Holding

The Court held that the confessional statements were voluntary and admissible, that an agreement suffices for conviction of criminal conspiracy involving serious offences, and that the death sentences were unwarranted, being commuted to life imprisonment with a 20‑year term and no remission.

Summary

The case involved nine accused who conspired to kidnap foreign nationals in India to demand the release of jailed militants. The main conspirator, Umar Sheikh, escaped after an exchange of hijacked‑plane passengers, while six co‑accused were convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Indian Penal Code and the Foreigners Act. The appellants challenged the admissibility of their confessional statements recorded under Section 15 of TADA, the requirement of an overt act for conspiracy under Section 120B IPC, and the imposition of death sentences under Section 3(2)(i) of TADA. The Supreme Court held that the confessions were voluntary and admissible, that proof of an agreement suffices for conviction of criminal conspiracy involving serious offences, and that the deaths of two police officers were not linked to the accused’s conspiracy, making the death penalty unwarranted. Consequently, the death sentences were commuted to life imprisonment with a fixed term of 20 years for each of the six convicted, with no remission. The appeal was allowed and the death reference disposed of.

Issues considered

The admissibility and voluntariness of confessional statements recorded under Section 15 of the TADA Act.
Whether proof of an agreement alone is sufficient to convict under Section 120B IPC without an overt act.
Whether Section 3(2)(i) of the TADA Act applies, justifying the death penalty, given the deaths of two police officials.
Whether the sentencing (death versus life) is proportionate to the culpability of the accused.
Whether the absence of hostages' testimony defeats the prosecution’s case.

Legislation cited

Code of Criminal Procedure, 1973s. 14
Foreigners Act, 1946s. 14
Indian Evidence Act, 1872s. 24, s. 25, s. 27
Indian Penal Code, 1860s. 120B, s. 121A, s. 122, s. 124A, s. 364, s. 364A
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3, s. 3(2)(i), s. 3(2)(ii), s. 3(4), s. 4

Subjects

terrorismconspiracyTADA Actvoluntary confessiondeath penaltykidnappingforeign nationalssentencingcriminal conspiracyevidence admissibility

Judgment

A NAZIR KHAN AND ORS.
v.
STATE OF DELHI

AUGUST 22, 2003

B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Terrorist and Disruptive Activities (Prevention) Act, 1987; Ss. 3 and 41
Pef!al Code, 1860-Ss. 121A, 122, 124A rlw Section 120(B) and 364A/
C Foreigners Act, 1946--Section 14:
Charges under TADA Act, Penal Code and Foreigners Act-Trial of
nine accused persons by TADA Court-Main accused allowed to leave the
country by Government of India in exchange of passengers of a hijacked
aeroplane--Court found six of the accused guilty of having committed various
offences-Convicted three ofthem to suffer death sentence, other three awarded
D life sentence and remaining two acquitted-On appeal, Held: when serious
crimes as contemplated in Section I208 lPC rlw proviso to Section I 20(A)
(2) /PC have been committed, mere proof of an agreement between the
accused for commission of the crime is enough for conviction-Proof of overt
act not necessary-Terrorists escaping from their hideout-Exchange of
E firing-Killing of two police officials and a terrorist was an independent
act-Section 3(2)(i) of TADA Act not attracted since accused were not
allegedly involved or. conspired in the killing of two police officials-
Imposition of death sentence not warranted-However, on consideration of
gravity of the offence, the dastardly nature of the crime and consequences
therefrom, incarceration of all the six accused persons for a period of 20
F years would be appropriate-Not entitled to any remission in sentence-
Evidence Act, 1872-Sections 25 and 27-Code of Criminal Procedure,
1973; Section 14-Sentencing.
Evidence Act, 1872:
Confessional statement-Admissibility under TADA Act vis-a-vis
G Evidence Act-Distinction between-Discussed.

Words and Phrases:
'Voluntary confession '-Meaning of
According to the prosecution, nine accused persons including some
H 884
NAZIR KHAN v. STATE OF DELHI 885
foreigners belonging to militant organizations, hatched a conspiracy to kidnap A
foreign nationals in India with the object to pressurize Indian Government to
release some dreaded militants confined in jails. In execution thereof, they
kidnapped some foreigners and kept them in hideouts and sent demand letters
to British Embassy, American Embassy and the Government of India for release
of hardcore terrorists from jails in exchange of kidnapped foreigners. Police B
in a routine check up around the city of Ghaziabad became suspicious of a
person who had jumped from a house and ran away; they entered the house
and found therein one of the kidnapped foreigners. An FIR was lodged under
the provisions oflPC and TADA Act.

On the basis of information disclosed, Police arrested some terrorists/
accused and surrounded the house where other kidnapped foreigners were C
kept as hostages. Some of the terrorists, however, managed to escape; one
terrorist was killed and two police officials died during the operation. However,
the foreign nationals were released and the accused/terrorists arrested.

In the meanwhile, other militants hijacked an Indian Airlines
passengers Plane, manipulated apd got released some hardcore militants D
including the main accused in exF11ange of passengers in the hijacked plane.

The Designated Court, in the absence of the main accused, found six
accused/militants guilty of committing offences punishable under Sections
364, 121A, 122, 124A r/w Section 120B IPC; Sections 3 and 4 of the Terrorist
and Disruptive Activities (Prevention) Act; and Section 14 of the Foreigners E
Act and sentenced them. However, it acquitted the remaining two accused.
Hence the present appeal by the convicts.

It was contended for the appellants that the statement of the accusec'. as
recorded by the Police officials were not voluntary statements since made
under coercion/threat/undue influence; that their statements did not establish F
offences for which they had been convicted; that ~ince the ingredients of
Section 3(2)(i) of the TADA Act were non-existent, the conviction under them
was unfounded; that the High Court awarding death sentence to some of the
accused and life imprisonment to remaining accused persons for committing
similar offences, could not be countenanced; and that statements of the G
kidnapped foreign nationals who had not appeared as witnesses could not be
utilized by the Court.

On behalf of the respondent-State, it was submitted that there had been
no retraction by the accused from their confessional statements; that the
statements were voluntary; that the recovery of arms/ammunition provides H
886 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A ample substantiation to the confession made; that the plea that accused were
unaware of the decisions of the main conspirator was of no consequence since
the object and purpose of the conspiracy was clear and the manner of
organizing the activities to achieve the objective has been established; and
that merely because foreign nationals who were made hostages could not appear
at trial due to unavoidable circumstances that does not weaken the quality of
B evidence available on record.

Disposing of the death reference and appeal, the Court

HELD: 1.1. The essence of criminal conspiracy is an agreement to do
an illegal act and such an agreement can be proved either by direct evidence
C or by circumstantial evidence or by both, and it is a matter of common
experience that direct evidence to pr:ove conspiracy is rarely available.
Therefore, the circumstancesrproved before, during and after the occurrence
have to be considered to de,ide about the complicity of the accused. It is not
always possible to give affirrhative evidence about the date of the formation of
D criminal conspiracy, about the persons who took part in the formation thereof,
about the object, which the objectors set before themselves as the object of
conspiracy, and about the manner in which the object of conspiracy is to be
carried out, all this is necessarily a matter of inference. (899-D; 900-C-D)

Bhagwan Swarup Lal Blshan Lal etc. etc. v. State of Maharashtra, AIR
E (1965) SC 652, referred to. ·

Halsbury's Laws ofEngland, 4th Edn. Vol.11, (Pp.44, 58)- referred to.

