Confession statement

Law regarding confessions

We start with the confessions. Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. ‘Confessions’ – which is a terminology used in criminal law is a species of ‘admissions’ as defined in Section 17 of the Indian Evidence Act. An admission is a statement – oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While Sections 17 to 23 deal with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression ‘appears’ connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer. Confessions leading to discovery of fact which is dealt with under Section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. Consideration of a proved confession affecting the person making it as well as the co-accused is provided for by Section 30. Briefly and broadly, this is the scheme of the law of evidence vis- a-vis confessions. The allied provision which needs to be noticed at this juncture is Section 162 of the Cr. P. C. It prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any enquiry or trial in respect of any offence under investigation. However, it can be used to a limited extent to contradict a witness as provided for by Section 145 of the Evidence Act. Sub-section (2) of Section 162 makes it explicit that the embargo laid down in the Section shall not be deemed to apply to any statement falling within clause (1) of Section 32 or to affect the provisions of Section 27 of the Evidence Act.

In the Privy Council decision of P. Narayana Swami vs. Emperor (AIR 1939 PC 47) Lord Atkin elucidated the meaning and purport of the expression ‘confession’ in the following words :

“………A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.”

Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. “Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law”. (vide Taylor’s Treatise on the Law of Evidence Vol. I). However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the authority recording the confession – be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Indian Evidence Act has excluded the admissibility of a confession made to the police officer.

Section 164 of Cr. P. C. is a salutary provision which lays down certain precautionary rules to be followed by the Magistrate recording a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police.

Before we turn our attention to the more specific aspects of confessions under POTA, we should have a conspectus of the law on the evidentiary value of confessions which are retracted – which is a general feature in our country and elsewhere.

As to what should be the legal approach of the Court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarized in Bharat vs. State of U.P. (1971) 3 SCC 950. Hidayatullah, C.J., speaking for a three-Judge Bench observed thus :

“Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after-thought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Gounden vs. The State of Madras (1958) SCR 428.”

The same learned Judge observed in Haroom Hazi Abdulla vs. State of Maharashtra (1968) 2 SCR 641 that a “retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false.” There was a further observation in the same paragraph that retracted confession is a weak link against the maker and more so against a co-accused. With great respect to the eminent Judge, the comment that the retracted confession is a “weak link against the maker” goes counter to a series of decisions. The observation must be viewed in the context of the fact that the Court was concentrating on the confession of the co-accused rather than the evidentiary value of the retracted confession against the maker.

Dealing with retracted confession, a four-Judge Bench of this Court speaking through Subba Rao, J, in Pyare Lal vs. State of Assam (AIR 1957 SC 216), clarified the legal position thus :

“A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convicted of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.”

As to the extent of corroboration required, it was observed in Subramania Gounden’s case (1958) SCR 428 that each and every circumstance mentioned in the retracted confession regarding the complicity of the maker need not be separately and independently corroborated. The learned Judges observed :

“it would be sufficient in our opinion that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession”.

Then we have the case of Shankaria vs. State of Rajasthan (1978) 3 SCC 435 decided by a three-Judge Bench. Sarkaria, J, noted the twin tests to be applied to evaluate a confession: (1) whether the confession was perfectly voluntary and (2) if so, whether it is true and trustworthy. The learned Judge pointed out that if the first test is not satisfied the question of applying the second test does not arise. Then the Court indicated one broad method by which a confession can be evaluated. It was said :

“The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.”

In Parmanand Pegu vs. State of Assam (2004) 7 SCC 779 this Court while adverting to the expression “corroboration of material particulars” used in Pyare Lal Bhargava’s case clarified the position thus :

“By the use of the expression ‘corroboration of material particulars’, the Court has not laid down any proposition contrary to what has been clarified in Subramania Goundan case as regards the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundan case.”

The analysis of the legal position in paragraphs 18 and 19 is also worth noting :

“Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value.

In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true.”

The use of retracted confession against the co-accused however stands on a different footing from the use of such confession against the maker.

To come to the grips of the law on the subject, we do no more than quoting the apt observations of Vivian Bose, J, speaking for a three-Judge Bench, in Kashmira Singh vs. State of Madhya Pradesh (AIR 1952 SC 159). Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to “lend assurance to other evidence against a co-accused.” The legal position was then stated thus :

“Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not ‘prepared set on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

The crucial expression used in Section 30 is “the Court may take into consideration such confession”. These words imply that the confession of a co- accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu vs. King (AIR 1949 PC 257) in the following words:

“The Court may take the confession into consideration and thereby, no doubt, makes its evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence”.

(emphasis supplied)

After referring to these decisions, a Constitution Bench of this Court in Haricharan Kurmi vs. State of Bihar (1964) 6 SCR 623 further clarified the legal position thus :

“……….In dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the confession of guilt which the judicial mind is about to reach on the said other evidence.”

(emphasis supplied)

What is the legal position relating to CONFESSIONS UNDER THE POTA is the next important aspect.

Following the path shown by its predecessor, namely TADA Act, POTA marks a notable departure from the general law of evidence in that it makes the confession to a high ranking police officer admissible in evidence in the trial of such person for the offence under POTA. As regards the confession to the police officer, the TADA regime is continued subject to certain refinements.

