HARDEEP SINGH SOHAL ETC.versusSTATE OF PUNJAB THROUGH CBI

                   HARDEEP SINGH SOHAL ETC.                                   A
                                    V.

                 STATE OF PUNJAB THROUGH CBI

                         SEPTEMBER 28, 2004

     [K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.J                          B
     Penal Code, 1860-Sections 120-B, 302: 307, 394:

     Terrorist and Disruptive Activities (Prevention) Act, 1987 (as amended
by Act 43 of 1993)-Sections 3(1), 3(2), 3(3) and 15:                          C
     Terrorist and Disruptive Activities (Prevention) Rule, 1987-Rule 15:

      Murder-Prosecution-Confessional Statement under TADA Act and
extra-judicial confession of co-accused-Co-accused absconded and not
tried with the accused-Certificate as per Rule 15 not given-Conviction of     D
accused relying on the confessional statement and extra-judicial confession
of the absconded co-accused-On appeal, held: Accused liable to be
acquitted-The confession under TADA and the extra-judicial confession
were inadmissible in law-The same could have been admissible only if
confessor was charged and tried in the same case together with the accused-
Also because confessional statement was not recorded in compliance ofRule     E
 15-Evidence Act, 1872-Section 30.

      Appellants-doctors were alleged to have entered into conspiracy to
kill a doctor by hiring another accused on account of professional rivalry.
The hired accused was apprehended by Police and on the basis of his           F
confessional statement u/s 15 of Terrorist and. Disruptive Activities
(Prevention) Act, 1987, the appellants were charged u/s 120-B, 302, 307,
394 IPC, Sections 3(1 ), 3(2) and 3(3) of TADA Act and Section 25 of
Arms Act. He could not be tried as he absconded and was declared as
proclaimed offender. To prove conspiracy prosecution relied on evidence
of PWs-32, 42 and 34. PW-32 was a staff nurse in the hospital where one       G
of the appellants-accused was working. As per her evidence appellants-
accused had arranged meeting with absconded accused through her and
that the absconded accused had told her that the appellant-accused had
wanted him to kill a person and he had done so. PW-42, wife of the
deceased stated that absconded accused had made extra-judicial                H
                                    783
     784                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A    confession to her that he had killed her husband at the behest of appellant-
     accused. PW-34 Superintendent of Police had recorded the confessional
     statement of the absconded accused. Although he had put questions to
     the accused as to whether he was aware that his statement could be used
     against him on the basis of which he would be sentenced and whether
     there was any pressure or fear on him and the accused had answered
B    in the negative. However, PW-34 did not p,ive certificate in terms of
     Rule 15 of Terrorist and Disruptive Activities (Prevention) Rules, 1987.

          Trial Court held the appellants-accused guilty for the offences
     charged, holding that merely because one accused died before charges
c    were framed, that did not affect the confessional statement; and that by
     operation of Section 30 of Evidence Act, confession of the co-accused
     could be made use of.

          In appeal to this Court, appellant contended that confessional
     statement made under Section 15 of TADA Act by absconded accused
.D   was inadmissible as the same was recorded in violation of the mandatory
     provisions of the Act and the Rules framed thereunder.

           Allo_wing the appeals, the Court

 E        HELD: 1. As the absconded accused could not be jointly tried with
     the appellants, the entire evidence of confession recorded under Section
     15 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (Exbt.
     PAA) and the extra-judicial confessions have become inadmissible and
     in the absence of any other reliable evidence the appellants are to be
     acquitted of the charges framed against them. [797-E, F, G)
 F
           Kartar Singh v. State of Punjab, [1994) 3 SCC 569, referred to.

          2. Confession made by absconded accused to PW-34 (Exbt PAA) is
     inadmissible in law and cannot be used against the appellants. So also,
     the extra-judicial confessions allegedly made to PW-32 and PW-42 suffer
G    from the same infirmity. (797-B, CJ

          3. Section 15 of the TADA Act as amended by Act 43 of 1993
     clearly stipulates that the confession recorded under Section 15 of the
     TADA Act is admissible only if the confessor is charged and tried in the
H    same case together with the co-accused. [793-G, H)
          H. S. SO HAL v. STA TE OF PUNJAB THROUGH CBI                    785

      Esher Singh v. State of Andhra Pradesh, (2004) AIR SCW 1665,               A
relied on.

