SUNDERLAL KANAIYALAL BHATIJAversusSTATE OF MAHARASHTRA AND ORS.

                  [2010] 3 S.C.R. 1149


          SUNDERLAL KANAIYALAL BHATIJA                    A
                           v.
         STATE OF MAHARASHTRA AND ORS.
           (Criminal Appeal No. 1222 of 2006)
                   MARCH 31, 2010
                                                          B
 [DR. MUKUNDAKAM SHARMA AND H.L. DATTU, JJ.]

      Evidence Act, 1872: s.25 - Confessional statement
recorded in case relating to offences under the TADA Act
would not be admissible in evidence against the accused in c
prosecution for offence under any other law if the offences
under any other law and those under the TADA Act are being
tried separately- On facts, accused convicted in TADA case
on the basis of his confessional statement - In a separate
complaint accused charged under ss302, 307, 353 and 402 0
/PC- Some offences under TADA Act were also incorporated
initially but later same were dropped - Confession made by
accused under TADA Act cannot be used by prosecution for
offences committed under /PC - Terrorist and Destructive
Activities Act, 1987 - ss.12 and 15 - Penal Code, 1860 - E
ss.302, 307, 353 - Arms Act, 1959 - s.35(c).
    The Private respondent No.4 was convicted in TADA
case on the basis of his confessional statement. A
separate complaint was filed wherein he was charged
under Sections 302, 307, 353 and 402 of the Indian Penal F
Code, r.w. Section 35(c) of the Arms Act, 1959. The
provisions of the Terrorist and Disruptive Activities Act,
1987 (TADA Act) were also applied in the said case.
However, the said provisions of the TADA Act were
dropped since the TADA Review/Screening Committee G
came to the conclusion that offences under the TADA
Act were not attracted in the said case.
    The question which arose for consideration in the
present appeal was whether the confessional statements
                        1149                              H
    1150   SUPREME COURT REPORTS            [2010] 3 S.C.R.


A recorded in a case relating to offences under the TADA
  Act would be admissible in evidence against the accused
  in prosecution for offences other than those under the
  TADA Act.
       Dismissing the appeal, the Court
B
       HELD: 1.1. Section 25 of the Indian Evidence Act
  deals with the general provision regarding a confession
  made by an accused to a police officer. In terms of the
  Section 25 of the Indian Evidence Act, a confession made
c by an accused to a police officer is not admissible.
  However, an exception has been carved out under the
  provision of Section 15 of the TADA Act which provides
  that certain confessions made to police officers by an
  accused involved in a case charged for an offence under
  the TADA Act or rules made thereunder would be
D
  admissible in evidence in the trial of such person. [Para
  12] [1156-G-H; 1157-A-~]
      Prakash Kumar @ Prakash Bhutto v. State of Gujarat
  (2005) 2 SCC 409; State of Gujarat v. Mohammed Atik &
E Others (1998) 4 SCC 351, referred to.
       1.2. It is now a settled law that a confessional
  statement duly recorded by a police officer in a case
  related to TADA Act and the rules framed thereunder
  would continue to remain admissible for the offences
F under any other law which were tried along with TADA
  offences under Section 12 read with Section 15 of the Act
  notwithstanding that the accused was acquitted of
  offences under the TADA Act in the same trial. But, in the
  instant case the allegation was mainly for the offences
G under the IPC. Some offences under the TADA Act were
  also incorporated initially but later on the same were
  dropped. Consequently, charges in the said case were
  framed only for offences under the IPC and not under the
  TADA Act and the trial was also only for offences under
H the IPC and not under the TADA Act. Therefore, such
  SUNDERLAL KANAIYALAL BHATIJA v. STATE OF 1151
              MAHARASHTRA

confessional statement as made by the respondent no.                 A
4 under the TADA Act, in a different case, cannot be used
or utilised by the prosecution in the present case as the
charges were framed only for the offences under the
Indian Penal Code. [Para 16) [1159-D-G]
                      Case Law Reference:                            B

