Read Time: 15 minutes

Synopsis

The Supreme Court has dismissed an appeal filed by the CBI against the acquittal of alleged members of banned Jammu & Kashmir Students Liberation Front (JKSLF) in a sensational kidnap and murder of then Kashmir University Vice Chancellor Dr Mushir-ul-Haq and his personal secretary, to demand release of the jailed militants during the peak of terrorism in 1990.

A bench of Justices Abhay S Oka and Ujjal Bhuyan upheld the TADA Special Court's judgment of 2009, acquitting six accused in the case, saying the procedural safeguards were given a complete go-bye in recording the confessional statements by the CBI's Superintendent of Police.

"It is indeed a sad reflection as to how investigation and trial unfolded in this case where truth and justice, both for the victims and the accused, remained elusive. It is not for nothing that such draconian provisions have since been repealed. We say this and no more," the bench observed.

Court found no merit in the appeal filed by the CBI in the case, registered under the now repealed, Terrorist and Disruptive Activities (Prevention) Act, 1987.

"We do not find any error or infirmity in the view taken by the Special Court in acquitting the respondents," the bench said.  

The CBI alleged Dr Haq and his personal secretary Abdul Gani were kidnapped by the accused on April 6, 1990, to demand release of their associates. The two hostages were killed by the respondent accused on April 10, 1990, after being taken to field by spraying bullets from AK-47.

Considering the CBI's appeal against acquittal, the court noted the Special Court had stopped short of observing that it was a case of abuse of power and authority. 

The court noted that the recording of confessional statements in a heavily guarded BSF camp or in a JIC (joint interrogation centre) where the atmosphere for an accused would generally be daunting and overbearing could not be said to be in a free atmosphere. 

It pointed out, it had come on record that the confessional statements so recorded were not accepted by the court of Chief Judicial Magistrate whereafter those were sent directly to the Special Court which again was an infraction of the statute.

"The Legislature had reposed great faith in the fairness and uprightness of the higher police officials in the rank of SP and above while conferring the drastic power of recording confessional statements of the accused persons upon them making the same admissible in evidence subject to fulfillment of the procedural safeguards," the bench pointed out.      

The bench noted that respondent No. 1, Zargar was lodged in a BSF camp at Srinagar where his confession was recorded. But there was no mention where the confession was recorded. Further, the time when the confession was recorded was not mentioned. The SP also did not mention whether he had afforded any time for the accused to reflect before making the confession which was most crucial. 

"This (CBI SP's) statement is as vague as it can be. Thus, there is a clear departure from the norms which renders the confession highly suspect," the bench said.   

The court also noted the certificate appended to the confessional statement was dated September 16, 1990, whereas SP, CBI in his evidence stated that he had recorded the confession of respondent No. 1 on August 6, 1990, "which was again a grave discrepancy".

The bench also said the confessional statement of respondent No. 1 was rejected by the Special Court in a prior case concerning the killing of one B K Ganju, an MTNL engineer, on December 21, 2002, where the said confessional statement was deemed inadmissible and unreliable.

"Acceptance of the same confessional statement would disturb the finding of fact already recorded in the previous criminal trial relating to the killing of one B K Ganju. In any case, the said statement is clearly vitiated by non-compliance with the procedural safeguards as provided under Rule 15 and enumerated in the Constitution bench decision in Kartar Singh Vs State of Punjab (1994)," the bench said.

The court also rejected the confessional statements of accused Mushtaq Ahmed Khan, and Mohd Sadiq Rather for those were also recorded in the same manner for not being in question and answer form and lacking requisite authorisation.

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. Section 15 provided for certain confessions made to police officers to be taken into consideration.

Six accused Abdul Aziz Dar, Gulam Qadir Mir, Shabir Ahmed Bhat, Mohd. Sadiq Rather, Mushtaq Ahmed Khan and Mohd Salim Zargar were charged for committing an offence under Sections 118, 302, 368, and 365 of the Ranbir Penal Code read with Sections 3, 4 of the TADA Act.

The Special Court by its judgment and order of April 20, 2009, acquitted the accused persons holding that the prosecution could not prove the guilt of the accused beyond any reasonable doubt. The court discarded the ocular evidence of prosecution witnesses as well as the confessional statements of the accused holding those to be inadmissible in evidence.

The bench said that in criminal jurisprudence, developed over a century, confessions made to a police officer are inadmissible in evidence. Under Section 25 of the Evidence Act, a confession made to a police officer by a person accused of an offence shall not be proved against him. Power to record confessions is given to a Judicial Magistrate. 

It said strict and rigorous guidelines have been laid down to record such judicial confessions under Section 164 CrPC. Such safeguards are founded on the well settled principle that confession is an admission of guilt. Ordinarily, nobody would like to admit his guilt as he is fully aware that the same would be used against him. That apart, an accused has a constitutional and fundamental right against testimonial compulsion. Therefore, Section 15 of the TADA Act completely altered the fundamental rules of evidence.

In Kartar Singh case, the bench pointed out, a Constitution bench of the court while upholding the validity of Section 15 of the TADA Act as well as the entirety of the Act, however, laid down certain guidelines so as to ensure that 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 compliance with well-recognised and accepted aesthetic principles and fundamental fairness.  

The CBI, in its plea, contended confessions of the accused persons were recorded in the year 1990 when there were no guidelines prescribed for recording of statements under Section 15 of the TADA Act and the judgment in the case of Kartar Singh came much later.

The counsel for the respondents accused submitted that the Special Court had acquitted all the accused persons as the only actionable evidence were the alleged confessional statements of the three accused persons. In Ganju's case, the same statement was rejected and no appeal was filed.

The counsel also said that the trial in this case took more than 19 years to complete as the prosecution was very tardy in producing the witnesses before the court while the accused persons remained in custody as under-trial prisoners. 

Case Title: State (CBI) Vs Mohd Salim Zargar @ Fayaz & Ors