1.2. The provisions of Section 120-A and 120-B IPC have brought the
law of conspiracy in India in line with the English Law by making the overt
F act unessential when the conspiracy is to commit any punishable offence.
(900-D)
Regina v. Murphy, (1837) 173 ER 502, referred to.
Russell on Crime (12th Edn. Vol.I, P.202); "Criminal Law" by Glanville
Williams (Second Ed.P.382), referred to.
G
1.3. The essential ingredient of the offence of cri~inal conspiracy is
the agreement to commit an offence. In a case where the agreement is for
accomplishment of an act which by itself constitutes an offence, then in that
event no overt act is necessary to be proved by the prosecution. Where the
conspiracy alleged is with regard to commission of a serious crime of the
H nature as contemplated in Section 120B IPC read with the proviso to sub-
NAZIR KHAN v. STATE OF DELHI 887
section (2) of Section 120A IPC, then in that event mere proof of an agreement A
between the accused for commission of such a crime alone is enough to bring
about a conviction under Section 1208 and the proof of any overt act by the
accused or by any one of them would not be necessary. (901-E, F)
E.K. Chandrasenan v. State ofKera/a, AIR (1995) SC 1066; Kehar Singh
and Ors. v. The State (Delhi Administration), AIR (1988) SC 1883; Ajay B
Agarwal v. Union ofIndia and Ors., JT (1993) 3 SC 203; B.G. Barsay v. State
of Bombay; Yash Pal Mittal v. State of Punjab, [1977) 4 SCC 540 and
Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of
Maharashtra [1981) i SCC 443, relied on.
1.4. The legislature has set different standards of admissibility of l1 C
confessional statement made by an accused under TADA Act from those made
in other criminal proceedings. A confessional statement recorded by.a police
officer not below the rank of Superintendent of Police under Section 15 of
TADA Act is admissible, while it is not so admissible unless made to a
Magistrate under Section 25 of the Evidence Act. [904-E, F)
Sahib Singh v. State of Haryana [1997) 7 SCC 231 and Gurdeep Singh D
v. State (Delhi Administration), (2000) 1 SCC 498, relied on.
1.5. There is one common feature, both in Section 15 of TADA Act and
Section 24 of the Evidence Act that the confession has to be voluntary. Section
24 of the Evidence Act interdicts a confession, if it appears to the Court to be
the result of any inducement, threat or promise in certain conditions. The E
principle therein is that confession must be voluntary. Section 15 of TADA
Act also requires the confession to be voluntary. Voluntary means that one
who makes it out of his own free will inspired by the sound of his own
conscience to speak nothing but the truth. The crux of making a statement
voluntarily is, what is intentional, intended, unimpelled by other influences, F
acting on one's own will, through his own conscience. Such confessional
statements are made mostly out of a thirst to speak the truth which at a given
time predominates in the heart of the confessor which impels him to speak
out the truth. Internal compulsion of the conscience to speak out the truth
normally emerges when one is in despondency or in a perilous situation when

.. ht wants to shed his cloak of guilt and nothing but disclosing the truth would G
dawn on him. It sometimes becomes so powerful that he is ready to face all
consequences for clearing his heart. [904-G, H; 905-A, H; 906-A)
Stroud's Judicial Dictionary, 5th Edn. p.2633; Words and Phrases,
permanent edition, Vo/.44, p. 622; and Words and Phrases by John B.
Saunders, 3rd edition, Vol.4, p.401, referred to. H
888 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A 1.6. The trial Court was justified in its conclusions by holding the
accused appellants guilty. The accused was a participant in a big game planned,
he cannot take the advantage of being ignorant about the finer details applied
to give effect to the conspiracy hatched. The factual scenario described by the
co-accused in the statements recorded under Section 15 of the TADA Act shows
B their deep involvement in the meticulous planning done by the main accused.
The object and the purpos~ for which the conspiracy was hatched is clear
from the fact that messages were sent to Embassies, Government officials,
high dignitaries and the medias indicating the nature of the ransom, and the
consequences ifthe demanded ransom was not fulfilled. The circumstances
clearly show the role played by each of the accused in the conspiracy.
C (907-H; 908-A, D, E)

State v. Nalini [1999) 5 SCC 253; Gurdeep Singh v. State (Delhi Admn.)
[2000) 1 SCC 498; Devender Pal Singh v. State of NCT of Delhi and Anr.,
(2002) 5 SCC 234 and Mohd Khalid v. State of West Bengal (2002) 7 SCC
334, relied on.
D
Principle and Digest of Law of Evidence, Vol. I, New Edn. By Justice
M Monir, referred to.

1.7. Confessional statement of A2 shows how he got acquainted with
bigger players/accused persons. His presence has also been established by
E confessional statement. The officials of the requisite rank had recorded the
confessional statements after meticulously following the procedural
requirements of the TADA Act and TADA Rules, 1987. It cannot be said that
the statement was not voluntary since there was no retraction at any point of
time and particularly, when they were brought before the concerned Magis~ratc
F .for confirmation of the fact that the statement had been recorded by the police
officials. (908-B, C, DJ

1.8. In the facts and circumstances of the case, the offences punishable
under Sections 121A, 122, 124A are clearly established and sufficiently and
properly stand substantiated, on the overwhelming materials available on
G record. However, except the killing of two police officials, no other death has
resulted. The ransom letters and the threats had not resulted in any death. •
Further, the direct involvement of the present accused appellants in the killing·
of the two police officials has not been established by cogent evidence. The
deaths occurred when police surrounded the hideout and some terrorists
wanted to escape. It is not the case of the prosecution that the accused-
H appellants were inside or that they escaped during the shoot out or that any
NAZIR KHAN v. STATE OF DELHI 889
of them fired any shot or that there was any conspiracy in those regards. The A
action of those terrorists who successfully escaped by firing at the police
appears to be independent of the present conspiracy and not shown to be related
in any manner. There is nothing on record to involve or connect them with
the design, conspiracy or action for which the appellants are being now dealt
with. For the purpose of bringing in application of Section 3(2)(i) of the TADA B
Act, the terrorist act should have resulted in the death of any person. In other
cases clause (ii) operates. Sub-section (1) provides as to commission of which
acts can be considered to be a terrorist act. Her.ce, the imi.,osition of death
sentence is not at any rate a compulsion and' cannot be imposeo and only life
sentence can be imposed. No infirmity could be pointed out regarding
conviction and/or sentence for offences relatable to Section 3(4) of the TADA C
Act or Section 14 of the Foreigners Act. Accordingly, they are maintained.
(912-H; 913-A-G)

Aung Hia's case (1931) 9 Rangoon page 404, referred to.

Indian law Commission's Second Report, referred to. D
lord George Gorden's case (1784) 21 St Tr 485, 644, referred to.

1.9. The entire planning for commission of offence punishable under
Section 364A was masterminded and executed by the main accused who has
managed presently to go out of net of law. In his case, death sentence may E
have been appropriate. But in case of the co-conspirator accused appellants
similar approach is not warranted on the peculiar facts found/established.
(914-A, BJ

t.10. No distinctive feature has been indicated to impose two different
sentences i.e. death sentence for three accused persons and life sentence for F
remaining three accused persons. There was no appeal by the prosecution to
enhance the sentence in those cases where life sentence has been imposed. I(
would be appropriate to impose life sentence on all the six accused appellants.
Accordingly, conviction of Al, A3 and A8 under Section 3(1)(i) of TADA Act
is altered to Section 3(1)(ii) of TADA Act. However, their conviction under G
Sections 121A, 122 and 124 IPC and sentences imposed are maintained. The
conviction under Section 364-A read with Section 120B IPC is maintained.
However, considering the gravity of the offence and the dastardly nature of
the acts and consequences which have flown out and would have flown in
respect of the life sentence, incarceration for a period of20 years would be
appropriate. The accused appellants would not be entitled to any remission H
890 SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.

A from the imprisonment for a period of20 years. (914-B-E)
Ashok Kumar. v. Union ofIndia AIR (1991) SC 1792 and Satpal v. State
of Haryana and Anr., (1992) 4 SCC 172, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 734 of
B 2003. . ·

From the Judgment and Order dated 27.4.2002 of the Designated Court,
TADA, New Delhi, in FIR No. 658/94 in S.C. No.43 of2001.
WITH
C· · D.R. (Cr!.) No. 1/2003 and Cr!. A.No ......... D.14990/2002.
M.N. Krishnamani, Choudhary Shamsuddin Khan, Riaz Mohd, Moinuddin
Ansari, S. Pani and Debasis Misra for the Appellants.

K.K. Sud, Additional Solicitor General, Rajeev Sharma, Mrs. Anil Katiyar
D and D.S. Mahra for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Terrorists have no religion, no concept of
communal or social harmony and value for human life. Secularism, which is
E one of the great attributes of the Indian Constitution, is viewed differently by
some people. Communal harmony is not what they want. No religion propagates
terrorism or hatred. Love for all is the basic foundation on which almost all
religions are founded. Unfortunately, some fanatics who have distorted views
of religion spread messages of terror and hatred. They do not understand or
realise the"amount of damage they do to the society and as a result of these
F fanatic acts of misguided people innocent lives are lost, distrust in the minds ·
of communities replaces love and affection for others. Neighbours be!Onging
to different communities who have lived like brothers for ages start viewing
each other with suspicion and hatred. Their compassion is first replaced by
a sense of diabolic designs. The object of these misguided people - the
G , terrorists seems to be to spread a message of terror and strike fear in the
hearts of the citizens. The present case amply reflects the designs of some
people to perpetrate such acts. The temple of democracy in the country - the
Parliament - did not also escape the wrath of such people. Whoever did it,
wanted to disturb the equilibrium in the minds of the citizens. The millions
of peace loving citizens in the country are threatened to be put on a ransom
H· by a group of people.
NAZIR KHAN v. STATE OF DELHI [PASA YAT, J.] 891
The background scenario with which the case at hand is concerned A
reveals the macabre designs of a group of such people. The Kingpin of the
whole case is a person called Ahmed Umar Sayeed Sheikh (described shortly
as 'Umar Sheikh') a British national and trained militant who allegedly received
training in Afghanistan and other places.

