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“Section 30 of the Indian Evidence Act mandates that to make the confession of a co­-accused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a co­- accused is not at all admissible in evidence and, therefore, the same cannot be taken as evidence against the other co­-accused,” said Supreme Court while setting aside order of conviction and imprisonment under the Terrorist and Disruptive Activities (Prevention) Act.

A division bench of Supreme Court comprising of Justice S. Abdul Nazeer and Justice Deepak Gupta passed this judgment on Criminal appeal filed by Raja @ Ayyappan against an order of conviction and rigorous imprisonment under the Indian Penal Code, the TADA Act and the Explosive Substances Act, 1908.

According to the prosecution, the absconding accused, had formed an organization at Trichy under   the name ‘Tamilar  Pasarai’, with the object of achieving separate Statehood for Tamil Nadu and to blast Central and State Government buildings with bombs to overawe the Government established by law. The accused have enrolled themselves in the said organization and entered into a criminal conspiracy during June 1988 to commit an illegal act and to blast the State Government building in the Secretariat by name ‘Namakkal Kavignar Maligai’ and in furtherance of the said conspiracy, had also undergone a course in electronics and learnt the mechanism for devising electronic timer, to be used in the time bombs to be manufactured by them.

The Designated Court had convicted the appellant on the basis of his confession and the confession statement of the two other co­ accused.

The first question that the Apex Court considered was if the confession was made voluntarily and truthfully, and noted that it is well­settled that a confession which is not free from doubt about its voluntariness, is not admissible in evidence. A confession caused by inducement, threat or promise   cannot be termed as voluntary confession.Whether a confession is voluntary or not is essentially a question of fact. The Court also cited the case State (NCT  of Delhi) v. Navjot Sandhu which noted that

“ Before acting upon a confession the court must be satisfied that it was freely and voluntarily made. The confession should have been made with full knowledge of the nature and consequences of  the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration.”

 The Court made a note of the guidelines for recording confession laid down in the Kartar Singh Case by a Constitution Bench of the Supreme Court, to ensure that the confession obtained in the pre­indictment interrogation by a police officer not lower in rank than a Superintendent of Police is not tainted with any vice but is in strict conformity with the well recognised and accepted aesthetic   principles and fundamental fairness.

In the present case, there is nothing on record to prove the voluntariness of the statement. As the accused had stated before the learned judge of the Designated court that he was tortured by the police and that he had nothing to do with the alleged incident and that he did not make any incriminating statement. These circumstances show that the accused could not have made the statement voluntarily and therefore, the confession statement of the accused requires to be rejected, it added.

The Court also noted that even though certain questions were put before the accused while in police custody which were answered by him, there is no record to show that the accused was warned as per the TADA act and TADA rules.

The provision of TADA Act, under Section 15, specifically provides that the confession recorded shall be admissible in trial of a co accused for offence committed and tried in the same case together with the accused who makes the confession. The Court commenting on scope of this section, stated 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 co accused, who would face trial at a later stage in the same case.

-India Legal Bureau 

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