MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH A v. C.B.I

Judgment

16 S.C.R. 155 MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH A & ANR. v. C.B.I. THROUGH ITS DIRECTOR (Criminal Appeal No. 473 of 2007) NOVEMBER 18, 2008 [8.N. AGRAWAL AND G.S. SINGHVI, JJ.] TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987: B C s. 15 - Confession - HELD: A confession recorded in accordance with the provisions of s. 15 and r. 15 is admissible and can be used in the trial of the maker as also the co accused, abettor or conspirator not only for an offence under 0 the Act but also for an offence under /PC or other enactments provided that such co-accused, abettor or conspirator is charged and tried in the same case - Conviction can be based on such confession without its corroboration, if the Court is convinced of its probative value independently - In E the instant case, the trial court has rightly relied upon the confessions - Besides, prosecution has also led sufficient corroborative evidence and the trial court did not commit any error in recording the conviction- Terrorist and Disruptive r.15 - Penal Code, Activities (Prevention) Rules, 1987 - 1860 - ss. 3021120-Bl114 /PC. F s.15 - Confession - HELD: If an accused challenges his confession as having not been made voluntarily, then the initial burden is on the prosecution to prove that all requirements uls 15 and r. 15 have been complied with - G Once this is done, burden shifts on the accused to prove his a/legations - In the instant case, there was total compliance of the mandate of law in recording the confessions - Evidence - Burden of proof. 155 H' 156 SUPREME COURT REPORTS [2008] 16 S.C.R. A B s. 15 - Confession - HELD: A confession cannot be held to be inadmissible merely because before recording the same the accused was in police custody or that the statement was recorded by the officer supervising the investigation. PENAL CODE, 1860: ss. 3021120-B, 3021120-81114, and s. 120-B - Conspiracy and murder - HELD: To prove a charge of conspiracy, it is not necessary that all conspirators know each and every detail c of the conspiracy, so long as they are co-participants in the main object of conspiracy - It is also not necessary that all conspirators should participate from the inception of conspiracy to its end - If there is unity of object or purpose, all participating at different stages of the crime will be guilty In the instant case, the trial court did not commit any error in recording a finding that charges of conspiracy and murder are proved against appellants - Arms Act, 1959 - s.27 - Bombay Police Act, 1951 - s.135. D of conspiracy - .. - E The appellants (A-4 to A-8, A-10 and A-11) seven in number, along with 4 others were prosecuted for commission of offences punishable ulss 3(1), 3(3) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, s.120-8 read with s.302 IPC, s.302 read with s.114 and s.120-8 IPC and s.27 of the Arms Act, 1959. The F prosecution case was that one 'AL' and his gang had gunned down an illicit liquor supplier· and 8 others on 3.8.1992, and planned to make surreptitious surrender of some unimportant members of their party so that the real culprits could go scot free. This was opposed by one 'RV' G who was a former Rajya Sabha Member and General Secretary of the State unit of a political party. 'AL' and his gang decided to eliminate 'RV' and create terror among the people so that no one could dare oppose their plan. The task was entrusted to 'R' Party, and his gang of H which A-5, A-7, A-8 and A-11 were members, and they shot ' ----- ~ ... ~ .#' ' MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH & ANR. v. C.B.I. THROUGH ITS DIRECTOR 157 dead the said 'RV' who at the time of occurrence was A accompanied by PW-28. The Designated Court on the basis of the prosecution evidence, the confessions made by the accused-appellants u/s 15 of the Act as also the statements made by them u/s 313 Cr PC found the charges of conspiracy and murder established and B convicted A-4 to A-8, A-10 and A-11, inter alia, u/s 302 read withs. 120 IPC and/or u/s 302 read with ss. 114 and 120- B IPC and sentenced all of them to imprisonment for life. It acquitted all the accused of the charges under the TADA Act. c In the instant appeals, it was contended for the accused-appellants that they were subjected to physical torture in order to extract confessions and, as such, the confessions alleged to have been made were not voluntary; and that the prosecution did not produce any evidence to prove .an agreement or meeting of mind to commit the murder and, therefore, the charge of conspiracy was not established and the appellants could not have been convicted u/s 302 read with s.120-B IPC. Dismissing the appeals, the Court HELD: 1. It must be treated as settled law that even if a person is acquitted of the charge under the Terrorist and Disruptive Activities (Prevention) Act, 1987, a confession recorded u/s 15 thereof can be used for convicting him of an offence under other enactments including IPC. [Para 13] [180-F] D E F Prakash Kumar vs. State of Gujarat 2005 (1 ) SCR 408 = 2005 (2) SCC 409 and State through Superintendent of G Police, CBI/SIT vs. Na/ini and Others 1999 ( 3) SCR 1 = 1999 (5) sec 253, relied on. Bilal Ahmad Ka/oo vs. State of A.P. 1997 (7) SCC 431; Rambhai Nathabhai Gadhvi vs. State of Gujarat 1997 (7) H 158 SUPREME COURT REPORTS [2008] 16 S.C.R. A sec 744 and Gurprit Singh VS. State of Punjab 2002 (10) sec 201, overruled. '

