REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1222 OF 2006

SUNDERLAL KANAIYALAL BHATIJA …APPELLANT

VERSUS

STATE OF MAHARASHTRA & ORS. …RESPONDENTS

JUDGMENT

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 ‘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  

1

background facts are required to be stated so as to make it  

easier to appreciate the issues urged.  

2. The private respondent No. 4 was arrested in TADA Case No.  

114 of 1991 and 114-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 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.   

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 under Sections  

302, 307,  353 and 402 of the Indian Penal Code [for short  

“IPC”]  read  with  Section  35(c)  of  the  Arms  Act,  1959.  The  

provisions of the TADA Act were also applied in the said case.  

2

However, the said provisions of the TADA Act were dropped  

since the TADA Review / Screening Committee came 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) 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 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 appeal.  

3

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 parties  

on  the  said  application  and  have  also  gone  through  the  

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.

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  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  

4

appeals, as also the application, were listed for 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  

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  

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 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 dated 13.05.2008, but,  

since in the present appeal, we had issued notice, therefore,  

5

we are required to consider the points urged 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 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 registered as a case  

for the offences under the Indian Penal Code and not under  

the TADA Act,  for  the TADA Review / 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, 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  

6

have  been  challenged  by  the  legal  representative  of  the  

deceased-complainant.  

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.  

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:-

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  try  any  other  offence  with  which  the   accused may,  under 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 any other law, a the  

7

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 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 provisions of this section, a confession made by a  person 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 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.]

(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 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: -

“Section  25 -  Confession to  police  officer  not  to  be  proved: -

8

No  confession  made  to  a  police  officer,  shall  be  proved as against a person accused of any offence.”

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-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 v. State of Gujarat reported in (2005) 2 SCC 409 on  

the  basis  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 under Section 12 of the Act  

notwithstanding the fact that the accused were acquitted of  

9

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 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 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 by an accused  

involved in a case charged for an offence under 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  

where  he is  charged for  an offence under  the  TADA Act  or  

10

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 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  this  

Court  in  State  of  Gujarat  v.  Mohammed  Atik  &  Others  

reported  in  (1998)  4  SCC 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  

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 for an offence under TADA or the Rules framed  

11

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.  

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  

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  

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  

12

with 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 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: -

“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. 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 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  recast   legislation  and read something  into  it  which  is not  there.”

13

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  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,  notwithstanding  that  the  accused was acquitted of offences under TADA in the   same trial.”

16.That  being  the  position,  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 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 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  

14

the IPC and not under the TADA Act and the trial is also only  

for  offences  under  the  IPC  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.  

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.

……………………………………. J [DR. MUKUNDAKAM SHARMA]

……………………………………. J [H.L. DATTU]

NEW DELHI MARCH 31, 2010.

15