STATE OF GUJARATversusMOHAMMED ATIK AND ORS.

A                           ST A TE OF GUJARAT
                                      v.
                         MOHAMMED ATIK AND ORS.

                                  APRIL 3, 1998

B                [M.K. MUKHERJEE AND K.T. THOMAS, JJ.]


         Criminal law :

          Terrorist and Disruptive Activities [Prevention] Act, 1987.
c          Section 15-Confessional Statement made by accused in earlier cases-
    Covers, another crime involving the accused-Admissibility of-Held-
    Admissible and can be used in the case in which the other crime is under
    trial.

D         Section 15{1]-Maker of the confession dies before conclusion of trial-
    Ejfect of on co-accused-Held-Such confessional statement not applicable
    to co-accused.

          Evidence Act, 1872 :

E        Section JO-Statement made by one conspirator-When can bind
    another conspirator-Expression "in reference to their common intention"-
    Meaning and scope of-Explained.

          The respondents in appeal were accused in some cases which were
    registered by different police stations in respect of certain bomb blasts. AL
F
    and M were arrested in connection with different crimes and their confessional
    statement recorded under Section 15 of TADA, 1987.

          In the meanwhile, another charge sheet was filed against A.L. while
    the trial was in progress, the Public Prosecutor filed an application for
G   permission to use a confessional statement recorded from an accused during
    investigation of another crime, which was dismissed by Trial Court. Hence
    this appeal by State.

          Allowing the appeal, this Court

H         HELD: 1.1. The impugned order is set aside and the prosecution is
                                         664
               STATE OF GUJARAT. v. MOHAMMED ATJK                           665

permitted to make use of the confessional statement of the accused, recorded       A
in earlier cases. (672-BJ

      1.2. A confession, if usable under Section 15 of the TADA, would not
become unusahle mercl~· because the case is different or the c1imc is different
If the confession covers that different crime, it would he relernnt item of
evidence in the case in which that crime is under trial and it would then          B
become admissible in the ca.sc. (668-E-F)

      1.3. When there is no statutory provision for using such confession
on the 11remise that it was not recorded during the investigation of the
particular offence which is under trial there is no need or reason for the         C
court to introduce a fmiher fetter again~1 the admissibility of the confessional
statement. It often happens that a confessor would disclose very many acts
and events including different facets of his involvement in the 11reparation,
attem11t, and commission of crime including acts of his co-pa1iicipators
therein. But to expel every other illcriminating disclosure than that under
investigation of a particular crime from the ambit of admissibility is not         D
mandated by any 1m1vision of law. (668-C-E)

     State of Rajasthan v. Bhup Singh, (1993) 10 SCC 675, applied.

      2.1. The moment the maker of the confession dies before conclusion           E
of the trial, the pro\•iso Section 15 [1] sinks into disuse as then it would be
impossible to try the two persons together. [669-E]

      3.1. Section 10 of the Evidence Act is founded on the principle of law
of agency by rendering the statement or act of one conspirator binding on
the other if it was said during subsistence of the common intention as             F
between the conspirators. If so, once the common intention ceased to exist
any statement made by a farmer conspirator thereafter cannot be regarded
as one made "reference to there common intention". In other words, post-
arrest statement made to a police officer, whether it is a confession or
othern·ise, touching his involvement in the conspiracy would not fall within       G
the ambit of section HJ of the Evidence Act. [670-D-F]

     Indira Chandra Narang and Ors. v. E111pero1~ AIR (1929) Patna 145;
Bhagwan Swarup Lal Bishan Lal v. State of Afaharashtra, AIR (1965) SC
682; Mirza Akbar v. King Emperor, AIR (1940) PC 176 and Sardar Singh
Caveeshar v. State of Bengal, AIR (1957) SC 747, relied on.                        H
    666                     SUPREME COURT REPORTS                     [1998] 2 S.C.R.

A         CRIMINAL APPELLATE JURISDICTON: Criminal Appeal Nos ..
    .HJ0-03 of 1998.

          From the Judgment and Order dated 8.7.97 of the Designated Court •
    · Ahmedabad, in T.C.C. No. 13/95. 7/96. 14/95 and 8 of 1996.

8        S.K. Dholakia. A.D. Shah. Ms. H. Wahi and Ms. Neithono Rhetso for
    the Appellant.

          Sushi\ Kumar. H.N. Jhala, Ms. Kamini Jaiswal and Shakil Ahmed Syed
    for the Respondents.