Now, let us take stock of the provisions contained in Section 32 of POTA. Sub-section (1) of this Section starts with a non obstante provision with the words “Notwithstanding anything in the Code of Criminal Procedure or in the Indian Evidence Act..” Then it says: “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 or electronic device, shall be admissible in the trial of such person for an offence under the Act or the rules, subject to other provisions of the section”. By this provision, the ban against the reception of confessional statements made to the police is lifted. That is why the non-obstante clause. This sub-section is almost identical to Section 15(1) of TADA excepting that the words “or co-accused, abettor or conspirator occurring after the expression “in the trial of such person” were omitted. The other four sub-sections (2) to (5) of Section 32 are meant to provide certain safeguards to the accused in order to ensure that the confession is not extracted by threat or inducement. Sub-section (2) says that the police officer, before recording a confession should explain in writing to the person concerned that he is not bound to make a confession and that the confession if made by him can be used against him. The right of the person to remain silent before the police officer called upon to record the confession is recognized by the proviso to sub-section (2). Sub-section (3) enjoins that the confession shall be recorded in a threat-free atmosphere. Moreover, it should be recorded in the same language as that used by the maker of the confession. The most important safeguard provided in sub-sections (4) and (5) is that the person from whom the confession was recorded is required to be produced before a Chief Metropolitan Magistrate or Chief Judicial Magistrate, within 48 hours, together with the original statement of confession in whatever manner it was recorded. The CMM or the CJM shall then record the statement made by the person so produced. If there is any complaint of torture, the police shall be directed to produce the person for medical examination and thereafter he shall be sent to the judicial custody.

9. Section 15 of TADA

It is necessary to advert to the exposition of law on the probative quality of the confession recorded by the empowered police officer under Section 15 of TADA Act. We may recall that under Section 15, the confession is admissible in the trial of the person who made the confession or the co- accused/abettor/conspirator. In State vs. Nalini (supra), Thomas, J. took the view that the confession coming within the purview of Section 15 is a substantive evidence as against the maker thereof but it is not so as against the co-accused/abettor or conspirator in relation to whom it can be used only as a corroborative piece of evidence. Wadhwa, J. held that the confession of an accused serves as a substantive evidence against himself as well as against the co-accused, abettor or conspirator. S.S.M. Quadri, J. broadly agreed with the view taken by Wadhwa, J. The following observations made by the learned Judge reflect his view-point (para 682) :

“On the language of sub-section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him, so it is implicit that the same can be considered against all those tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against a co-accused, abettor or conspirator charged and tried in the same case along with the accused.”

The learned Judge further observed that in view of the non obstante provision of Section 15(1), the application of Section 30 of the Evidence Act should be excluded and therefore the considerations germane to Section 30 cannot be imported in construing Section 15(1). Quadri, J. therefore dissented from the view taken by Thomas, J. At the same time the learned Judge was of the view that in so far as the use of confession against the co-accused is concerned, rule of prudence requires that it should not be relied upon “unless corroborated generally by other evidence on record”. In paragraph 705, the learned Judge made the following observations (para 698 of AIR 1999 SC 2640) :

“But I wish to make it clear that even if confession of an accused as against a co-accused tried with the accused in the same case is treated as ‘substantive evidence’ understood in the limited sense of fact in issue or relevant fact, the rule of prudence requires that the court should examine the same with great care keeping in mind the caution given by the Privy Council in Bhuboni Sahu case.”

Keeping in view the fact that the confession of a co-accused is not required to be given under oath and its veracity cannot be tested by cross-examination is yet another reason given by the learned Judge for insisting on such corroboration. Thus the learned Judge struck a balance between two extreme arguments. The view taken by Quadri, J. does not seem to conflict with the view of Wadhwa, J. Though Wadhwa, J. observed that confession of the accused is admissible with the same force in its application to the co-accused and it is in the nature of substantive evidence, the learned Judge, however, qualified his remarks by observing thus (para 423) :

“Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence.”

Thomas, J. was of the view that the non-obstante words in Section 15(1) of TADA were not intended to make it substantive evidence against the non- maker, and it can be used only as a piece of corroborative material to support other substantive evidence.

Reference is to be made to a recent decision of this Court in Jameel Ahmed and Anr. vs. State of Rajasthan (2003) 6 SCC 673, a case arising under TADA. After a survey of the earlier cases on the subject, this Court observed: “If the confessional statement is properly recorded satisfying the mandatory provisions of Section 15 of TADA Act and the rules made thereunder and if the same is found by the Court as having been made voluntarily and truthfully then the said confession is sufficient to base conviction of the maker of the confession.” This proposition is unexceptionable. The next proposition, however, presents some difficulty. The learned Judges added: “Whether such confession requires corroboration or not, is a matter for the Court considering such confession on facts of each case.” This Court observed that once the confessional statement becomes admissible in evidence then, like any other evidence, “it is for the Court to consider whether such statement can be relied upon solely or with necessary corroboration.” The ratio behind the view taken by the learned Judges is perhaps discernible from the following passage (para 26) :

“We have already noticed that this provision of law is a departure from the provisions of Sections 25 to 30 of the Evidence Act. As a matter of fact, Section 15 of the TADA Act operates independent of the Evidence Act and the Code of Criminal Procedure.”

