The general position of law prevailing in the country in terms of Section 25 of the Indian Evidence Act rules out the admissibility of any confessional statement made by an accused in the presence of a police officer. Provided to ensure that confessions are not made under police pressure and that even if made be not used against the accused, the protection allows the accused to retract from a confession on the grounds that it has been obtained forcefully by the Police. The law is otherwise, however, in respect of terrorism related offences.
Section 15 of the Terrorist and Disruptive Activities Act, 1987 provides that the confession made to a police officer shall be admissible as evidence. This provision has been subject to challenge before the Courts for long and in a recently reported decision the Supreme Court re-examined the position of law to declare that such a provision was legally sustainable. The Supreme Court inter alia observed as under;
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 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 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 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.”
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 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.
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