Holding

Confessional statements made before a Superintendent of Police, recorded in writing (including typed by a stenographer) after complying with the safeguards of Section 15 of the TADA Act and Rule 15, are admissible and can be used to convict the accused.

Summary

The Central Bureau of Investigation appealed against the acquittal of three accused who were charged under Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Sections 302 and 120B of the Indian Penal Code for the kidnapping and murder of H.N. Wanchoo. The only evidence was their confessional statements recorded under Section 15 of TADA. The designated court held the confessions were not made in conformity with the law and acquitted the accused. The Supreme Court examined whether the statutory safeguards under Section 15 and Rule 15 of the TADA Rules – including voluntariness, language, reading back, and opportunity to add or subtract – were complied with. It found that the Superintendent of Police had explained the consequences, obtained voluntary consent, recorded the statements in writing (typed by a stenographer), read them back, and complied with the memorandum requirements. Consequently, the Court held the confessions admissible, convicted the respondents under TADA and IPC, and sentenced them to life imprisonment.

Issues considered

Whether confessional statements recorded under Section 15 of the TADA Act, in writing via dictation to a stenographer, satisfy the statutory requirements of voluntariness and language.
Whether the procedural safeguards prescribed in Rule 15 of the TADA Rules were complied with.
Whether the language of the third respondent's confession (Hindi) violated Rule 15(1).
Whether the designated court erred in acquitting the accused on the ground of non‑compliance with the confession‑recording provisions.

Legislation cited

Indian Penal Code, 1860s. 120B, s. 302
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3

Subjects

TADAconfessional statementsadmissibilityvoluntarinessterrorist offencesmurderconspiracyprocedural compliancelife imprisonment

Judgment

CENTRAL BUREAU OF INVESTIGATION A
V.

ASHIQ HUSSAIN FAKTOO AND ORS.

JANUARY 30, 2003

[S.N. VARIAVA AND B.N. AGRAm\L, JJ.]
B

Terrorist and Disruptive Activities (Prevention) Act, !987/Terrorist and
Disruptive Activities (Prevention) Rules, 1987-Sections 3 and I 5-Rules I 5(/),
(2). (3) and (4)-Penal Code, 1860-Sections 302 and 1208- Prosecution-
Based on confessional statement-Acquittal by designated court on the ground C
that statements not recorded in conformity with law-On appeal, held-Accused
~ liable to be convicted as confessional statements were made in conformity
with the provisions of law.

Respondents-accused were prosecuted for offences under Section 3 D
of Terrorists and Disruptive Activities (Prevention) Act, 1987 and under
Sections 302 and 1208 IPC. It was alleged that accused- respondents
were members of a terrorist organization and they took part in a
conspiracy to kill 'W' and pursuant thereto, they kidnapped him and
then killed him. The only evidence •against the accused was their
confessional statements made under Section IS of the Act. E
Designated court. acquitted the accused on the grounds that
Superintendent of Police, CBI had failed to satisfy himself as to whether
the accused were going to make the confessional statements voluntarily;
that he had not explained to the accused that confessional statements
made before him would be used as evidence against them; that there was F
contradiction in his statement as during his evidence he stated that the
statements were recorded in his own hand while in his cross examination
he stated that the statements were recorded by his steno under his
dictation; that the confessional statements of one of the respondents was
not in the official language; that the accused were not asl;e<l, whether G
they wanted to add or subtract anything from their confessional
statements; and that the statements were not recorded in conformity
with the provisions of law and hence the same could not be considered as
a substantive piece of evidence against the accused persons. Hence the
appeal.
H
733
.,i

