Bharatbhai @ Jimi Premchandbhai Vs. State of Gujarat - Court Judgment

Y.K. Sabharwal, J.

1. Deceased Raghunath Yadav was convicted and sentenced by the Sessions Court at Varanasi for the murder of father of Brijesh Singh-who is one of the absconding accused in the present case. While on bail in appeal, Raghunath Yadav, apprehending danger to his life, came to reside at Mehsana in the State of Gujarat. On 14th June, 1992, Reghunath Yadav was murdered at Mehsana.

2. In TADA case Nos. 1, 2, 3 and 7 of 1990, twelve accused were triedby the Designated Judge, Ahmedabad for offences under Section 302,397, 120B, IPC Section 3(1), 3(3), 3(4) and 5 of the Terrorist AndDisruptive Activities (Prevention) Act, 1987 (for short 'TADA Act') andunder Section 25(1)(a) and (b) of the Arms Act.

3. The charge-sheet against accused Nos. 1 to 3 was filed on 6th April,1993, against accused Nos. 4 to 6 on 1st July, 1994 against accused Nos.7 to 11 on 15th April, 1996 and against accused No. 12 on 26th November,1996. The charges were that the accused persons and abscondingaccused - Sharifkhan Azizkhan Pathan, Daud Ibrahim Meman,Brijeshsinh Bholasinh, Radayanarayansinh alia Harinarayansinh aliaBhulansinh Thakur, Unita Prajapati, deceased accused Sunil Savat andAbdullatif Abdul Vahab Shaikh had hatched a conspiracy to commitmurder or Raghunath Yadav and thereby, committed criminal actspunishable under Section 120-B of the Indian Penal Code; as per theabove conspiracy on 14th June, 1992, accused Nos. 1, 3, 4, 8, 9 and theabsconding accused Radayanarayansinh @ Harinarayansinh @Bhuvansinh Thakur and Brijeshsinh Bhuvansinh @ Ravinathsinh Thakurhad gone to S.T. Bus stand, Mehsana and after obtaining informationabout the identification of the deceased as a part of the conspiracy madefiring with the pistol and caused murder of Raghunath Yadav and createdan atmosphere of terror and fear at the said place and then fled away inthe vehicles and, thus, committed offences punishable under Section 302read with Section 120B IPC and under Sections 3(1) and 3(3) of TADAAct read with Section 120B IPC; while fleeing away from Mehsana afterfiring and committing murder as aforesaid, Police Sub-Inspector, Zala whotried to arrest the accused was fired at by the accused causing himinjuries and had run away taking the Government Maruti Gypsy with themand thus, committing offence punishable under Sections 307, 120B IPCand under Sections 3(1), 3(3), 3(4) and (5) of the TADA Act read withSections 120B IPC and Section 397 read with Section 120B IPC.

4. The Designated Court, by the impugned judgment and orderconvicted and sentenced accused Nos. 4 Subhashsinh @ MaheshShobhnathsinh Thakur, accused No. 5 Abdul Khuddarsh AbdulganiShaikh, accused No. 7 Bharat Premchandbhai Patel, accused No. 8Ramdularsinh Ramdharisinh Thakur and accused No. 9 ShitalaprasadDevjansinh Thakur for offences punishable under Sections 120B, Section302 read with Section 120B, Section 307 read with Section 120B, section397 read with Section 120B IPC and offence under Sections 3(1), 3(3) ofthe TADA Act read with Section 5 read with Section 120B IPC. All of themhave been sentenced to undergo life imprisonment for offence underSection 120B, offence under Section 302 read with Section 120B IPC andfine of Rs. 500/- each and further imprisonment of one month for default inpayment of fine. For other offences, varying punishments having beenawarded. Accused No. 12 died during trial and the remaining wereacquitted.

5. The convicted accused have preferred these appeals under Section19 of TADA Act. We have perused the record and heard Mr. YashankAdhyaru for accused No. 7 (Crl.A. No. 594/2002), Mr. Ranjit Kumar foraccused No. 9 (Crl.A. No. 720/2002), Mr. V.S. Kotwal for accused No. 8(Crl.A. No. 731/2002), Mr. U.R. Lalit for accused No. 4 (Crl.A. No. 721/2002),Mr. Sushil Kumar for accused No. 5 (Crl.A. No. 828/2002) and Mr.Mahendra Anand for the respondent.

6. The conviction of the appellants is primarily based on the twoconfessional statements. One made by accused No. 7 Bharatbhai andthe other by accused No. 8 Ramdularsinh Thakur. These statements wererecorded by Mr. A.S. Bhatia, Superintendent of Police (PW18) underSection 15 of TADA Act. In respect of the conviction of accused Nos. 4, 5and 9 which is also based mainly on these confessional statements,according to the prosecution, there is also sufficient corroborativeevidence against them.

7. The fate of the entire case rests on the legality of the confessionalstatements. If the confessional statements are held as inadmissible, theprosecution case against all the appellants will fail. It has not beendisputed and, in our opinion, rightly, by Mr. Anand, learned counsel for therespondent-State that in case the confessional statements are heldinadmissible, and therefore, discarded, it would not be possible to sustainthe conviction of the appellants. The learned counsel has, however,strenuously urged that no provision of the TADA Act or rules framedthereunder has been violated in recording of the confessional statementand submitted that the confessional statements of accused Nos. 7 and 8have been rightly relied upon by the Designated Court in convicting all theappellants. The facts leading to the recording of the Confessionalstatements and what is contained therein may be briefly noticed.