     4. Exh. PAA does not contain a certificate under Rule 15 of Terrorist
and Disruptive Activities (Prevention) Rules, 1987 having been given by
PW-34. It is true that PW-34 had put certain questions to the accused
but did not give the certificate at the end of the confession. The certificate   B
should have specifically stated that he had explained to the person making
the confession that he was not bound to make the confession and if he
does so, the confession he may make may be used against him and that
he believed that this confession was voluntarily made and it was taken
in his presence and recorded by him and was read over to the person              C
making it and admitted by him to be correct, and it contained a full and
true account of the statement made by him. (796-D, E, FJ

     Bharatbhai @Jimi Premchandbhai v. State of Gujarat, (2002) 8 SCC
447 and S.N Dube v. NB. Bhoir, (2000) 2 SCC 254, relied on.
                                                                                 D
     5. The extra-judicial confession allegedly made by the absconded
accused can be considered under Section 30 of Evidence Act, 1872. The
same cannot be admitted in evidence as he was not tried along with the
appellants. (790-B, C, DJ

     6. Motive by itself is not sufficient to prove the guilt of the accused.    E
The prosecution could not lay its hands on any item of evidence that
may come under Section 10 of the Evidence Act, i.e. anything having
been said done or written by any of the appellants in reference to their
common intention to kill the deceased. None of the evidence adduced by
the prosecution, would come within the parameters of admissible item             F
of evidence. (797-C, D, E)

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 531
of 2004.

     From the Judgment and Order dated 10.4.2004 of the Additional Judge,        O
Designated Court, District Jail, Nabha, District Patiala at Punjab in S.C. No.
1-T of 30.5.98.

                                   WITH

     Crl. A. No. 577 of 2004.                                                    H
    786                   SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A         Sushil Kumar, Adolf Mathew, R.P. Wadhwani, Vinay Arora and Sanjay
    Jain for the Appellants.

          P.P. Malhotra, Additional Solicitor General, Sudhir Walia, Addi.
    Advocate General for State, Ms. Naresh Bakshi, Ajit Bhasme, Rajeev
    Sharma, Vineet Malhotra, S. Sharma, B.V. Bairam Das and P. Parmeswaran
B   for the Respondents.

          The Judgment of the Court was delivered by

           K.G. BALAKRISHNAN, J. : The appellants in these two appeals were
    tried by the Designated Court, Patiala, for various offences such as punishable
c   under Section 120-B, 302, 307, 394 IPC; Section 25 of the Arms Act; and
    Sectioils 3(1), 3(2) & 3(3) of the Terrorist & Disruptive Activities (Prevention)
    Act, 1987 [for short, 'the TADA Act']. Along with these two appellants, one
    Balwinder Singh @ Fauji @ Pradhan was shown as the third accused, but
    he was absconding and was declared as a proclaimed offender, not available
D   for trial. The appellants were found guilty by the Designated Court for the
    offences punishable under Section l 20B read with Section 302 IPC and also
    under Section 3(3) of the TADA Act. Both of them were sentenced to
    undergo imprisonment for life and to pay a fine of Rs. 3,000 with default
    sentence for six months, for the offence under Section 120-B read with
    Section 302 IPC. For the offence under Section 3(3) of the TADA Act, they
E
    were sentenced to undergo imprisonment for a· period of five years each and
    to pay a fine of Rs. 2,000 with the default sentence of six months. The
    allegation against these appellants was that they entered into a conspiracy
    with Balwirider Singh to murder Dr. Megh Raj Goel on 6.2.1992 at about
     10 'P.M .. Balwinder Singh shot at Dr. Megh Raj Goel and caused him fatal
F   injuries. Dr. Megh Raj Goel died at 6.25 A.M. on 7.2.1992.