734 SUPREME COURT REPORTS [2003] 1 S.C.R.

A Allowing the appeal, the Court
~

HELD: 1. The confessional statements, could under Section 1.5 of
Terrorist and Disruptive Activitie.s (Prevention) Act, 1987 be used against
the Respondents. In the confessional statements each of the respondents
admits that they were part of the organization and that they had taken
B part in the conspiracy to eliminate 'W'. So far as 3rd respondent is
concerned he had actually participated in the kidnapping of 'W' and had
then given orders in writing that 'W' be killed. Therefore, the offence
under Section 3 of the Act as well as under Section 302 read with 1208
IPC is made out. Therefore, the respondents are convicted under Section
c 3 of the Act and under Section 302 read with 1208 IPC. In view of the
activities which had been carried on by the respondents this is a fit case
where the sentence should be life imprisonment. (742-F, G]
'f-
2.1. The reasoning of the designated court that the confessional
statements are ~ot in conformity with the provisions of law cannot be
D accepted. In all the three confessional statements the Officer has first
ascertained whether the Respondent who is making the statement was
making the statement voluntarily. The respondents have been informed
that the confessional statements made by them could be used against
them as evidence. They were then asked whether they still wanted to +
make the confessional statements. They have been told that they are not
E
bound to make the confessional statements and that if they make the
confessional statements the same would be used against them and that
therefore they should think over the matter and let the Officer know
whether they still wanted to make the confessional statements. The
~uperintendent of Police, CBI has signed as such. The respondents have
F also signed. This clearly shows that the respondents were aware that they ..J..
were making their confessional statements before the Superintendent of
Police, CBI. (740-D; 739-F-H(

· 2.2. Respondents were given one day's time to think over the matter.
On the next day the Superintendent of Police, CBI again informed them
G that they were not bound to make the confessions and that if they make
the confessions the same could be used as evidence against them. It has
been recorded that even after this warning they were willing to make the
confessions. It has been recorded that the Superintendent of Police, CBI
was satisfied that the confession was being made voluntarily. This note
H has been signed by the Superintendent of Police, CBI as well as the
C.B.I. v. ASHIQ HUSSAIN FAKTOO 735
concerned respondent. It is only thereafter that the confessional statement A
has been recorded. At the end of each confessional statements it has also
been recorded that the confessional statement had been read over and
admitted to be correct. The required memorandum under Rulel5(3)(b)
of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 is also
made on each of the confessional statements. 1740-A-Ci
B
3. The observations of the designated court that the Superintendent
of Police, CBI stated that the statements were in his hand-writi.ng but in
cross-examination admitted that they had been recorded by his steno
under his dictation has no relevance. When a confessional statement is
dictated to a steno and typed on a typewriter, the same amounts to a C
confessional statement being in writing. 1740-E-FI

State of Tamil Nadu v. Sivarasan, 11997)-1 SCC 682 and Devender Pal
Singh v, State of N.C. T. of Delhi, 12002) 5 SCC 234, relied on.

State through Superintendent of Police, CBI/SIT v. Na/ini and Ors., D
11999) 5 sec 253, referred to.

4, The observations of the Designated Court that the respondents
had not been asked whether they wanted to add or subtract anything
appear to have been made on a misundertstanding of Rule 15(2). Under
Rule 15(2) the recorded confession has to be (where it is in writing) E
shown and read back to the person concerned and if he does not
understand the language in which it is recorded it has to be interpreted
to him in a language he understands. That person is at liberty to explain
or add to his confession. In this case the confessional statements were
shown and read back to the respondents. If they wanted they could have F
explained or added to these confessional statements. They chose not to do
so. Thus the requirement of Rule 15(2) was fully complied with.
1741-G, H; 742-A, Bl

5. As the confessional statements were in writing Sub-rule (4) of
Rule 15 of the TADA Rules was not applicable at all. Sub-rule (4) of Rule G
15 would only come into play if the confessional statement was not in
'vriting but "'as recorded on some mechanical device lik_e a cassette, tape
or on sound tracks. In this case the confession being in writing Sub-rule
(3) would be applicable. The requirements of Sub-rule (3) have been fully
complied with. 1742-B, q
H
736 SUPREME COURT REPORTS [2003] I s.c . ~.