8. Raghunath Yadav was murdered on 14th June, 1992. AccusedNo. 7 was arrested on 13th December, 1995. His remand had beenobtained upto 29th December, 1995. He was produced before PW18 A.S.Bhatia, on 27th December, 1995 at 7.30 p.m. PW18 is competent torecord the confessional statement under Section 15 of the TADA Act. Theaccused was told by PW18 that he was not legally bound to giveconfession and the same shall be used against him. The accused statedthat still on his own and without any sort of pressure, threats ormental/physical harassment, he intended to give the confessionalstatement. The confessional statement was, however, not recorded on27th December, 1995. He was given time to think over. His confessionalstatement was recorded on the next date, i.e. 28th December from 10.45upto 1145 hours.

9. Similar is the position in respect of the confessional statement ofaccused No. 8 Ramdularsinh Thakur. He was first produced before PW18at 8 p.m. on 27th December, 1995. The confession was recorded on 28thDecember from 1145 upto 1215 hours. His arrest was also on 13thDecember, 1995. His remained was obtained upto 29th December, 1995.

10. The English translated typed copy of the confessional statement ofPW7 runs into 35 pages whereas that of PW8 runs into 12 pages.

11. The identical statement of accused Nos. 7 and 8 that were recordedon 27th December, 1995 read as under:

'In connection with the Mehsana City policestation Cr.R. No. 1-197/92 for the offencepunishable under Sections 147, 148, 149, 307,397, 120-B of the Indian Penal Code and underSection 25(I)B, A and under Section 3 of the TADA Act, Ihave been arrested by the police on 13/12/95,and a remand has been obtained upto 29/12/95.

Since I intend to voluntarily give myconfessional statement as regards the facts ofthis offence known to me and the parts which Idid play therein, I have been today producedbefore you. I have been given understanding byyou that I am legally not bound to give thisconfession and that the same shall be usedagainst me. Still, however, I on my own andwithout any sort of pressures, threats ormental/physical harassment, intend to give thisconfessional statement.

I state that I have been given sufficient timeto think over giving this confessional statement byyou, and after due and thoughtful consideration, Ihave been produced before you to give thisconfessional statement.'

12. The first paragraph of the statement of accused No. 7 that wasrecorded on 28th December, 1995 reads as under:

'Upon being personally interrogated, I state that Iam residing at the above address for the last oneand half years and doing the work of filing shareissues forms, purchase and sale of shares,purchase and sale of small-big properties andplaying cards (gambling). Since I am fond ofgambling since my childhood, I also gain or losemoney in it.'

13. In respect of accused No. 8 that paragraph reads as under:

'Upon being interrogated personally, I state that Iam residing at the above address and running aflour mill. My wife and children are residing at theabove address of my native place and they aredoing the agriculture work and I many times go tomy native place once or twice in a year. I amresiding here since last 19 years and I havestudied upto Std.7 in Hindi medium. I know,understand and speak Gujarati language verywill.'

14. In the confessional statement, accused No. 7 has given a detailedaccount as to how he came in contact with the absconding accused andthe other accused persons; how and when they had been coming to hishouse and making telephone calls; his going to Ahmedabad Airport withBachchisinh in the car of Sunil Savat to receive Subhashsinh Thakur whocame from delhi along with Brijeshsinh Thakur. That was on 10th June,1992. Sunil Savat, Brijeshsinh Thakur and Bachchinsinh came to hishouse from hotel and Sunil Savat had talked to Daud at Dubai and toldhim to make all arrangements. The talks were in code words. Thereafter,after five minutes, a phone call was received from Abdul Latif who talkedwith Sunil Savat. Latif stated that he will make all the arrangements. Allpersons went to the house of uncle of Subhashsinh named S.D. Thakur.Subhashsinh introduced all with him - PSI S.D. Thakur and talked withhim as regards their going to Mehsana on the next day. S.D. Thakurgave the name and addressed of another 'Bhaiye' to Subhashsinh. Thereafter all went to the house of Latif where Sharifkhan and AbdulKhudarash accused No.5 were also present. As per the talk between SunilSavant and Latif, since murder of one 'Bhaiya' was to be committed atMehsana, Latif told that arrangements of car and persons shall be madeby him and that two cars and persons would reach the hotel. SunilSavant told him to come to the hotel on the next day at about 6.30 hoursin the morning. He went there at about 7.00 a.m. All 6 persons wereready at the Natraj Hotel. After some time two cars sent by Latif came tohotel out of which one was Maruti 1000 of metallic blue colour whereinAbdul Khudarash, Sunil Savant, Brijeshing and one boy out of the two sat.It was told that car should stop at Nandaan Hotel. Latif's persons came inthe Maruti Front wherein Subhashsinh and two other persons sat. Heand Bachchisinh were in Hyundai car. Bachchisinh was having theaddress of Anupam Cinema and, therefore, their car was kept aheadwhere Ramdularsinh (accused No.8) met them. On finding Ramdularsinhon road, Bachchisinh was dropped there and he (accused No.7) returnedname in the Hyundai car. Bachchisinh and Ramdularsingh sat in theMaruti Fronti car which hade followed the car of accused No.7 from thehotel. After taking Ramdularsingh, they went in the Maruti Fronti to takeS.D.Thakur. From there, all were to gather at Nandasan Hotel. He didnot see as to which weapons were kept in which car. At 4.30 p.m. in theevening, Sunil Savant and Brijeshsing Thakur came to his house in afrightened condition. Sunil Savant informed accused No.7 that 'he hasbeen finished, but quandary (lafada) occurred, many bullet shots werefired, averting has been disturbed, we left the cars and returned.' SunilSavant talked to Daud and informed him about this incident and alsoinformed that the work is over and the cars were left there only. He alsotalked about the incident with Latif over telephone in Hindi. Latif told himthat whatever has happened, has already happened, don't worry. He alsostated about going to the house of S.D. Thakur with Subhashsingh andothers on the next day and Subhashsinh informing his uncle that the workis over. He has further stated about going to Nepal with Sunil Savant andBachchisinh. He has also made statement about the boys of Bombayhaving accepted 'supari' for N.G. Patel for a big amount and his beingfrightened on that account.