     (2005) 2 sec 409             referred to           Para 11
     (1998) 4 sec 351             referred to           Para 13
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                 C
No. 1222 of 2006.
     From the Judgment & Order dated 29.9.2006 of the High
Court of Judicature at Bombay in Criminal Writ Petition No. 354
of 2006 with Criminal Revision Application 36 of 2006.
    R. Sundervardhan, Hari, Sanjeev Tyagi, Rekha Pandey,             D
Bhupender Yadav, S.S. Shamsherry, Debaleena Kilikdar, Ram
Lal Roy, Chinmany Khaladkar, Sanjay Kharde, Nitin S.
Tambwekar, B.S. Sai, Asha Gopalan Nair, R.C. Kohli, R.N.
Keshwani, Atishi Dipankar, K. Rajeev for the appearing parties.
                                                                     E
     The Judgment of the Court was delivered by
     DR. MUKUNDAKAM SHARMA, J.1. The issue that falls
for consideration in the present appeal is whether the
confessional statements recorded in a case relating to offences
under the Terrorist and Disruptive Activities Act, 1987 [for short   F
'TADA Act"] would be admissible in evidence against the
accused in prosecution for offences other than those under the
TADA Act. In order to answer the aforesaid issue arising for
our consideration, some background facts are required to be
stated so as to make it easier to appreciate the issues urged.       G
     2. The private respondent No. 4 was arrested in TADA
Case No. 114 of 1991and114-A of 1991. In the said case,
there was a confessional statement made by the private
respondent no. 4 which was recorded on 17.03.1991 along with
another co- accused. The said confessional statements so             H
    1152      SUPREME COURT REPORTS                [2010] 3 S.C.R.


A recorded by the police were used by the prosecution as
  substantive evidence in the aforesaid TADA case. The
  aforesaid TADA case resulted in the conviction of the private
  respondent No. 4, which was finally confirmed even by this
  Court.
8         3. Apart from the aforesaid TADA case, a separate
    complaint was filed by Sh. Ghansyam Vijay Kumar Bendre,
    pursuant to which a criminal case came to be registered at the
    Vithalwadi Police Station, Ulhasnagar against the private
    respondent No. 4 and some others for the offences punishable
C   under Sections 302, 307, 353 and 402 of the Indian Penal
    Code [for short "lPC"] read with Section 35(c) of the Arms Act,
    1959. The provisions of the TADA Act were also applied in the
    said case. However, the said provisions of the TADA Act were
    dropped since the TADA Review I Screening Committee came
D   to the conclusion that offences under the TADA Act were not
    attracted in the said case. Faced with the aforesaid situation,
    the prosecution filed an application before the Sessions Judge-
    Kalyan, praying that the original confessional statement of the ·
    private respondent No. 4 made in the aforesaid TADA case(s)
E   be called for. The said application was rejected by the trial Court
    by its order dated 22.11.2005. The aforesaid order passed by
    the trial Court was challenged by the prosecution as well as the
    relative of the deceased by filing a Criminal Revision
    Application and a Criminal Writ Petition respectively in the High
F   Court of Bombay. The High Court, after hearing the parties,
    however, dismissed both the aforesaid revision application and
    the writ petition by an order dated 29.09.2006. Being aggrieved
    by the aforesaid order, the present Special Leave Petition was
    filed in which leave was granted and consequently the present
G   appeal.
        4. During the pendency of the present appeal, the
    appellant died and therefore an application seeking for
    substitution of the appellant was filed.
           5. We have heard the learned counsel appearing for the
H
 SUNDERLAL KANAIYALAL BHATIJA v. STATE OF 1153
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