A 6. Under Rule 15(1) the confessional statement must be recorded in
the language in which the confession is made. It is nobody's case that 3rd
respondent did not know Hindi or that that was not the language in
which he made the confessional statement. A confessional statement is to
be in an official language or a language of the designated court only,
provided it is not the language in which it was made. 1742-D-El
B.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
889 of 2001.

From the Judgment and Order dated 14.7.2001 of the Presiding Officer,
C Designated Court under TADA (P) Act, Jammu in File No. 18/CH.
P.P. Malhotra, A. Mariarputham, Ajay Shanna and P. Panneswaran for
the Appellants.

B.B. Singh for the Respondent.

D The Judgment of the Court was delivered by

S.N. VARIA VA, J. This Appeal is against the Judgment dated 14th
July, 2001 by which the Presiding Officer of the Designated Court, Jammu,
under the Terrorist and Disruptive Activities (Prevention) Act, 1987 +- ,
(hereinafter referred to as the TADA Act), has acquitted the Respondents.
E
Briefly stated the facts are as follows:

Initially there were 12 persons who were charged under Sections 302
read with 1208 of the Indian Penal Code and Section 3 of the TADA Act.
Out of those 4 persons died and 5 others were absconding. Therefore, only
F the three Respondents were put to trial. The only evidence against these
Respondents were their confessional statements recorded under Section 15 of
the TADA Act.

The case of the prosecution was that they were part of a terrorist group
G under the name and style of Jamait-Ul-Mujahidin. The case of the prosecution
was that the aim of the group is to over awe the Government duly established
by law and to segregate Jammu and Kashmir from Union of India. The case
of the prosecution was that with these purposes in mind these persons spread 1/t.
terrorism. The case of the prosecution was that they condemned the activities
of a Hinduism forum whose moving spirit was one Mr. H. N. Wanchoo. The
H case of the prosecution was that in the months of July and November, I 992
C.B.I. v. ASHIQ HUSSAIN FAKTOO [S.N. VARIAVA. J.] 737

the accused persons (including these Respondents) hatched a criminal A
)' conspiracy to eliminate Mr. H. N. Wanchoo and that i.1 pursuance to such
conspiracy they kidnapped Mr. H. N. Wanchoo from his house in Srinagar,
took him to Bal Garden and shot him dead.

As stated above, the only evidence against the Respondents is their
confessional statements. The Ist Respondent gave a confessional statement B
which is recorded in English on 27th and 28th June, 1993. The 2nd Respondent
gave a confessional statement which is recorded in English on 13th and 14th
January, 1994. The 3rd Respondent gave a confessional statement which is
recorded in Hindi on 4th and 5th May, 1994.

The Designated Court has held that the Superintendent of Police, CBI C
has failed to ask the accused material questions to satisfy himself as to whether
the accused were going to make the confessional statements voluntarily. The
Designated Court has held that Superintendent of Police, CBI has not asked
the accused whether they knew before whom they were standing. It is also
held that he had not explained to the accused that he is the Superintendent D
of Police, CBI and that if any confessional statement is m~de before him it
will be used as evidence against the1n. It is further held that during his
evidence the Superintendent of Police has stated that the confessional
statements were recorded in his own hand, but in cross-examination he
admitted that the confessional statements had been recorded by his Steno
under his dictation. It is further held that the confessional statement should E
be in the language of the accused and if that is not possible then in the
official language of the Recording Officer or the language of the Designated
Court. It is held that the confessional statement of the 3rd Respondent is in
Hindi, whereas the official language was Urdu or English. It is held that the
l.O. did not make written request to the Superintendent of Police for recording p
the confessional statement of the accused and that was a mandatory provision
of Jaw. It is further held that the Superintendent of Police, CBI, had not asked
the accused whether they wanted to add or subtract anything from their
confessional statements. It was held that the Superintendent of Police, CBI
had therefore not recorded the confessional statements in confonnity with the
provision of law and that therefore the confessional statements could not be G
considered as a substantive piece of evidence against the accused persons. On
this basis the Respondents were acquitted.