15. At the end the confession reads that 'The above facts as narratedby me are true and correct'. It has been signed by accused No.7. Thesignatures of PW18 appear below the words 'Before me'.

16. In the same manner as above, the confessional statement ofaccused No.8 at the end records that 'The above fats as narrated by meare true and correct which has been read over to me'. It has also beensigned by the accused . The signatures of the Superintendent of Police(PW18) appear in a similar fashion as above.

17. Accused No.8, has, inter alia, stated that he had not knownBrijeshsinh Thakur but heard his name and had got the information thathe has been doing the activities of murders etc. in Banaras, Lucknow andthe surrounding areas. He knew Subhashsingh Thakur for the last 4-5years and also accused No.9 for the past 10-12 years; thedisputes/quarrels between Yadav's of the Dhavarhara villageofBrijeshsinh and Thakurs were going or. since years. At about 12midnight, accused No.9 came to his house and informed him that theyhave to go to Mehsana next day in the morning and on asking for thepurpose for going there, accused No.9 stated that he will tell him the nextday morning. On the next day morning Subhashsinh Thakur came inMaruti Fronti car and with him, he went to accused No.9 who told him thatto take revenge of the murder of father of Brijeshsinh, the murder ofRaghunath Yadav is to be committed and accused No.8 knows him and,therefore, he should identify him at Mehsana. Accused No.8 agreed to gowith accused No.9 to Mehsana. In that car, Subhashsinh and accusedNoS.8 and 9 were sitting. In another car that was following them 6-7persons were sitting. On reaching Mehsana, they went to bus stand;there was rush at sugar can juice stall. On his asking as to where isYadavji, he was told that he was getting his beard shaved in the nearbycabin. On looking into the cabin, he found that Raghunath Yadav wasgetting his beard shaved. He told Subhashsinh as to the person who wasgetting shaved was Raghunath Yadav. After showing Raghunath Yadav,he and accused No.9, after consulting Subhashsinh left the bus stand andSubhashsinh and other persons in the car waited there. He and accusedNo.9 came to Ahmedabad after taking a jeep from Mehsana Highway busstand where they reached by taking a rickshaw. The passenger and thejeep driver were discussing on the way that firing had taken place atMehsana S.T. bus stand. Therefore, we knew that Subhashsingh and hisother companions had made firing.

18. The confessional statement recorded under Section 15 of TADAAct by a Police Officer authorized therein is admissible in evidence. It isalso no more res integra that a confession recorded under Section 15 is asubstantive piece of evidence [State through Superintendent ofPolice, CBI/SIT v. Naiini and Ors. - ]; [Davender PalSingh v. State of NCT of Delhi and Anr. - ] andRavinder Singh @ Bittu v. The State of Maharashtra - ].

19. The maker of a confessional statement can be convicted solely onthe basis of his confessional statement Made under Section 15 of theTADA Act. That statement is also substantive evidence against his co-accused. Against the co-accused, though taken as substantive evidenceas a rule of prudence, to get support, the Court would look uponcorroborative evidence as well.

20. Thus, the fate of not only the accused but the co-accused as wellhinges on the confessional statement recorded by a Police officer underSection 15 of the TADA Act. Such a statement cannot be recorded in a mechanical manner. All the safeguards provided in the Act and the Ruleshave to be strictly adhered to. There can be no room for any latitude inthe matter and manner of recording of a confessional statement. Anymaterial discrepancy will be fatal unless satisfactorily explained by theprosecution. The burden of proving confessional statements alwaysremains on the prosecution. It is for the prosecution to prove that theconfessional statement that is being relied upon was voluntary, truthfuland all safeguards were complied with while recording it. The burden ofproving such confessional statement on the prosecution cannot belightened by urging that the confession was not retracted or challengedexcept in the cross-examination of the witnesses. Undoubtedly, when theconfession is duly recorded and is proved to be voluntary and truthful,then it can be taken to be the most reliable piece of the evidence coming fromthe accused himself and made sole basis of conviction in the mannerstated earlier, confession being an admission of the guilt.

21. The conviction in the present case is based mainly, if not entirely,on the strength of what is stated in the confessional statements made byaccused Nos. 7 and 8. The confessional statements have been recordedby a police officer. It was not contended for the State that the convictioncould be supported even if the confessions were inadmissible.