           According to the prosecution, Dr. Megh Raj Goyal, with his wife Dr.
     Suman Rani Goel, was running a Psychiatric hospital in Patiala. Both of them
     had completed their education in psychiatry in England and returned to India
G   'in 1989. They starte~ Goyal Psychiatric Hosp;tal at 34, Punjabi Bagh in
     Patiala and later shifted to 85, Punjabi Bagh in May, 1991. Appellant in
     Criminal Appeal No. 577, Dr. Surinder Singh Sandhu was already running
     "Sandhu Nursing Home" in Psychiatry since 1973 and he had almost
     established a monopoly in the field of treatment of psychiatric patients. When
     deceased Dr. Megh Raj Goel and his wife started their hospital, it gained
H    popularity, and according to the prosecution, Dr. Surinder Singh Sandhu was
    H. S. SOHAL v. STATE OF PUNJAB THROUGH CBI [BALAKRISHNAN, J] 787
                                                 0

adversely affected. The prosecution alleged that the number of patients who      A
were being treated in Sandhu Nursing Home gradually declined whereas
there was a steep increase in the number of patients that received treatment
in the hospital of the deceased, Dr. Megh Raj Goel. The prosecution further
alleged that appellant, Dr. Surinder Singh Sandhu met Dr. Hardeep Singh
Sohal, the appellant in Criminal Appeal No. 531 of 2004, and together they       B
hatched a conspiracy and decided to do away with Dr. Megh Raj Goel. Dr.
Hardeep Singh Sohal secured the presence of one Balwinder Singh @ Fauji
with the assistance of Miss Sawinder Kaur, a staff nurse working in the
Rajindra Hospital, Patiala. The appellant agreed to pay Rs. 2 lacs to
Balwinder Singh and a sum of Rs. 50,000 was.paid as initial payment. On
6.2.1992, Balwinder Singh came to Patiala and saw a Maruti car bearing           C
registration No. PCH 8008 parked near hotel Greens. The owner of the car
Surinder Kumar Bajaj was sitting in the car. Balwinder Singh came near the
car and fired a shot ·from his revolver at Surinder Kumar Bajaj through the
window of the car causing injury on his right thigh. Balwinder Singh then
quickly got into the car and occupied the left front seat of the car and at      D
revolver point forced Surinder Kumar Bajaj to drive the vehicle towards
Goyal Psychiatric Hospital. They came near that hospital around 10 P.M. and
saw Dr. Megh Raj Goel and his wife Dr. Suman Rani Goyal, who had gone
for a stroll, coming towards their hospital. At that point, Balwinder Singh
fired two shots from his revol~er at Dr. MegJ;i Raj Goel. Dr. Goel fell on the
ground and in that commotion Surinder Kumar Bajaj managed to run away            E
from that place leaving his car there. Balwinder Singh then escaped in that
car and later the car was found abandoned near the T.B. Hospital. Injured
Megh Raj Goel was immediately taken by his wife to the Surgical Centre,
 Model Town, Patiala and from there to Rajindra Hospital, Patiala. Dr. Megh
 Raj Goel was operated upon by a team of doctors there, but they could not       F
 save his life and he was declared dead at 6.25 A.M. on 7.2.1992:

      Based on the information given by Dr. Suman Rani Goel, the police
registered a case under Section 307 read with Section 34 IPC and Sectbn
25 of the Arms Act. Subsequently, offences under Section 382, 302 IPC and
Section 4 and 5 of the TADA Act, 1987 were added. Balwinder Singh was            G
arrested by Inspector Gurnam Singh, SHO Police Station Civil Lines, Patiala
on 8.4.1992 at about 7.30 P.M. in connection with a case registered against
him under Section 302 and 382 IPC and Section 25 of the Arms Act. A point
thirty two bore country-made revolver with six live cartridges were recovered
from him. On interrogation, Balwinder Singh made a voluntary confession          H
    788                  SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A   and admitted having committed the murder of Dr. Megh Raj Goel. Section
    4 and section 5 of the TADA Act were added to the case registered earlier
    and the District Suptd. of Police City Patiala, Shri Ajaib Singh recorded the
    confessional statement of Balwinder Singh under Section 15 of the TADA
    Act, 1987. Balwinder Singh was remanded to police custody from time to
    time ~nd according t9'prosecution on 3.5.1993 Balwinder Singh was taken
B
    on 'rnmsit remand to District Sangrur in connection with another case and
    there he escaped from the police custody on 5.5.1993 while being taken for
    effecting recove·ry of arms and ammunition, for which a case had been
    registered against him at Police Station Bhawanigarh in District Sangrur. The
    prosecution would further contend that Balwinder Singh could not be traced
c   and he was declared a proclaimed offender by an order passed by the Judicial
    Magistrate First Class, Patiala, on 24. l O_. 1994. Based on the confessional
    statement of Balwinder Singh, the present appellants Dr. Hardeep Singh
    Sohal and Dr. Surinder Singh Sandhu were arrested by police on 19 .4.1993
    and the investigation continued. In the meantime, Dr: Suman Rani Goyal,
    wife of deceased Dr. Meghraj Goyal, filed a writ petition before the High
D
    Court of Punjab & Haryana alleging that police were not vigilant in
    investigating the case and she prayed for investigation being done by the
    Central Bureau oflnvestigation. In pursuance of the order passed by the High
    Court of Punjab & Haryana on 9.7.1996, the investigation of the case was
    entrusted to the C.B.I. and they conducted the further investigation. After
E   completion of the investigation~ the C.B.I. submitted the charge sheet. On the
    side of the prosecution PW-1 to PW-4 7 were examined. Appellant Surinder
    Singh Sandhu, when questioned under Section 313 Cr.P.C., alleged that he
    had been falsely implicated. He stated that he .had secured MBBS Degree
    from the Punjab University and D.P.M. from Ranchi University and that he
    had put in 43 years of experience as a Psychiatrist and had worked in various
F
    hospitals. He also stated that his professional income from 1986 to 1992 had
     been constantly increasing. Hardeep Singh Sohal, the appellant in Criminal
     Appeal No. 531 of 2004, when questioned under Section 313 Cr.P.C.,
    deposed that he is an Orthopaedic Surgeon and he was Head of Orthopaedics
    Department, Govt. Medical College, Rajindra Hospital, Patiala. He stated that
G   he had had a brilliant academic career and served in different medical
    colleges in Punjab. He also deposed that his son Harmandeep Singh was
    killed by the police while he was travelling in a car along with other members
    of the family. He stated that the police had fired from behind and hit on tht:
    head of his son, who died on the spot. He further stated that he had raised
H   a hue and cry regarding the cold-blooded murder of his son and the senior
    H. S. SOHAL v. STATE OF PUNJAB THROUGH CBI [BALAKRISHNAN. J] 789

police officers assured that action would be taken against the guilty persons,   A
but it is on account of this that the police had become inimical towards him.
He denied having any connection with Balwinder Singh and stated that he
did not know Miss Sawinder Kaur. He also stated that he had no social or
professional dealings with the other appellant, Dr. Surinder Singh Sandhu.

     On the side of the defence, DW-1 and DW-2 were examined.
                                                                                 B