In order to consider the correctness or otherwise of the above findings,
it would be appropriate to set out the relevant provisions. Section 15 and
H
738 SUPREME COURT REPORTS [2003] I S.C.R.

A Rufe 15 of the TADA Act and the rules framed thereunder read as follows:

"S.15. Certain confessions made to police officers to be taken into
consideration.- (I) Notwithstanding anything in the Code or in the
Indian Evidence Act, 1872 (I of 1872), but subject to the provisions
of this se..;tion, a confession made by a person before a police officer
B not lower in rank than a Superintendent of Police and recorded by
such police officer either in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sounds or images
can be reproduced, shall be admissible in the trial of such person or
co-accused, abettor or conspirator for an offence under this Act or
rules made thereunder:
c
Provided that co-accused, abettor or conspirator is charged and
tried in the same case together with the accused. -:-+--

(2) The police officer shall, before recording any confession under
sub-section (I), explain to the person making it that he is not bound
D to make a confession and that, if he does so, it may be used as
evidence against him and such police officer shall not record any
such confession unless upon questioning the person making it, he has
reason to believe that it is being made voluntarily."

"Rule 15. Recording of confession made to police officers.- (I) A
E confession made by a person before a police officer and recorded by
such police officer under Section 15 of the Act shall invariably be
recorded in the language in which such confession is made and ifthat
is not practicable, in the language used by such police officer for
official purposes or in the language of the Designated Court and it
F shall form part of the record.

(2) The confession so recorded shall be shown, read or played
back to the person concerned and if he does not understand the
language in which it is recorded, it shall be interpreted to him in a
language which he understands and he shall be at liberty to explain
G or add to his confession.

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

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

(b) by the police officer who shall also certify under his own hand
H that such confession was taken in his presence and recorded by
C.B.l. v. ASHIQ HUSSAIN FAKTOO [S.N. VARIAVA, .!.] 739

him and that the record contains a fu II and true account of the A
confession made by the person and such police officer shall
make a memorandum at the end of the confession to the following
effect :-
"I have explained to (name) that he is not bound to make a
confession and that, if he does so, any confession he may make B
1nay be used as evidence against him and I believe that this
confession was voluntarily made. It was taken in my presence
and hearing and recorded by me and was read over to the person
making it and admitted by him to be correct, and it contains a ·
full and true account of the statement made by him.
c
Sdl- Police Officer."

(4) Where the confession is recorded on any mechanical device,
the memorandum referred to in sub-rule (3) in so far as it is applicable
and a declaration made by the person making the confession that the
said confession recorded on the mechanical device has been correctly D
recorded in his presence shall also be recorded in the mechanical
device at the end of the confession.

(5) Every confession recorded under the said Section 15 shall be
sent forthwith to the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate having jurisdiction over the area in which such E
confession has been recorded and such Magistrate shall forward the
recorded confession so received to the Designated Court which may
take cognizance of the offence."

This being the legal position one has now to see whether these provisions
have been complied with. We have seen all the three confessional statements. F
In all the three confessional statements the Officer has first ascertained whether
the Respondent who is making the statement was making the statement
voluntarily. The Respondents have been informed that the confessional
statements made by them could be used against them as evidence. They were
then asked whether they still wanted to make the confessional statements. G
They have been told that they are not bound to make the confessional
statements and that if they make the confessional statements the same would
be used against them.and that therefore they should think over the matter and
let the Officer know whether they still wanted to make the confessional
statements. The Superintendent of Police, CBI has signed as such. The
Respondents have also signed. This clearly shows that the Respondents-were H
740 SUPREME COURT REPORTS (2003] I S.C.R.

A aware that they were making their confessional statements before the
Superintendent o(Police, CBI.

