Legal Issues

5. Preliminary submissions: (i) There are certain issues which arise at the threshold viz., validity of sanction orders, non-addition of POTA offences at the beginning and framing of charges which need to be addressed before we embark on a discussion of other questions.

Sanction: (ii) Section 50 of POTA enjoins that no Court shall take cognizance of offences under the Act "without the previous sanction of the Central Government or as the case may be, the State Government". So also, Section 196 of the Code of Criminal Procedure enacts a bar against taking cognizance of any offence punishable under Chapter VI of the Indian Penal Code except with the previous sanction of the Central Government or the State Government. Some of the offences charged in the present case are under Chapter VI of IPC.

(iii) It is first contended by the learned senior counsel Mr. Ram Jethmalani, that the sanctions were not given, nor signed by the competent authority. It is submitted that in relation to the Union Territory, only Central Government is competent. Delhi being a Union Territory known as the National Capital Territory of Delhi with effect from the date of commencement of the Constitution (69th Amendment Act), the Central Government alone is the competent authority to accord sanction. In the present case, both under POTA and Cr.P.C. sanctions have been accorded 'by order and in the name of the Lt. Governor of the National Capital Territory of Delhi'. The Lt. Governor did not act on behalf of the Central Government nor did he act as Administrator of U.T. He acted as the Constitutional head of the Government of NCT of Delhi and played the role assigned to him under Section 41 of NCT of Delhi Act, as the authentication in the order shows. Therefore, it is submitted that the sanction purportedly granted under Section 50 of POTA is a nullity.

(iv) We find no substance in these contentions. Section 2(h) of POTA read with Articles 239 & 239AA of the Constitution of India furnish complete answers to these arguments and that is what the learned senior counsel for the State has highlighted.

'State Government' is defined in Section 2(h) of POTA and it says that "in relation to a Union Territory, 'State Government' means the Administrator thereof". The expression 'Administrator' finds place in Article 239 of the Constitution of India. Article 239(1) reads: "Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting to such an extent as he thinks fit through an Administrator to be appointed by him with such designation as he may specify". Article 239AA inserted by the Constitution (69th Amendment Act, 1991) effective from 1.2.1992 lays down that from that date, the Union Territory of Delhi shall be called the NCT of Delhi and "the Administrator thereof appointed under Article 239 shall be designated as the Lt. Governor." By such designation as the Lt. Governor, the constitutional functionary contemplated by Article 239, namely, the Administrator has not lost his status as Administrator. The designation of Administrator gets merged into the new designation of Lt. Governor in keeping with the upgraded status of this particular Union Territory. Thus, the Lt. Governor who continues to be the Administrator also derives his or her authority to grant sanction under Section 50 of POTA by virtue of the legislative fiction created by Clause (h) of Section 2 read with Article 239. The Administrator is deemed to be the State Government for the purpose of Section 50 of POTA. In effect and in substance, there is a clear delegation of power statutorily conferred in favour of the Administrator (designated as Lt. Governor) in respect of granting sanction under POTA. The fact that the sanction order carries the designation of the Lt. Governor is of no consequence and does not in any way impinge on the operation of Section 2(h) read with Article 239. POTA is a Parliamentary enactment. Sub-Clause (b) of Clause 3 of Article 239AA makes it explicit that notwithstanding the law making power conferred on the Legislative Assembly of NCT, the Parliament retains its power under the Constitution to make laws with respect to any matter for a Union Territory or any part thereof. The reliance sought to be placed on Goa Sampling Employees' Association Vs. G.S. Co. of India Pvt. Ltd. [(1985) 1 SCC 206] is rather misconceived. That case turned on the interpretation of the expression 'appropriate Government' occurring in Section 10 of the Industrial Disputes Act, 1947.

The industrial dispute pertained to the workmen employed at Mormogao Port which is located in the then union territory of Goa, Daman and Diu. It was contended by the employer that the Central Government was not competent to refer the dispute to the Tribunal for adjudication. This contention found favour with the High Court of Bombay which held that the Administrator appointed under Article 239 of the Constitution is the State Government for the Union Territory of Goa and is the appropriate Government within the meaning of Section 2(a) of the Industrial Disputes Act. The judgment of the High Court was reversed by this Court after referring to Articles 239 and 239 A and the provisions of the Govt. of Union Territories Act, 1963 and the definitions of General Clauses Act and observed thus:

"On a conspectus of the relevant provisions of the Constitution and the 1963 Act, it clearly transpires that the concept of State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an administrator appointed by him. Administrator is thus the delegate of the President. His position is wholly different from that of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central Government. Therefore, at any rate the administrator of Union Territory does not qualify for the description of a State Government. Therefore, the Central Government is the 'appropriate Government'.

That decision, in our view, has no relevance. This Court was not called upon to consider a specific provision like Section 50 or Section 2(h) of POTA. We are, therefore, of the view that by virtue of specific statutory delegation in favour of the Administrator who is constitutionally designated as Lt. Governor as well, the sanction accorded by the said authority is a valid sanction under Section 50 of POTA. It is of relevance to note that the order of sanction under POTA (Ext.P11/1) itself recites that the Lt. Governor acted in exercise of powers conferred by Section 50 read with Clause (h) of sub-Section (1) of Section 2 of POTA. We find on the perusal of relevant file that the Lt. Governor saw the file and he himself approved the proposed sanction. The grant of sanction was not an act done by a delegate of the Lt. Governor under the Business Rules. It may be noted that the sanction file was produced before the trial Court and was allowed to be perused by the defence counsel vide para 149 of the trial Court's judgment.

(v) As regards the sanction under Section 196 Cr.P.C. it is recited in the sanction order (Ext.P11/2) that the Lt. Governor acted in exercise of powers conferred by sub-Section (1) of Section 196 Cr.P.C. read with the Government of India, Ministry of Home Affairs notification dated 20th March, 1974. Under that notification, there was delegation of powers to the Lt. Governor to grant sanction. The said notification which finds place in the Annexures to the written submissions made on behalf of Gilani shows that it was issued under Article 239(1) of the Constitution enabling the Administrator of the Union Territory to discharge powers and functions of the State Government under the Cr.P.C. We accept the submission of the learned senior counsel for the State that the delegation of power contained in the said notification will continue to operate unless the Parliament by law provides otherwise. The Government of NCT of Delhi Act, 1991 does not in any way affect the validity of delegation contained in the Presidential Notification issued under Article 239.

We therefore hold that the sanctions under Section 50 of POTA and Section 196 of Cr.P.C. were accorded by a competent authority.

(vi) Touching on the validity of sanction, the next point urged by Mr. Ram Jethmalani was that there was no proper application of mind by the authority granting the sanction. There was no sanction for the offences under POTA whereas sanction was given for inapplicable offences under the Indian Penal Code. The facts constituting the offence have not been stated in the sanction order and no evidence has been adduced to show that the competent authority addressed himself to the relevant facts and material. The careless and inept drafting of the sanction order has given scope for some of these comments. Surprisingly, in the first para of the order containing recital as to the prima facie satisfaction of the Lt. Governor the POTA offences are not specifically mentioned. They are however embraced within the residuary terminology "along with other offences". Instead of mentioning the POTA offences specifically and conspicuously in the order passed under Section 50 of the POTA, the drafter reversed that process by mentioning the POTA offences under the residuary expression "apart from other offences". However, in our view, this careless drafting cannot deal a fatal blow to the sanction order. Looking at the substance and reading the entirety of the order, we come to the irresistible conclusion that the sanction was duly given for the prosecution of the accused for the offences under POTA after the competent authority (Lt. Governor) had reached the satisfaction prima facie in regard to the commission of the POTA offences as well. A specific reference to the POTA offences mentioned in FIR is contained in the opening part of the order. The order then contains the recital that the Lt. Governor was satisfied that the four accused persons "have prima facie committed offences punishable under Sections 121, 121A, 122, 124 and 120B of the IPC being involved in criminal conspiracy to commit the said offences with intention of waging war against the Government of India along with other offences." In the context in which the expression 'along with other offences' occurs, it must be reasonably construed so as to be referable to POTA offences mentioned in the opening clause. The operative part of the order is more explicit inasmuch as the Lt. Governor granted sanction for the prosecution of the four accused in a competent Court "for committing the said offences punishable under Sections 3, 4, 5, 20 & 21 of the POTA". It is pertinent to notice that in the sanction order under Section 196 Cr.P.C. the POTA offences do not find specific mention at all. Thus, a distinction was maintained between the sanction under POTA and the sanction under Cr.P.C.