2.1. A confession recorded u/s 15 of the Act is admissible in the trial of the maker as also the co- B accused, abettor or conspirator not only for an offence under the Act but cllso for offence(s) under other enactments, provided that the co-accused, abettor or conspirator is charged and tried in the same case along with the accused dnd the Court is satisfied that requirements of the A1ct and the Terrorist and Disruptive C Activities (Prevention) Rules, 1987 have been complied with. Whether .such f?Onfession requires corroboration depends on the facts of the given case. If the Court is convinced that the probative value of the confession is such that it does not require corroboration then the same D can be used for conv)cting the maker and/or co-accused under the Act and/or other enactments, without corroboration. [Para 127] [191-F-H;192-A-B] Gurdeep Singh ;s. State (Delhi Admn.) 2000 (1) SCC E 498; S.N. Dube vs. N.B. Bhoir and Others 2000 (2) SCC 254; Lal Singh vs. State ot Gujarat 2001 (3) SCC 221; Devender Pal Singh vs. State of NCT of Delhi 2002 (5) SCC 234; Jameel Ahmad vs. State of Rajasthan 2003 (9) SCC 673; Jayawant Dattatray Suryarao vs. State of Maharashtra 2001. F (10) SCC 109 and Abdulvahab Abdul Majid Shaikh vs. State of Gujarat, 2007 (9) SCC 293, referred to.

