[TADA] Confession Of Co-accused Inadmissible Against Another Accused If They Were Tried Separately: SC [Read Judgment]

The Supreme Court, in its judgment delivered on Wednesday, made some important observations regarding admissibility of confessions under Terrorist and Disruptive Activities (Prevention) Act, 1987.

The bench comprising of Justice S. Abdul Nazeer and Justice Deepak Gupta, with regard to scope of Section 15, held that if for any reason, a joint trial is not held, the confession of a co-accused cannot be held to be admissible in evidence against another accused who would face trial at a later point of time in the same case.

The Court also held that the entire proceedings on record should reflect application of mind into various surrounding circumstances including questions and answers elicited from the accused. The real satisfaction about the voluntariness of the confession is sine qua non, the bench said.

The Court made the following observations while allowing the appeal filed by a person convicted under TADA. 

Confession of Co-Accused Inadmissible If There Was No Joint Trial

The court noted that the Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co­accused for offence committed and tried in the same case together with the accused who makes the confession. It said:

"In the instant case, no doubt, the appellant was absconding. That is why, joint trial of the appellant with the other two accused persons could not be held. As noticed above,Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co­accused for offence committed and tried in the same case together with the accused who makes the confession.Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co­accused for offence committed and tried in the same case together with the accused who makes the confession. We are of the view, that if for any reason, a joint trial is not held, the confession of a co­accused cannot be held to be admissible in evidence against another accused who would face trial at a later point of time in the same case. We are of the further opinion that if we are to accept the argument of the learned counsel for the respondent­ State, it is as good as rewriting the scope of Section 15 of the TADA Act as amended in the year 1993. "

Compliance with TADA Rules on confession is not an empty formality.

The Court also held, in the facts of the case, that compliance with TADA Rules on confession is not an empty formality. It said:

" It is necessary to notice here that complying with these rules is not an empty formality or a mere technicality as these provisions serve a statutory purpose to ensure a fair trial as guaranteed under Article 21 of the Constitution of India. The entire proceedings on record should reflect application of mind into various surrounding circumstances including questions and answers elicited from the accused. Mere recording in a certificate will only amount to technical observance of the rule but that will not prove the voluntariness of the statement. In law, it is not the technical observance of the rules but it is the real satisfaction about the voluntariness of the confession is sine qua non. It is also necessary to state here that the confession recorded by the police officer is undoubtedly equated to a confession recorded by a Judicial Magistrate under Section 164 Cr.P.C. Thus, the said confession is a substantive piece of evidence. Therefore, all the safeguards which are to be followed by a Magistrate should have been followed by the police officer also. It is well settled that the satisfaction arrived at by the Magistrate under Section 164 18 Cr.P.C. is, if doubtful, then, the entire confession should be rejected.

In the instant case, it is evident that from out of the questions put by PW­28 and the answers elicited and the manner in which the accused has made the statement are all the foundations upon which it is to be found out as to whether the statement was made voluntarily or not. If the certificate is not supported by any of the above inputs, then the certificate needs to be rejected. The police officer cannot record such a certificate out of his own imagination and the entire proceedings should reflect that the certificate was rightly given based on the materials. In the present case, there is nothing on record to prove the voluntariness of the statement. Ex. D­1 and D­2 and other circumstances would go to show that the appellant could not have made the statement voluntarily. Therefore, the confession statement of the appellant requires to be rejected. " 

Case no.: CRIMINAL APPEAL NO. 1120 OF  2010
Case name: RAJA @ AYYAPPAN  vs. STATE OF TAMIL NADU
Coram: Justice S. Abdul Nazeer and Justice Deepak Gupta
Counsel: Sr. Advocate S. Nagamuthu

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