The other submission that the addition of the offence under Section 120B which does not require sanction, reveals total non-application of mind, does not appeal to us. Though the conspiracy to commit the offences punishable by Section 121 is covered by Section 121A, probably Section 120B was also referred to by way of abundant caution though the prosecution for the said offence does not require sanction. At any rate, the insertion of a seemingly overlapping provision does not and cannot affect the validity of the sanction order. Nor can it be said that the addition of Section 124 which has really no application to the present case by itself vitiates the sanction order. From the insertion of one inapplicable provision, a reasonable inference cannot be drawn that there was no application of mind by the competent authority. A meticulous and legalistic examination as to the offences applicable and not applicable is not what is expected at the stage of granting sanction. It was observed by the Privy Council in Gokulchand Dwarkadas Vs. The King [AIR 1948 Privy Council 82] that, "the charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different from that to which the sanction relates". In any case we do not think that the mention of an inapplicable Section goes to the root of the matter or otherwise makes it vulnerable to attack.

On the validity of sanction, we have to consider yet another contention of the learned senior counsel Mr. R. Jethmalani that in the absence of recital of facts to sustain prosecution or proof of consideration of such facts, the sanction order must be held to have been vitiated on the ground of non-application of mind. Relying on the dicta of the Privy Council in Gokulchand's case, it has been pointed out that no facts constituting the relevant offences were set out in the order nor any extraneous evidence was let in to show that the sanctioning authority was seized of the facts alleged to constitute the relevant offence. In Gokulchand's case (supra), the sanction order of the Government was a bald order stating that the Government was "pleased to accord sanction under Clause 23 of Cotton Cloth and Yarn (Control) Order to the prosecution of Mr. Gokulchand Dwarkadas for breach of the provisions of Clause 18(2) of the said order". The Privy Council held that the sanction read with the evidence adduced at the trial was not in compliance with the provisions of Clause 23 of the said Control Order. The following observations in that judgment may be noted:

"In their Lordships' view, in order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority"

The ruling of the Privy Council was cited with approval by this Court in Jaswant Singh Vs. State of Punjab [AIR 1958 SC 124] and certain other cases. Ultimately, the test to be applied is whether relevant material that formed the basis of allegations constituting the offence was placed before the sanctioning authority and the same was perused before granting sanction. We are of the view that this test has been amply satisfied in the instant case. The sanction orders on their face indicate that all relevant material viz., FIR, disclosure statements, recovery memos, draft charge sheet and other material on record was placed before the sanctioning authority. The fact that the sanctioning authority perused all this material is also discernible from the recital in the sanction orders. The sanction orders make it clear that the sanctioning authority had reached the satisfaction that prima facie the accused committed or conspired to commit the offences mentioned therein. The elaborate narration of facts culled out from the record placed before the sanctioning authority and the discussion as to the applicability of each and every Section of the penal provision quoted therein is not an imperative requirement. A pedantic repetition from what is stated in the FIR or the draft charge-sheet or other documents is not what is called for in order to judge whether there was due application of mind. It must be noted that the grant of sanction is an executive act and the validity thereof cannot be tested in the light of principles applied to the quasi-judicial orders vide the decisions in State of Bihar Vs. P.P. Sharma [(1992) supp.1 SCC 222] and Superintendent of Police Vs. Deepak Chowdary [(1995) 6 SCC 225]. Apart from this, the oral evidence of PW11- Deputy Secretary, Home who dealt with the file also reveals that the notes prepared by himself and the Principal Secretary, Home had drawn the attention of the Lt. Governor to the role of individual accused and the Principal Secretary's note was approved by the Lt. Governor. Various documents placed before the sanctioning authority were also mentioned by PW11. PW11 brought the original sanction file and it is seen from the judgment of the trial Court that the learned trial Judge had gone through the file apart from making it available to the defence counsel. The oral evidence let in by the prosecution by examining PW11 dispels any doubt as to the consideration of the matter by the sanctioning authority before according the sanction. The decision of this Court in Rambhai Nathabhai Gadhvi & Ors. Vs. State of Gujarat [(1997) 7 SCC 744] which invalidated the sanction granted by the competent authority under the Terrorist and Disruptive Activities (Prevention) Act does not come to the aid of the accused in the present case. The Bench consisting of A.S. Anand and K.T. Thomas, JJ., after referring to the infirmities in the sanction order, observed thus: "In such a situation, can it be said that the sanctioning authority granted sanction after applying its mind effectively and after reaching a satisfaction that it is necessary in public interest that prosecution should be launched against the accused under TADA. As the provisions of TADA are more rigorous and the penalty provided is more stringent and the procedure for trial prescribed is summary and compendious, the sanctioning process mentioned in Section 20-A(2) must have been adopted more seriously and exhaustively than the sanction contemplated in other penal statutes"

The above observations do not mean that different standards should be applied for judging the validity of a sanction made under the provisions of TADA or POTA and the sanctions under ordinary laws. That is not the ratio of the decision. The learned Judges were only pointing out that enough seriousness was not bestowed in the process of granting sanction for prosecution under a stringent law. The observations contained in para 10 turned on the facts of that case which are telling. It was noticed that the only document sent to the sanctioning authority, namely, the Director General of Police, was the FIR and the letter of the Superintendent of Police giving only skeletal facts. It was further noticed that the Director-General did not even grant sanction for the prosecution but what he did was to give permission to add certain Sections of TADA. Thus, it was a case of utter non-compliance with the elementary requirements governing sanction. The facts of the present case are vastly different.

No separate argument was addressed in relation to the sanction given under the Explosive Substances Act. Suffice it to say that we find no legal infirmity in the said order passed by the Commissioner of Police which is Ext. PW11/3.

Addition of POTO/POTA offences

(6) (i) The next question is whether the addition of offences under Sections 3, 4 & 5 of POTO was justified and whether POTO should have been invoked by the Investigating Officer on the very first day when the FIR was registered. This question will have a bearing on the admissibility of intercepted telephonic conversations which took place prior to 19th December and the compliance with the provisions of Section 52 of POTA which lays down certain safeguards from the point of view of the accused. Chapter V contains provisions relating to interception of communications. Section 45 which starts with a non-obstante clause lays down that the evidence collected through the interception of wire, electronic or oral communication under Chapter V shall be admissible as evidence against the accused during the trial of the case. There are two provisos to the Section and the 1st proviso reads as follows. "Provided that, the contents of any wire, electronic or oral communication intercepted pursuant to this Chapter or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court unless each accused has been furnished with a copy of the order of the Competent Authority and accompanying application, under which the interception was authorized or approved not less than ten days before trial, hearing or proceeding:"

It is common ground that the embargo placed by the first proviso comes into operation in the instant case inasmuch as no orders were obtained for interception from a competent authority in compliance with the various provisions of Chapter V. The embargo under proviso to Section 45 is equally applicable when the special Court tries along with the POTA offences, the offences under other enactments viz., IPC, Explosives Act and Arms Act. That is one aspect. Secondly, there are certain procedural safeguards that are laid down in Section 52 when a person is arrested for the offences under POTA. These safeguards were apparently introduced in keeping with the guidelines laid down in D.K. Basu's case. They are discussed in detail later on. The question arises whether there was deliberate failure on the part of the investigating agency to invoke POTA initially in order to circumvent the requirements of Sections 45 & 52.