The Court then observed that the confession duly recorded under Section 15 of TADA Act becomes admissible in evidence by virtue of statutory mandate and if it is proved to be voluntary and truthful in nature there is no reason why such a statement should be treated as a weak piece of evidence requiring corroboration merely because the same is recorded by a police officer. We have to add a caveat here, while wholeheartedly accepting the view that the confession recorded by a police officer under Section 15(1) of TADA Act (corresponding to Section 32(1) of POTA) stand on the same footing as the confession recorded by a Magistrate and the Court can act upon it in spite of its retraction if it inspires confidence in the mind of the Judge, we feel that the rule of corroboration evolved by this Court as a matter of prudence in relation to a retracted confession recorded by a Magistrate under Cr.P.C. need not be dispensed with. Viewing the confession in the light of other evidence on record and seeking corroborative support therefrom is only a process of ascertaining the truth of the confession and is not extraneous to the first proposition laid down by their Lordships in paragraph 35. Viewed from another angle, we wonder whether a confession recorded by a police officer under the special enactment should have more sanctity and higher degree of acceptability so as to dispense with the normal rule of corroboration and leave it to the discretion of the court whether to insist on corroboration or not, even if it is retracted. The better view would be to follow the same rule of prudence as is being followed in the case of confessions under general law. The confessional statement recorded by the police officer can be the basis of conviction of the maker, but it is desirable to look to corroboration in a broad sense, when it is retracted. The non obstante provision adverted to by the learned Judges should not, in our considered view, affect the operation of the general rule of corroboration broadly.

As regards the confession being used against a co-accused, this Court in Jameel Ahmed’s case (supra), laid down the following propositions (para 35) :

“(iii) In regard to the use of such confession as against a co- accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement.”

While we agree with the proposition that the nature of corroboration required both in regard to the use of confession against the maker and the co- accused is general in nature, our remarks made earlier in relation to the confession against the maker would equally apply to proposition No. (iii) in so far as it permits the Court in an appropriate case to base the conviction on the confession of the co-accused without even general corroboration. We would only add that we do not visualize any such appropriate case for the simple reason that the assurance of the truth of confession is inextricably mixed up with the process of seeking corroboration from the rest of the prosecution evidence. We have expressed our dissent to this limited extent. In the normal course, a reference to the larger Bench on this issue would be proper. But there is no need in this case to apply or not to apply the legal position clarified in proposition No. (iii) for the simple reason that the trial court as well as the High Court did look for corroboration from the circumstantial evidence relating to various facts narrated in the confessional statement. Perhaps, the view expressed by us would only pave the way for a fresh look by a larger Bench, should the occasion arise in future.

The learned senior counsel Mr. Ram Jethmalani severely criticised the view taken in Nalini, Jameel Ahmed and other cases decided after Nalini. He pointed out that the confession of a co-accused is held to be admissible in view of the expression “shall be admissible in the trial of such person or co- accused”. But, the legislature did not intend that in deviation of the general law, the confession of a co-accused could become the sole basis of conviction irrespective of whether it is corroborated in relation to material particulars or not. The counsel commends the acceptance of the ratio laid down by Privy Council in Bhuboni Sahu in the context of a confession covered by Section 30 of Evidence Act. The counsel reminds us that admissibility is one thing, and the weight to be attached to the evidence is another. The learned counsel Mr. Ram Jethmalani repeatedly pointed that the crucial observations of the Constitution Bench in Kartar Singh’s case (supra) were not noticed by this Court in Nalini’s case and this error, according to the learned senior counsel, perpetuated. The learned counsel has drawn our attention to the categorical observation of this Court in paragraph 255 of the majority judgment to the effect that “the present position is in conformity with Section 30 of the Evidence Act.” He has also drawn our attention to the submission of the learned Additional Solicitor General in Kartar Singh’s case that the probative value of the confession recorded under Section 15 should be left to the Court to be determined in each case on its own facts and circumstances. According to the learned counsel, the confession of co-accused should not have been elevated to the status of confession operating against the maker. The contention advanced by the learned senior counsel is not without force. However, we need not dilate further on this aspect as the terminology in POTA is different and the view which we hold is that Section 32 of POTA does not enable the Court to take into account the confession of the co-accused. We shall now advert to this aspect, on a comparative reference of the provisions of TADA Act and POTA.