22. The admissibility in evidence of confessional statements made byan accused before a police officer has for long been an anathema to therule of law. The police has, ordinarily, been suspect of using third degreemethods in obtaining confession. Section 25 of the Evidence Actstipulates that no confession made to a police officer, shall be proved asagainst a person accused of any offence. Section 26 provides that noconfession made by any person whilst he is in the custody of a policeofficer, unless it be made in the immediate presence of a Magistrate, shallbe proved as against such person. Section 24 provides that a confessionmade by an accused person is irrelevant in a criminal proceeding, if themaking of the confession appears to the Court to have been caused byany inducement, threat or promise, having reference to the chargeagainst the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds,which would appear to him reasonable, for supposing that by making it hewould gain any advantage or avoid any evil of a temporal nature inreference to the proceedings against him. Article 20(3) of the Constitutionof India provides that no person accused or any offence shall becompelled to a witness against himself.

23. In Kartar Singh v. State of Punjab , a seriouschallenge was made to the constitutional validity of Section 15 of theTADA Act which contained a drastic departure from the existingprovisions of the Evidence Act, in particular Section 25 thereof, andprovided that notwithstanding anything contained in the Indian EvidenceAct, 1872, but subject to the provisions of that section a confession madeby a person before a police officer not lower in the rank than aSuperintendent of Police and recorded in the manner provided in thesection shall be admissible in the trial of such person or co-accused,abettor or conspirator for an offence under the TADA Act or rules madethereunder. The co-accused, abettor or conspirator is required to becharged and tried in the same case together with the accused for theapplicability of Section 15(1) of the TADA Act. Section 15(2) stipulatesthat the police officer shall, before recording any confession underSection 15(1), explain to the person making it that he is not bound tomake a confession and that, if he does so, it may be used as evidenceagainst him and such police officer shall not record any such confessionunless upon questioning the person making it, he has reason to believethat it is being made voluntarily. Thus, this provision was made inconsonance with Article 20(3) of the Constitution as the compulsion on anaccused to make a statement against him has been interdicted by theConstitution.

24. In Kartar Singh's case, it was contended that the procedureprescribe in the TADA Act is the antithesis of the just, fair andreasonable procedure. A blistering attack was made on the validity ofSection 15. It was, inter alia, contended that the existing codes of lawwhich have a life history of more than a century proceed on the footingthat police confessions are untrustworthy and thus, Section 15 gives adeath-knell to the very basic principle hitherto recognized and followedthat a confession made before a police officer under any circumstance aswell as a confession to a Magistrate or a third party while in policecustody is totally inadmissible and that such a confession cannot beproved as against a person accused of any offence. It was contended inthe said case that oppressive behavior and excessive naked abuse andmisuse of power by the police in extorting confession by compelling theaccused to speak under the untold pain by using third degree methodswith diabolical barbarity in the utter violation of human rights, cannot be lostsight of or consigned to oblivion and the courts would not e justifiedbyshowing a volte-face and turning a blind eye of the above reality anddrawing a legal presumption that the confession might have beenobtained by a police officer not lower in rank than a Superintendent ofPolice in terms of Section 15(1) only in accordance with the legallypermissible procedure. The counsel castigated the conduct of the policeofficers in whisking away the accused either on arrest or on obtainingcustody from the court to an unknown destination or unannouncedpremises for custodial interrogation in order to get compulsory self-incriminating statement as a source of proof to be produced before acourt of law. Examples were cited where on several occasions, this Courthave ordered exemplary compensation to the victims at the hands of thepolice officials. It was submitted therein that the police officer is inherentlysuspect of implying coercion to obtain confession and therefore, theconfession made to police officer should totally be excluded formevidence. The emphasis was more on the police culture rather than onthe person, the contention being that the climate was still not conducivefor effecting a drastic change by investing the police officer with a powerto record confession and then make it admissible in evidence. It wassubmitted that without bringing about a change in the outlook of thepolice, such a drastic departure was not justified.

25. The challenge to the constitutional validity of Section 15 almostsucceeded as seems clear from the observations that were made in themajority opinion in Kartar Singh's case while upholding the constitutionalvalidity of Section 15. The observations are:

'Though we at the first impression though of sharing the view of the learned counsel that itwould be dangerous to make a statement given toa police officer admissible (notwithstanding thelegal position making the confession of anaccused before the police admissible in someadvanced countries like United Kingdom, UnitedStates of America, Australia and Canada etc.)-having regard to the legal competence of thelegislature to make the law prescribing a differentmode of proof, the meaningful purpose and objectof the legislation, the gravity of terrorismunleashed by the terrorists and disruptionistsendangering not only the sovereignty and integrityof the country but also the normal life of thecitizens, and the reluctance of even the victims aswell as the public in coming forward, at the risk oftheir life, to give evidence - hold that theimpugned section cannot be said to be sufferingfrom any vice or unconstitutionality. In fact, if theexigencies of certain situations warrant such alegislation then it is constitutionally permissible asruled in a number of decisions of this Courtprovided none of the fundamental rights underChapter III of the Constitution is infringed.'

26. The two learned Judges, however, expressed the minority opinionthat Section 15 is unconstitutional.

27. While upholding the validity of Section 15, a note of caution wasadded in Kartar Singh's case in the following terms:

'...We state that there should be no breach ofprocedure and the accepted norms of recordingthe confession which should reflect only the trueand voluntary statement and there should be noroom for hyper criticism that the authority hasobtained an invented confession as a source ofproof irrespective of the truth and creditability as itcould be ironically but that when a judgeremarked, 'Am I not to hear the truth'. theprosecution giving a startling answer, 'No yourLordship is to hear only the evidence.'