Prosecution version as unfolded during trial which led to conviction of B
the present appellants for offences punishable under Sections 364A, 121A,
122, 124A read with Section 1208 of the Indian Penal Code, 1860 (for short
the 'IPC') and Sections 3 and 4 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short the 'TADA Act'), and Section 14 of the
Foreigners Act, 1946 (in short 'Foreigners Act') is as under: C
There were originally 9 accused persons who were tried in the Sessions
Case No.43/200 I by the learned Designated Court, TADA, New Delhi. Along
with the accused appellants three other persons faced trial. Two of them
namely, Haji Shamin and Mohd. Yamin have been acquitted. Interestingly,
before completion of ~rial, Umar Sheikh was allowed to leave the country D
along with other militants in exchange of passengers who had been made
hostages in Indian Airlines hijacked flight AI-814. In other words, the
mastennind of the whole conspiracy with which the present case is involved
escaped nets of law. The legitimacy of such action is not the subject matter
of consideration in these cases, though it has raised many eyebrows.
Interestingly this plea was raised by the appellants who submitted that they E
have become victims of unintended circumstance, while the mastennind and
kingpin has gone out mocking of the security network in the country, and
they are facing the blunt. This case does not seek to find out an answer to
such questions and therefore we are not dealing with them.

Nazir Khan (A-1 ), Abdul Rahim (A-3) and Naser Mohmood Sodozey (A-
F
8) who were Pakistani nationals have been convicted and sentenced to suffer
death sentence for offence punishable under Section 364A IPC read with
Section 1208 IPC. For the said offences, Narul Amin (A-2), Mohd. Sayeed (A~
4) and Mohmood (A-7) have been awarded life sentence. All the accused
appellants were subjected to a fine of Rs. 50,000 each under Section 364A IPC G
and in default to undergo RI for three years each. All the accused persons
were sentenced under Section 1208 read with Sections 364, and 364A IPC to
life imprisonment and each one of them was sentenced for the offence under
Sections 121A, 122 and 124A IPC and also to pay a fine of Rs. 10,000 each.
A-I, A-3 and A-8 were sentenced to death under Section 3(2)(i) of the TADA H
892 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A Act and a fine of Rs. 50,000 each. For the said offence, others were convicted
and sentenced to life imprisonment and a fine of Rs. 50,000 each. A-2 and A-
7 were sentenced to I 0 years imprisonment for harbouring and concealing the
terrorists under Section 3(4) of the TADA Act. All the six accused persons
were found guilty for the offence punishable under Sections 3(1) and 3(5) of
the TADA Act. Nazir Khan (A-1).and Naser Mohmood Sodozey (A-8) were
B also convicted under Section 14 of Jhe Foreigners Act for having entered
India without valid pennission and valid documents. They were each to
undergo 5 years rigorous imprisonment and a fine of Rs. 25,000 each. Since
the death sentence awarded to the three accused appellants is subject to
confinnation by this Court, Death Reference No. I of 2003 has been made to
C this Court.

To continue the narration of facts as presented by the prosecution,
Umar Sheikh visited sev.eral places in Pakistan and met ·Abdul Rauf and other
militants associated with Harkat-ul-Mujahiddin (in short 'HUM'). He came in
contact with other militant organizations like Jamet-e-Islamic and Al-e-Hadees.
D He was given a mission to perpetrate terrorist activities in India. He obtained
visa for India .and was given instructions to reach India and ·contact other
militants. He was advised to organize kidnapping of foreign nationals visiting
India and to pressurize Indian Government to release some dreaded militants
confined in jails oflndia. He met some people in lslamabad to get instructions.
E He came to Delhi in 1994. He was apprised of the militant network already
working and was asked to .contact Mohmood (A-7) a Mauzzin of Jama Masjid,
Delhi who was to introduce another militant named Farooque. He went to
Jama Masjid to meet Farooque. He met one Yusuf@ Sultan @ Mehboob at
Jama Masjid and was told that one Shahji was the main architect of the entire
operation.
F
Umar Sheikh was put up· in a .hotel named Ishak Guest Hous.e in Jama
Masjid Area on 27th July, 1994. Thereafter, he was.contacted by other militants
and he moved about in Delhi, Ghaziabad, Saharanpur etc. A number of hide-
outs were prepared in these areas by either purchasing properties or by taking
rooms on rent. Some of these hide-outs were in Nizamuddin, Sarai Kale Khan,
G Jama Masjid area, Suaiwalan area, Turkman Gate area of Delhi. Some other
hide-outs were at Ghaziabad and Saharanpur. Shahji arra11ged arms, ammunition
and money. Since Umar Sheikh was London born and had studied there, his
accent and command of English were used to develop .contacts with and seek
friendship with different foreigners, who were to be subsequently kidnapped.
H He did so on three occasions i.e. 29.9.1994, 16.10.1994 and 20.10.1994. A
NAZIRKHANv. STATE OF DELHI [PASAYAT,J.] 893
Maruti Van bearing registration No. DID 9016 was purchased from Karol Bagh A
by Abdul Rahim (A-3). British and American nationals were taken to the hide-
outs and were kept as hostages. However, on one occasion one foreign
national managed to escape. After these nationals were kidnapped they were
told that they have been taken as hostages and that they would face death
if they try to escape. The hide-outs were at Saharanpur, Ghaziabad where B
these persons were kept confined. It was a stroke of good luck that while on
a routine check around in Ghaziabad, police officials became suspicious and
struck gold while trying to find out as to why a person was suspiciously
running away when asked to stop. After kidnapping the four nationals their
photographs were taken by the militants and along with the photographs
demand letters were sent to British Embassy and American Embassy, and to C
various news agencies (in India and abroad), newspapers and the demand
was that the Government of India should release I 0 hard core terrorists from
jails. Copies of the demands were faxed to President, Prime Minister and other
dignitaries. Three days time was given for meeting the demands and the threat
was given that in case the demands were not met, the kidnapped foreigners
would be killed. As indicated above, it was just a fortunate and providential D
co-incidence that led the revelation of the conspiracy hatched. On 31.10.1994
a police party headed by Station Officer, Satya Dev Yadav of Police Station,
Mussourie near Ghaziabad, had gone to Nai Basti, Mussourie in connection
with the investigation of a theft case. Since they found a person running
suspiciously they entered the house from which the person had jumped out E
and ran away. They found the door bolted from inside and when nobody
responded, they broke open the door and entered the house. An American
national was found chained inside the room with a spike. He was unchained
and released and on enquiry he disclosed how he had been abducted from
Delhi. From there he was brought to the police station. His statement was
recorded and FIR under different provisions of IPC .and TADA Act was F
recorded. On the basis of his information, police officials were posted near
the house from where he had been rescued expecting that some members of
the militants organizations may visit the place being unaware of the police
action. Constables Sompal and Jagpal Singh saw three persons approaching
the house of Sufi Anwar where the captive was held. When they came near G
the house, constables challenged them and the three persons attacked the
constables by raising slogans and they wanted to kill the constables. One of
the constables was assaulted by two of them, while another constable was
over-powered by the third terrorist. One of the terrorists fired at the constable
concerned. Two of the terrorists fled away after firing and the third one was
arrested after he suffered a bullet injury. He was the main architect of the H
894 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A entire operation i.e. Umar Sheikh. Another case was registered and the police
became suspicious that what they have found out is the tip of the iceberg
and laid trap. Ultimately, the Maruti van DID 9016 was found in the possession
of Abdul Rahim (A-3) and Mohd. Sayeed (A-4). The police had become aware
of vehicle's number during interrogation of Umar Sheikh. The van was
surrounded while it was being driven by Mohd. Sayeed (A-4). He tried to run
B away while police officials !ried to apprehend him. However, the van was
stopped and accused persons were apprehended. On interrogation, all the
accused persons claimed to be the members of Harkut-ul~Ansar (in short J
'HUA') a terrorist organisation. During interrogation police learnt about
kidnapping and abduction of three British nationals who were kept as hostages
C in a house at Saharanpur. Immediately, action was taken and the house where
the three British nationals were confined was surrounded. By throwing bombs
and taking advantage of the darkness some of the terrorists managed to
escape, but one of the terrorists was killed in an encounter. Unfortunately, two
police officials sacrificed their lives while trying to combat with the terrorists.
The three British nationals were abducted from Connaught Place in Delhi and
D were found to be chained when they were rescued. They were brought to
Delhi. Arms and ammunitions of huge quantity were seized from the h.ouse
where they were confined. The Police swung into action. On interrogation, the
details of hide-outs were found out and on raiding them huge quantity of
arms and ammunitions including AK-47 rifle were seized. The names of the
E two persons involved in the operation i.e. Mohmood @Ayub (A-7) and Nasar
Mohmood (A-8) surfaced during investigation. Rest were declared proclaimed
offenders as they could not be arrested in spite of best efforts. However, three
of the proclaimed offenders were later arrested. A-2 was arrested by Assam
Police while A-7 was arrested by Jammu and Kashmir Police and A-8 was
arrested by Srinagar Police. During investigation, it came to light that not only
F the effort was of kidnapping the foreigners who had already kept as hostages,
but intention was to kidnap many more so that greater pressure cari be used
for getting release of I 0 hard core terrorists who were the members of HU A.