Use of confession under POTA against co-accused

Now, let us examine the question whether Section 32(1) of POTA takes within its sweep the confession of a co-accused. Section 32(1) of POTA which makes the confession made to a high ranking police officer admissible in the trial does not say anything explicitly about the use of confession made by co- accused. The words in the concluding portion of Section 32(1) are: “shall be admissible in the trial of such person for an offence under this Act or rules made thereunder.” It is, however, the contention of the learned Senior Counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to include the admissibility of confessions of co-accused as well. The omission of the words in POTA “or co-accused, abettor or conspirator” following the expression “in the trial of such person” which are the words contained in Section 15(1) of TADA does not make material difference, according to him. It is his submission that the words ‘co-accused’ etc. were included by the 1993 amendment of TADA by way of abundant caution and not because the unamended Section of TADA did not cover the confession of co-accused. According to the learned senior counsel, the phrase “shall be admissible in the trial of such person” does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession. The learned senior counsel highlights the crucial words- “in the trial of such person” and argues that the confession would not merely be admissible against the maker but would be admissible in the trial of the maker which may be a trial jointly with the other accused persons. Our attention has been drawn to the provisions of Cr.P.C. and POTA providing for a joint trial in which the accused could be tried not only for the offences under POTA but also for the offences under IPC. We find no difficulty in accepting the proposition that there could be a joint trial and the expression “the trial of such person” may encompass a trial in which the accused who made the confession is tried jointly with the other accused. From that, does it follow that the confession made by one accused is equally admissible against others, in the absence of specific words? The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co- accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences (vide the observations of Ahmadi, J (as he then was) in Niranjan Singh vs. Jitendra (1990) 4 SCC 76 at page 86, which were cited with approval in Kartar Singh’s case). We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co-accused within the net of admissibility on par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words “co-accused” etc. These specific words consciously added to Section 15(1) by 1993 amendment of TADA so as to cover the confessions of co- accused would not have escaped the notice of Parliament when POTA was enacted. Apparently, the Parliament in its wisdom would have thought that the law relating to confession of co-accused under the ordinary law of evidence, should be allowed to have its sway, taking clue from the observations in Kartar Singh’s case at paragraph 255. The confession recorded by the police officer was, therefore, allowed to be used against the maker of the confession without going further and transposing the legal position that obtained under TADA. We cannot countenance the contention that the words ‘co-accused’ etc. were added in Section 15(1) of TADA, ex majore cautela.

We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the 1st and 2nd accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Indian Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co- accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of Evidence Act, then of course, the said confession could be considered against the co-accused facing trial under POTA. But, that is not the case here.

For these reasons, the contention of the learned senior counsel for the State that even if the confession of co-accused is not covered by Section 32(1), it can still be taken into account by the Court under Section 30 for the limited purpose of corroborating or lending assurance to the other evidence on record cannot be accepted.

Learned senior counsel appearing for the State submits that there is no conflict between Section 32 of POTA and Section 30 of the Evidence Act and therefore the confession recorded under Section 32(1) of POTA can be taken into consideration against the co-accused, at least to corroborate the other evidence on record or to lend assurance thereto. There is no difficulty in accepting the contention that Section 30 of the Evidence Act can also play its part in a case of trial under POTA, especially when the other offences under the IPC are also the subject matter of trial. But a confession to the police officer by a person in police custody is not within the realm of Section 30 of the Evidence Act and therefore such a confession cannot be used against the co-accused even under Section 30 of the Evidence Act.

While on the subject of confession made to a police officer under sub- section (1) of Section 32 of POTA, it would be apposite to refer in brief to the decision of this Court in Kartar Singh vs. State of Punjab (1994) 3 SCC 569. The constitutional validity of the provisions of TADA Act came up for consideration before the Constitution Bench. Section 15(1) of TADA Act was the main target of attack. The majority of Judges, with Ratnavel Pandian, J. leading them, upheld the provisions of the Act including Section 15(1). There was a weighty dissent by two learned Judges (K. Ramaswamy, J. and R.M. Sahai, J.) as regards the validity of Section 15(1). The constitutional issue of the vires of the impugned provisions of TADA, including Section 15(1), was examined from the perspective of Articles 14 and 21 of the Constitution, that is to say, from the standpoint of classification of offenders and justness and fairness of the procedural provisions. The three learned Judges did not find Section 15(1) obnoxious to Article 14 or Article 21, though they took judicial notice of the inhuman treatment often meted out by overzealous police officers and the archaic, third degree methods adopted by them during the investigation of the cases. In upholding the validity, the Court took into account the legal competence of the legislature to make a law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity and consequences of terrorism and the reluctance of the public in coming forward to give evidence. How far these considerations are relevant in providing for the reception in evidence of the confessional statement recorded by a police officer has not been elaborated. Apparent hesitation of the learned Judges in upholding the most criticized provision, namely Section 15(1) of TADA, is reflected in the set of guidelines set out by their Lordships at paragraph 263 to ensure as far as possible that the confession obtained by the police officer is not tainted with any vice and to impart a process of fairness into the exercise of recording the confession. The Central Government was bidden to take note of the guidelines and incorporate necessary amendments to the Act. These guidelines, by and large, have become part of Section 32 of POTA to which we have already referred. There was also an exhortation at paragraph 254 to the high-ranking police officers empowered to record the confession that there should be no breach of the accepted norms of recording the confession which should reflect only a true and voluntary statement and there should be no room for hyper criticism that the authority has obtained an invented confession. Another interesting part of the discussion is the manner in which the Court gave its response to the critical comments made by the counsel as to the reprehensible methods adopted to extract the confession. The learned Judges said with reference to this comment: “if it is shown to the Court that a confession was extorted by illegal means such as inducement, threat or promise, the confession thus obtained would be irrelevant and cannot be used in a criminal proceeding against the maker.” The Court thus merely emphasized the obvious and added a remark that the Court on several occasions awarded exemplary compensation to the victim at the hands of the police officials. The Court took the precaution of clarifying that the police officer investigating the case under TADA Act can get the confession or statement of the accused recorded under Section 164 Cr.P.C. by a Magistrate.

