section 15 of the TADA Act against an accused when such accused is tried with the other co-accused, abettor or conspirator but such accused is not charged for any offence under the TADA Act. Thus, the principle in this case which was upheld was that confessional statement recorded under Section 15 of the TADA Act was admissible against co-accused, abettor or conspirator provided such accused tried with the other co- accused or abettor or conspirator in the same trial in respect of offence under the TADA Act and not otherwise.
(35) In the present case, Babloo was not charged under the TADA Act, but tried in the same trial along with K.K. Saini and Mange, who were tried under the TADA Act. The question raised by Shri K.T.S. Tulsi is whether it is permissible to use the confession statement of K.K. Saini and Mange against Babloo, when he is not charged for the offence under the TADA Act to convict him, especially, when there is no other evidence available against him.
(36) In the case of Baba Peer (supra), this Court held that in view of the language employed in Section 15 of the TADA Act, the confession recorded under the aforesaid provision is admissible only if the co-accused is charged and tried in the same case together with the confessor.
(37) In the case of Nalini (supra), the Court held that the confession recorded shall be admissible in the trial of a co-accused for offence committed and tried in the same case together with the accused that makes the confession. Plain language of Section 15 of the TADA Act excludes the application of the provisions of the Evidence Act and the Criminal Procedure Code. In view of the language of Sub-Section (1) of Section 15, a confession of an accused is made admissible evidence as against all those charged and tried with him. This view of the Bench of three learned Judges in Nalini's case is approved by Constitution Bench of this Court in Prakash Kumar's case. The Constitution Bench decision is binding on us.
(38) The language of Section 12 clearly states that in the course of any trial under the TADA Act of any offence, if it is found that the accused person has committed any other offence either under this Act or any other law, the Designated Court (TADA) may convict such person of such other offence and pass any sentence authorized by this Act or such other law, for the punishment thereof. Section 15 of the TADA Act, after its amendment, authorizes the Designated Court to use the confession statement of one accused against another accused only when the co-accused is charged in the same case along with the confessor and is tried together with the confessor in the same case. The language of these two Sections is clear and unambiguous. It is well settled principle of law that the jurisdiction to interpret a Statute can be invoked when the same is ambiguous. This Court in Nasiruddin and Ors. v. Sita Ram Agarwal, (2003) 2 SCC 577, observed that:- "38. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well- settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character." 39
(39) In the case of Dadi Jagganadhan v. Jammulu Ramulu and Ors., AIR 2001 SC 2699, a Constitution Bench of this court observed:- "13.........The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there."
(40) In the case of Feroze N. Dotivalaz v. P.M Wadhwani and co., (2003) 1 SCC 14, this court stated:- "Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined." 40
(41) In the case of Union of India v. Harsoli Devi, (2002) 7 SCC 273, a Constitution Bench of this court laid down:- "4. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28- A, we think it appropriate to bear in mind certain basic principles of interpretation of statute. The rule stated by Tindal, CJ in Sussex Peerage case, (1844) 11 Cl &F.85, still holds the field. The aforesaid rule is to the effect: "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver." It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd. 1955 (2) ALL ER 345, Lord Reid pointed out as to what is the meaning of "ambiguous" and held that - "a provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning." It is no doubt true mat if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the 41 court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute."
(42) In Quebec Railway, Light Heat & Power Co. v. Vandray, AIR 1920 PC 181, it had been observed that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless.
(43) In the case of Standard Chartered Bank and Ors. v. Directorate of Enforcement and ors. AIR 2005 SC 2622, it was stated:- "It is true that all penal statutes are to be strictly construed in the sense that the Court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment." This court further added:- "55. The rule of interpretation requiring strict construction of penal statutes does not warrant a narrow and pedantic construction of a provision so as to leave loopholes for the offender to escape 42 [See : Murlidhar Meghraj Loya v. State of Maharashtra:1976CriLJ1527]. A penal statute has to also be so construed as to avoid a lacuna and to suppress mischief and to advance a remedy in the light of the rule in Heydon's case. A commonsense approach for solving a question of applicability of a penal statute is not ruled out by the rule of strict construction. [See : State of Andhra Pradesh v. Bathu Prakasa Rao MANU/SC/0177/1976 : 1976CriLJ1387 and also G. P. Singh on Principles of Statutory Interpretation, 9th Edition, 2004, Chapter 11, Synopsis 3 at pgs. 754 to 756]."
(44) A Three-Judge Bench of this Court in the case of The Assistant Commissioner, Assessment-II, Bangalore and Ors. v. Valliappa Textiles Ltd. and Ors., AIR 2004 SC 86, laid down:- "22. .................Though Javali (supra) also refers to the general principles of interpretation of statute the rule of interpretation of criminal statutes is altogether a different cup of tea. It is not open to the court to add something to or read something in the statute on the basis of some supposed intendment of the statute. It is not the function of this Court to supply the casus omissus, if there be one. As long as the presumption of innocence of the accused prevails in this country, the benefit of any lacuna or casus omissus must be given to the accused. The job of plugging the loopholes must strictly be left to the legislature and not assumed by the court."
(45) It is pertinent to note that this Court in the case of Nalini (supra) had taken the view that the confessional statement of one of the accused can be used as conclusive evidence against another accused if they are both tried in the same trial. This has been so held despite the fact that in case of a confessional statement, the incriminated accused cannot cross examine the maker.
(46) When the validity of Section 15 of the TADA Act was challenged in the case of Kartar Singh (supra), the Constitution Bench of this Court held that Section 15 of the TADA was playing the role of Section 30 of the Evidence Act, which makes the confession of an accused admissible in evidence against its maker as well as other co-accused in a criminal trial. The main concern while making such confession admissible is to test the veracity of the confession, as the incriminated co- accused does not get the opportunity to cross examine the maker. However, such evidence must be corroborated in order to determine the guilt of a person. In the event, independent evidence supports the confessional statement then there is no harm in relying upon the confession adding further to the independent incriminating evidence.
(47) In any case, it would lead to absurdity for a court to rely on confessions of the maker against himself, and not against another person, when such other person features prominently in the confessional statement, in a joint trial of offences for the same criminal act, especially in circumstances when there is independent incriminating evidence.
(48) In view of the above discussion, we hold that the confessional statement made by a person under Section 15 shall be admissible in the trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession.
(49) The next argument of Shri K.T.S. Tulsi and Shri Amrendra Sharan, learned senior counsel, is with regard to the procedural irregularities in the investigation conducted by the prosecution which, according to them, is not properly appreciated by the learned Designated Court. The learned counsel contends that under Section 20A of the TADA, the sanction of the District Superintendent of Police is required to be obtained before the police record any information about the commission of an offence under the TADA. Since the same has not been obtained, the conviction of the accused cannot be sustained. In the instant case, according to the learned senior co