      The fact that Dr. Megh Raj Goyal died of bullet injuries at 6.25 A.M.
on 7 .2.1992 is not disputed. The Special Judge found the present appellants
guilty of murder on the basis of the evidence of confession of Balwinder
Singh @ Fauji recorded by PW-34 Sham Lal Gakhar. Apart from this                 C
confession, there is no other reliable evidence either to prove conspiracy by
the appellants or their involvement in the crime. To prove the conspiracy,
the prosecution relied on the testimony of PW-32 Sawinder Kaur. PW-32 is
a staff nurse in the Rajindera hospital at Patiala. Appellant Dr. Sohal was an
Orthopaedics doctor in that hospital. PW-32 deposed that Dr. Sohal requested     D
her whether Balwinder Singh could be asked to meet him within two-three
days. PW-32 and Balwinder Singh thereafter went to the house of Dr. Sohal.
She further deposed that Dr. Soha'. had some discussion with Balwinder
Singh and at that time she was with the wife of Dr. Sohal whom she knew
previously. PW-32 also deposed that at that time one more person was present
in the house along with Dr. Sohal and she later identified him to be the other   E
appellant, Dr. Sandhu. She also said that when Balwinder Singh left the
house, he was holding a small·packet with him. PW-32 further Jeposed that
Balwinder Singh met her later and when she asked him as to what work he
had with Dr. Sohal, he replied that Dr. Sohal wanted to kill a person and that
Balwinder Singh had done so and that Dr. Sohal had paid Rupees fifty             F
thousand to him and he wanted to get the balance. PW-32 also deposed that
she was astonished to hear about this incident and she came to know that Dr.
Megh Raj Goyal had been murdered. PW-42 is another witness who spoke
about the extra judicial confession of Balwinder Singh. PW-42 is the wife
of deceased Megh Raj Goyal. She deposed that in April, 1993 she received
a telephonic call from one of her relatives who told her that the police had     G
apprehended a person who had confessed to have murdered Dr. Megh Raj
Goyal. PW-42 went to the police station where she saw a person in handcuffs.
PW-42 told the Inspector Gumam Singh that he was the same person who
had shot her husband. She asked Balwinder Singh what was the reason for
killing her husband. To that Balwinder had replied that it was a job assigned    H
    790                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   to him by Dr. Sohal and he also .stated that PW-32 Sawinder Kaur was
    working as a nurse in the Rajindera hospital where Dr. Sohal was working
    and that he had received the message from Dr. Sohal through PW-32 and
    thereafter met Dr. Sohal, who told him that after the arrival of Dr. Megh Raj
    Goyal at Patiala, the practice of Dr. Sandhu was badly affected and, therefore,
    he wanted to do away with Dr. Megh Raj Goyal and that Rupees two lakhs
B   was demanded by Balwinder Singh out of which Rupees fifty thousand was
    paid and the balance was to be Pctid after the commission of the murder.

          The extra-judicial confession allegedly made by Balwinder Singh can
    only be considered under Section 30 of the Indian Evidence Act, 1872. The
c   extra-judicial confession cannot be admitted in evidence as Balwinder Singh
    was not tried along with the appellants. It is interesting to note that though
    a charge-sheet was filed against Balwinder Singh, in the judgment he is
    shown as a proclaimed offender. According to the prosecution, Balwinder
    Singh was arrested on 18.4.1993. PW-45 Gumam Singh, who was the Station
    House officer of the police station civil lines, Patiala, along with a Sub-
D
    Inspector and three Constables was on patrol duty near N.I.S. chowk, Patiala
    on 18.4.1993. They came to know that one taxi driver who had committed
    various crimes had been roaming in the city in a vehicle without registration
    number. In the meanwhile, one maruti car without registration number came
    and the same was intercepted and its driver was taken into custody. He was
E   in possession of a point thirty two bore revolver loaded with five live
    cartridges. He told them that his name was Balwinder Singh. According to
    the prosecution he escaped from cusfody and was later declared as a
    proclaimed offender. The counsel for the appellants contended that Balwinder
    Singh was killed in a fake encounter by the police, for which a criminal case
F   also is filed against some of the police officers. In any case, Balwinder was
    never tried along with the present appellants. The extra-judicial confession
    made by Balwinder Singh could have been taken into consideration only
    when he was tried along with the present appellants.

          The other item of evidence relied upon by the Special Jµdge is the
G   confession ofBalwinder Singh recorded by PW-34 Sham Lal Gakhar, an IPS
    officer, who was the then Superintendent of Police, Patiala. He deposed that
    on 18.4.1993 while he was on patrol duty, PW-45 Gumam Singh met him
    and told that they had apprehended one Balwinder Singh with a point thirty
    two bore revolver and on his interrogation he had told about h°is involvement
H   in various crimes, including the murder of Dr. Megh Raj Goyal. Balwinder
         H. S. SOHAL v. STATE OF PUNJAB THROUGH CBI [BALAKRISHNAN, J) 79 l

     Singh was produced before PW-34 and he recorded the confession of                  A
     Balwinder Singh. The confession of Balwinder Singh so recorded was
     marked as Exh. PAA. In the confession statement, Balwinder has given the
     details of his involvement in the crime.