The Constitution Bench Judgment is binding on us. In fact, the ratio of that Judgment applies with greater force to the POTA, as the guidelines set out by the Constitution Bench are substantially incorporated into Section 32. It is perhaps too late in the day to seek reconsideration of the view taken by the majority of the Judges in the Constitution Bench. But as we see Section 32, a formidable doubt lingers in our minds despite the pronouncement in Kartar Singh’s case (supra). That pertains to the rationale and reason behind the drastic provision, making the confession to police officer admissible in evidence in a trial for POTA offences. Many questions do arise and we are unable to find satisfactory or even plausible answers to them. If a person volunteers to make a confession, why should he be not produced before the Judicial Magistrate at the earliest and have the confession recorded by a Magistrate? The Magistrate could be reached within the same time within which the empowered police officer could be approached. The doubt becomes more puzzling when we notice that in practical terms, a greater degree of credibility is attached to a confession made before the judicial officer. Then, why should not the Investigating Officer adopt the straightforward course of having resort to the ordinary and age-old law? If there is any specific advantage of conferring power on a police officer to record the confession receivable in evidence, if the intendment and desideratum of the provision indisputably remains to be to ensure an atmosphere free from threats and psychological pressures? Why the circuitous provision of having confession recorded by the police officer of the rank of S.P. (even if he be the immediate superior of the I.O. who oversees the investigation) and then requiring the production of the accused before the Chief Metropolitan or Judicial Magistrate within 48 hours? We can understand if the accused is in a remote area with no easy means of communications and the Magistrate is not easily accessible. Otherwise, is there real expediency or good reason for allowing an option to the I.O. to have the confession recorded either by the superior police officer or a Judicial Magistrate? We do not think that the comparative ease with which the confession could be extracted from the accused could be pleaded as justification. If it is so, should the end justify the means? Should the police officer be better trusted than a Magistrate? Does the magnitude and severity of the offence justify the entrustment of the job of recording confession to a police officer? Does it imply that it is easier to make an accused confess the guilt before a police officer so that it could pave the way for conviction in a serious offence? We find no direct answer to these questions either in Kartar Singh’s case (supra) or the latest case of People’s Union for Civil Liberties vs. Union of India (2004) 9 SCC 580.

The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law, as said by the eminent American jurist Schaefer. We may recall as well the apt remarks of Krishna Iyer, J. in Nandini Satpathy vs. P.L. Dani (1978) 2 SCC 424 (para 27) :

“The first obligation of the criminal justice system is to secure justice by seeking and substantiating truth through proof. Of course, the means must be as good as the ends and the dignity of the individual and the freedom of the human person cannot be sacrificed by resort to improper means, however worthy the ends. Therefore, ‘third degree’ has to be outlawed and indeed has been. We have to draw up clear lines between the whirlpool and the rock where the safety of society and the worth of the human person may co-exist in peace.”

In People’s Union for Civil Liberties case, a two Judge Bench of this Court upheld the constitutional validity of Section 32 following the pronouncement in Kartar Singh’s case. The learned Judges particularly noted the ‘additional safeguards’ envisaged by sub-sections (4) and (5) of Section 32. The court referred to the contention that there was really no need to empower the police officer to record the confession since the accused has to be in any case produced before the Magistrate and in that case the Magistrate himself could record the confession. This argument was not dealt with by their Lordships. However, we refrain from saying anything contrary to the legal position settled by Kartar Singh and People’s Union for Civil Liberties. We do no more than expressing certain doubts and let the matter rest there.

It has been pointed out to us that even in advanced countries like U.K. and U.S.A., where individual liberty is given primacy, there is no legal taboo against the reception of confessional statement made to police in evidence.

We do not think that it is apt to compare the position obtaining in those countries to that in India. The ground realities cannot be ignored. It is an undeniable fact that the police in our country still resort to crude methods of investigation, especially in mofussil and rural areas and they suffer many handicaps, such as lack of adequate personnel, training, equipment and professional independence. These features, by and large, are not so rampant in those advanced countries. Considered from the standpoint of scientific investigation, intensity of training and measure of objectivity, the standards and approaches of police personnel are much different in those countries. The evils which the framers of the Indian Evidence Act had in mind to exclude confessions to the police, are still prevalent though not in the same degree.

After independence, no doubt, some positive steps have been taken to improve the working pattern, utility and image of the police force, but, much desires to be achieved in this direction. Complaints of violation of human rights by resorting to dubious methods of investigation, politicization of the police establishment and victimization of the straightforward and honest officers are some of the criticisms that are being heard day in and day out. Even many amongst the public tacitly endorse the use of violence by police against the criminals. In this scenario, we have serious doubts whether it would be safe to concede the power of recording confessions to the police officers to be used in evidence against the accused making the confession and the co-accused.