Since accused Umar Sheikh was released from Tihar Jail along with
other militants no charge was framed against him but charges were framed
G against rest of the accused persons under various provisions.

During investigation, the statements of the accused persons were
recorded in terms of Section 15 of the TADA Act. Though statements of
foreign nationals had been recorded under Section 164 of the Code of Criminal
H Procedure, 1973 (for short the 'Code') it was not possible to secure their
NAZIRKHANv. STATE OF DELHI [PASAYAT,J.] 895
presence as they had left India and gone back to their respective countries. A
They did not choose to come to India. However, placing reliance on the
prosecution version substciµtiated to a great extent by the confessional
statements recorded under Section 15 of the TADA Act, and amongst other
corroboration provided by recoveries of anns and ammunitions, the accused
appellants were found guilt~ and sentenced as afore-mentioned.
~I B
In support of the appeal filed by the accused appellants, Mr. M.N.
Krishnamani, learned senior counsel submitted that use of the statements
recorded under Section 15 of the TADA Act was impermissible as the
statements cannot be called voluntary statements, free from any coercion or
threat or undue influence. It was further submitted that even if the confessional C
statements are taken into account, they do not in any manner establish
offences for which the accused appellants have been convicted. Accepting
the prosecution version, bay,d on the confessional statements, A- l can at the
most be said to have been ,,1volved in kidnapping but he never threatened
to kill the captive. Similarly, so far as A-2 is concerned, he was involved in
the kidnapping as he was ~t I
aware of it when it was done. So he was not D
involved in the conspirac~ Though A-3 can be said to be a part of the
conspiracy and kidnapping, there was no material to fasten A-4 who is only
a driver of the vehicle with any offence. At the most, he can be guilty of not
disclosing the factum of kidnapping under Section 368 IPC and, therefore,
there was no scope for applying Section 1208 along with other provisions to E
convict the said accused appellant. A-7 was not aware of the conspiracy and
was not involved in any kidnapping. A-8 at the most can be guilty of
conspiracy and nothing else. In any event, the confessional statements would
not entail conviction under Section 364A. read with Section 1208 IPC. The
confessional statements in their entirety may come to the extent of sharing
that A-l and A-3 were involved in conspiracy and kidnapping while others F
were not so involved. In ~O;Y event, Umar Sheikh was the person who is
stated to be head of the whole mission, and the present appellants cannot
be held to be guilty. The ingredients of Section 3(2)(i), it was submitted are
non-existent and therefore: the conviction under these provisions is unfounded.
All the accused are small·1'awns in a big plot and do not deserve the harsh
sentence imposed. More so when some of the accused have been given life G
sentence for similar offences, no differential treatment to award death sentence
in case of three can be countenanced. The alleged kidnapped persons have
not appeared as witnesses and statements made by them during investigation
cannot be utilized.

''I
H
896 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A Rebutting the submissions, Mr. K.K. Sood, learned Additional Solicitor
General submitted that the evidence, materials and circumstances are sufficient
to establish involvement of each of the accuseq~ There has been no retraction
from the confessional statements, the procedural requirements have been
meticulously followed, the statements were voluntary and at no point of time
any objection was made relating to recording bf the confessional statements.
B The. recoveries of arms and ammunitions provide ample substantiation to the
confessions made. Even though in law there is no requirement for any
corroboration, there is ample corroboration in the case at hand. There is no
question of segregating the acts so far as offence of criminal conspiracy is
concerned. Even if a person· withdraws after participating in a conspiracy for
C some time, that does not dih.ite the factum of conspiracy. With reference to
the definition of criminal conspiracy in Section 120A in particular in Explanation
appended to the main provision, it is submitted that whether the illegal act
is the ultimate object of such agreement or is 11Jrely incidental to that object
is immaterial. The offence is made under the ilfustration appended to Section
10 of the Indian Evidence Act, 1872 (in short~he 'Evidence Act') and even
D if all the conspirators are ignorant of all the de~isioris and are strangers, that
is really of no consequence. The object and pi,frpose of the conspiracy was
clear and the manner of organizing the activities to achieve the ultimate
objective has been amply established. Merely because the persons who were
kidnapped have not appeared at trial to give evidence on account of
E unavoidable circumstance.s that does not weaken the quality/quantity of
evidence placed on record. The position where they were placed certainly
would have left a bad taste in the mouth, and no adverse inference can be .
drawn because of their non-appearance due to their leaving for their homes.

The rival stands need careful consideration.
F
In Hitendra Vishnu Thakur and Ors. v. St'f of Maharashtra and Ors.,
[ 1994] 4 SCC 602, this Court observed that: ·
\
'.'the legal position remains unaltered that the crucial postulate for
judging whether the offence is a terrorist/act falling under TADA or
G to
not is whether it was done with the intent overawe the, Gove~ment
. as by law established or to strike terror in the people etc. A 'terrorist'
activity does not merely arise by causing dist~rbance of law and order
or of public order. The fall out of the intended activity is to be one
that it travels beyond the capacity of the ordinary law enforcement
agencies to tackle it under the ordinary penal law. It is in essence a
H
NAZIR KHAN v. STATE OF DELHI [PASAYA T, J.] 897
deliberate and systematic use of coercive intimidation". A
As was noted in the iaid case, it is a common feature that hardened
criminals today take advantage of the situation and by wearing the cloak of
terrorism, aim to achieve acceptability and respectability in the society; because
in different parts of the country affected by militancy, a terrorist is projected
as a hero by a group and .Often even by many misguided youth. As noted B
at the outset, it is not possible to precisely define "terrorism". Finding a
definition of "terrorism" has haunted countries for decades. A first attempt
to arrive at an internationally acceptable definition was made under the
League of Nations, but the convention drafted in 1937 never came into
existence. The UN Member States still have no agreed-upon definition. C
Terminology consensus would, however, be necessary for a single
comprehensive convention on terrorism, which some countries favour in
place of the present 12 pi,ecemeal conventions and protocols. The lack of
agreement on a definition ot'~errorism has been a major obstacle to meaningful
international countermeasur7s. Cynics have often commented that one State's
"terrorist" is another State'~ "freedom fighter". If terrorism is defined strictly D
in terms of attacks on non)Dilitary targets, a number of attacks on military
installations and soldiers' residences could not be included in the statistics.
In order to cut through. the Gordian definitional knot, terrorism expert A.
Schmid suggested in 1992 in a report for the then UN Crime Branch that it
might be a good idea to take the existing consensus on what constitutes a E
"war crime" as a point of departure. If the core of war crimes - deliberate
attacks on civilians, hostage taking and the killing of prisoners - is extended
to peacetime, we could simply define acts of terrorism as "peacetime equivalents
of war crimes".

League of Nations Convention (1937):
F
"All criminal acttciirected against a State along with intended or
calculated to create a statute of terror in the minds of particular
persons or a gro1:1p of persons or the general public".

(GA Res. 51/210 M~asures to eliminate international terrorism)
G
1. Strongly condemns all acts, methods and practices of terrorism as
criminal and unjustifiable, wherever and by whomsoever committed;

2. Reiterates that criminal acts intended or calculated to provoke a
state of terror in the general public, a group of persons or particular
H
--
898 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A persons fo'r political purposes are in any circumstances unjustifiable,
whatever the considerations of a political, philosophical, ideological,
racial, ethnic, religious or other nature t~at may be invoked to justify
them". .1
(
I
3. Short legal definition proposed by A~P. Schmid to United Nations
B Crime Branch (1992) : b..
Act of Terrorism = Peacetime Equivalent of War Crime

4. Academic Consensus Definition:

"Terrorism is an anxiety-inspiring ofrepeated violent action, employed
c by (semi-) clandestine individual, group or state actors, for
idiosyncratic, criminal or political reasons, whereby - in contrast to
assassination - the direct targets of violence are not the main targets.
The immediate human victims of viofence are generally chosen
randomly (targets of opportunity) or s~l1ctively (representative or
D symbolic targets) from a target populih:ion, and serve as message
generators. Threat- and violence-based communication processes
between terrorist (organization), (imperil~d) victims, and main targets
are used to manipulate the main target (audience (s)), turning it into
a target of terror, a target of demands, or a target of attention,
depending on whether intimidation, coercion, or propaganda is primarily
E sought" (Schmid, 1988).