The Respondents were then given one day's time to think over the
matter. On the next day the Superintendent of Police, CBI again informed ...\
them that they were not bound to make the confessions and that if they make
B the confessions the same could be used as evidence against them. It has been
recorded that even after this warning they were willing to make the confessions.
It has been recorded that the Superintendent of Police, CBI was satisfied that
. the confession was being made voluntarily. This note has been signed by the
Superintendent of Police, CBI as well as the concerned Respondent. It is only
C thereafter that the confessional statement has been recorded. At the end of
each confessional statements it has also been recorded that the confessional
statement had been read over and admitted to be correct. The required
memorandum under RuJe·l5(3)(b) of the TADA Rules is also made on each ::+-
of the confessional statements.

D We are therefore unable to accept the reasoning of the Designated
Court that the confessional statements are not in conformity with the provisions
of law. The Designated Court was wrong in holding that it was not explained
to the Respondents that he was a Superintendent of Police or that it was not
explained to· the Respondents that the confessional statements could be used
as evidence against them. The Designated Court was wrong in concluding
E that the Superintendent of Police, CBI did not satisfy himself whether the
accused were going to make the confessional statements voluntarily.
I
We are also unable to appreciate the relevance of the observations of
the Designated Court that the Superintendent of Police, CBI stated that the
F statements were in his hand-writing but in cross-examination admitted that
they had been recorded by his Steno under his dictation. In our view, when
a confessional statement is dictated to a Steno and typed on a typewriter, the
same amounts to a confessional statement being in writing. This view is
supported by an authority of this Court in the case of State of Tamil Nadu
v. Sivarasan, reported in [1997] I SCC 682. In this case it has been held that
G the words "recorded in writing" in Section 15 includes a type-written
confessional statement. It is held that the Police Officer need not record the
statement in his own hand-writing, but can take the help of a Steno or use
a type-writer.

At this stage, it would be appropriate to mention that in the case of
H Devender Pal Singh v. State of NCT of Delhi reported in [2002] 5 SCC 234,
C.B.I. v. ASHIQ HUSSAIN FAKTOO (S.N. VARIAVA, J.] 741

a confessional statement was recorded on a computer by a Steno under A·
dictation of the D.C.P. The certificate required to be given by the D.C.P. was
type-written. It is held that the confessional statement could not be discarded
or its authen:icity doubted on these grounds. It is held that non-observance
of procedural requirements, as laid down in Rule 15, does not cause any
prejudice to the accused. It is held that procedure is the hand made and not B
the mistress of law. It was held that procedures are intended to subserve and
facilitate the cause of justice and not govern or obstruct it. It is held that
minor deficiencies, if any, cannot be considered to be fatal for the prosecution.

In the case of State through Superintendent of Police, CBI/SIT v. Nalini
and Ors., reported in [1999] 5 SCC 253 a confessional statement was recorded C
on l 8 pages. The first 16 pages contained signatures but the last two pages
did not have any signatures. An argument that the confessional statement
should be discarded was repelled with the following observations:

"l 25. The requirement that a confessional statement shall be signed
by the maker has been substantially complied with despite the slip in D
obtaining the signatures in the last two pages. According to PW 52-
the Superintendent of Police who recorded it-the said slip was an
inadvertent omission. But that omission does not mean that the
confession was not signed by her at all. The certificate which is
required by Rule 15(3) has also been made at the foot of Ext.P-77,
but that happened to be made on one of the two pages where the E
signature of A-l is absent.

126. On the facts we are not persuaded to uphold the contention that
Rule 15(3) has not been complied with. That apart, even ifthere was
such an omission the question is whether it would have injured the
accused in her defence. Section 463 of the Code permits such an
F
approach to be made in regard to the omissions in recording the
confession under Section 164 of the Code. That approach can be
adopted in re_spect of the confession recorded under Section 15 of
TADA as· well. The resultant position is that the said omission need
not be countenanced since it was not shown that the omission has G
caused any harm to the accused."

The observations of the Designated Coun that the Respondents had not
been asked whether they wanted to add or subtract anything appear to have
been made on a misunderstanding of Rule 15(2). Under Rule 15(2) the
recorded confession has to be (where it is in writing) shown and read back H
742 SUPREME COURT REPORTS [2003] I S.C.R!