The Law Commission of India in its 185th Report on review of the Indian Evidence Act has expressed strong views disfavouring the admission of confessions made to Police Officers. The Commission commented that the basis for introducing Sections 25 and 26 in the Evidence Act in 1872 holds good even today. The Commission observed- “we are compelled to say that confessions made easy, cannot replace the need for scientific and professional investigation”.

In England, even though the confessions to the police can be received in evidence the voluntariness of the confessions are tested by adopting stringent standards. Section 76 of the Police and Criminal Evidence Act, 1984, deals with confession in England. Sub-section (2) of Section 76 is important:

“(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained-

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”

Thus the prosecution has to prove beyond reasonable doubt that the confession was made voluntarily and was reliable.

The Court of Appeal decision in Regina vs. Middleton (1975 All ER 191) shows that whenever the admissibility of a confession is challenged “a trial within a trial” is conducted to test the voluntariness of such confession at the earliest. In England, in the light of the Human Rights Act of 1988, a fresh look is being taken into the existing provisions of the Police and Criminal Evidence Act and other allied laws including the Law of Confessions.

In United States, according to the decisions of the Supreme Court viz., Miranda vs. Arizona 384 US 436; Escobedo vs. Linnaeus 378 US 478, the prosecution cannot make use of the statements stemming from custodial interrogation unless it demonstrates the use of procedural safeguards to secure the right against self-incrimination and these safeguards include a right to counsel during such interrogation and warnings to the suspect/accused of his right to counsel and to remain silent. In Miranda case (decided in 1966), it was held that the right to have counsel present at the interrogation was indispensable to the protection of the V Amendment privilege against self- incrimination and to ensure that the right to choose between silence and speech remains unfettered throughout the interrogation process. However, this rule is subject to the conscious waiver of right after the individual was warned of his right.

As the law now stands, the confession recorded by the police officer under Section 32(1) of POTA is admissible in evidence. The voluntariness and reliability of confession can of course be tested by the court. The admission of such confession would also be subject to the observance of the other provisions of Section 32 of POTA which are in the nature of procedural safeguards aimed at ensuring that the confessions are made by the accused in an atmosphere free from threat and inducement.

There is one argument of Mr. Sushil Kumar appearing for the accused Afzal which needs to be adverted to. His contention is that the word ‘evidence’ is not used either under Section 32(1) or Section 32(2) of POTA unlike Section 15(2) of TADA which requires the Police Officer to warn the person making the confession that it may be used as ‘evidence’ against him. He therefore argues that the only route through which the confession can be treated as evidence against the accused is by having recourse to Section 164 Cr.P.C. The contention, in our view, is devoid of merit. The mere fact that the expression ‘admissible only’ is used without being followed by the words ‘in evidence’, does not, by any canon of construction, deprive the confession recorded under Section 32 of POTA its evidentiary value; otherwise Section 32(1), more especially the expression ‘admissible’ contained therein will become ineffectual and senseless. We cannot, therefore, accept this extreme contention.

Section 10 of Evidence Act

The next question is whether the confession of the accused which cannot be proved against a co-accused either under Section 32(1) of POTA or under Section 30 of the Evidence Act, would be relevant evidence against the co- accused involved in the conspiracy by reason of

Section 10 of the Evidence Act. The section reads thus :

“10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

In Kehar Singh and Ors. vs. State (Delhi Administration) (1988) 3 SCC 609, Jagannatha Shetty, J., has analysed the section as follows :

“From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it.”

Section 10 of Evidence Act is based on the principle of agency operating between the parties to the conspiracy inter se and it is an exception to the rule against hearsay testimony. If the conditions laid down therein are satisfied, the act done or statement made by one is admissible against the co- conspirators (vide AIR 1965 SC 682).

The learned senior counsel Mr. Gopal Subramanium submits that Section 10, which is an exception to Section 30 of the Evidence Act, can be availed of by the prosecution to rely on the facts stated in the confessional statement of the accused to prove the existence of conspiracy and the co-conspirator being party to it. He contends that there is more than prima facie evidence in this case that there was a conspiracy to launch an attack on the Parliament building and therefore, the first ingredient of the reasonable ground of belief is satisfied. The next and more controversial part of the submission is that the statement of one of the conspirators who has made the confession throwing light on the common intention of all the accused can be used in evidence against the co-conspirators or the co-accused irrespective of the fact that such statements were made after the conclusion of the conspiracy and after the accused were arrested. As the law laid down by the Privy Council in Mirza Akbar vs. King Emperor (AIR 1940 PC 176) on the interpretation of Section 10 does not support the contention of the counsel for the State, the learned counsel was critical of the dictum laid down in that case and equally critical of the long line of authorities which accepted the ruling of the Privy Council. This is what Lord Wright said in Mirza Akbar’s case :

“This being the principle, their Lordships think the words of Section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. In their Lordships’ judgment, the words ‘common intention’ signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships’ judgment Section 10 embodies this principle. That is the construction which has been rightly applied to Section 10 in decisions in India.

In these cases the distinction was rightly drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past.”

In Sardul Singh Caveeshar vs. State of Bombay (1958) SCR 161, a three-Judge Bench of this Court approvingly referred to the decision of the Privy Council. However, the following observation made therein does not go counter to the submission of Mr. Subramanium :

“where the charge specified the period of conspiracy, evidence of acts of co-conspirators outside the period is not receivable in evidence”.