(ii) Incidentally, another question raised is whether there was manipulation of FIR by not showing the POTA offences though in fact POTA was resorted to by that date. In regard to the latter aspect, the learned counsel for the accused has drawn our attention to the letter of AIRTEL (Cell phone service provider) addressed to the I.O. M.C. Sharma (PW66). In that letter (Ext.PW35/1), while giving the reference to the FIR dated 13.12.2001, the offences under various Sections of POTO were mentioned in addition to other offences. From this, an inference is sought to be drawn that the FIR was tampered with by deleting reference to POTO Sections so as to make it appear that on the 13th & 14th December when the interceptions took place, the investigation was not extended to POTO offences. We find it difficult to accept this contention. We find no basis for the comment that the FIR would have been manipulated by deleting the POTO offences. No such suggestion was ever put to the police officials concerned, namely, PWs 1, 9 & 14 connected with the registration of FIR and they were not even cross-examined. The original FIR register was produced by PW14. The trial Court perused the same while recording the depositions and returned it. In fact, this contention about the manipulation of FIR was not even raised in the trial Court. The High Court rightly found no substance in this contention. As regards the letter of AIRTEL, no question was put to PW35 --the Security Manager of AIRTEL as to the basis on which the reference was given to the FIR mentioning various POTO offences. When the question was raised for the first time before the High Court, the High Court perused the case diaries and found that the addressee of the letter (Inspector M.C. Sharma) had sent up a written request on 25.12.2001 to furnish the requisite information to him. By that time, the POTO provisions were invoked. According to the High Court, there was every possibility that in that letter of 25.12.2001, the POTO provisions were mentioned and based on that, the same would have been noted in the AIRTEL's letter. The High Court also observed that the possibility of the date 17th being a mistake cannot be ruled out. Irrespective of the question whether the High Court was justified in observing that the date 17th noted in (Ext. PW35/1) could be a mistake, we do not consider it necessary to delve further into this aspect, in view of the fact that none of the witnesses pertaining to FIR were cross examined. By reason of the purported description of FIR given in the letter of AIRTEL (Ext.PW35/1) alone, we cannot reach the conclusion that POTO offences entered initially in the FIR were deleted for extraneous reasons. It is pertinent to note that the letters addressed by the Essar Cell phone provider (vide Exts.36/6 and 36/7, dated 13th and 18th December) do not contain any reference to POTO.

(iii) It was next contended by the learned counsel appearing for Shaukat and Gilani that from the beginning it was crystal clear that the persons who attempted to take control of the Parliament House were terrorists and there was no apparent reason why the offences under POTO were not entered in the FIR. Attention is drawn to the fact that the language used in the narration given by PW1 in the 'rukka', viz. "the terrorist organizations in order to disintegrate the unity and integrity of India and to carry out destructive activities in a planned manner." is a clear pointer that the investigating authority was conscious of applicability of POTO from the beginning, it is contended. Though we feel that POTO provisions could have been invoked on the very first day having regard to the nature and manifestations of this grave crime, we find no justification to characterize the action of the concerned police officers as malafide or motivated. It cannot be disputed that POTA contains drastic and stringent provisions both substantive and procedural, for dealing with special categories of offences which have bearing on the security and integrity of the country. In view of this special feature of the law, it is necessary to bestow sufficient care and thought before prosecuting an offender under this special law instead of proceeding under the ordinary law. This aspect has been emphasized in more than one decision of this Court dealing with TADA provisions. In Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijiaya [(1990) 4 SCC 76] this Court after noticing the views expressed in Usmanbhai Dawoodbhai Memon Vs. State of Gujarat [(1988) 2 SCC 271] observed thus:

"the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty-bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. "

In Usmanbhai's case it was said; "Before dealing with the contentions advanced, it is well to remember that the legislation is limited in its scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government's law enforcing machinery fails."

Having regard to these observations, we cannot find fault with the Investigating Officers in going slow in bringing POTA into picture. At any rate, it may be a case of bona fide error or overcautious approach. Once the action of the police authorities in deferring the invocation of POTA is held to be not mala fide, it is not possible to countenance the contention that the provisions of POTA especially those contained in Chapter V and Section 52 ought to have been complied with even before 19th December. It is a different matter that D.K. Basu's guidelines were already there.

The learned counsel Mr. Gopal Subramanium has referred to the judgment of this Court in State of West Bengal Vs. Mohammed Khaleed [(1995) 1 SCC 684] to buttress his contention that the non- invocation of POTA on the first day cannot be faulted. The learned counsel also argued that POTA was invoked on 19th when further evidence came to light revealing a planned terrorist act at the behest of certain terrorist organizations. Be that as it may, we find nothing on record to hold that the investigating officials deliberately and without semblance of justification decided to bypass the provisions of POTO.

Charges whether defective?

7 (i) We now turn to the next contention of the charges being defective. According to Shri Ram Jethmalani, the first charge which is a charge under Section 120B IPC is utterly confusing. It is pointed out that a conspiracy to wage war and to commit a terrorist act is punishable under Section 121A IPC and Section 3(3) of the POTA respectively. Therefore, according to the learned counsel, the charge under Section 120B is misplaced. It is also contended that the charge does not set out in clear terms, the exact period during which the conspiracy was allegedly hatched. The learned counsel further submits that the alleged confessional statements on which the prosecution relied would clearly show that the conspiracy started only in the first week of December, 2001, yet the period of offence was stated to be "on or before 13.12.2001".

(ii) It is settled law that a 'fundamental defect' should be found in the charges if the Court has to quash it. Whether the accused was misled and whether there was reasonable possibility of prejudice being caused to the accused on account of defective charges are relevant considerations in judging the effect of wrong or deficient charges. Section 215 of Cr.P.C. makes it clear that no error or omission in stating either the offence or the particulars required to be stated shall be regarded as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. The test of prejudice or reasonable possibility of prejudice was applied by this Court in William Slaney's case [AIR 1956 SC 116] in testing the argument based on the omission, error or irregularity in framing the charges. The same test was also applied in State of A.P. Vs. C. Ganeswar Rao [(1964) 3 SCR 297]. It has not been demonstrated in the instant case as to how the accused or any of them were misled or any prejudice was caused to them on account of the alleged defects in framing of charges. No such objection was even taken before the trial Court. As pointed out in William Slaney's case (para 45 of AIR), it will always be material to consider whether the objection to the nature of charge was taken at an early stage. To the same effect are the observations in Ganeswar Rao's case (supra). It is difficult to spell out with exactitude the details relating to the starting point of conspiracy. As pointed out in Esher Singh Vs. State of A.P. [(2004) (1 SCC page 585, 607], it is not always possible "to give affirmative evidence about the date of formation of the criminal conspiracy". We do not think that if instead of mentioning 'the first week of December, 2001' the wording 'before December, 2001' is employed, the prosecution should fail merely for that reason. The accused cannot be said to have been misled or prejudiced on that account. On the other hand, it is more than clear that the accused did understand the case they were called upon to meet. The question whether Section 120B applies to POTA offences or Section 3(3) alone applies is not a matter on which a definite conclusion should be reached ahead of the trial. It is not uncommon that the offence alleged might seemingly fall under more than one provision and sometimes it may not be easy to form a definite opinion as to the Section in which the offence appropriately falls. Hence, charges are often framed by way of abundant caution. Assuming that an inapplicable provision has been mentioned, it is no ground to set aside the charges and invalidate the trial. Other legal issues

We shall, now, deal with certain legal issues, which have been debated before us in extenso. These issues have a bearing on the admissibility/relevancy of evidence and the evidentiary value or weight to be attached to the permissible evidence.

8. Law regarding confessions

We start with the confessions. Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. 'Confessions'-which is a terminology used in criminal law is a species of 'admissions' as defined in Section 17 of the Indian Evidence Act. An admission is a statement-oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While Section 17 to 23 deals with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression 'appears' connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer. Confessions leading to discovery of fact which is dealt with under Section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. Consideration of a proved confession affecting the person making it as well as the co-accused is provided for by Section 30. Briefly and broadly, this is the scheme of the law of evidence vis- a-vis confessions. The allied provision which needs to be noticed at this juncture is Section 162 of the Cr.P.C. It prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any enquiry or trial in respect of any offence under investigation. However, it can be used to a limited extent to contradict a witness as provided for by Section 145 of the Evidence Act. Sub-section (2) of Section 162 makes it explicit that the embargo laid down in the Section shall not be deemed to apply to any statement falling within clause (1) of Section 32 or to affect the provisions of Section 27 of the Evidence Act.