2.2. If a person accused of committing an offence under the Act challenges his confession on the ground that it was not made voluntarily, then the initial burden is G on the prosecution to prove that all requirements u/s 15 of the Act and Rule 15 of the Rules have been complied with. Once this is done, the burden shifts on the accused and it is for him to prove that the confession was not made voluntarily or that the same is not truthful, and if H he adduces evidence during the trial to substantiate his 'I )~ • -~ .. -' .. ... MOHMED AMIN @AMIN CHOTELI RAHIM MIYAN SHAIKH & ANR. v. C.B.I. THROUGH ITS DIRECTOR 159 allegation that the confession was not voluntary then the A Court has to carefully scrutinize the entire evidence and surrounding circumstances and determine whether or not the confession was voluntary. [Para 27) [192-B-D] B 2;3. Confession made by a person u/s 15 of the Act should not be rejected only on the ground that at the relevant time he was in police custody. Nor should a confession be treated as non-voluntary on the ground that the same was made before the officer who was supervising the investigation. In the instant case, the prosecution evidence shows that the confessing c appellants were brought to Delhi pursuant to transit warrant granted by the competent court at Ahmedabad. Therefore, the Investigating Officers were bound to keep their custody till the end of the period specified in the transit warrant and they could not have transferred the D custody of the accused to any other person. It was during the period of their custody with the Investigating Officers that each of the accused appellants A-4 to A-8 and A-1 O volunteered to confess their role in the commission of crime. Accordingly, they were produced E before two Superintendents of Police, CBI, and their confessions were recorded strictly in accordance with the manner and the procedure prescribed in Section 15 of the Act and Rule 15 of the Rules. Further, neither A-10 when he was produced before Chief Metropolitan F Magistrate, Delhi, nor at the end of the period specified in transit warrants when all the confessing appellants were produced before the Magistrate concerned at Ahmedabad with an application for their remand to judicial custody, any of them made any grievance of ill- treatment, torture (physical or mental), inducement or allurement by the Investigating Officers or supervising officers, nor did any of them claim that he had made confession under any other type of compulsion. Therefore, the confessions of A-4 to A-8 and A-10 cannot G H 160 SUPREME COURT REPORTS (2008] 16 S.C.R. A be held inadmissible on the premise that before recording of confessions they were in police custody or that the statements were recorded by the officers supervising the investigation. [Para 43, 44, 46 and 48] [220-E, F, G; 221-E; 223-F; 224-D-E; 226-C-D] 8 c D E F Gurdeep Singh vs. State (Delhi Admn.) 2000 (1) SCC 498; S.N. Dube vs. N.B. Bhoir and Others 2000 (2) SCC 254 and Lal Singh vs. State of Gujarat, 2001 (3) SCC 221; relied on. '

2.4. Appellants A-4 to A-8 were not produced before Chief Metropolitan Magistrate because their confessions were recorded before the judgment of Kartar Singh's · case*, but A-10 was so, produced on 25.7.1996 as per the guidelines laid down in Kartar Singh's case. It is thus evident that there was total compliance of the mandate of law in recording the confessions of six appellants. [Para 43] [221-C-D] *Kartar Singh vs. State of Punjab 1994 (2) SCR 375 = 1994 (3) sec 569 - referred to. Raja Khima vs. State of Saurashtra AIR 1956 SC 217; Sarwan Singh Rattan Singh vs. State of Punjab AIR 1957 SC 637; Shankaria vs. State of Rajasthan 1978 (3) SCC 435; Aloke Nath Dutta vs. State of West Bengal 2006 (13) Scale 467 and State of Rajasthan vs. Ajit Singh 2007 (12) Scale 451, held inapplicable.

2.5. The confessions of A-4 to A-8 and A-10 cannot be discarded on the .allegation that the same had been retracted on the first available opportunity. The only G statement made by A-10 before Chief Metropolitan Magistrate, Delhi on 25.7.1996 was that he had not made any confession. However, he did not contest his signatures on the confessional statement made before PW-103. When the appellants were produced before the Magistrate concerned at Ahmedabad, none of them gave H .r { , ' ·1 ~ ' ' ""'\ ' t- ' - • .. • MOHMED AMIN@ AMIN CHOTELI RAHIM MIYAN SHAIKH & ANR. v. C.B.I. THROUGH ITS DIRECTOR 161 out that he had not made confessional statement or that A his signatures had been obtained on the blank paper or that he was made to sign on the prepared statement or that he had been subjected to torture, or any threat or allurement was given to him to make confession. While· they were in jail, none of the confessing appellants made B any application to the Court that he wants to retract the confession. [Para 49] [226-E-G] c

2.6. If the confessions of the appellants are scrutinized in the light of the factors mentioned in various applications made on their behalf and their statements made u/s 313 CrPC, it becomes clear that the allegations made by them regarding coercion, threat, torture, etc. after more than one year of recording of confessions are after-thought. The statements made by them u/s 313 CrPC were also the result of after-thought because no D tangible reason has been put forward by the defense as to why A-4 to A-8 did not retract from their confessions when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. E Therefore, the trial court did not commit any error by relying upon the confessions of A-4 to A-8 and A-10 and there is no valid ground to discard their confessions. [Para 51] [227-H; 228-A-C]