But, the ultimate conclusion is not strictly in conformity with that remark. After referring to this and the other decisions, Thomas, J. observed in State of Gujarat vs. Mohammed Atik and Ors. (1998) 4 SCC 351 thus:

“Thus, the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act.”

Referring to the decision in Mohammed Atik’s case (supra) and Sardul Singh Caveeshar (supra), Arijit Pasayat, J., speaking for a three-Judge Bench in Mohd. Khalid vs. State of West Bengal (2002) 7 SCC 334, stated the legal position thus (para 111 of AIR 1999 SC 2640) :

“We cannot overlook that the basic principle which underlies Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10.”

Ultimately, the test applied was whether any particular accused continued to be the member of the conspiracy after his arrest. Though the learned Judge stated that “similar view was expressed by this Court in State vs. Nalini”, we find no such statement of law in Nalini’s case. However, this accidental slip does not make any difference. The law is thus well settled that the statements made by the conspirators after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act, because by that time the conspiracy would have ended. If so, the statement forming part of the confessional statement made to the police officer under Section 32(1) of POTA cannot be pressed into service by the prosecution against the other co-accused. Thus, the endeavour to bring the confessional statement of co-accused into the gamut of evidence through the route of Section 10 is frustrated by a series of decisions, starting from Mirza Akbar’s case (1940).

Learned senior counsel Mr. Gopal Subramanium argued that the view taken by the Privy Council runs counter to the language of Section 10, and moreover, if that interpretation is to be adopted, there would hardly be any evidence which could be admitted under section 10, the reason being that the statements would necessarily be made by the witnesses after the termination of conspiracy. The correct interpretation, according to the learned senior counsel is, whether the statements made by the conspirators testifying to the common plan, whether confessional or not, relate to the period of conspiracy or to the period post-termination. The relevance of such statements under Section 10 cannot be whittled down with reference to the point of time when the statement was made. The learned senior counsel, therefore, submits that the exclusion of post-arrest statements of the conspirators, is not warranted by the language employed in the section and it makes Section 10 nugatory. Though, in our view, the Section can still play its role, we find some force in this contention. But, it is not open to us to upset the view reiterated in a long line of decisions.

The learned counsel Mr. Gopal Subramanium has also endeavoured to invoke precedential support for his argument. He referred to Bhagwan Swarup vs. State of Maharashtra (AIR 1965 SC 682) (known as the 2nd Caveeshar case) in which Subba Rao, J., speaking for a three-Judge Bench analysed the ingredients of Section 10 as follows (para 8) :-

“(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy, (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other, (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour.”

The limitation inferred by the Privy Council that the acts or statements of the conspirator should have been made when the conspiracy was afoot was not imported into the interpretation of the section. On the other hand, the proposition No.4 might indicate that even the statement made and acts done after a person left the conspiracy, could be proved against others. The Privy Council decision in Mirza Akbar’s case was not referred to. The issue as raised now was not discussed. However, the 1st Caveeshar case (AIR 1957 SC 747) in which the Privy Council’s decision was cited, was adverted to. In the 1st Caveeshar’s case also decided by a three Judge Bench (supra), the ratio of the Privy Council decision in Mirza Akabar’s case was approved and applied.

The learned counsel then referred to the case of Ammini and Ors. vs. State of Kerala (1998) 2 SCC 301, wherein this Court referred to Section 10 of the Evidence Act and observed thus :

“The High Court held as there was reasonable ground to believe that Ammini and other accused had conspired together and, therefore, the confession made by A-1 could be used against other accused also.”

There was no reference to the earlier cases which were binding on the Court. The view of the High Court was merely endorsed. The learned senior counsel Mr. Gopal Subramanium then submitted that in Nalini’s case this Court admitted the confessional statement made by one of the accused after his arrest under section 10 of the Evidence Act. But we do not find anything in that judgment to support this statement. Wadhwa, J. on whose judgment reliance is placed did not say anything contrary to what was laid down in Mirza Akbar’s case. After referring to Mirza Akbar’s case, Wadhwa, J. adverted to the contention that Section 10 becomes inapplicable once the conspirator is nabbed. The comment of the learned Judge was;

“That may be so in a given case but is not of universal application. If the object of conspiracy has not been achieved and there is still agreement to do the illegal act, the offence of criminal conspiracy is there and Section 10 of the Evidence Act applies”. (vide para 579 of SCC)

Then follows the crucial finding that the prosecution in the present case has not led any evidence to show that any particular accused continued to be a member of the conspiracy after he was arrested. It shows that the ultimate conclusion accords with the view expressed in Mirza Akbar.

At paragraph 581, there is further discussion on the scope of Section 10. One observation made by the learned Judge in that para needs to be clarified. The learned Judge observed thus (para 572 of AIR 1999 SC 2640) :

“When two or more persons enter into a conspiracy any act done by any one of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution of or in reference to their common intention is deemed to have been said, done or written by each of them”.