(Emphasis is ours)

28. In the same context, while laying down the guidelines so as toensure that the confession obtained in the pre-indictment interrogation bya police officer not lower in rank than a Superintendent of Police is nottainted with any vice but is in strict conformity with the well-recognisedand accepted aesthetic principles and fundamental fairness, theConstitution Bench also said that:

'Though it is entirely for the court trying theoffence to decide the question of admissibility orreliability of a confession in its judicial wisdomstrictly adhering to the law, it must, while sodeciding the question should satisfy itself thatthere was no trap, no track and no importuneseeking of evidence during the custodialinterrogation and all the conditions required arefulfilled.'

(emphasis is ours)

29. Before basing conviction on confessional statement, it is necessaryto examine whether all conditions for recording of confession have beenfulfilled or not. The requirements of Section 15 have already been noticedearlier. In exercise of the powers conferred by Section 28 of the TADA Act, the Central Government has made the Terrorist and DisruptiveActivities (Prevention) Rules, 1987. Rule 15 relates to recording ofconfession made to police officers. It reads as under:

'15. Recording of confession made to policeofficers.--(1) A confession made by a personbefore a police officer and recorded by suchpolice officer under Section 15 of the Act shallinvariably be recorded in the language in whichsuch confession is made if that is notpracticable, in the language used by such policeofficer for official purposes or in the language ofthe Designated Court and it shall form part of therecord.

(2) The confessions so recorded shall be shown,read or played back to the person concerned andif he does not understand the language in which itis recorded, it shall be interpreted to him in alanguage which he understands and he shall beat liberty to explain or add to his confession.

(3) The confession shall, if it is in writing, be-

(a) signed by the person who makes theconfession; and

(b) by the police officer who shall also certifyunder his own hand that such confessionwas taken in his presence and recorded byhim and that the record contains a full andtrue account of the confession made by theperson and such police officer shall make amemorandum at the end of the confessionto the following effect:-

'I have explained to (name) that he is notbound to make a confession and that, if he doesso, any confession he may make may be used asevidence against him and I believe that thisconfession was voluntarily made. It was taken inmy presence and hearing and recorded by meand was read over to the person making it andadmitted by him to be correct, and it contains afull and true account of the statement made byhim.

Sd.- Police Officer.'

(4) Where the confession is recorded on anymechanical device, the memorandum referred toin Sub-rule (3) in so far as it is applicable and adeclaration made by the person making theconfession that the said confession recorded onthe mechanical device has been correctlyrecorded in his presence shall also be recorded inthe mechanical device at the end of theconfession.

(5) Every confession recorded under the saidSection 15 shall be sent forthwith to the ChiefMetropolitan Magistrate or the Chief JudicialMagistrate having jurisdiction over the area inwhich such confession has been recorded andsuch Magistrate shall forward the recordedconfession so received to the Designated Courtwhich may take cognizance of the offence.'

30. What is required to be examined is whether requirements ofSection 15 of the TADA Act and the aforesaid Rule 15 when recording theconfessional statements in question, have been complied or not. Let usexamine whether requirements of Rule 15 have been complied by PW18when he recorded confessional statements of accused Nos. 7 and 8. Oneof the requirements of Rule 15(3)(b) is making a memorandum at theend of the confession. It is not in dispute that Rule 15(3)(b) has not beencomplied with in as much as the memorandum at the end of theconfession has not been appended. PW18, the police officer whorecorded the confession, admitted in his deposition that such amemorandum was not made. The core question is its effect on theadmissibility of confession.

31. Learned counsel of the appellants contend that it is fatal to thecase of the prosecution. In absence of such a memorandum, theconfession is inadmissible and cannot be relied upon the conviction,impugned in the present appeals, being based only on confession is liableto be upturned is the contention. On the other hand, counsel for therespondent would submit that though no memorandum, as required byRule 15(3)(b), has been made and appended by PW18, but in substancethe rule has been complied with. The contention is that the deposition ofPW18 in Courts shows that he was satisfied that the confession wasvoluntarily made and, therefore, the absence of the memorandum is onlya defect of form and not of substance. Hence, the non-making ofmemorandum in the present case is of no consequence is the contention.

32. In the aforesaid light, the vital question to be determined is can thedefect of non-making and appended of memorandum, as required byRule 15(3)(b) be cured by oral deposition of the Superintendent of Policewho recorded the confession, while appearing as a witness in court. Inother words can oral evidence in Court be a substitute for amemorandum to be made under Rule 15(3)(b) is the point fordetermination.

33. The significance of the confessional statement had already beennoticed earlier. It is such that the fate of not only the accused but co-accused, abettor and conspirator depends it. It can result in thehanging of accused and co-accused etc. Relying on it, punishment uptodeath penalty can be imposed on the maker as also on others. First ofall, let us remind ourselves of the observations that have stood test oftime as made in the off-quoted decision of Privy Council in Nazir Ahmadv. King - Emperor holding that where a power is givento do a certain thing in a certain way, the thing must be done in that wayor not at all. Other methods of performance are necessarily forbidden.