C         The judgment of the Court was delivered by

           THOMAS, J. A Public Prosecutor moved in the trial court for pennission
    to use a confessional statement recorded from an accused during i11\'estigation
    of another crime. but the trial judge disallowed the motion on the premise that
D   unless the confession was recorded during the investigation of the very
    offence under trial it cannot be used in evidence of that case. The order thus
    passed by the trial court (A Designated Court under Terrorist and Disrnptive
    Activities (Prevention) Act l.987, (TADAA as acronym) is now being
    challenged by the State of Gujarat by special leave.

E          It is not necessary to set out facts of the case which is now pending
     before the Designated Court. Nonetheless, some skeletal facts necessary for
     disposal of these appeals have to be stated: The three respondents in these
     appeals were accused in some cases registered by different police stations of
     Gujarat State following certain instances of bomb blasts at different places.
     Investigation revealed that those instances were the aftermath of conspiracies
F    hatched by different conspirators who operated in different areas. Hence,
     offences came to be registered at different police stations and different
     investigating agencies commenced investigation in separate areas. Fourth
     respondent (Abdul Latif Abdul Wahab Sheikh) was arrested in connection
     with Crime No.1/34 of 1993 of the Maninagar Police Station. During investigation
G    of that case a Superintendent of Police (Shri Ashish Bhati) has recorded a
     confessional statement from the said Abdul Latif under Section 15 of the
     TADAA. Second respondent (Musakhan re/: Babakhan) was arrested in
     connection \\ith Crime l/284 of 1993 of Shahibag Police Station. His
     confessional statement was also recorded in the same manner.

H          ln the meanwhile, police charge-sheeted the cases which were registered
       STATE OF GUJARAT 1·. MOHAMMED ATIK (THOMAS. J.]                    667

at t\vo other police stations (Kalupur and Karanj Police Stations) as against    A
fourth respondent Abdul Latif and some others. The Designated Court at
Ahmedabad began proceedings to try those cases. While the trial was in
progress, the Public Prosecutor in that Court felt that the confessional
statements recorded by the police during im·estigation of the case registered
at Maninagar Police Station under Section 15 of the TADAA have to be used        B
as prosecution evidence as those statements related to events which are
subject-matter of the cases registered in Kalupur and Karanj Police Stations.
It was then that the Public Prosecutor filed application for permission to use
such confessional statements. The application was opposed on the main
ground that the confession made in another case cannot be used in the crime
registered by Kalupur and Karanj Police Stations. Learned Judge of the           C
Designated Court, thereupon, considered the following question:

       'The question therefore is whether the prosecution be permitted to
       introduce and prove the confessional statement of an accused alleged
       to have been made during the investigation of another offence
       committed on a different date, during the trial of that accused in        D
       another crime."

      Learned Judge answered the question iu the negative by upholding the
objection raised by the respondent, as per the impugned order.

       As these special leave petitions were pending an important development    E
happened - fourth respondent (Abdul Latif) died and the case against him got
abated. Nevertheless the question remains alive as the confessional statement
attributed to the second respondent Musakhan @ Babakhan is also sought
to be used in the cases registered by Kalupur and Karanj Police Stations. For
considering the said question we look at Section 15(1) of the TAD AA which       F
reads thus:-

       ''15. Certain confessions made to police officers to be taken into
       consideration- (I) Notwithstanding anything in the Code or in the
       Indian Evidence Act 1872 (I of 1872), but subject to the provisions
       of this section, a confession made by a person before a police officer    G
       not lower in rank than a Superintendent of Police and recorded by
       such police officer either in writing or on an) mechanical device like
       cassettes. tapes or sound tracks from out of which sounds or images
       can be reproduced, shall be admissible in the trial of such person [or
       co-accused, abettor or conspirator] for an offence under this Act or
       rules made thereunder."                                                   H
    668                    SUPREME COURT REPORTS                       [1998] 2 S.C.R.

A          It is clear from the abo1·e section that a confessional statement recorded
    in accordance with the requirements contained in the Section becomes
    admissible in spite of the ban contained in Section 25 of the Evidence Act
    or Section 162 of the Code of Criminal Procedure. The requirements stipulated
    in Section 15(1) of the TADAA for admissibility of a confession made to a
B   police officer are (I) The confession should have made to a police officer not
    lower in rank than a Superintendent of Police (2) it should haye been recorded
    by said police officer (3) the trial should be against the maker of confession
    (4) such trial must be for an offence under TAD AA or the Rules thereunder.
    If the abm·e requirements are satisfied the confession becomes admissible in
    evidence and it is immaterial whether the confession was recorded in one
C   particular case or in a different case.