Definitions:

Terrorism by nature is difficult to define. Acts of terrorism conjure
emotional responses in the victims (those hurt by the violence and those
F affected by the fear) as well as in the practitioners. Even the U.S. government
cannot. agree on one single definition of uniforrlf a11d universal application.
The old adage, "One man's terrorist is another m~n's freedom fighter" is still
alive and well. Listed below are several definition,s of terrorism used by the
Federal Bureau of Investigation.
.•

G Terrorism is the use or threatened use of force designed to bring
about political change. - Brian Jenkins

Terrorism constitutes the illegitimate use of force to achieve a political
objective when innocent people are targeted. - Walter Laqueur.

H Terrorism is the premeditated, deliberate, systematic murder, mayhem,
NAZIR KHAN v. STATE OF DELHI [PASAYA T, J.] 899
and threatening of the innocent to create fear and intimidation in order A
to gain a political or tactical advantage, usually to influence an
audience. - James M. Poland
\
Terrorism is the unlawful use or threat of violence against persons or
property to further political or social objectives. It is usually intended
to intimidate or coerce a government, individuals or groups, or to B
modify their behavio/ or politics. - Vice-President's Task Force, 1986

Terrorism is the unlawful use of force or violence against persons or
property to intimidate or coerce a government, the civilian population,
or any segment thereof, in furtherance of political or social objectives.
- FBI Definition ·C

No doubt in the case of conspiracy there cannot be any direct evidence. The
ingredients of offence are that there should be an agreement between persons
who are alleged to conspir~ and the said agreement should be for doing an
illegal act or for doing illegal means an act which itself may not be illegal.
Therefore, the essence of cri~inal conspiracy is an agreement to do an illegal D
act and such an agreement'can be proved either by direct evidence or by
circumstantial evidence or- ~Y both, and it is a matter of common experience
that direct evidence to prove conspiracy is rarely available. Therefore, the
circumstances proved before, during and after the occurrence have to be
considered to decide about the complicity of the accused. E
In Halsbury's Laws of England (vide 4th Ed. Vol.I I, page 44, page 58),
the English Law as to conspiracy has been stated thus:

"Conspiracy consists in the agreement of two or more persons to do
an unlawful act, or to do a lawful act by unlawful means. It is an F
indictable offence at common law, the punishment for which is
imprisonment or ~ne or both in the discretion of the Court.
,_
The essence of the offence of conspiracy is the fact of combination
by agreement. The agreement may be express or implied, or in part
express and in pai implied. The conspiracy arises and the offence is G
committed as soon as the agreement is made; and the offence continues
to be committed so long as the combination persists, that is until the
conspiratorial agreement is terminated by completion of its performance
or by abandonment or frustration or however, it may be. The actus
rues in a conspiracy is the agreement to execute the illegal conduct,
not the execution of it. It is not enough that two or more persons H
900 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A pursued the same unlawful object at the same time or in the same
·pl~ce; it is necessary to show a meeting of minds, a consensus to
effect an unlawful purpose. It is not, however, necessary that each
conspirator should have been in comm,tJf1ication with every other."

~ There is no difference between the mode of proof of the offence of
B conspiracy and that of any other offence, it cah be established ·by direct or
circumstantial evidence. See: Bhagwan Swaru~ Lal Bishan Lal etc.etc v.
State of Maharashtra, AIR (1965) SC 682 at p.686.

Privacy and secrecy are more characteristics of a conspiracy, than of a
loud discussion in an elevated place open to public view. Direct-evidence in
C proof of a conspiracy is seldom available, offence of conspiracy can be
proved by either direct or circumstantial evidence. It is not always possible
to give affirmative evidence about the date of the fo~ation of the criminal
conspiracy, about the persons who took part in the formation of the conspiracy,
about the object, which the objectors set before 1themselves as the object. of
D conspiracy, and about the manner in which the ?bject of conspiracy is to be
carried out, all this is necessarily a matter of inferen~e.

The pro~;sions of Section' 120~A and 120-JJPC have brought the law
of conspiracy in India in line with the English Law by making the overt act
unessential when the conspiracy is to ·commit any punishable offence. The
. I
E English Law on this matter is well settled:Russell on crime (12 Ed.Vol.I, p.202)
may be usefully noted-

"The gist of the offence of conspiracy then lies, not in doing the
act, or effecting the purpose for which the conspiracy is formed, nor
. in attempting to do them, nor in inciting others to do them, but in the
F forming of the scheme or agreement between the parties, agreement
is essentiai. M~re knowledge, or even discussion, of the plan is not,
per se, enough." »I
Glanville Williams in the "Criminal Law" (Second. Ed. P. 382) states-
l
G "The question arose in an Iowa case, but ~- was discussed in terms
of conspiracy. rather than of accessoryship. D, who had a grievance
· against P, told E that if he.wotild whip P someone would pay his fine.
E replied that he did not want anyone to pay his fine, that he had a
grievance of his own against P and that he would whip him at the first
opportunity. E whipped P. D ·was acquitted of conspiracy because
H . '
NAZIRKHANv. STATEOFDELHI[PASAYAT,J.) 901

there was no agreement for 'concert of action', no agreement to 'co- A
operate'."

Coleridge, J. while summing,21p the case to Jury in Regina v. Murphy (1837)
173 ER 502 at p. 508 states: ,
I
"I am bound to teV you, that although the common design is the B
root of the charge, it 1.s not necessary to prove that these two parties
came together and a~tually agreed in terms to have this common
design and to pursue it by common means, and so to carry it into
execution. This is not necessary, because in many cases of the most
clearly established conspiracies there are no means of proving any
such thing and neither law nor common sense requires that it should C
be proved. If you find that these two persons pursued by their acts
the same object, often by the s~me means, one performing one part
of an act, so as to complete it, with a view to the attainment of the
object which they W!!re pursuing, you will be at liberty to draw the
conclusion that they have been engaged in a conspiracy to effect that D
object. The question,1you have to ask yourselves is, had they this
common design, an4 did they pursue it by these common means the
design being unlawfDI."

As noted above, the essential ingredient of the offence of criminal
conspiracy is the agreement to commit an offence. In a case where the E
agreement is for accomplishment of an act which by itself constitutes an
offence, then in that event no overt act is necessary to be proved by the
prosecution because in such a situation, criminal conspiracy is established by
proving such an agreement. Where the conspiracy alleged is with regard to
commission of a serious crime of the nature as contemplated in Section 1208 F
read with the proviso to sub-section (2) of Section 120A, then in that event
mere proof of an agreement between the accused for commission of such a
crime alone is enough to ~ring about a conviction under Section 1208 and
the proof of any overt act by the accused or by any one of them would not
be necessary. The provisifs, in su~h a situation, do not require that each
and every person who is/'- party to the conspiracy must do some overt act G
towards the fulfillment of the object of conspiracy, the essential ingredient
being an agreement between the conspirators to commit the crime and if these
requirements and ingredients are established, the act would fall within the
trapping of the provisions contained in section 1208 [See: S.C. Bahri v. State
of Bihar, AIR (1994) SC 2420]. H
902 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A The conspiracies are not hatched in open, by their nature, they are
secretly planned, they can be proved even by circumstantial evidence, the
lack of direct evidence relating to conspiracy has no consequence. [See: E.K.
Chandrasenan v. State of Kera/a, AIR (1995) S,C 1066].
I
In Kehar Singh and Ors. v. The State'. (Delhi Administration), AIR
B (1988) SC 1883 at p. 1954, this Court observed:
\
"Generally, a conspiracy is hatched· in secrecy and it may be
difficult to adduce direct evidence of the same. The prosecution will
often rely on evidence of acts of various parties to infer that they
were done in reference to their common intention. The prosecution
c will also more often rely upon circumstantial evidence. The conspiracy
can be undoubtedly proved by such evidence direct or circumstantial.
But the court must enquire whether the two persons are independently
pursuing the same end or they have come together to the pursuit of
the unlawful object. The former does n~ render them conspirators,
D but the latter does. It is, however, dsential that the offence of
conspiracy required some kind of physic~! manifestation of agreement.
The express agreement, however, need 'not be proved. Nor actual
meeting of the two persons is necessary:~or it Is necessary to prove
the actual words of communication. The evidence as to transmission
of thoughts sharing the unlawful design may be sufficient. Conspiracy
E can be proved by circumstances and other materials. (See: State of
Bihar v. Paramhans, (1986) Pat LJR 688). To establish a charge of
conspiracy knowledge about indulgence in either an illegal act or a
legal act by illegal means is necessary. In some ·cases, intent of
unlawful use being made of the goods or services in question may be
F inferred from the knowledge itself. This apart, the prosecution has not
to establish that a particular unlawful use was intended, so long as
the goods or service in question could n<?t be put to any lawful use.
Finally, when the ultimate offence consisfs of a chain of actions, it
would not be necessary. for the prosecJtion.\
to establish, to bring
home the charge of conspiracy, that each ~f the conspirators had the
G knowledge of what the collaborator wou~ do so, so long as it is
known that the collaborator would put the goods or service to an
unlawful use. (See: State of Maharashtra v. Som Nath Thapa, JT
(1996) 4 SC 615)