34. In S.N. Dube v. N.S. Bholr and Ors. , the trialcourt had taken the view that the officer recording confession did not writethe certificates and the memorandums in the same form and terms as areprescribed by Rule 15 of the Rules framed under the TADA Act and thesame were, therefore, inadmissible. Counsel for the accused submittedbefore this Court that the certificates and the memorandums having notbeen recorded in identical terms and as Rule 15 is mandatory, the trialCourt was right in holding the confessions inadmissible for noncompliance with that mandatory requirement. While considering thequestion whether the certificate and the memorandum are required to be written in the same form and terms as required by the Rule this Courtheld that:

'Writing the certificate and making thememorandum are thus made mandatory to provethat the accused was explained that he was notbound to make a confession and that if he madeit, it could be used against him as evidence, thatthe confession was voluntary and that it wastaken down by the police officer fully andcorrectly. These matters are not left to be provedby oral evidence along. The requirement of therule is preparation of contemporaneous recordregarding the manner of the recording theconfession in the presence of the person makingit. Though giving of the statutory warning,ascertaining the voluntariness of the confessionand preparation of a contemporaneous record inthe presence of the person making the confessionare mandatory requirements of the rule, we seeno good reason why the form and the words ofthe certificate and memorandum should also beheld mandatory. What the mandatoryrequirements of a provision are cannot bedecided by overlooking the object of thatprovision. They need not go beyond the purposesought to be achieved. The purpose of theprovision is to see that all formalities areperformed by the recording officer himself and byothers to ensure full compliance with theprocedure and seriousness of recording aconfession. We fail to appreciate how anydeparture from the form or the words canadversely affect the object of the provision or theperson making the confession so long as thecourt is able to conclude that the requirementshave been substantially complied with. No publicpurpose is likely to be achieved by holding thatthe certificate and memorandum should be in thesame form and also in the same terms as are tobe found in Rule 15(3)(b). We fail to appreciatehow the sanctity of the confession would getadversely affected merely because the certificateand the memorandum are not separately writtenbut are mixed up or because different wordsconveying the same thing as is required are usedby the recording officer. We hold that the trialcourt committed an error of law in holding thatbecause the certificates and memorandums arenot in the same form and words they must beregarded as inadmissible. Having gone throughthe certificates and the memorandums made byShinde at the end of the confessions what we findis that he had mixed up what is required to bestated in the certificate and what is required to bestated in the memorandum. He has stated ineach of the certificates and the memorandumsthat he had ascertained that the accused wasmaking the confession willingly and voluntarilyand that he was under no pressure or enticement.It is further stated therein that he had recordedthe confession in his own handwriting (except incase of A-7 whose confession was recorded withthe help of a writer). He has also stated that itwas recorded as per the say of the accused, thatit was read over to the accused completely, thatthe accused had personally read it, that he hadascertained thereafter that it was recorded as perhis say and that the confession was taken in hispresence and recorded by him. It is true that hehas not specifically stated therein that the recordcontains 'a full and true account of the confessionmade'. The very fact that he had recorded theconfession in his own handwriting would implythat it was recorded in the certificates andmemorandums that the confession was recordedas per the say of the accused, that it was readover to him fully, that the accused himselfpersonally read it and that he had ascertainedthat it was recorded as per his say, that wouldmean that it contains 'a full and true account ofthe confession' and that the contents wereadmitted by the accused. Thus, while writing thecertificate and the memorandum what Shinde hasdone is to mix up the two and use his own wordsto state what he had done. The only thing that wefind missing therein is a statement to the effectthat he had explained to the accused that he wasnot bound to make a confession and that if he didso the confession might be used as evidenceagainst him. Such a statement instead ofappearing at the end of the confession in thememorandum appears in the earlier part of theconfession in the question and answer form.Each of the accused making the confession wasexplained about his right not to make theconfession and the danger of its being usedagainst him as evidence. That statement appearsin the body of the confession but not at the end ofit. Can the confession be regarded as not inconformity with Rule 15(3)(b) only for thatreason? We find no good reason to hold like that.We hold that the trial court was wrong in holdingthat there was a breach of Rule 15(3) and,therefore, the confessions were inadmissible andbad.'

(emphasis is ours)

35. Thus, what has been laid in the aforesaid case is that the writing ofcertificate and making the memorandum are mandatory and thesematters are not left to be proved by oral evidence alone. The requirementof the Rule is preparation of contemporaneous record regarding themanner of recording the confession in the presence of the person makingit. This Court, while holding that making of the memorandum is amandatory requirement of the Rule, further held that what was notmandatory was the form and words of the certificate and memorandum.Thus, the making of certificate and memorandum was held to bemandatory but not form thereof.

36. In the present case, admittedly no such memorandum has beenprepared. That mandatory requirement is sought to be fulfilled by oraldeposition of PW18. Reliance has been placed on the testimony of PW18when he stated that:

'I against asked him that, whether he is giving thisconfession under any threat, pressure oftemptation and he replied no. I was, therefore,satisfied that he voluntarily anted to give hisstatement and thereafter his statement came tobe recorded. From the statement recorded itappeared to me that the averments made by himwere absolutely true.'