           When there is no statutory inhibition for using such confession on the
    premise that it was not recorded during the investigation of the particular
    offence which is under tria I there is no need or reason for the Court to
    introduce a further fetter against the admissibility of the confessional statement.
D   It often happens that a confessor would disclose very many acts and events
    including different facets of his involvement in the preparation attempt and
    commission of crimes including the acts of his co-participators therein. But
    to expel every other incriminating disclosures than those under investigation
    of a particular crime from the ambit of admissibility is not mandated by any
E   provision of law.

          We have, therefore, absolutely no doubt that a confession, if usable
    under Section 15 of the TADAA would not become unusable merely because
    the case is different or the crime is different. If the confession covers that
    different crime it would be a relevant item of evidence in the case in which
F   that crime is under trial and it would then become admissible in the case.

          In State of Rajasthan v. Bhup Singh, [1993] 10 SCC 675 a similar
    objection raised by the defence was considered in the context of admissibility
    of a confessional statement under Section 27 of the Evidence Act. In that
    case, information was elicited by the police from the accused during
G   investigation in connection with a particular offence and weapon of offence
    was recovered in consequence thereto. That information became relevant in
    a subsequent case, but the accused contended that the said information is
    not admissible in evidence in the subsequent case. This High Court over-
    ruled the objection on the ground that there is no such prohibition in Section
    27 of the Evidence Act. It was observed that "it is immaterial whether the
H   information was supplied in connection with the same crime or a different
       STATE OF GUJARAT. v. MOHAMMED ATIK [THOMAS. J]                      669

crime ... The same principle applies to a confession recorded under Section 15    A
of the TADAA.

      However, Shri S.K. Dholakia, learned Senior Counsel who ar!,'l1ed for the
appellant State contended that the confession made by the -lth respondent-
Abdul Latif (who died during pendency of these Special leave petitions) is
useful and relevant in evidence to prove the criminal conspiracy inrnlving the    B
remaining accused as the said confessional statement relates to the role
played by such remaining accused in the crime. Learned counsel said that
since the maker of the confession died, the relevancy of the confessional
statement would fall within the ambit of Section 32(3) of the Evidence Act.
The sub-section renders the following statement relevant if it was made by        C
a person who is dead:

        "(3) When the statement is against the pecuniary or propriety interest
        of the person making it, or when, if true, it would expose him or would
        have exposed him to a criminal prosecution or to a suit for damages."

       Even if the fourth respondent - Abdul Latif were aliye his confession
                                                                                  D
could have been used as against another person only under the strict
parameters fixed in the proviso to Section 15(1) of the TADAA. The proviso
reads thus:-"Provided that co-accused, abettor or conspirator is charged and
tried in the same case together with the accused." But the moment the maker
of the confession dies before conclusion of the trial, the above proviso sinks    E
into disuse because then it would be impossible to try the two persons
together.

      However, learned counsel submitted that what becomes relevant under
Section 32(3) of the Evidence Act would become relevant under Section 10          F
of the Act as well: That Section pertains to '·Things or done by conspirator
in reference to common design".

       It provides that where there is reasonable ground to believe that two
or more persons have conspired together to commit an offence "anything
said. done or written by anyone of such persons in reference to their common      G
intention" is a relevant fact. So unless what the deceased accused (Abdul
Latif) disclosed in his confessional statement to the police officer was "in
reference to their common intention,·· that statement cannot be brought within
the scope of Section l 0 of the Evidence Act.

      We have to see the amplitude of the expression "in reference to their       H
    670                    SUPREME COURT REPORTS                     (1998] 2 S.C.R.

A   common intention'· as used in Section JO of the Evidence Act. It was once
    considered that the expression is as good as saying ··in furtherance of the
    common intention:· Almost seven decades ago a Full Bench of the Patna
    High Court had held it like that in Indra Chandra :Varang and others v.
    E111per01; AIR (1929) Patna 1-l:i:

B          "The object of this section is merely to ensure that one person shall
           not be made responsible for the acts or deeds of another until some
           bond in the nature of agency has been established between them and
           the act, words. or writing of another which it is proposed to attribute
           vicariously to the person charged must be in furtherance of the
C          common design and after such design was entertained."'