A to the person concerned and if he does not unqerstand the language in which•.
it is recorded it has to be interpreted to him in a language he understands.
That person is at liberty to explain or add to his confession. In this case the
confessional statements were shown and read back to the Respondents. If
they wanted they could have explained or added to these confessional
B statements. They chose not to do so. Thus the requirement of Rule 15(2) was
fully complied with.

There is one other aspect, which is required to be clarified. As the
confessional statements were in writing Sub-rule (4) of Rule 15 of the TADA
Rules was not applicable at all. Sub-rule (4) of Rule 15 would only ·come into
C play if the confessional statement was not in writing but was recorded on
some mechanical device like a cassette, tape or on sound tracks. In this case
the confession being in writing Sub-rule (3) would be applicable. The
requirements of Sub-rule (3) have been fully complied with.

The other ground on which the Designated Court has held that the
D requirements of law were not complied with is that the confessional statement
of 3rd Respondent is in Hindi. The Court has held that this is not the language
of the Designated Court, i.e. Urdu or English, and therefore it was not
accorditlg tc law. Under Rule 15( 1) the confessional statement must be
recorded in the language in which the confession is made. It is nobody's case
that 3rd Respondent did not know Hindi or that that was not the language in
E which he made the •confessional statement. A confessional statement is to be
in an official language or a language of the Designated Court only, provided
it is not the language in which it was made.

Thus none of the reasons given by the Designated Court can be sustained.
It is thus held that these confessional statements, could under Section 15 of
F the said Act, be used against the Respondents.

We have read all the confessional statements. In the confessional
statements each of the Respondents admits that they were part of the
organisation and that they had taken part in the conspiracy to eliminate Mr.
H.N. Wanchoo. So far as 3rd Respondent is concerned he had actually
G participated in the kidnapping of H.N. Wanchoo and had then given orders
in writing that H. N. Wanchoo be killed. Therefore, the offence under Section
3 of the TADA Act as well as under Section 302 read with 120B of the
Indian Penal Code is made out. We therefore convict the Respondents under
Section 3 of the TADA Act and under Section 302 read with I 20B IPC.

H Mr. B. 8. Singh submitted that leniency should be shown whilst
C.B.I. v. ASHIQ HUSSAIN FAKTOO [S.N. VARIAVA. !.] 743

sentencing the Respondents. He submitted that the 2nd Respondent was a A
lecturer who had been forced to join the terrorist group because of threats of
torture. He submitted that the occurrence had taken place on 5th December,
1992. He submitted that the 2nd Respondent had been an-ested on 29th
December, 1993 and was in jail till 14th July, 2001 when he was acquitted
by the Designated Court. He submitted that thereafter, pursuant to an Order
of this Court, he surrendered on 26th November, 2001 and was granted bail B
by this Court on 14th December, 2001. He submitted that after being released
on bail he has not participated in the activities of the terrorist group and there
is no allegation that he has done any other illegal act. He submits that the
same set of circumstances would apply to I st Respondent also. He submitted
that so far as Respondents 1 and 2 are concerned, this Court should show C
leniency, particularly in view of the fact that at present the trend of the
Government is to have a healing touch. He submitted that such a healing
touch would give these persons an opportunity to reform themselves. He
submitted that the Court should sentence Respondents 1 and 2 to the term
already undergone by them.
D
In our view, having seen the activities which had been carried on by
the Respondents and that they had conspired and murdered Mr. H. N.
Wanchoo, this is a tit case where the sentence should be life imprisonment.

Accordingly, the Appeal is allowed. The Judgment of the Designated
Court is set aside. The Respondents are sentenced to life imprisonment. Their E
bail bonds shall stand cancelled. They shall be taken into custody forthwith.
They shall be given benefit of the period already undergone by them.

K.K.T. Appeal allowed.