In the Privy Council decision of P. Narayana Swami vs. Emperor [AIR 1939 PC 47] Lord Atkin elucidated the meaning and purport of the expression 'confession' in the following words:

" A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession."

Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. "Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law". (vide Taylor's Treatise on the Law of Evidence Vol. I). However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of confession. 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. So also the authority recording the confession  be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Indian Evidence Act has excluded the admissibility of a confession made to the police officer.

Section 164 of Cr.P.C. is a salutary provision which lays down certain precautionary rules to be followed by the Magistrate recording a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police.

Before we turn our attention to the more specific aspects of confessions under POTA, we should have a conspectus of the law on the evidentiary value of confessions which are retracted - which is a general feature in our country and elsewhere.

As to what should be the legal approach of the Court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarized in Bharat vs. State of U.P. [1971 (3) SCC 950]. Hidayatullah, C.J., speaking for a three-Judge Bench observed thus:

"Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after-thought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Gounden v. The State of Madras (1958 SCR 428)."

The same learned Judge observed in Haroom Hazi Abdulla v. State of Maharashtra [1968 (2) SCR 641] that a "retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false." There was a further observation in the same paragraph that retracted confession is a weak link against the maker and more so against a co-accused. With great respect to the eminent Judge, the comment that the retracted confession is a "weak link against the maker" goes counter to a series of decisions. The observation must be viewed in the context of the fact that the Court was concentrating on the confession of the co-accused rather than the evidentiary value of the retracted confession against the maker.

Dealing with retracted confession, a four-Judge Bench of this Court speaking through Subba Rao, J, in Pyare Lal v. State of Assam (AIR 1957 SC 216), clarified the legal position thus:

"A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convicted of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars."

As to the extent of corroboration required, it was observed in Subramania Gounden's case (1958 SCR 428) that each and every circumstance mentioned in the retracted confession regarding the complicity of the maker need not be separately and independently corroborated. The learned Judges observed :

"it would be sufficient in our opinion that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession".

Then we have the case of Shankaria v. State of Rajasthan [1978 (3) SCC 435] decided by a three-Judge Bench. Sarkaria, J, noted the twin tests to be applied to evaluate a confession: (1) whether the confession was perfectly voluntary and (2) if so, whether it is true and trustworthy. The learned Judge pointed out that if the first test is not satisfied the question of applying the second test does not arise. Then the Court indicated one broad method by which a confession can be evaluated. It was said: "The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test."

In Parmanand Pegu v. State of Assam [2004 (7) SCC 779] this Court while adverting to the expression "corroboration of material particulars" used in Pyare Lal Bhargava's case clarified the position thus: "By the use of the expression 'corroboration of material particulars', the Court has not laid down any proposition contrary to what has been clarified in Subramania Goundan case as regards the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundan case."

The analysis of the legal position in paragraphs 18 & 19 is also worth noting:

"Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value.

In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true."

The use of retracted confession against the co-accused however stands on a different footing from the use of such confession against the maker. To come to the grips of the law on the subject, we do no more than quoting the apt observations of Vivian Bose, J, speaking for a three-Judge Bench, in Kashmira Singh v. State of Madhya Pradesh (AIR 1952 SC 159). Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to "lend assurance to other evidence against a co-accused." The legal position was then stated thus:

"Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not 'prepared set on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

The crucial expression used in Section 30 is "the Court may take into consideration such confession". These words imply that the confession of a co- accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu vs. King (AIR 1947 PC 257) in the following words:

"The Court may take the confession into consideration and thereby, no doubt, makes its evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence".

(emphasis supplied) After referring to these decisions, a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar [1964 (6) SCR 623] further clarified the legal position thus:

".In dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the confession of guilt which the judicial mind is about to reach on the said other evidence." (emphasis supplied)

What is the legal position relating to CONFESSIONS UNDER THE POTA is the next important aspect.

Following the path shown by its predecessor, namely TADA Act, POTA marks a notable departure from the general law of evidence in that it makes the confession to a high ranking police officer admissible in evidence in the trial of such person for the offence under POTA. As regards the confession to the police officer, the TADA regime is continued subject to certain refinements.

Now, let us take stock of the provisions contained in Section 32 of POTA. Sub-Section of (1) of this Section starts with a non obstante provision with the words "Notwithstanding anything in the Code of Criminal Procedure or in the Indian Evidence Act.." Then it says: "a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device. shall be admissible in the trial of such person for an offence under the Act or the rules, subject to other provisions of the section". By this provision, the ban against the reception of confessional statements made to the police is lifted. That is why the non-obstante clause. This sub-section is almost identical to Section 15(1) of TADA excepting that the words "or co-accused, abettor or conspirator occurring after the expression "in the trial of such person" were omitted.

The other four sub-sections (2) to (5) of Section 32 are meant to provide certain safeguards to the accused in order to ensure that the confession is not extracted by threat or inducement. Sub-section (2) says that the police officer, before recording a confession should explain in writing to the person concerned that he is not bound to make a confession and that the confession if made by him can be used against him. The right of the person to remain silent before the police officer called upon to record the confession is recognized by the proviso to sub-section (2). Sub-section (3) enjoins that the confession shall be recorded in a threat-free atmosphere. Moreover, it should be recorded in the same language as that used by the maker of the confession. The most important safeguard provided in sub-sections (4) & (5) is that the person from whom the confession was recorded is required to be produced before a Chief Metropolitan Magistrate or Chief Judicial Magistrate, within 48 hours, together with the original statement of confession in whatever manner it was recorded. The CMM or the CJM shall then record the statement made by the person so produced. If there is any complaint of torture, the police shall be directed to produce the person for medical examination and thereafter he shall be sent to the judicial custody.

9. Section 15 of TADA

It is necessary to advert to the exposition of law on the probative quality of the confession recorded by the empowered police officer under Section 15 of TADA Act. We may recall that under Section 15, the confession is admissible in the trial of the person who made the confession or the co- accused/abettor/conspirator. In State vs. Nalini (supra), Thomas, J took the view that the confession coming within the purview of Section 15 is a substantive evidence as against the maker thereof but it is not so as against the co-accused/abettor or conspirator in relation to whom it can be used only as a corroborative piece of evidence. Wadhwa, J, held that the confession of an accused serves as a substantive evidence against himself as well as against the co-accused, abettor or conspirator. S.S.M. Quadri, J, broadly agreed with the view taken by Wadhwa, J. The following observations made by the learned Judge reflect his view-point:

"On the language of sub-section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him, so it is implicit that the same can be considered against all those tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against a co-accused, abettor or conspirator charged and tried in the same case along with the accused."

The learned Judge further observed that in view of the non obstante provision of Section 15(1), the application of Section 30 of the Evidence Act should be excluded and therefore the considerations germane to Section 30 cannot be imported in construing Section 15(1). Quadri, J, therefore dissented from the view taken by Thomas, J. At the same time the learned Judge was of the view that in so far as the use of confession against the co-accused is concerned, rule of prudence requires that it should not be relied upon "unless corroborated generally by other evidence on record". In paragraph 705, the learned Judge made the following observations:

"But I wish to make it clear that even if confession of an accused as against a co-accused tried with the accused in the same case is treated as 'substantive evidence' understood in the limited sense of fact in issue or relevant fact, the rule of prudence requires that the court should examine the same with great care keeping in mind the caution given by the Privy Council in Bhuboni Sahu case",

keeping in view the fact that the confession of a co-accused is not required to be given under oath and its veracity cannot be tested by cross-examination is yet another reason given by the learned Judge for insisting on such corroboration. Thus the learned Judge struck a balance between two extreme arguments. The view taken by Quadri, J. does not seem to conflict with the view of Wadhwa, J. Though Wadhwa, J. observed that confession of the accused is admissible with the same force in its application to the co-accused and it is in the nature of substantive evidence, the learned Judge, however, qualified his remarks by observing thus:

`"Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence."

