1990 Kashmir University VC murder case | Supreme Court upholds acquittal of six accused due to procedural lapses in TADA confessions

Supreme Court: In two appeals filed under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA Act’) by the State (CBI) assailing the judgment and order passed by the Additional Sessions Judge, Jammu (‘Special Court’ ), wherein the Special Court acquitted the accused persons in CBI Case for the offences under Sections 118, 302, 368, 365 , 120B of the Ranbir Penal Code, 1932 (‘RPC’) and under Sections 3 and 4 of the TADA Act , the division bench of Abhay S. Oka and Ujjal Bhuyan, JJ. upheld acquittal of all the six accused persons due to procedural lapses in the recording of confessions under the TADA Act (now repealed).

Genesis

The first appeal involved the kidnapping and subsequent murder of Dr. Mushir-ul-Haq, the Vice-Chancellor of Kashmir University, and his Personal Secretary, Abdul Gani Zargar, by militants. The initial FIR was registered in 1990, and the case was later transferred to the CBI for investigation. The militants, led by Hilal Beg, had kidnapped the victims to demand the release of their associates. After the victims’ deaths, the CBI filed charges against several accused individuals under various sections, including those of the TADA Act and Section 302 of the RPC for murder.

The second appeal arose from the incident involving the kidnapping and subsequent murder of H.L. Khera, the then General Manager of HMT Watch Factory, Srinagar, allegedly by the accused persons. They were accused of entering into a criminal conspiracy with the intent to instill fear in the general public and to compel the Government to release their associates.

Despite the charges, the Special Court acquitted the accused in 2009, ruling that the prosecution had failed to prove their guilt beyond a reasonable doubt, especially dismissing certain key evidence. The State appealed the acquittal, filing a criminal appeal under Section 19 of the TADA Act, which was admitted by the Supreme Court in 2009.

Analysis and Decision

Before dealing with the admissibility or otherwise of the confessional statements, the Court analysed the relevant legal provisions under the TADA Act and the TADA Rules dealing with recording of confessional statements.
The Court explained that the TADA Act was a special legislation enacted to make special provisions for the prevention of and for coping with terrorist and disruptive activities and for matters connected therewith or incidental thereto.

Examining Section 15 TADA Act and Rule 15 of TADA Rules the Court noted that the sum and substance of Section 15 is that a confessional statement made voluntarily by a person before a police officer not below the rank of Superintendent of Police (‘SP’) shall be admissible in the trial of such person for an offence under the TADA Act. Further, Rule 15 deals with the procedural aspect regarding recording of confession made to police officers under Section 15.

Thus, being a Special Act, TADA contained a special provision in the form of Section 15 which permitted confessional statement recorded by a police officer not below the rank of SP to be admitted as evidence in the trial of the person making the confessional statement or the trial of the co-accused, abettor or conspirator if they are tried together in the same case as the person making the statement.

The Court highlighted that, in criminal jurisprudence developed over the course of a century, confessions made to a police officer are generally inadmissible in evidence. As per Section 25 of the Evidence Act, any confession made by a person accused of an offence to a police officer shall not be admissible against him. The power to record confessions is vested solely in a Judicial Magistrate, and strict guidelines for recording judicial confessions are laid down under Section 164 of the Criminal Procedure Code, 1973 (‘CrPC’).

The Court added that these safeguards are grounded in the well-established principle that a confession is an admission of guilt. Ordinarily, no individual would willingly admit to their guilt, fully aware that such a confession could be used against them. Moreover, an accused person is constitutionally and fundamentally protected against testimonial compulsion.

However, the Court also noted that Section 15 of the TADA Act significantly altered the fundamental rules of evidence, overriding these established principles.

The Court noted that the vires of the TADA Act was challenged before the Supreme Court in Kartar Singh (supra), wherein the Constitution Bench , while upholding the validity of Section 15 of the TADA Act as well as the entirety of the Act, laid down certain guidelines to ensure that a confession obtained during pre-indictment interrogation by a police officer, not lower in rank than a SP is free from any undue influence. These guidelines were designed to ensure that the confession is made in strict compliance with well-recognised and accepted aesthetic principles and fundamental fairness.

The Court reiterated that it is ultimately for the court trying the offence to decide the question of admissibility or reliability of a confession, based on its judicial wisdom and strict adherence to the law. However, the Court clarified that it must ensure that there was no trap, no coercion, and no improper seeking of evidence during the custodial interrogation phase. The court must also satisfy itself that all required conditions for the confession have been fulfilled.¹

The Court noted that in the case of SN Dube v. NB Bhoir, (2000) 2 SCC 254 , a two-judge bench of this Court rejected the defence’s contention that a confession under Section 15 of the TADA Act should be recorded in two phases, and held that explanation and ascertainment conducted during the preliminary phase, when the first part was recorded, could not be considered adequate compliance with the requirement of Rule 15(2). The Court clarified that the police officer must explain the rights and provide the statutory warning before the actual confessional part begins. It is only at that point that the officer must ascertain, through questioning, whether the person is making the confession voluntarily.