H We may usefully refer to Ajay Agarwal v. Union of India and Ors., JT
NAZIRKHANv. STATEOFDELHI[PASAYAT,J.] 903
(1993) 3 SC 203). It was held: A
x x x x

8.... .It is not necessary that each conspirator must know all the details
of the scheme nor be a participant at every stage. It is necessary that
they should agree for design or object of the conspiracy. Conspiracy B
is conceived as having three elements: (l) agreement; (2) between two
or more persons by whom the agreement is effected; and (3) a criminal
object, which may be either the ultimate aim of the agreement, or may
constitute the means, or one of the means by which that aim is to be
accomplished. It is immaterial whether this is found in the ultimate
objects. The common law definition of 'criminal conspiracy' was stated C
first by Lord Denman in Jones' case that an indictment for conspiracy
must "charge a conspiracy to do an unlawful act by unlawful means"
and was elaborated by Willies, J. on behalfof the judges while referring
the question to the House of Lords in Mulcahy v. Reg and House of
Lords in unanimous decision reiterated in Quinn v. Leathern: D
'A conspiracy consists not merely in the intention of two or more, but
in the agreement of two or more, to do an unlawful act, or to do a
lawful act by unlawful means. So long as such a design rest in
intention only, it is not indictable. When two agree to carry it into
effect, the very plot is an act in itself, and the act of each of the E
parties, promise against promise, actus contra actum, capable of being
enforced, if lawful; punishable of for a criminal object, or for the use
of criminal means.'

This Court in B.G. Barsay v. State of Bombay held:

"The gist of the offence is an agreement to break the law. The parties F
to such an agreement will be guilty of criminal conspiracy, though the
illegal act agreed to be done has not been done. So too, it is an
ingredient of the offence that all the parties should agree to do a
single illegal act. It may comprise the commission of a number of acts.
Under Section 43 of the Indian Penal Code, an act would be illegal if G
it is an offence or if it is prohibited by law."

In Yash Pal Mittal v. State of Punjab, [1977] 4 SCC 540 the rule was laid as
follows: (SCC p. 543 para 9)

"The very agreement, concert or league is the ingredient of the H
904 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A offence. It is not necessary that all the conspirators must know each
and every detail of the conspiracy as long as they are co-participators
in the main object of the conspiracy. There may be so many devices
and techniques adopted to achieve the common goal of the conspiracy
and there may be division of performance~ in the chain of actions with
one object to achiev.e. the real end of which every collaborator must
.
B be aware and in which each one of them must be interested. There
must be unity of object or purpose but there may be plurality of means
sometimes even unknown to one another, amongst the conspirators.
In achieving the goal several offences may be committed by some of
the conspirators even unknown to the others. The only relevant factor
c is that all means adopted and illegal acts done must be and purported
to be in furtherance of the object of the conspiracy even though there
may be sometimes misfire or overshooting by some of the conspirators.

In Mohammad Usman Mohammad Hussain Maniyar and Ors.
v. State of Maharashtra, [ 198 l] 2 SCC 443, it was held that for an
D offence under Section l 20B IPC, the prosecution need not necessarily
prove that the perpetrators expressly agreed to do or cause to be done
the illegal act, the agreement may be proved by necessary implication."

The main plea of the accused~~ppellant is. that there was no corroboration to
the alleged confessional statement. Various circumstances, according to him,
E clearly show that it was.not. voluntary. Strong reliance i~ placed on State v.
Nalini, [l 999] 5 sec 253 to contend that corroboration is necessary. It is to
be noted that the legislature' has set different standa.rds of admissibility of a
confessional statement made by an accused under TADA Act from those
made in other criminal proceedings. A confessional statement recorded by a
F police officer not below the rank of Superintendent of Police under Section
15 of TADA Act is admissible, while it is not so admissible unless made to
the Magistrate under Sectiori 25 of the Evidence Act. It appears, consideration
of a confessional statement of an accused to a p'olice officer except to the
extent permitted under Section 27 of the Evidence Act is not permissible.
These aspects are noted by this Court in Sahib Singh v. State of Haryana
G [1997] 7 SCC 231 and Gurdeep Singh v. State (Delhi Admn.), [2000] I SCC
498. There is one common feature, both in Section 15 of TADA Act and
Section 24 of the Evidence Act that the confession has to be voluntary.
Section 24 of the Evidence Act interdicts a confession, if it appears to the
Court to be the result of any inducement, threat or promise in certain conditions.
H The principle therein is that confession must be voluntary. Section 15 of
NAZIRKHANv. STATEOFDELHI[PASAYAT,J.) 905

TADA Act also requires the confession to be voluntary. Voluntary means that A
one who makes it out of his own free will inspired by the sound of his own
conscience to speak nothing but the truth. As per Stroud's Judicial Dictionary,
5th Edn., at p.2633 threat means:

"It is the essence of a threat that it be made for the purpose of
intimidating, or overcoming, the will of the person to whom it is B
addressed (per Lush, J, Wood v. Bowron (1866) 2 QB 21) cited
intimidate."

Words and Phrases, permanent edition, Vol.44, p. 622 defines 'voluntary' as:

'Voluntary' means a statement made of the free will and accord of C
accused, without coercion, whether from fear of any threat of harm,
promise, or inducement or any hope ofreward - State v. Mullin (85NW
2nd 598, 600, 249 lown 10)".

In Words and Phrases by John B. Saunders 3rd edition, vol.4, p.40 l, 'voluntary'
is defined as: D
" .... .the classic statement of the principle is that of Lord Sumner in
Ibrahim v. Regem, ( 1914 AC 599) (at p.609) where he said, "it has
long been established as a positive rule of English criminal law that
no statement by an accused is admissible in evidence against him
unless it is shown by the prosecution to be a voluntary statement, in E
the sense that it has not been obtained from him either by fear of
prejudice or hope of advantage exercise or held out by a person in
authority. The principle is as old as Lord Hale". However, in five of
the eleven textbooks cited to us .... support is to be found for a narrow
and rather technical meaning of the word "voluntary". According to F
this view, "voluntary" means merely that the statement has not been
made in consequence of (i) some promise of advantage or some threat
(ii) of a temporal character (iii) held out or made by a person in
authority, and (iv) relating to the charge in the sense that it implies
that the accused's position in the contemplated proceedings will or
may be better or worse according to whether or not the statement is G
made. R. v. Power, (1966) 3 All ER 433) (at pp.454, 455)] per Cantley,
V:'

So the crux.of making a statement voluntarily is, what is intentional, intended,
unimpelled by other influences, acting on one's own will, through his own
conscience. Such confessional statements are made mostly out of a thirst to H
906 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A . speak the truth which at a given time predominates in the heart of the
confessor which impels him to speak out the truth. Internal compulsion of the
conscience to speak out the truth normally emerges when one is in
despondency or in a perilous situation when he wants to shed his cloak of
guilt and nothing but disclosing the truth would dawn on him. It sometimes
B becomes so powerful that he is ready to face all consequences for clearing
his heart.