Thomas, J. was of the view that the non-obstante words in Section 15(1) of TADA were not intended to make it substantive evidence against the non- maker, and it can be used only as a piece of corroborative material to support other substantive evidence.

Reference is to be made to a recent decision of this Court in Jameel Ahmed & anr. V. State of Rajasthan [2003 (9) SCC 673]  a case arising under TADA. After a survey of the earlier cases on the subject, this Court observed: "If the confessional statement is properly recorded satisfying the mandatory provisions of Section 15 of TADA Act and the rules made thereunder and if the same is found by the Court as having been made voluntarily and truthfully then the said confession is sufficient to base conviction of the maker of the confession." This proposition is unexceptionable. The next proposition, however, presents some difficulty. The learned Judges added: "Whether such confession requires corroboration or not, is a matter for the Court considering such confession on facts of each case." This Court observed that once the confessional statement becomes admissible in evidence then, like any other evidence, "it is for the Court to consider whether such statement can be relied upon solely or with necessary corroboration." The ratio behind the view taken by the learned Judges is perhaps discernible from the following passage:

"We have already noticed that this provision of law is a departure from the provisions of Sections 25 to 30 of the Evidence Act. As a matter of fact, Section 15 of the TADA Act operates independent of the Evidence Act and the Code of Criminal Procedure."

The Court then observed that the confession duly recorded under Section 15 of TADA Act becomes admissible in evidence by virtue of statutory mandate and if it is proved to be voluntary and truthful in nature there is no reason why such a statement should be treated as a weak piece of evidence requiring corroboration merely because the same is recorded by a police officer. We have to add a caveat here, while wholeheartedly accepting the view that the confession recorded by a police officer under Section 15(1) of TADA Act (corresponding to Section 32(1) of POTA) stand on the same footing as the confession recorded by a Magistrate and the Court can act upon it in spite of its retraction if it inspires confidence in the mind of the Judge, we feel that the rule of corroboration evolved by this Court as a matter of prudence in relation to a retracted confession recorded by a Magistrate under Cr.P.C. need not be dispensed with. Viewing the confession in the light of other evidence on record and seeking corroborative support therefrom is only a process of ascertaining the truth of the confession and is not extraneous to the first proposition laid down by their Lordships in paragraph 35. Viewed from another angle, we wonder whether a confession recorded by a police officer under the special enactment should have more sanctity and higher degree of acceptability so as to dispense with the normal rule of corroboration and leave it to the discretion of the court whether to insist on corroboration or not, even if it is retracted. The better view would be to follow the same rule of prudence as is being followed in the case of confessions under general law. The confessional statement recorded by the police officer can be the basis of conviction of the maker, but it is desirable to look to corroboration in a broad sense, when it is retracted. The non obstante provision adverted to by the learned Judges should not, in our considered view, affect the operation of the general rule of corroboration broadly.

As regards the confession being used against a co-accused, this Court in Jameel Ahmed's case (supra), laid down the following propositions: "(iii) In regard to the use of such confession as against a co- accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement."

While we agree with the proposition that the nature of corroboration required both in regard to the use of confession against the maker and the co- accused is general in nature, our remarks made earlier in relation to the confession against the maker would equally apply to proposition No. (iii) in so far as it permits the Court in an appropriate case to base the conviction on the confession of the co-accused without even general corroboration. We would only add that we do not visualize any such appropriate case for the simple reason that the assurance of the truth of confession is inextricably mixed up with the process of seeking corroboration from the rest of the prosecution evidence. We have expressed our dissent to this limited extent. In the normal course, a reference to the larger Bench on this issue would be proper. But there is no need in this case to apply or not to apply the legal position clarified in proposition No. (iii) for the simple reason that the trial court as well as the High Court did look for corroboration from the circumstantial evidence relating to various facts narrated in the confessional statement. Perhaps, the view expressed by us would only pave the way for a fresh look by a larger Bench, should the occasion arise in future.

The learned senior counsel Mr. Ram Jethmalani severely criticised the view taken in Nalini, Jameel Ahmed and other cases decided after Nalini. He pointed out that the confession of a co-accused is held to be admissible in view of the expression "shall be admissible in the trial of such person or co- accused". But, the legislature did not intend that in deviation of the general law, the confession of a co-accused could become the sole basis of conviction irrespective of whether it is corroborated in relation to material particulars or not. The counsel commends the acceptance of the ratio laid down by Privy Council in Bhuboni Sahu in the context of a confession covered by Section 30 of Evidence Act. The counsel reminds us that admissibility is one thing, and the weight to be attached to the evidence is another. The learned counsel Mr. Ram Jethmalani repeatedly pointed that the crucial observations of the Constitution Bench in Kartar Singh's case (supra) were not noticed by this Court in Nalini's case and this error, according to the learned senior counsel, perpetuated. The learned counsel has drawn our attention to the categorical observation of this Court in paragraph 255 of the majority judgment to the effect that "the present position is in conformity with Section 30 of the Evidence Act." He has also drawn our attention to the submission of the learned Additional Solicitor General in Kartar Singh's case that the probative value of the confession recorded under Section 15 should be left to the Court to be determined in each case on its own facts and circumstances. According to the learned counsel, the confession of co-accused should not have been elevated to the status of confession operating against the maker. The contention advanced by the learned senior counsel is not without force. However, we need not dilate further on this aspect as the terminology in POTA is different and the view which we hold is that Section 32 of POTA does not enable the Court to take into account the confession of the co-accused. We shall now advert to this aspect, on a comparative reference of the provisions of TADA Act and POTA.

10. Use of confession under POTA against co-accused

Now, let us examine the question whether Section 32(1) of POTA takes within its sweep the confession of a co-accused. Section 32(1) of POTA which makes the confession made to a high ranking police officer admissible in the trial does not say anything explicitly about the use of confession made by co- accused. The words in the concluding portion of Section 32(1) are: "shall be admissible in the trial of such person for an offence under this Act or rules made thereunder." It is, however, the contention of the learned Senior Counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to include the admissibility of confessions of co-accused as well. The omission of the words in POTA "or co-accused, abettor or conspirator" following the expression "in the trial of such person" which are the words contained in Section 15(1) of TADA does not make material difference, according to him. It is his submission that the words 'co-accused' etc. were included by the 1993 amendment of TADA by way of abundant caution and not because the unamended Section of TADA did not cover the confession of co-accused. According to the learned senior counsel, the phrase "shall be admissible in the trial of such person" does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession. The learned senior counsel highlights the crucial words-"in the trial of such person" and argues that the confession would not merely be admissible against the maker but would be admissible in the trial of the maker which may be a trial jointly with the other accused persons. Our attention has been drawn to the provisions of Cr.P.C. and POTA providing for a joint trial in which the accused could be tried not only for the offences under POTA but also for the offences under IPC. We find no difficulty in accepting the proposition that there could be a joint trial and the expression "the trial of such person" may encompass a trial in which the accused who made the confession is tried jointly with the other accused. From that, does it follow that the confession made by one accused is equally admissible against others, in the absence of specific words? The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co- accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences (vide the observations of Ahmadi, J (as he then was) in Niranjan Singh vs. Jitendra [(1990) 4 SCC 76] at page 86, which were cited with approval in Kartar Singh's case). We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co-accused within the net of admissibility on par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words "co-accused" etc.. These specific words consciously added to Section 15(1) by 1993 amendment of TADA so as to cover the confessions of co- accused would not have escaped the notice of Parliament when POTA was enacted. Apparently, the Parliament in its wisdom would have thought that the law relating to confession of co-accused under the ordinary law of evidence, should be allowed to have its sway, taking clue from the observations in Kartar Singh's case at paragraph 255. The confession recorded by the police officer was, therefore, allowed to be used against the maker of the confession without going further and transposing the legal position that obtained under TADA. We cannot countenance the contention that the words 'co-accused' etc. were added in Section 15(1) of TADA, ex majore cautela.