Having surveyed the law on the subject, the Court examined the confessional statements of the accused persons.

From the confessional statement of accused 1, the Court noted that he was lodged in a BSF camp at Srinagar where his confession was recorded. However, there was no clear mention of the specific location where the confession was recorded. Additionally, the time at which the confession was recorded was not provided. The recording officer also failed to state whether he had allowed accused 1 any time to reflect before making the confession, which is a crucial aspect in ensuring the voluntariness of the statement. In light of these omissions, the Court concluded that the confessional statement is vague and lacks essential details. Therefore, there is a clear departure from the established norms, which significantly undermines the credibility of the confession and renders it highly suspect.

The Court highlighted that the record did not contain any statement in the form of questions and answers from which it could be inferred that the recording officer had reason to believe that respondent 1 was making the confession voluntarily. Further, in his evidence, the recording officer stated that he was posted as the SP of CBI in New Delhi and was on a visit to Srinagar on 06-08-1990 when respondent 1 was produced before him. Since the confession was recorded on the same day, hardly any or no time for reflection was provided to accused 1, which vitiates the confessional statement.

The Court also noted that the certificate appended to the confessional statement was dated 16-09-1990, whereas the recording officer stated in his evidence that he had recorded the confession of Respondent 1 on 06-08-1990. This presented a grave discrepancy.

Additionally, the Court mentioned that this very confessional statement of respondent 1 was rejected by the Special Court in a prior murder case, where the confessional statement was deemed inadmissible and unreliable.

Applying principle of issue estoppel², the Court concluded that the confessional statement of respondent1 could not have been relied upon by the prosecution and was rightly rejected by the Special Court. Accepting the same confessional statement would disturb the findings of fact already recorded in the previous criminal case. In any event, the statement was clearly vitiated due to non-compliance with the procedural safeguards.

The Court noted that the confessional statements of the other two accused persons were recorded in the same manner as the confessional statement of accused 1; the only difference being that the statement of accused 2 was recorded at the Joint Interrogation Centre (‘JIC’), Srinagar ,while the statement of accused 6 was recorded at the JIC, Kot Bhalwal, Jammu. The memorandum appended to their confessional statements did not include crucial details such as the time of recording, the place from where they were produced, or whether any time was given to the respondents for reflection before the confessions were recorded. The Court said that this omission was critical and has completely vitiated the confessional statements.

Additionally, the Court noted that no statements in the form of questions and answers were recorded by the recording officer to ascertain the voluntary nature of the confessions made by accused persons. Furthermore, there is no record to show any authorization given to the recording officer to record the confessional statements of these two accused persons.

From the evidence of the recording officer, the Court concluded that since the confessional statements of these two accused persons were also recorded on the same day of their production, hardly any or no time was given to them for reflection, which has completely vitiated both confessions.

The Court highlighted that Kartar Singh (supra) emphasises that confessions should be recorded in a free atmosphere. The recording of confessional statements in a heavily guarded BSF camp or in a JIC, where the atmosphere would generally be daunting and overbearing for the accused, cannot be considered as being in a free atmosphere.

The Court said that the confessional statements, once recorded, were not accepted by the Court of the Chief Judicial Magistrate. Instead, they were sent directly to the Special Court, which itself constitutes a violation of the statute.

The Court stressed that the Legislature had reposed great faith in the fairness and integrity of higher police officials, such as those in the rank of SP and above, by conferring on them the drastic power to record confessional statements of accused persons, making them admissible in evidence subject to the fulfillment of procedural safeguards.

The Court said that “in this case, the procedural safeguards were completely disregarded. The Special Court refrained from explicitly stating or declaring that this amounted to an abuse of power and authority. It was indeed a sad reflection on how the investigation and trial unfolded, where truth and justice, for both the victims and the accused, remained elusive. It was not without reason that such draconian provisions have since been repealed”.

Concerning the second appeal, the Court observed that, similar to the previous criminal appeal, in this case, the weapon of assault was not recovered. Additionally, the eyewitnesses testified that the accused persons, who were produced in court, were not the actual accused persons. Ultimately, the entire prosecution case relied on the confessional statement of accused 2, recorded by the recording officer, which was already rejected.

Thus, considering the above discussions, the Court found no error or infirmity in the view taken by the Special Court in acquitting the accused persons.

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