37. The first part of the aforesaid deposition relates to stage prior toactual recording of the confession and the latter part that has beneunderlined by us relates to stage after recording of the actual confession.According to Rule 15(3)(b), the satisfaction to be recorded is about theconfession having been made voluntarily. The memorandum to berecorded at the end of the confession requires the recording officer tostate that 'I believe that this confession was voluntarily made'. For thepresent, assuming that oral testimony in Court can be a substitute ofmemorandum, what has been deposed in Court by PW18 is not the beliefthat the confession was voluntarily made but 'it appeared to me that theaverments made by him were absolutely true'. Hopefully the officer knewdifference between the words 'voluntary' and 'truth'. None explained whatPW18 meant. In Chandran v. The State of Tamil Nadu in the memorandum that had been made instead of certifying that theofficer believed that confession was voluntarily made, the Magistrate hadstated that 'I hope that the statement was made voluntarily'. It wasnoticed that although the Magistrate was examined as a witness at thetrial, no attempt was made by the prosecution to establish from his wordof mouth that the used of the word 'hope' by him was inadvertent oraccident. The confession was, therefore, excluded from consideration.

38. At the cost of repetition, we may again note that in Dube's case, itwas held that writing the certificate and making the memorandum aremandatory; these matters are not left to be proved by oral evidence alone;the requirement of the rule is preparation of contemporaneous recordregarding the manner of recording the confession and the preparation ofcontemporaneous record in the presence of the person making theconfession are mandatory requirement but forming and words are notmandatory. Unlike present case, Dube was a case where certificate andmemorandum had been prepared though not using exactly same wordsas required by the Rule. In the present case, PW18 admits that no suchdocument was made and appended at the end of the confession. Thecontemporaneous record has to support the deposition in Court. If therecording officer without contemporaneous record is allowed to deposelater after lapse of several years in Court, it would be too hazardous torely on such testimony as, ordinarily, an officer is likely to depose in courtwhat was left but to be recorded in documents as per mandatoryprovisions of the Act and the Rules, once he knows that he had madevital omission. If the contemporaneous record shows that in substancethough not in form, the requirements of the Rule were fulfilled, the defectof form can be cured by oral deposition made, may be after many years,on the basis of the contemporaneous record. The importance of fulfillingall the requirements of the provision while recording confessionalstatements has already been noticed. As already noticed, the fate of notonly the accused but others also hinges on such a confession recordedby a Police officer. Further what heavily weighed with the ConstitutionBench when it upheld the constitutional validity of Section 15, is that allrequirements in respect of recording of confessional statements will befulfilled which would act as safeguard to the accused.

39. The making of certificate and memorandum is not an emptyformality of the Rule. It is required to be made at the end of theconfession. The officer certifies the manner in which the statement wasgiven by the accused and was recorded. The satisfaction as per Rule15(3)(b) of recording officer has substantial relevance on the aspect ofvoluntarily nature of confession, which is the heart of confession for itbeing made the basis of conviction.

40. In Chandran (supra) this Court held that the law peremptorilyrequires that after recording the confession of the accused, the Magistratemust append at the foot of the record a memorandum certifying that hebelieves that the confession was voluntarily made. It was further held thatthe reason for requiring compliance with this mandatory requirement atthe close of the recording of confession, appears to be that it is only afterhearing the confession and observing the demeanour of the personmaking it, that the Magistrate is in the best position to append therequisite memorandum certifying the voluntariness of the confessionmade before him. If, the Magistrate recording a confession of an accusedperson produced before him in the course of police investigation, doesnot, on the face of the record, certify in clear, categorical terms hissatisfaction or belief as to the voluntary nature of the confession recordedby him, nor testifies orally, as to such satisfaction or belief, the defectwould be fatal to the admissibility and use of the confession against theaccused at the trial. As earlier noticed in the said case, the memorandumhad been made and the Magistrate in the memorandum appended by himat the foot of the confession had merely expressed a 'hope' that theconfession was voluntarily made. Even in his oral evidence at the trialthe Magistrate did not vouch for the voluntariness of the confession. Hedid not say that use of the word 'hope' by him in the memorandum wasdue to some accidental slip or heedless error. Under thesecircumstances, the confessional statement was excluded fromconsideration. It can, thus, be seen that this was a case where amemorandum was appended but with using different language asabovementioned. The argument that the preliminary satisfaction beforerecording of confession about its voluntary nature can be substitute forrecording satisfaction after recording of confession was not acceptedholding that there was no requirement to record satisfaction at the earlierstage whereas there was such a requirement of satisfaction beingappended at the foot of the confession.

41. In Ayyub v. State of U.P. , while consideringthe contention that the police officer, who recorded the confessionalstatement, had not certified that he believed that the confession wasvoluntarily made, this Court held that as the confession made underSection 15 of the TADA Act is made admissible in evidence, the strictprocedure laid down therein for recording confession is to be followed.Any confession made in defiance of these safeguards cannot be acceptedby the court as reliable evidence. The confession should appear to havebeen made voluntarily and the police officer who records the confessionshould satisfy himself that the same had been made voluntarily by themaker of that statement. The recorded confession must indicate thethese safeguards have been fully complied with. The confession washeld to be inadmissible evidence as the recorded confessional statementdid not show that the officer who recorded the statement had followed theguidelines. After noticing that under Article 20(3) of the Constitution, theaccused person has the protection of being compelled to be witnessagainst himself, the Court held that 'As the confession made underSection 15 of the TADA Act is made admissible in evidence, the strictprocedure laid down therein for recording confession is to be followed.Any confession made in defiance of these safeguards cannot be acceptedby the court as reliable evidence... the police officer who records theconfession should satisfy himself that the same has been madevoluntarily by the maker of that statement. The recorded confession mustindicate that these safeguards have been fully complied with.'