          The counsel for the appellants strongly urged before us that the              B
     confession allegedly made by Balwinder Singh under Section 15 of the
     TADA Act is inadmissible in evidence. It was also contended that the same
     was recorded in complete defiance of the provisions of TADA Act and the
     Rules framed thereunder and that mandatory provisions have not been
     followed. Therefore, the confession statement is to be completely eschewed
     from consideration.                                                                C

           Before considering the admissibility of the confession, it is relevant to
     note the various provisions of the TADA Act. Previously, under Section 21
     of the TADA Act,' a presumption could be drawn as to the commission of
     offence on the accused based on the confession made by the co-accused.             D
     Section 21 of the TADA Act, prior to 1993, was to the following
     effect :

              "21. Presumption as to offences under Section 3-( 1) In a prosecution
              for an offence under sub-section (1) of Section 3, if it is proved-
                                                                                        E
              (a)   that the arms or explosives or any other substances specified
                    in Section 3 were recovered from the possession of the accused
                    and there is reason to believe that such arms or explosives or
                    other substances of a similar nature, were used jn the commission
                    of such offence; or
                                                                                        F
              (b)   that by the evidence of an expert the fingerprints of the accused
                    were found at the site of the offence or on anything including
                    arms and vehicles used in connection with the commission of
                    such offence; or
..                                                                                      G
              (c)   that a confession has been made by a co-accused that the
                    accused had committed the offence; or

              (d)   that the accused had made a confession of the offence to any
"
                    person other than a police officer,                                 H
    792                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A           the Designated Court shall presume, unless the contrary is proved,
            that the accused had committed such offence."

          By Act No. 43of1993, clause (c) of Section 21 of the TADA Act was
    deleted and original Section 15 of the TADA Act also was amended by the
    very same Act, i.e. Act No. 43 of 1993. Original sub-section (1) of Section
B   15 of the TADA Act was as follows :

            "15. Certain confessions made to police officers to be taken in
            consideration-( 1) Notwithstanding anything in the Code or in the
            Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions
c           of this Section, a confession made by a person before a police officer
            not lower in rank than a Superintendent of Police and recorded by
            such police officer either in writing or on any mechanical device like
            cassettes, tapes or soundtracks from out of which sounds or images
            can be reproduced, shall be admissible in the trial of such person
            for an offence under this Act or rules made thereunder :
D
         As aforesaid, by Act No. 43 of 1993, it was amended and the amended
    provision is as follows :

            "15. Certain confessions made to police officers to be taken in
            consideration-(!) Notwithstanding anything in the Code or in the
E
            Indian Evidence Act, 1872 (I of 1872), but subject to the provisions
            of this Section, a confession made by a person before a police officer
            not lower in rank than a Superintendent of Police and recorded by.
            such police officer either in writing or on any mechanical device like
            cassettes, tapes or soundtracks from out of which sounds or images
F           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 :

                  Provided that co-accused, abettor or conspirator is charged and
            tried in the same case -together with the accused.
G
            (2) The police officer shall, before recording any confession under
            sub-section( 1), explain to the person making it that he is not bound
            to make a confession and that, if he does so, it may be used as
            evidence against him and such police officer shall not record any
H           such confession unless upon questioning the person making it, he
     H. S. SOHAL v. ST ATE OF PUNJAB THROUGH CBI [BALAKRISHNAN, J1 793

          has reason to believe that it is being made voluntarily."                  A

        A perusal of these provisions would show that by Act No. 43 of 1993,
  certain serious changes have been made in the matter of admissibility of
  confession made by a co-accused. Prior to the Amendment Act 43 of 1993,
  if a confession had been made by a co-accused that he had committed the
  offence, the Designated Court could draw a presumption that the accused had
                                                                                     B
  committed such offence, unless the contrary was proved. This provision was
  completely taken away and instead of that the confession of a
  co-accused recorded under Section 15 of the TADA Act was made admissible
  subject to certain conditions. One major change that was brought into effect
  was that such confession recorded under Section 15 of the TADA Act by a            c
  co-accused could be made use of against that accused provided the co-
  accused is charged and tried in the same case together with the accused. The
  scope and ambit of the confession recorded under Section 15 of the TADA
  Act was considered elaborately by a 3-Judge Bench of this Court in State
  v. Nalini, [ 1999] 5 SCC 253. The majority decision in that case was that the
                                                                                     D
  confession recorded under Section 15 of TADA Act is a substantive evidence,
  although Thomas, J., relying on the earlier decision of this Court in Kalpnath
  Rai v. State (Through CBI), [ 1997] 8 SCC 732 held that even if confession
. of an accused is admissible under Section 15 of TADA Act, it is not a
  substantive piece of evidence and cannot be used against a co-accused unless
  corroborated by other evidence. However, the majority consisting ofWadhwa          E
  and Quadri, JJ held that Section 15 of the TADA Act starts with a non
  obstante clause as it says that neither the Evidence Act nor the Code of
  Criminal Procedure will apply and this was certainly a departure from the
  ordinary law and when the legislature enacted that the Evidence Act would
  not apply, it would mean all the provisions of the Evidence Act including          F
  Section 30 and, therefore, confession recorded under Section 15 of the TADA
  Act is admissible against the co-accused as a substantive evidence. However,
  it was clarified that substantive evidence does not necessarily mean substantial
  evidence. It is the quality of the evidence that matters.