          But a three judge bench of this Court in Bhagwan Swarup Lal Bishan
    Lal and others v. State of Maharashtra, AIR (1965) SC 682, said that the
    expression ("'in reference of their common intention"') is wider than the words
    'in furtherance of their common intention' and is very comprehensive and it
D   appears to have been designedly used to give it a wider scope than the words
    'in furtherance of" in the English Law. Ev~n if it is wider, would its width go
    beyond the period of conspiracy? It is well-neigh settled that Section 10 of
    the Evidence act is founded on the principle of law of agency by rendering
    the statement or act of one conspirator binding on the other if it was said
E   during subsistence of the common intention as between the conspirators. If
    so, once the common intention ceased to exist any statement made by a
    former conspirator thereafter cannot be regarded as one made ··in reference
    to their common intention." In other words, a post-arrest statement made to
    a police officer, whether it is a confession or otherwise, touching his
    involvement in the conspiracy. would not fall within the ambit of Section 10
F   of the Evidence Act.

         Privy Council has held so in 1\ firza Akbar v. King E111pero1; AIR ( 1940)
    PC 176. The relevant observations of Lord Wright are the following:

            "This being the principle, their Lordships think the words of S. I 0 must
G           be constmcted in accordance with it and are not capable of being
            widely constmed so as to include a statement made by one conspirator
            in the absence of the other with reference to past acts done in the
            actual course of carrying out the conspiracy, after it has been
            completed. The common intention is in the past. In their Lord1·hips ·
H           judgement, the words "common intention" signifo. a common intention
       STATE OF GUJARAT        v.   MOHAMMED ATIK [THOMAS. J.]             671

        existing at the time when the thing ll'as said, done or written hy the    A
        one of them. Things said. done or written while the conspiracy was
        on foot are releYant as evidence of the common intention. once
        reasonable ground has been shown to believe in its existence. But it
        iruuld he a verv different matter to hold that any narrative or
        statement or confession made to a third party ajier the co111m1m          B
        intention or co11.1piracy was no longer operation and had ceased to
        exist is admissih/e again.1·1 !he other party. There is then no common
        intention of the compirators to which the statement can have
        reference. In their Lordships' judgement S.10 embodies this principle.
        That is the construction which has been rightly applied to S.10 in
        decisions in India, for instances, in Emperor v. Ganesh Raghunath (55     c
        Bombay 839) and Emperor v. Ahani (38 Cal 169). In these cases the
        distinction was rightly drawn between communications between
        conspirators while the conspiracy was going on with reference to the
        carrying out of conspiracy and statements made, after arrest or after
        the conspiracy has ended, by way of description of events then past."     D
                                                          (Emphasis supplied)

     A three judge bench of this Court has also said in Sardul Singh
Caveeshar and others v. The State of Bomhay, AIR (1957) SC 747.
                                                                                  E
           'The principle underlying the reception of evidence under S. I 0 of
       the Evidence Act of the statements, acts and writings of one co-
       conspirator as against the other is on the theory of agency. The rule
       in S.10 Evidence Act, confines that principle of agency in criminal
       matters to the acts of the co-conspirator within the period during
       which it can be said that the acts were "in reference to their common F
       intention" that is to say, things said, done or written, while the
       conspiracy was on foot and in carrying out the conspiracy. It lFould
       seem to follow that where, the charge .1pecified the period of
       conspiracy, evidence of acts of co-conspirators outside the period is
       not receivable in evidence."                                            G
                                                          (Emphasis supplied)

      Thus. the principle is no longer res integra that any statement made by
an accused after his arrest, whether as a confession or otherwise, cannot fall
within the ambit of Section 10 of the Evidence Act. The corollary of it is that   H
    672                  SUPREME COURT REPORTS                   [1998] 2 S.C.R.

A the confessional statement of 4th respondent (Abdul Latif Abdul Wahab
    Sheikh) who is no more alive now thus vanishes from the ken of evidentiary
    use.

       In the result we allow these appeals and set aside the impugned order
  and permit the prosecution to make use of the confessional statement, recorded
B under Section 15 of TADAA of the accused who are now facing trial.

    P.T.                                                      Appeals allowed.