We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the 1st and 2nd accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Indian Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co- accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of Evidence Act, then of course, the said confession could be considered against the co-accused facing trial under POTA. But, that is not the case here. For these reasons, the contention of the learned senior counsel for the State that even if the confession of co-accused is not covered by Section 32(1), it can still be taken into account by the Court under Section 30 for the limited purpose of corroborating or lending assurance to the other evidence on record cannot be accepted.

Learned senior counsel appearing for the State submits that there is no conflict between Section 32 of POTA and Section 30 of the Evidence Act and therefore the confession recorded under Section 32(1) of POTA can be taken into consideration against the co-accused, at least to corroborate the other evidence on record or to lend assurance thereto. There is no difficulty in accepting the contention that Section 30 of the Evidence Act can also play its part in a case of trial under POTA, especially when the other offences under the IPC are also the subject matter of trial. But a confession to the police officer by a person in police custody is not within the realm of Section 30 of the Evidence Act and therefore such a confession cannot be used against the co-accused even under Section 30 of the Evidence Act.

While on the subject of confession made to a police officer under sub- section (1) of Section 32 of POTA, it would be apposite to refer in brief to the decision of this Court in Kartar Singh v. State of Punjab [1994 (3) SCC 569]. The constitutional validity of the provisions of TADA Act came up for consideration before the Constitution Bench. Section 15(1) of TADA Act was the main target of attack. The majority of Judges, with Ratnavel Pandian, J, leading them, upheld the provisions of the Act including Section 15(1). There was a weighty dissent by two learned Judges (K. Ramaswamy, J. and R.M. Sahai, J.) as regards the validity of Section 15(1). The constitutional issue of the vires of the impugned provisions of TADA, including Section 15(1), was examined from the perspective of Articles 14 and 21 of the Constitution, that is to say, from the standpoint of classification of offenders and justness and fairness of the procedural provisions. The three learned Judges did not find Section 15(1) obnoxious to Article 14 or Article 21, though they took judicial notice of the inhuman treatment often meted out by overzealous police officers and the archaic, third degree methods adopted by them during the investigation of the cases. In upholding the validity, the Court took into account the legal competence of the legislature to make a law prescribing a different mode of proof, the meaningful purpose and object of the legislation, the gravity and consequences of terrorism and the reluctance of the public in coming forward to give evidence. How far these considerations are relevant in providing for the reception in evidence of the confessional statement recorded by a police officer has not been elaborated. Apparent hesitation of the learned Judges in upholding the most criticized provision, namely Section 15(1) of TADA, is reflected in the set of guidelines set out by their Lordships at paragraph 263 to ensure as far as possible that the confession obtained by the police officer is not tainted with any vice and to impart a process of fairness into the exercise of recording the confession. The Central Government was bidden to take note of the guidelines and incorporate necessary amendments to the Act. These guidelines, by and large, have become part of Section 32 of POTA to which we have already referred. There was also an exhortation at paragraph 254 to the high-ranking police officers empowered to record the confession that there should be no breach of the accepted norms of recording the confession which should reflect only a true and voluntary statement and there should be no room for hyper criticism that the authority has obtained an invented confession. Another interesting part of the discussion is the manner in which the Court gave its response to the critical comments made by the counsel as to the reprehensible methods adopted to extract the confession. The learned Judges said with reference to this comment: "if it is shown to the Court that a confession was extorted by illegal means such as inducement, threat or promise, the confession thus obtained would be irrelevant and cannot be used in a criminal proceeding against the maker." The Court thus merely emphasized the obvious and added a remark that the Court on several occasions awarded exemplary compensation to the victim at the hands of the police officials. The Court took the precaution of clarifying that the police officer investigating the case under TADA Act can get the confession or statement of the accused recorded under Section 164 Cr.P.C. by a Magistrate.

The Constitution Bench Judgement is binding on us. In fact, the ratio of that Judgment applies with greater force to the POTA, as the guidelines set out by the Constitution Bench are substantially incorporated into Section 32. It is perhaps too late in the day to seek reconsideration of the view taken by the majority of the Judges in the Constitution Bench. But as we see Section 32, a formidable doubt lingers in our minds despite the pronouncement in Kartar Singh's case (supra). That pertains to the rationale and reason behind the drastic provision, making the confession to police officer admissible in evidence in a trial for POTA offences. Many questions do arise and we are unable to find satisfactory or even plausible answers to them. If a person volunteers to make a confession, why should he be not produced before the Judicial Magistrate at the earliest and have the confession recorded by a Magistrate? The Magistrate could be reached within the same time within which the empowered police officer could be approached. The doubt becomes more puzzling when we notice that in practical terms, a greater degree of credibility is attached to a confession made before the judicial officer. Then, why should not the Investigating Officer adopt the straightforward course of having resort to the ordinary and age-old law? If there is any specific advantage of conferring power on a police officer to record the confession receivable in evidence, if the intendment and desideratum of the provision indisputably remains to be to ensure an atmosphere free from threats and psychological pressures? Why the circuitous provision of having confession recorded by the police officer of the rank of S.P. (even if he be the immediate superior of the I.O. who oversees the investigation) and then requiring the production of the accused before the Chief Metropolitan or Judicial Magistrate within 48 hours? We can understand if the accused is in a remote area with no easy means of communications and the Magistrate is not easily accessible. Otherwise, is there real expediency or good reason for allowing an option to the I.O. to have the confession recorded either by the superior police officer or a Judicial Magistrate? We do not think that the comparative ease with which the confession could be extracted from the accused could be pleaded as justification. If it is so, should the end justify the means? Should the police officer be better trusted than a Magistrate? Does the magnitude and severity of the offence justify the entrustment of the job of recording confession to a police officer? Does it imply that it is easier to make an accused confess the guilt before a police officer so that it could pave the way for conviction in a serious offence? We find no direct answer to these questions either in Kartar Singh's case (supra) or the latest case of People's Union for Civil Liberties vs. Union of India [2004 (9) SCC 580].

The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law, as said by the eminent American jurist Schaefer. We may recall as well the apt remarks of Krishna Iyer, J. in Nandini Satpathy Vs. P.L. Dani [(1978) 2 SCC 424]:

"The first obligation of the criminal justice system is to secure justice by seeking and substantiating truth through proof. Of course, the means must be as good as the ends and the dignity of the individual and the freedom of the human person cannot be sacrificed by resort to improper means, however worthy the ends. Therefore, 'third degree' has to be outlawed and indeed has been. We have to draw up clear lines between the whirlpool and the rock where the safety of society and the worth of the human person may co-exist in peace."

In People's Union for Civil Liberties case, a two Judge Bench of this Court upheld the constitutional validity of Section 32 following the pronouncement in Kartar Singh's case. The learned Judges particularly noted the 'additional safeguards' envisaged by sub-Sections (4) and (5) of Section 32. The court referred to the contention that there was really no need to empower the police officer to record the confession since the accused has to be in any case produced before the Magistrate and in that case the Magistrate himself could record the confession. This argument was not dealt with by their Lordships. However, we refrain from saying anything contrary to the legal position settled by Kartar Singh and People's Union for Civil Liberties. We do no more than expressing certain doubts and let the matter rest there. It has been pointed out to us that even in advanced countries like U.K. and U.S.A., where individual liberty is given primacy, there is no legal taboo against the reception of confessional statement made to police in evidence. We do not think that it is apt to compare the position obtaining in those countries to that in India. The ground realities cannot be ignored. It is an undeniable fact that the police in our country still resort to crude methods of investigation, especially in mofussil and rural areas and they suffer many handicaps, such as lack of adequate personnel, training, equipment and professional independence.