(Emphasis supplied)

We do not find any such deeming provision in Section 10. No doubt, Section 10 rests on the principle of agency. But, it does not in terms treat the statements made and acts done by one conspirator as the statements or acts of all. Section 10 only lays down a rule of relevancy. It says that anything done or said by one of the conspirators in reference to the common intention is a relevant fact as against each of the conspirators to prove two things: (i) existence of the conspiracy and (ii) that they were parties to the conspiracy. As pointed out by the Privy Council in Mirza Akbar’s case, the thing done, written or spoken in the course of carrying out the conspiracy “was receivable as a step in the proof of the conspiracy”. This dictum was approvingly referred to in the 1st Caveeshar case (AIR 1957 SC 747).

The learned senior counsel then referred to the decision of this Court in Tribhuwan vs. State of Maha-rashtra (1972) 3 SCC 511, in which the accused examined himself as a witness and his evidence was admitted under Section 10 of the Evidence Act, mainly on the ground that his deposition could be subjected to cross-examination. So also in the case of K. Hashim vs. State of Tamil Nadu, the evidence of co-accused who subsequently became approver, was admitted under Section 10. These two cases rest on a different principle and cannot be said to have differed with the view taken in Mirza Akbar’s case.

However, there are two decisions of this Court rendered by two Judge Benches, which have taken the view that the facts stated in the confessional statement of one of the accused can be used against the other accused. The first one is Bhagwandas Keshwani and Anr. vs. State of Rajasthan (1974) 4 SCC 611 decided by a two-Judge Bench (M.H. Beg and Y.V. Chandrachud, JJ.), in which Beg, J. observed thus (para 3) :

“It seems to us that the extreme argument that nothing said or done by Vishnu Kumar could be taken into account in judging the guilt of Keshwani when there is a charge for conspiracy under Section 120B IPC overlooks the provisions of Section 10 of the Evidence Act. At any rate, proof of the fact, even from admissions of Vishnu Kumar, that false and fictitious cash memos were prepared due to an agreement between the two accused, could be used against each accused.”

None of the previous decisions were referred to by their Lordships. The other case is that of State of Maharashtra vs. Damu (2000) 6 SCC 269 which was also decided by a two Judge Bench. The learned Judges after analyzing the ingredients of Section 10, held thus (para 46) :

“In this case there can be no doubt, relying on Ex.88 that there are reasonable grounds to believe that all the four accused have conspired together to commit the offences of abduction and murders of the children involved in this case. So what these accused have spoken to each other in reference to their common intention as could be gathered from Ex.88 can be regarded as relevant facts falling within the purview of Section 10 of the Evidence Act. It is not necessary that a witness should have deposed to the fact so transpired between the conspirators. A dialogue between them could be proved through any other legally permitted mode. When Ex.88 is legally proved and found admissible in evidence, the same can be used to ascertain what was said, done or written between the conspirators. All the things reported in that confession referring to what A-1 Damu Gopinath and A-3 Mukunda Thorat have said and done in reference to the common intention of the conspirators are thus usable under Section 10 of the Evidence Act as against those two accused as well, in the same manner in which they are usable against A-4 Damu Joshi himself.”

Thus, the confessional statement (Ext.88) made by one of the parties to the conspiracy was made use of against the other parties/accused. It is interesting to note that the decision in State of Gujarat vs. Mohammed Atik (supra) rendered by one of the learned Judges, was noticed but the crucial part of the observation therein ruling out the applicability of Section 10 was not adverted to. The 2nd Caveeshar case (AIR 1965 SC 682) was also noticed. However much we are convinced of the arguments advanced by the learned senior counsel for the State, we are unable to give effect to the law laid down in these two cases which runs counter to the larger Bench decisions noticed supra, especially when the previous decisions bearing on the point were not discussed. No doubt the judgment in 2nd Caveeshar case was of three learned Judges but the 4th proposition laid down therein is not so categorical as to convey the idea that even the confessional statement recorded after the arrest, could be used against the co-conspirators. The case of Queen vs. Blake decided in 1844 115 ER 49 is illustrative of the parameters of the common law rule similar to Section 10 of the Indian Evidence Act. The Privy Council in the case of Mirza Akbar AIR 1940 PC 176 referred to that case and observed thus :

“The leading case of (1844) 6 QB 126 : 115 ER 49 (E) illustrates the two aspects of it, because that authority shows both what is admissible and what is inadmissible. What, in that case, was held to be admissible against the conspirator was the evidence of entries made by his fellow conspirator contained in various documents actually used for carrying out the fraud. But a document not created in the course of carrying out the transaction, but made by one of the conspirators after the fraud was completed, was held to be inadmissible against the other ……. It had nothing to do with carrying the conspiracy into effect.”

In the light of the foregoing discussion, we have no option but to reject the contention of Mr. Gopal Subramanium on the interpretation of Section 10, though not without hesitation. However, in view of the fact that confessional statement is not being relied on, the question of applicability of Section 10 fades into insignificance.

State (N. C. T. of Delhi) Versus Navjot Sandhu-AIR 2005 SC 3820 : (2005) 2 Suppl. SCR 79 : (2005) 11 SCC 600 : JT 2005 (7) SC 1 : (2005) 6 SCALE 177 : (2005) CriLJ SC 3950