parties on the said application and have also gone through the         A
records. After hearing the counsel appearing for the parties
and for the reasons stated in the application, we allow the
application for substitution of the appellant in terms of this order
and the name of Kamal Sunderdas Bathija be substituted in
place of Sunderlal Kanaiyalal Bhatija.                                 B
      6. Having allowed the application seeking the substitution,
we are now required to deal with the main appeal. At this
stage, we would like to indicate that being aggrieved by the
impugned order dated 29.09.2006 passed by the Bombay
High Court, the State of Maharashtra, filed a Special Leave            C
Petition in this Court, challenging the legality of the same, which
was registered as CRLMP Nos. 8215-16 of 2008. Since, there
was a delay in filing, an application for condonation of the delay
was also filed by the State of Maharashtra. Both, the aforesaid
o appeals, as also the application, were listed for                    D
consideration before a bench of this Court and by a judgment
and order dated 13.05.2008, the Special Leave Petition was
dismissed on the ground of delay as also on merits.
     7. Subsequently, an application was filed by the State of         E
Maharashtra which was registered as CRLMP No. 8133 of
2008 seeking their transposition as appellant. However, no
order was passed on the application seeking transposition.
Considering the facts and circumstances of the case and
particularly, in view of the fact that, the substantive appeal of
the State has been dismissed on merits, the application                F
seeking transposition of the State of Mahrashtra as appellant
cannot be allowed. The said application accordingly stands
dismissed.
     8. The fact which is therefore apparent on the face of the        G
record is that one of the appeals, which was filed by the State
of Maharashtra as against the impugned order stood
dismissed on merits by this Court by its order dat~d
13.05.2008, but, since in the present appea1, we had issued
notice, therefore, we are required to consider the points urged        H
    1154    SUPREME COURT REPORTS                 (2010] 3 S.C.R.


A   and issues raised by the appellant in the present appeal.
         9. There is no denial of the fact that there was a
    confessional statement made by respondent no. 4 in the said
    TADA case which was recorded on 17.03.1991 on the basis
    of which respondent no. 4 was convicted in the criminal case
B   under the TADA Act which was registered as Case Nos. 114
    of 1991 and 114-A of 1991. But, the said confessional
    statement made by the respondent no. 4 in the TADA case
    sought to be used and utilised and placed as evidence in the
    complaint filed by Sh. Ghansyam Vijay Kumar Bendre and now
C   registered as a case for the offences under the Indian Penal
    Code and not under the TADA Act, for the TADA Review I
    Screening Committee had opined that no offence under the
    TADA Act was attracted in the said case and consequently the
    charges under the TADA Act were dropped. As noted earlier,
D   the said prayer calling for the confessional statement made in
    the said TADA case for use as evidence in the criminal case
    under the IPC was rejected by the trial Court as well as by the
    High Court. Both the orders have been challenged by the legal
    representative of the deceased-complainant.
E        10. We have heard the learned counsel appearing for the
    parties. Counsel appearing for the appellant submitted before
    us that the confessional statement made before the police by
    respondent no. 4 in the TADA case could be used in the
    criminal case pending against respondent no. 4 under the IPC.
F   In support of the said contention counsel appearing for the
    appellant relied upon the provisions of Sections 12 and 15 of
    the TADA Act and Section 25 of the Indian Evidence Act, 1872.
    Since reference has been made to the said provisions, the
    same are extracted hereinbelow:-
G
        Terrorist and Disruptive Activities Act, 1987: -
        "12. Power of Designated Courts with respect to other
        offences:-
        (1) When trying any offence, a Designated Court may also
H
 SUNDERLAL KANAIYALAL BHATIJA v. STATE OF 1155
MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