As was observed in Nalini's case, (supra) TADA Act was enacted to ,,
meet any extraordinary situation existing in the country. Its departure from the
law relating to confession as contained in the Evidence Act is deliberate.
C Section 24 of the Evidence Act deals with confession caused by inducements,
threat or promise, which is irrelevant in criminal proceedings. The expression
'confession' has not been defined in the Evidence Act. Broadly speaking, it
is an admission made at any time by a person charged with crime, stating or
suggesting the inference that he committed that crime. Law relating to
confessions is to be found generally in Sections 24 to 30 of the Evidence Act
D and Sections 162 and 164 of the Code of Criminal Procedure, 1898 (for short
'the old Code') corresponding to identical provisions of the Code. Confession
is a species of admission. A confession or admission is evidence against its
maker, if its admissibility is not excluded by some provision of law. Law is
clear that a confession cannot be used against an accused person unless the
E Court is satisfied that it was voluntary. At that stage, the question whether
it is true or false does not arise. If the facts and circumstances surrounding
the making of a confession appear to cast a doubt on the voluntariness of
the confession, the court may refuse to act upon the confession, even if it
is admissible in evidence. The question whether a confession is voluntary or
not is always a question of fact. A free and voluntary confession is deserving
F of highest credit, because it is presumed to flow from the highest sense of
guilt. [n Principle and Digest of Law of Evidence, Vol. I, New Edn. by Chief
Justice M. Monir, after noticing conflicting views and discussing various
authorities, the learned author summarized the position as follows: .
"The rule may therefore, be stated to be that whereas the evidence
in proof of a confession having been made is always to be suspected,
G
the confession, if once proved to have been made and made voluntarily,
is one of the most effectual proofs in the law."

As was noted in Gurdeep Singh 's case, (supra) whenever an accused
challenges that his confessional statement is not voluntary, the initial burden
H is on the prosecution for it has to prpve that all requirements under Section
NAZIRKHANv. STATEOFDELHI [PASAYAT,J.] 907
15 ofTf".DA Act and Rule 15 of the TADA Rules have been complied with. A
Once this is done the prosecution discharges its burden and then it is for the
accused to show and satisfy the Court that the confessional statement was
not made voluntarily. The confessional statement of the accused can be relied
upon for the purpose of conviction, and no further corroboration is necessary
if it relates to the accused himself. It has to be noted that in Nalini 's case
(supra) by majority it was held that as a matter of prudence the Court may B
look for some corroboration if confession is to be used against a co-accused
though that will be again within the sphere of appraisal of evidence. The
following observations in Jayawant Dattatray Suryarao v. State of
Maharashtra, [200 l] 10 SCC 109 are relevant:

"60 (2): Confessional statement before the police officer under Section
c
15 of the TADA Act is substantive evidence and it can be relied upon
in the trial of such person or co-accused, abettor or conspirator for
an offence punishable under the Act or the Rules. The police officer
before recording the confession has to observe the requirement: of
sub-section (2) of Section 15. Irregularities here and there would /10t D
make such confessional statement inadmissible in evidence. If the
legislature in its wisdom has provided after considering the situation
prevailing in the society that such confessional statement can be used
as evidence, it would not be just, reasonable and prudent to water
down the scheme of the Act on the assumption that the said statement E
was recorded under duress or was not recorded truly by the officer
concerned in whom faith it is reposed. It is true that there may be
some cases where the power is misused by the authority concerned.
But such contention can be raised in almost all cases and it would be
for the Court to decide to what extent the said statement is to be used.
Ideal goal may be: confessional statement is made by the accused as F
repentance for his crime but for achieving such ideal goal, there must
be altogether different atmosphere in the society. Hence, unless a
foolproof method is evolved by the society or such atmosphere is
created, there is no alternative, but to implement the law as it is."

Aforesaid aspects have been highlighted in Devender Pal Singh v. G
State of NCT of Delhi and Anr., [2002] 5 SCC 234 and Mohd. Khalid v. State
of West Bengal, [2002] 7 SCC 334.

Applying the principles which can be culled out from the principles set
out above to the factual scenario, the inevitable conclusion is that the Trial
Court was justified in its conclusions by holding the accused appellants H
908 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A guilty. When an accused is a participant in a big game planned, he cannot
take the advantage of being ignorant about the finer details applied to give
effect to the conspiracy hatched, for example, A-7 is stated to be ignorant of
the conspiracy and the kidnapping. But the factual scenario described by the
co-accused in the statements recorded under Section 15 of the TADA Act
shows his deep involvement in the meticulous planning done by Umar Sheikh.
B He organized all the activities·for making arrangement~ for the accused and
other terrorists.

Confessional statement of A-2 shows how he got acquainted with
bigger players like Shahji and Mohmood @Ayub (A-7) and others who used
C to visit Farooque. His presence when Umar Sheikh showed photographs of
Americans kidnapped has .also been established by confessional statement.
The officials who were of·the requisite rank recorded the confessional
statements after meticulously'following the procedural requirements of the
TADA Act and Terrorist and Disruptive Activities (Prevention) Rules, 1987
(in short·the 'TADA Rules'). Though a faint attempt was made to say that
D the statement was not voluntary, the fact that there was no retraction at any
point of time and particularly, when they were brought before the concerned
Magistrate for confirmation of the fact that the statement had'been recorded
by the police officials, the stand appears to be afterthought. The object and
the purpose for which the conspiracy was hatched is clear from the fact that
E messages were sent to Embassies, government officials, high dignitaries and
the medias indicating the nature of the ransom, and the consequences if
demanded ransom was not fulfilled. The circumstances clearly show the role
played by each of the accused in the conspiracy. It was submitted that the
activities cannot be treated as an offence against the State. Chapter VI of IPC
relates to ·offence of the State.
F
The Trial Court has convicted the accused under Sections 121A, 122
and 124 IPC. For convicting the accused persons under the aforesaid
provisions, the trial Court has relied on the fact that the accused persons were
trying to overawe the Government of India by criminal force and to bring out
hatred and contempt in the people of India and to arouse dissatisfaction in·
G a section of people in India against the Government of lndia established by
laws and collected materials and arms for·the aforesaid offences.

The line dividing preaching disaffection towards the Government and
legitimate political activity in a democratic set up cannot be neatly drawn.
Where legitimate political criticism of the Government in power ends and
H
NAZIRKHANv. STATE OF DELHI [PASAYAT,J.] 909
disaffection begins, cannot be ascertained with precision. The demarcating A
line is thin and wavy.

The Indian Law Commission's in their Second Report dated 24.6.1947
had observed "We conceive the term "wages war against the Government"
naturally to import a person arraying himself in defiance of the Government
in like manner and by like means as a foreign enemy would do, and it seems B
to us, we·presume it did to the authors of the Code that any definition of the
term so unambiguous would be superfluous". Mere collection of men, arms
and ammunitions does not amount to waging war.

There is a difference, says Foster: (3 Crown Cases, pp.208, 209 and 210)
"between those insurrections which have carried the appearance of an army C
fonned under leaders, and provided with military weapons, and with drums,
colours, etc., and those other disorderly tumultuous assemblies which have
been drawn together and conducted to purposes manifestly unlawful, but
without any of the ordinary shew and apparatus of war before mentioned."
D
"I do not think any great stress can be laid on that distinction. It is true,
that in case of levying war the indictments generally charge, that the defendants
were armed and arrayed in a warlike manner; and, where the case would admit
of it, the other circumstances of swords, guns, drums, colours etc., have been
added. But I think the merits of the case have never turned singly on any of
these circumstances". E
"In the cases of Damaree and Purchase, ...there was nothing giving in
evidence of the usual pageantry of war, no military weapons, no banners or
drums, nor any regular consultation. previous to the rising; and yet the want
of these circumstances weighed nothing with the Court, though the prisoners'
counsel insisted much on that matter. The number of the insurgents supplied F
the want of military weapons; and they were provided with axes, crows, and
other tools of the like nature, proper for the mischief they intended to effect....''

"The true criterion, therefore, in all these cases is, Quo animo did the
parties assemble? For if the assembly be upon account of some private G
quarrel, or to take revenge on particular persons, the statute of treasons hath
already determined that point in favour of the subject...."

"Upon the same principle and within the reason and equity of the
statute, risings to maintain a private claim of right, or to destroy particular
inclosures, or to remove nuisance, which affected or were thought to affect H
910 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A in point of interest the parties assembled for these purposes, or to break
prisons in order to release particular persons without any other circumstances
of aggravation, have not been holden to amount to levying war within the
statute."

It is the fundamental right of every citizen to have his own political
B theories and ideas and to propagate them and work for their establishment
so long as he does not seek to do so by force and violence or contravene
any provision of law. Thus where the pledge of a Society amounted only to '
an undertaking to propagate the political faith that capitalism and private
ownership are dangerous to the advancement of society and work to bring
C about the end of capitalism and private ownership and the establishment of
a socialist State for which others are already working under the lead of the
working classes, it was held that it was open to the members of the Society
to achieve these objects by all peaceful means, ceaselessly fighting public
opinion that might be against them and opposing those who desired the
continuance of the existing order of society and the present Government; that
D it would also be legitimate to presume that they desired a change in the
existing Government so that they could carry out their programme and policy;
that the mere use of the words 'fight' and 'war' in their pledge did not
necessarily mean that the Society planned to achieve its object by force and
violence.