These features, by and large, are not so rampant in those advanced countries. Considered from the standpoint of scientific investigation, intensity of training and measure of objectivity, the standards and approaches of police personnel are much different in those countries. The evils which the framers of the Indian Evidence Act had in mind to exclude confessions to the police, are still prevalent though not in the same degree. After independence, no doubt, some positive steps have been taken to improve the working pattern, utility and image of the police force, but, much desires to be achieved in this direction. Complaints of violation of human rights by resorting to dubious methods of investigation, politicization of the police establishment and victimization of the straightforward and honest officers are some of the criticisms that are being heard day in and day out. Even many amongst the public tacitly endorse the use of violence by police against the criminals. In this scenario, we have serious doubts whether it would be safe to concede the power of recording confessions to the police officers to be used in evidence against the accused making the confession and the co-accused. The Law Commission of India in its 185th Report on review of the Indian Evidence Act has expressed strong views disfavouring the admission of confessions made to Police Officers. The Commission commented that the basis for introducing Sections 25 and 26 in the Evidence Act in 1872 holds good even today. The Commission observed: "we are compelled to say that confessions made easy, cannot replace the need for scientific and professional investigation".

In England, even though the confessions to the police can be received in evidence the voluntariness of the confessions are tested by adopting stringent standards. Section 76 of the Police and Criminal Evidence Act, 1984, deals with confession in England. Sub-section (2) of Section 76 is important:

"(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained-

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."

Thus the prosecution has to prove beyond reasonable doubt that the confession was made voluntarily and was reliable.

The Court of Appeal decision in Regina vs. Middleton (1975 All E.R. 191) shows that whenever the admissibility of a confession is challenged "a trial within a trial" is conducted to test the voluntariness of such confession at the earliest. In England, in the light of the Human Rights Act of 1988, a fresh look is being taken into the existing provisions of the Police and Criminal Evidence Act and other allied laws including the Law of Confessions.

In United States, according to the decisions of the Supreme Court viz., Miranda Vs. Arizona [384 US 436]; Escobedo Vs. Linnaeus [378 US 478], the prosecution cannot make use of the statements stemming from custodial interrogation unless it demonstrates the use of procedural safeguards to secure the right against self-incrimination and these safeguards include a right to counsel during such interrogation and warnings to the suspect/accused of his right to counsel and to remain silent. In Miranda case (decided in 1966), it was held that the right to have counsel present at the interrogation was indispensable to the protection of the V Amendment privilege against self- incrimination and to ensure that the right to choose between silence and speech remains unfettered throughout the interrogation process. However, this rule is subject to the conscious waiver of right after the individual was warned of his right.

As the law now stands, the confession recorded by the police officer under Section 32(1) of POTA is admissible in evidence. The voluntariness and reliability of confession can of course be tested by the court. The admission of such confession would also be subject to the observance of the other provisions of Section 32 of POTA which are in the nature of procedural safeguards aimed at ensuring that the confessions are made by the accused in an atmosphere free from threat and inducement.

There is one argument of Mr. Sushil Kumar appearing for the accused Afzal which needs to be adverted to. His contention is that the word 'evidence' is not used either under Section 32(1) or Section 32(2) of POTA unlike Section 15(2) of TADA which requires the Police Officer to warn the person making the confession that it may be used as 'evidence' against him. He therefore argues that the only route through which the confession can be treated as evidence against the accused is by having recourse to Section 164 Cr.P.C. The contention, in our view, is devoid of merit. The mere fact that the expression 'admissible only' is used without being followed by the words 'in evidence', does not, by any canon of construction, deprive the confession recorded under Section 32 of POTA its evidentiary value; otherwise Section 32(1), more especially the expression 'admissible' contained therein will become ineffectual and senseless. We cannot, therefore, accept this extreme contention.

11. Section 10 of Evidence Act

The next question is whether the confession of the accused which cannot be proved against a co-accused either under Section 32(1) of POTA or under Section 30 of the Evidence Act, would be relevant evidence against the co- accused involved in the conspiracy by reason of Section 10 of the Evidence Act. The section reads thus:

"10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

In Kehar Singh & ors. vs. State (Delhi Administration) [1988 (3) SCC 609], Jagannatha Shetty, J., has analysed the section as follows: "From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co- conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."

Section 10 of Evidence act is based on the principle of agency operating between the parties to the conspiracy inter se and it is an exception to the rule against hearsay testimony. If the conditions laid down therein are satisfied, the act done or statement made by one is admissible against the co- conspirators (vide AIR 1965 SC 682).

The learned senior counsel Mr. Gopal Subramanium submits that Section 10, which is an exception to Section 30 of the Evidence Act, can be availed of by the prosecution to rely on the facts stated in the confessional statement of the accused to prove the existence of conspiracy and the co-conspirator being party to it. He contends that there is more than prima facie evidence in this case that there was a conspiracy to launch an attack on the Parliament building and therefore, the first ingredient of the reasonable ground of belief is satisfied. The next and more controversial part of the submission is that the statement of one of the conspirators who has made the confession throwing light on the common intention of all the accused can be used in evidence against the co-conspirators or the co-accused irrespective of the fact that such statements were made after the conclusion of the conspiracy and after the accused were arrested. As the law laid down by the Privy Council in Mirza Akbar vs. King Emperor (AIR 1940 PC 176) on the interpretation of Section 10 does not support the contention of the counsel for the State, the learned counsel was critical of the dictum laid down in that case and equally critical of the long line of authorities which accepted the ruling of the Privy Council. This is what Lord Wright said in Mirza Akbar's case: "This being the principle, their Lordships think the words of Section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. In their Lordships' judgment, the words 'common intention' signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships' judgment Section 10 embodies this principle. That is the construction which has been rightly applied to Section 10 in decisions in India.

In these cases the distinction was rightly drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past."

In Sardul Singh Caveeshar vs. State of Bombay (1958 SCR 161), a three-Judge Bench of this Court approvingly referred to the decision of the Privy Council. However, the following observation made therein does not go counter to the submission of Mr. Subramanium:

"where the charge specified the period of conspiracy, evidence of acts of co-conspirators outside the period is not receivable in evidence".

But, the ultimate conclusion is not strictly in conformity with that remark. After referring to this and the other decisions, Thomas, J. observed in State of Gujarat vs. Mohammed Atik and ors. [1998 (4) SCC 351] thus: "Thus, the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act."

Referring to the decision in Mohammed Atik's case (supra) and Sardul Singh Caveeshar (supra), Arijit Pasayat, J., speaking for a three-Judge Bench in Mohd. Khalid vs. State of West Bengal [2002 (7) SCC 334], stated the legal position thus:

"We cannot overlook that the basic principle which underlies Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10."

Ultimately, the test applied was whether any particular accused continued to be the member of the conspiracy after his arrest. Though the learned Judge stated that "similar view was expressed by this Court in State vs. Nalini", we find no such statement of law in Nalini's case. However, this accidental slip does not make any difference. The law is thus well settled that the statements made by the conspirators after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act, because by that time the conspiracy would have ended. If so, the statement forming part of the confessional statement made to the police officer under Section 32(1) of POTA cannot be pressed into service by the prosecution against the other co-accused. Thus, the endeavour to bring the confessional statement of co-accused into the gamut of evidence through the route of Section 10 is frustrated by a series of decisions, starting from Mirza Akbar's case (1940).

Learned senior counsel Mr. Gopal Subramanium argued that the view taken by the Privy Council runs counter to the language of Section 10, and moreover, if that interpretation is to be adopted, there would hardly be any evidence which could be admitted under section 10, the reason being that the statements would necessarily be made by the witnesses after the termination of conspiracy. The correct interpretation, according to the learned senior counsel is, whether the statements made by the conspirators testifying to the common plan, whether confessional or not, relate to the period of conspiracy or to the period post-termination. The relevance of such statements under Section 10 cannot be whittled down with reference to the point of time when the statement was made. The leaned senior counsel, therefore, submits that the exclusion of post-arrest statements of the conspirators, is not warranted by the language employed in the section and it makes Section 10 nugatory. Though, in our view, the Section can still play its role, we find some force in this contention. But, it is not open to us to upset the view reiterated in a long line of decisions.