  try any other offence with which the accused may, under             A
  the Code, be charged at the same trial if the offence is
  connected with such other offence.
  (2) If, in the course of any trial under this Act of any offence,
  it is found that the accused person has committed any other
  offence under this Act or any rule made thereunder or under         8
  any other law, a the Designated Court may convict such
  person of such other offence and pass any sentence
  authorised by this Act or such rule or, as the case may be,
  such other law, for the punishment thereof."
  "Section 15 - Certain confessions made to Police Officers
                                                                      c
  to be taken into consideration:-
  (1) Notwithstanding anything in the Code or in the Indian
  Evidence Act, 1872 (1 of 1872), but subject to the
  pr0visions of this section, a confession made by a person           D
  before a police office not lower in rank than a
  Superintendent of Police and recorded by such police
  officer in writing or on any mechanical device like
  cassettes, tapes or soundtracks from out of which sounds
  or images can be reproduced, shall be admissible in the             E
  trial of such person [or co-accused, abettor or conspirator]
  for an offence under this Act or rules made thereunder:
  [Provided that co-accused, abettor or conspirator is
  charged and tried in the same case together with the
  accused.]                                                           F
  (2) The police officer shall, before recording any
  confession under sub-section (1), explain to the person
  making it that he is not bound to make a confession and
  that, if he does so, it may be used as evidence against             G
  him and such police officer shall not record any such
  confession unless upon questioning the person making it,
  he has reason to believe that it is being made voluntarily."
  Indian Evidence Act, 1872: -
                                                                      H
    1156    SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A       "Section 25 - Confession to police officer not to be
        proved:-
        No confession made to a police officer, shall be proved
        as against a person accused of any offence."
B      11. It was contented on behalf of the counsel for the
  appellant that a bare look at Section 12 and Section 15 of the
  TADA Act would make it clear that certain confessions made
  to police officers could be taken into consideration and that the
  same would be admissible in trial of a person or his co-
C accused, abettor or conspirator for an offence under the TADA
  Act or rules made thereunder. This is, however, subject to a
  rider and that is that the co-accused, abettor or conspirator
  must be charged and tried in the same case together with the
  accused. Reliance was placed by the counsel appearing for the
  appellant on the case of Prakash Kumar @ Prakash Bhutto
D v. State of Gujarat reported in (2005) 2 SCC 409 on the ba'sis
  of which it was submitted that confessional statement duly
  recorded under Section 15 of the TADA Act and rules framed
  thereunder would continue to remain admissible for the offences
  under any other law which were tried along with TADA offences
E under Section 12 of the Act notwithstanding the fact that the
  accused were acquitted of the provisions of the TADA Act in
  the same trial. The aforesaid submission of the counsel
  appearing for the appellant was refuted by the counsel
  appearing for the respondent by placing reliance on the same
F decisions as relied upon by the counsel appearing for the
  appellant and also on the same provisions of the TADA Act and
  the Indian Evidence Act.
       12. Section 25 of the Indian Evidence Act deals with the
G general provision regarding a confession made by an accused
  to a police officer. In terms of the Section 25 of the Indian
  Evidence Act, a confession made by an accused to a police
  officer is not admissible. However, an exception has been
  carved out under the provision of Section 15 of the TADA Act
  which provides that certain confessions made to police officers
H
  SUNDERLAL KANAIYALAL BHATIJA v. STATE OF 1157
 MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

by an accused involved in a case charged for an offence under        A
the TADA Act or rules made thereunder would be admissible
in evidence in the trial of such person. A careful perusal of the
said provision would also make it explicitly clear that such
confessional statement made by an accused to a police officer
would be admissible in evidence in the trial of such person          B
where he is charged for an offence under the TADA Act or rules
made thereunder. This is an exception to the general rule
contained in Section 25 of the Indian Evidence Act or Section
162 of the Code of Criminal Procedure but one of the pre-
conditions to make it admissible in evidence is that such trial      c
must be for an offence under the TADA Act or the rules framed
thereunder. If the aforesaid requirement which operates as a
pre-condition is not satisfied, the confession does not become
admissible in evidence.
     13. A similar issue had ·come up for consideration before       D
this Court in State of Gujarat v. Mohammed Atik & Others
reported in (1998) 4 sec 351. In the said case also, the
provisions of Section 15 of the TADA Act were analysed by
this Court and on such analytical study it was held that the
requirements stipulated in Section 15(1) of the TADA Act for         E
admissibility of confession made to a police officer are: (1) that
the confession should have been made to a police officer not
lower in rank than a Superintendent of Police, (2) it should have
been recorded by the said police officer, (3) the trial should be
against the maker of the confession and (4) such trial must be       F
for an offence under TADA or the Rules framed thereunder. In
the said decision, it was further held that if all the above
requirements are satisfied, the confession would become
admissible in evidence and it is immaterial whether the
confession was recorded in one particular or in a different case.    G
     14. Subsequently, a Constitutional Bench of this Court
came to consider almost the same issue as now before us in
the case of Prakash Kumar case (supra). The issue that had
arisen for consideration in the said Constitutional Bench case
was whether the confessional statement made in a TADA case           H
        1158    SUPREME COURT REPORTS                   [2010] 3 S.C.R.