       Section 15 of the TADA Act as amended by Act 43 of 1993 clearly               G
 stipulates that the confession recorded under Section 15 of the TADA Act
 is admissible only if the confessor is charged and tried in the same case
 together with the co-accused. After the amendment of 1993, the addition of
 the words "co-accused, abettor or conspirator" and the insertion of the new
 'proviso' to the effect that "the co-accused, abettor or conspirator is charged     H
                          SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R .
                         .
A    or tried together with the accused" clearly shows that the confession could
     be considered by the court only when the co-accused who makes the
     confession is charged and tried along with other accused.

         Unfortunately, Balwinder Singh @ Fauji is alleged to have escaped
   from custody by 4th or 5th of May; 1993 and the charge itself was framed
B by the court later and Balwinder Singh was treated as a proclaimed offender
   by the Special Judge. The Special Judge relied on the decision reported in
   Esher Singh v. State of Andhra Pradesh, [2004] AIR SCW 1665 and held
   th!t merely because one accused died before charges were framed, that does
   not affect the confessional statement. The learned judge was also of the view
c  that by operation of Section 30 of the Indian Evidence Act, the confession
   of the co-accused could be made use of. The stand taken by the Special Judge
   is incorrect. We do not think that Esher Singh 's case (supra) lay~ down the
 • law that a confession recorded under Section 15 could be made use of as
   admissible evidence even if the co-accused, who made the confession was
   not charged or tried along with other accused. On the other hand, the decision
D clearly states that after the amendment, the designated court could use the
   confession of one accused against another accused only if the following two
   conditions are fulfilled :                      ·

              (I)   The co-accused should have been charged in the same case
E                   along with the confessor.


                                                                    .
              (2) · He should have been tried togethe{" with the confessor in the
                    same case.

           Another important contention urged by the appellant's counsel is that
F     PW-34, while recording the confession violated the mandatory provisions
      regarding the manner in which the confession is to be recorded. Under
      Section 28 of the TADA Act, Terrorist and Disruptive Activities (Prevention)
      Rules, 1987 are made. Rule 15 regarding recording of confession made to
     ·police officers reads as under :

G             "15. Recording of confession made to police officers-(1) A
              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
H             for official purposes or in the language of the Designated Court and
H. S. SOHAL v. STATE OF PUNJAB THROUGH CBI [BALAKRISHNAN, J] 795

    it shall form part of the record.                                        A
    (2) The confessions 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 or add
    to his confession.                                                       B

    (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
                                                                             c
    that such confession was taken in his presence and recorded by him
    and that the record contains a full and true account of the confession
    made by the person and such police officer shall make a memorandum
    at the end of the confession to the following effect:
                                                                             D
    "I have explained to (name) that he is not bound to make a
    confession and that, ifhe does so, any confession he may make may
    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   E
    of the statement made by him."