E I. About the expression 'Whoever' - the Law Commissioners say: (2nd
Report: Section 13) "The laws of a particular nation or country cannot be
applied to any persons but such as owe allegiance to the Government of the
country, which allegiance is either perpetual, as .in the case of a subject by
birth or naturalization, &c., or temporary, as in the case of a foreigner residing
F in the country. They are applicable of course to all such as thus owe allegiance
to the Government, whether as subjects or foreigners, excepting as excepted
by reservations or limitations which are parts of the laws in question.

2. Regarding 'Wage war' according to the Law Commissioners -
These words "seems naturally to import a levying of war by one who throwing
G off the duty of allegiance arrays himself in open defiance of his Sovereign in
like mapner and by the like means as a foreign enemy would do, having
gained footing within the realm. There must be an insurrection, there must be
force accompanying that insurrection, and it must be for an object of a general
nature.

H The expression "waging war:' means and can only mean waging war in
NAZIRKHANv. STATEOFDELHI(PAS~YAT,J.] 911
the manner usual in war. In other words, in order to support a conviction on A
such a charge it is not enough to show that the persons charged have
contrived to obtain possession of an armoury and have, when called upon
to surrender it, used the rifles and ammunition so obtained against the
Government troops. It must also be shown that the seizure of the armoury was
:part and parcel of a planned operation and that their intention in resisting the
troops of the Government was to overwhelm and defeat these troops and then B
to go on and crush any further opposition with which they might meet until
either the leaders of the movement succeeded in obtaining the possession of ·
the machinery of Government or until those in possession of it yielded to the
demands of their leaders.

~No amount of violence, however great, and with whatever circumstances F
of a warlike kind it may be attended, will make an attack by one subject on
another high treason. On the other hand, any amount of violence, however
insignificant, directed against the King will be high treason, and as soon as
violence has any political objects, it is impossible to say that it is not directed
against the king, in the sense of being armed opposition to the lawful exercise
of his power. Where the object of a mob is not mere resistance to a District G
Magistrate but the total subversion of the British power and the establishment
of the Khilafat Government, a person forming part of it and taking part in its
actions is guilty of waging war. When a multitude rises and assembles to
attain by force and violence any object of a general public nature, it amounts
to levying war against the Government. It is not the number of the force, but H
912 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A the purpose and intention, that constitute the offence and distinguish it from
riot or any other rising for a private purpose. The law knows no distinction
between principal and accessory, and all who take part in the treasonable act
incur the same guilt. In rebellion cases it frequently happens that few are let
into the real design, yet all that join in it are guilty of the rebellion. A
deliberate and organized attack upon the Government forces would amount
B to a waging war if the object of the insurgents was by armed force and
violence to overcome the servants of the Government and thereby to prevent
tlie general collection of the capitation-tax". (See Aung Hia's Case (1931) 9
Rangoon page 404)

C "There is a diversity between levying of war and committing of a great
riot, a rout, or an unlawful assembly. For example, as if three, or four, or more,
do rise to bum, or put down an inclosure in Dale, which the lord of the manor
of Dale hath made there in the particular place; this or the like is a riot, a rout
or an unlawful assembly, and no treason. But if they had risen of purpose to
alter religion established within the realm, or laws, or to go from town to town
D generally, and to cast down inclosures, this is a levying of war (though there
be· great number of the conspirator$) within the puryiew of this statute,
because the pretence is public and general, and not private and particular".
(See Cokes' Inst. Ch.I, 9)

Section 124A deals with 'Sedition'. Sedition is a crime against society
E nearly allied to that of treason, and it frequently precedes treason by a short
interval. Sedition in itself is a comprehensive term, and it embraces all those
practices, whether by word, deed, or writing, which are calculated to disturb
the tranquility of the State, and lead ignorant persons to endeavour to
subvert the Government and laws of the country. The objects of sedition
F generally are to induce discontent and insurrection, and stir up opposition to
the Government, and bring the administration of justice into contempt; and
the very tendency of sedition is to incite the people to insurrection and
rebellion. ~Sedition" has been described as disloyalty in action,' and the law
considers as sedition all those practices which have for their object to excite
discontent or dissatisfaction, to create public disturbance, or to lead to civil
G war; to bring into hatred or contempt the Sovereign or the Government, the
laws or constitutions of the realm, and generally all endeavours to promote
public disorder.

In the aforesaid analysis, the offences punishable under.Sections 121A,
H 122, I 24A. are clearly established and sufficienUy and properly stand
NAZIRKHANv.STATEOFDELHI[PASAYAT,J.) 913
substantiated, on the overwhelming materials avaifable on record. · A
In order to bring the offences within the parameters of Section 3(2)(i)
of TADA Act, the death sentence is pennissible to be imposed when the act
has resulted in the death of any person. Under Clause (ii) of sub-section (2)
~fSection 3, in any other case, the maximum sentence is imprisonment for life.
lri the case at hand except the killing of two police officials, no other death B
has resulted. The ransom letters and the threats had not resulted in any death.
Further, the direct involvement of the present accused appellants in the killing
of the two police officials has not been established by cogent evidence. There
is no. evidence that any of the accused was directly or indirectly involved in
the killings. The deaths occurred when police surrounded the hide-out and C
some terrorists wanted to escape. It is not the case of the prosecution that
the accused-appellants were inside or that they escaped during the shoot-out
or that any of them fired any shot or that there was any conspiracy in those
regards. The action of those terrorists who successfully escaped by firing at
the police appears to be independent of the present conspiracy and not
shown to be related in ·any manner. There is nothing on record to involve or D
c·onnect them with the design, conspiracy or action for ~hich the appellants
are being now dealt with. Neither their names nor their identity or even their
role in the conspiracy with which we are concerned has ever boen placed on
record to connect them or their actions with the present group of conspirators
and ·their design. The punishment for terrorists act is provided in sub-section E
(2) of Section 3. For the purpose of bringing in application of Section 3(2)(i)
of the TADA· Act, the terrorist act should have resulted in the death of any
person. In other cases clause (ii) operates. Sub-section (I) provides 'as to
commission of which acts can be considered to be a terrorist act. Above
being the position, we feel the imposition of death sentence is not at ·any rate
a compulsion in this case and cannot be imposed and only life sentence can F
be imposed.

No infinnity could be pointed out regarding conviction and/or sentence
for offences relatable to Section 3(4) of TADA Act or Section 14 of Foreigners
Act. Accordingly, they are maintained.
G
The criminal law adheres in general to the principle of proportionality
in prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence that reflect more sublet considerations of culpability
that are raised by the special facts of each case. Punishment ought always H
914 .
SUPREME COURT REPORTS. [2003) SUPP. 2 S.C.R.

A to fit with the crime.
In the case at hand, the entire planning for commission of offence
punishable under Section 364A was masteiminded and executed by Umar
Sheikh who has managed presently to go out of net of law: In his case, death
sentence may have been appropriate. But in case of the c<H:onspirators (the
B 'present six accused appellants) similar approach is not warranted on the
peculiar facts found/established No distinctive feature has been indicated to
impose two different sentences i.e. death sentence for three and life sentence
for three others. There is no appeal by the prosecution to enhance. the
sentence in those. cases where life sentence has been imposed. It would be
C therefore appropriate to impose life sentence on all the six accused appellants.

In the ultimate, convictions of A-1, A-3 and A-8 under Section 3(1Xi)
of TADA Act is altered to Section 3(1 Xii) of TADA Act. Their convictions
under Sections 121A;l22 and 124 IPC and sentences imposed are maintained.·
The conviction under Section 364-A read with Section 120B IPC is maintained,
D as it is the conviction under Section 3(4) of the TADA Act and Section .14
?fthe Foreigners Act for the concerned accused appellait along with sentence.
~~~· ·· ...... ·.· ., .. · .

However, conside~ing the ~ravitY o(the offence and the dastardly
nature of the acts and consequences which have flown out and would have
E flown in respect of the life sentence, incarceration for the period of 20 years ·
would be appropriate. The accused appellants•. would not be enti)led to any
. remission from the aforesaid period. of 20 years. As observed by this Court
in Asholc Kumar v .. Union of India, AIR (1991) SC 1792 and Satpa/ v. State
·of Haryana and Anr., [1992] 4 SCC 172, "imprisonment for life" means
F imprisonment for the full span of life.
•
The death reference and appeals are accordingly disposed of.

S.K.S. . Appeals a~d Death Reference disp0sed of.