    A   would continue to hold good even if the accused is acquitted
        under TADA offences and there is a clear finding that TADA
        Act has been wrongly taken recourse to or the confession loses
        its legal efficacy under the Act and thus rendering itself to an
        ordinary confessional statement before the Police under the
    B   general law of the land. The Constitutional Bench considered
        the question that once the Court comes to a definite finding that
        invocation of the TADA Act is wholly unjustified or there is utter
        frivolity to implicate the accused under the TADA Act, would it
        be justified that Section 15 would be made applicable with
    c   equal force as in TADA cases to book the offenders even under
        the general law of the land.
            15. In the said decision, the Constitutional Bench had held
      that in a case where the accused is charged both under the
      TADA Act as also under other sections under the IPC and tried
    D together, in that event, a confessional statement made by him
      under TADA could be utilised against him although he is
      acquitted of the provisions of the TADA Act. It was held in
      paragraph 37 of the said Constitutional Bench judgment as
      follows: -
    E       "37. The legislative intendment underlying Sections 12(1)
            and (2) is clearly discernible, to empower the Designated
            Court to try and convict the accused for offences committed
            under any other law along with offences committed under
            the Act, if the offence is connected with such other offence.
    F       The language "if the offence is connected with such other
            offence" employed in Section 12(1) of the Act has great
            significance. The necessary corollary is that once the other
            offence is connected with the offence under TADA and if
            the accused is charged under the Code and tried together
    G       in the same trial, the Designated Court is empowered to
            convict the accused for the offence under any other law,
            notwithstanding the fact that no offence under TADA is
            made out. This could be the only intendment of the
            legislature. To hold otherwise, would amount to rewrite or
    H       recast legislation and read something into it which is not




\
  SUNDERLAL KANAIYALAL BHATIJA v. STATE OF 1159
 MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

       there."                                                       A
       Finally in paragraph 40 this Court answered the issues
       framed by them in the following manner: -
       "40. For the reasons aforestated, we are of the view that
       the decision in Nalini case has laid down correct law and     B
       we hold that the confessional statement duly recorded
       under Section 15 of TADA and the Rules framed
       thereunder would continue to remain admissible for the
       offences under any other law which were tried along with
       TADA offences under Section 12 of the Act,                    c
       notwithstanding that the accused was acquitted of offences
       under TADA in the same trial."
      16. That being the pg_sition, it is now a settled law that a
confessional statement duly recorded by-a police officer in a
case related to TADA Act and the rules framed thereunder             D
would continue to remain admissible for the offences under any
other law which were tried along with TADA offences under
Sections 12 read with Section 15 of the Act notwithstanding
that the accused was acquitted of offences under the TADA Act
in the same trial. But, here is a case where the allegation was      E
mainly for the offences under the IPC and some offences under
the TADA Act were also incorporated initially but later on the
same were dropped. Consequently, charges in the said case
were framed only for offences under the IPC and not under the
TADA Act and the trial is also only for offences under the IPC       F
and not under the TADA Act. Therefore, such confessional
statement as made by the respondent no. 4 under the TADA
Act, in a different case, cannot be used or utilised by the
prosecution in the present case as the charges were framed
only for the offences under the Indian Penal Code.
                                                                     G
     17.We, therefore, uphold the orders passed by the trial
Court as also by the High Court and dismiss the appeal filed
by the appellant herein. The bail bonds, if any, shall stand
cancelled.
D.G.                                                                 H
                                             Appeal dismissed.