42. Let us now consider the case of State of Maharashtra v. BharatChaganlal Raghani and Ors. on which strong reliancewas placed by the learned counsel for the respondent-State in support fthe contention that if there is oral evidence in Court showing substantialcompliance with Rule 15(3), the confession cannot be discarded for wantof preparation of memorandum. It appears that that was not a casewhere memorandum was not prepared at all, but was a case where thecontention for the accused was that the mandate of Rule, 15(3) had notbeen complied with because the recording officer has not made thememorandum in the form specified therein and, therefore, confessionalstatement cannot be held admissible in evidence and relied upon as apiece of evidence against the accused person. Under thesecircumstances, the Court held that though the memorandum was notrecorded as desired by the Rule but, at the same time, from the questionsput by the recording officer to the accused, the trial court was satisfiedand so was this Court that the confessional statements were madevoluntarily without any threat, inducement or pressure and strictly inaccordance with the mandate of the TADA Act as interpreted by thisCourt from time to time. That does not appear to be a case where thememorandum was not prepared at all.

43. In Sharafat Hussain Abdul Rahaman Shaikh and Ors. v. State ofGujarat and Anr. , the conviction of the appellant wasprimarily based on confession of each of them. Allowing the appeal andsetting aside the judgment of conviction passed by the Designated Courtand citing with approval Chandran's case (supra), this Court held that:

'4. Admittedly, in none of the four confessions(Ext. 72, 73, 75 and 76), with which we areconcerned in this appeal, such a memorandumfinds place. The question, therefore, that falls forour consideration is what is the value of such amemorandum and, for that matter, the effect ofabsence thereof. The answer to this question hasbeen given by this Court in Chandran v. State ofT.N. while dealing with Sub-section (4) of Section164 Cr.P.C., which lays down the procedure to befollowed by a Magistrate in recording aconfession and is pari material with the above-quotedRules 15(3), with the following words:

'But the law does peremptorily require that afterrecording the confession of the accused, theMagistrate must append at the foot of the recorda memorandum certifying that he believes thatthe confession was voluntarily made. The reasonfor requiring compliance with this mandatoryrequirement at the close of the recording of theconfession, appears to be that it is only afterhearing the confession and observing thedemeanour of the person making it, that theMagistrate is in the best position to append therequisite memorandum certifying thevoluntariness of the confession made before him.If, the Magistrate recording a confession of anaccused person produced before him in thecourse of police investigation, does not, on theface of the record, certify in clear, categoricalterms his satisfaction or beliefs as to the voluntarynature of the confession recorded by him, nortestifies orally, as to such satisfaction or belief,the defect would be fatal to the admissibility anduse of the confession against the accused at thetrial.'

(emphasis supplied)

5. Apart from the fact that PW6 did not give anycertificate, in accordance with the earlier quotedRule 15(3) of his satisfaction or belief about thevoluntariness of the confessions after the samewere recorded, it is also an admitted fact thatwhile being examined as a witness he did nottestify about his such satisfaction or belief.Resultantly, in view of the above-quotedobservations of this Court, with which we are incomplete agreement, the confessions allegedlymade by the four appellants cannot be pressedinto service to prove the charges leveled againstthem. Since there is no other evidence on recordfrom which it could be said that the appellants areguilty of the offences for which they were chargedand convicted the appeal must succeed.'

44. Learned counsel for the State submitted that the observations inpara 5 above show that by oral evidence in court, prosecution can showthat Rule 15(3)(b) was complied with. While making this submission whatis being missed by the learned counsel is that facts of the case do notshow, one way or the other, about the existence of contemporaneousrecord. As noticed above, in Chandran's case there wascontemporaneous record in the form of memorandum itself though usingdifferent words. Sharafat Hussain's case is not a decision which holdsthat without contemporaneous record, oral evidence can be led toestablish the fulfillment of mandatory requirement of the Rule.

45. It may also be stated that harsher the consequences, the stricter isthe need to comply with the requirement of the Rules.

46. In view of aforesaid discussion, our conclusions are as follows:

A. Writing the certificate and making the memorandum under Rule15(3)(b) is mandatory.

B. The language of the certificate and the memorandum is notmandatory.

C. Incase the certificate and memorandum is not prepared but thecontemporaneous record shows substantial compliance of what isrequired to be contained therein, the discrepancy can be cured ifthere is oral evidence of recording officer based on suchcontemporaneous record.

D. In absence of contemporaneous record, discrepancy cannot becured by oral evidence based on memory of the recording officer.

47. In the present case, admittedly Rule 15(3)(b) has not beencomplied. No memorandum as required was made. There is also nocontemporaneous record to show the satisfaction of the recording officerafter writing of confession that the confession has been voluntarily made.The confession of accused No. 7 does not even state that it was read overto him. Thus, confessional statements are inadmissible and cannot bemade basis of upholding the conviction. Once confessional statementsare excluded the conviction cannot be sustained.

48. Further, in view of the above, oral evidence could not be led toshow compliance of Rule 15(3)(b). That apart, as earlier noticed, in fact,even oral evidence of PW18 does not satisfy the requirement of the Rule.

49. For the reasons aforesaid, we set aside the impugned judgment ofthe Designated Court, allow the appeals and direct the appellants to beset free forthwith, if not required in any other case.