    (4) Where the co~fession is recorded on any mechanical device, the
    memorandum referred to in sub-rule (3) insofar as it is applicable
    and a declaration made by the person making                              F
    the confession that the said confession recorded on the
    mechanical device has been correctly 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 St:ction 15 shall be sent   G
    forthwith to the Chief Metropolitan Magistrate or the Chief Judicial
    Magistrate having jurisdiction over the area in which such 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."                                              H
    796                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A          The constitutional validity of Section 15 of the TADA Act was
    challenged. A Constitution Bench of this Court in Kartar Singh v. State of
    Punjab, [1994] 3 SCC 569 upheld the constitutional validity of the said
    provision. The contention urged in Kartar Singh 's case (supra) was tbat the
    procedure in the TADA Act is the antithesis of a just, fair and reasonable
    procedure and this power could be abused to extort confession by unlawful
B   means by using third-degree methods. This plea was rejectet\ on the ground
    that. sufficient safeguards have been made in the rules as to the manner in
    which the confession is to be recorded. Rule 15 extracted above would show
    that confession shall be in writing and signed by the person who makes the
    confession. The police officer shall also certify under his own hand that such
c   confession was taken in his presence and recorded by him and that the record
    contains a full and true account of the confession made by the person and
    such police officer shall make a memorandum at the end of the confession
    and the proforma of such certificate also is appended to Rule 15.

          Exh. PAA does not contain such a certificate having been given by PW-
D
    34. It is true that PW-34 had put certain questions to the accused as to whether
    he was aware that the statement which he wants to make could be used against
    him and on the basis of the same he will be sentenced. The officer also asked
    him whether there is any pressure, fear on him and he answered in the
    negative. However PW-34 did not give the certificate at the end of the
E   confession. The certificate should have specifically stated that he had
    explained to the person making the confession that he was not bound to make
    the confession and if he does so, the confession he may make may be used
    against him and that he believed that this confession was voluntarily made
    and it was taken in his presence and recorded by him and was read over to
F   the person making it and admitted by him to be correct, and it contained a
    full and true account of the statement made by him.

          This Court has in a serie$ of decisions deprecated the practice of non-
    observance of this provision and held that such violation would be inadmissible.
    In Bharatbhai@Jimi Premchandbhai v. State ofGujarat, [2002] 8 SCC 447,
G   this Court held that Rule 15(3)(b) of the TADA Rules was not complied with
    and no memorandum as required was inade. There was also no
    contemporaneous record to show the satisfaction of the recording officer after
    writing of confession that the confession was voluntarily made or read over
    to the accustd. Thus, the confessional statement was inadmissible and cannot
H   be made the basis for upholding the conviction.
    H. S. SOHAL v. STATE OF PUNJAB THROUGH CBI [BALAKRISHNAN, J] 797

      In S.N Dube v. NB. Bhoir, [2000] 2 SCC 254, this Court held that            A
writing the certificate and making the memorandum under Rule 15(3)(b) to
prove that the accused was explained that he was not bound to make a
confession and that if he made it, it could be used against him as evidence;
that the confession was voluntary and that it was taken down by the police
officer fully and correctly are all matters not left to be proved by oral
                                                                                  B
evidence.

     In any view of the matter, Exh. PAA confession made by Balwinder
Singh to PW-34 is inadmissible in law and cannot be used against the
appellants. So also, the extra-judicial confessions allegedly made to PW-32
and PW-42 suffer from the same infirmity.                                         c
      In our opinion, the Special Judge seriously erred in admitting the
confession as an item of evidence against the appellants. Apart from the
evidence of the confession, the prosecution attempted to prove the motive
of these appellants to do away with Dr. Megh Raj Goyal. But motive by itself
is not sufficient to prove the guilt of the accused. The prosecution could not    D
lay its hands on any item of evidence that may come under Section 10 of
the Evidence Act, i.e. anything having been said, done or written by any of
the appellants in reference to their common intention to kill Dr. Megh Raj
Goyal. Though voluminous evidence was adduced by the prosecution, there
is none which would come within the parameters of admissible item of              E
evidence.

      This is an unfortunate case where a young doctor was killed. As
Balwinder Singh could not be jointly tried with the appellants, the entire
evidence of confession recorded under Section 15 and the extra-judicial
confessions have become inadmissible and in the absence of any other              F
reliable evidence the appellants are only to be acquitted of the charges framed
against them. In the result, these appeals are allowed. The appellant~ are
acquitted of all the charges framed against them and directed to be released
forthwith, if not required in any other case.
                                                                                  G
K.K.T.                                                      Appeals allowed.