The learned counsel Mr. Gopal Subramanium has also endeavoured to invoke precedential support for his argument. He referred to Bhagwan Swarup vs. State of Maharashtra (AIR 1965 SC 682) (known as the 2nd Caveeshar case) in which Subba Rao, J., speaking for a three-Judge Bench analysed the ingredients of Section 10 as follows:-

"(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy, (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other, (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour."

The limitation inferred by the Privy Council that the acts or statements of the conspirator should have been made when the conspiracy was afoot was not imported in to the interpretation of the section. On the other hand, the proposition No.4 might indicate that even the statement made and acts done after a person left the conspiracy, could be proved against others. The Privy Council decision in Mirza Akbar's case was not referred to. The issue as raised now was not discussed. However, the 1st Caveeshar case (AIR 1957 SC 747) in which the Privy Council's decision was cited, was adverted to. In the 1st Caveeshar's case also decided by a three Judge Bench (supra), the ratio of the Privy Council decision in Mirza Akabar's case was approved and applied.

The learned counsel then referred to the case of Ammini & ors. vs. State of Kerala [1998 (2) SCC 301], wherein this Court referred to Section 10 of the Evidence Act and observed thus:

"The High Court held as there was reasonable ground to believe that Ammini and other accused had conspired together and, therefore, the confession made by A-1 could be used against other accused also."

There was no reference to the earlier cases which were binding on the Court. The view of the High Court was merely endorsed. The learned senior counsel Mr. Gopal Subramanium then submitted that in Nalini's case this Court admitted the confessional statement made by one of the accused after his arrest under section 10 of the Evidence Act. But we do not find anything in that judgment to support this statement. Wadhwa, J on whose judgment reliance is placed did not say anything contrary to what was laid down in Mirza Akbar's case. After referring to Mirza Akbar's case, Wadhwa, J. adverted to the contention that Section 10 becomes inapplicable once the conspirator is nabbed. The comment of the learned Judge was; "That may be so in a given case but is not of universal application. If the object of conspiracy has not been achieved and there is still agreement to do the illegal act, the offence of criminal conspiracy is there and Section 10 of the Evidence Act applies". (vide para 579 of SCC)

Then follows the crucial finding that the prosecution in the present case has not led any evidence to show that any particular accused continued to be a member of the conspiracy after he was arrested. It shows that the ultimate conclusion accords with the view expressed in Mirza Akbar.

At paragraph 581, there is further discussion on the scope of Section 10. One observation made by the learned Judge in that para needs to be clarified. The learned Judge observed thus:

"When two or more persons enter into a conspiracy any act done by any one of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution of or in reference to their common intention is deemed to have been said, done or written by each of them".(emphasis supplied)

We do not find any such deeming provision in Section 10. No doubt, Section 10 rests on the principle of agency. But, it does not in terms treat the statements made and acts done by one conspirator as the statements or acts of all. Section 10 only lays down a rule of relevancy. It says that anything done or said by one of the conspirators in reference to the common intention is a relevant fact as against each of the conspirators to prove two things: (i) existence of the conspiracy and (ii) that they were parties to the conspiracy. As pointed out by the Privy Council in Mirza Akbar's case, the thing done, written or spoken in the course of carrying out the conspiracy "was receivable as a step in the proof of the conspiracy". This dictum was approvingly referred to in the 1st Caveeshar case (AIR 1957 SC 747).

The learned senior counsel then referred to the decision of this Court in Tribhuwan vs. State of Maharashtra [1972 (3) SCC 511], in which the accused examined himself as a witness and his evidence was admitted under Section 10 of the Evidence Act, mainly on the ground that his deposition could be subjected to cross-examination. So also in the case of K. Hashim vs. State of Tamil Nadu, the evidence of co-accused who subsequently became approver, was admitted under Section 10. These two cases rest on a different principle and cannot be said to have differed with the view taken in Mirza Akbar's case.

However, there are two decisions of this Court rendered by two Judge Benches, which have taken the view that the facts stated in the confessional statement of one of the accused can be used against the other accused. The first one is Bhagwandas Keshwani & anr. vs. State of Rajasthan [1974 (4) SCC 611] decided by a two-Judge Bench (M.H. Beg and Y.V. Chandrachud, JJ), in which Beg, J. observed thus:

"It seems to us that the extreme argument that nothing said or done by Vishnu Kumar could be taken into account in judging the guilt of Keshwani when there is a charge for conspiracy under Section 120B IPC overlooks the provisions of Section 10 of the Evidence Act. At any rate, proof of the fact, even from admissions of Vishnu Kumar, that false and fictitious cash memos were prepared due to an agreement between the two accused, could be used against each accused."

None of the previous decisions were referred to by their Lordships. The other case is that of State of Maharashtra vs. Damu [2000 (6) SCC 269] which was also decided by a two Judge Bench. The learned Judges after analyzing the ingredients of Section 10, held thus: "In this case there can be no doubt, relying on Ex.88 that there are reasonable grounds to believe that all the four accused have conspired together to commit the offences of abduction and murders of the children involved in this case. So what these accused have spoken to each other in reference to their common intention as could be gathered from Ex.88 can be regarded as relevant facts falling within the purview of Section 10 of the Evidence Act. It is not necessary that a witness should have deposed to the fact so transpired between the conspirators. A dialogue between them could be proved through any other legally permitted mode. When Ex.88 is legally proved and found admissible in evidence, the same can be used to ascertain what was said, done or written between the conspirators. Al the things reported in that confession referring to what A-1 Damu Gopinath and A-3 Mukunda Thorat have said and done in reference to the common intention of the conspirators are thus usable under Section 10 of the Evidence Act as against those two accused as well, in the same manner in which they are usable against A-4 Damu Joshi himself."

Thus, the confessional statement (Ext.88) made by one of the parties to the conspiracy was made use of against the other parties/accused. It is interesting to note that the decision in State of Gujarat vs. Mohammed Atik (supra) rendered by one of the learned Judges, was noticed but the crucial part of the observation therein ruling out the applicability of Section 10 was not adverted to. The 2nd Caveeshar case (AIR 1965 SC 682) was also noticed. However much we are convinced of the arguments advanced by the learned senior counsel for the State, we are unable to give effect to the law laid down in these two cases which runs counter to the larger Bench decisions noticed supra, especially when the previous decisions bearing on the point were not discussed. No doubt the judgment in 2nd Caveeshar case was of three learned Judges but the 4th proposition laid down therein is not so categorical as to convey the idea that even the confessional statement recorded after the arrest, could be used against the co-conspirators.

The case of Queen Vs. Blake decided in 1844 [115 ER 49] is illustrative of the parameters of the common law rule similar to Section 10 of the Indian Evidence Act. The Privy Council in the case of R Vs. Blake [AIR 1940 PC 176] referred to that case and observed thus:

"The leading case of (1844) 6 QB 126 : 115 ER 49 (E) illustrates the two aspects of it, because that authority shows both what is admissible and what is inadmissible. What, in that case, was held to be admissible against the conspirator was the evidence of entries made by his fellow conspirator contained in various documents actually used for carrying out the fraud. But a document not created in the course of carrying out the transaction, but made by one of the conspirators after the fraud was completed, was held to be inadmissible against the other It had nothing to do with carrying the conspiracy into effect."

In the light of the foregoing discussion, we have no option but to reject the contention of Mr. Gopal Subramanium on the interpretation of Section 10, though not without hesitation. However, in view of the fact that confessional statement is not being relied on, the question of applicability of Section 10 fades into insignificance.

12. Conspiracy

As conspiracy is the primary charge against the accused, we shall now advert to the law of conspiracy :  its definition, essential features and proof. Section 120-A of IPC defines criminal conspiracy. It says: "when two or more persons agree to do or cause to be done (i) an illegal act or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120-B prescribes the punishment to be imposed on a party to a criminal conspiracy. As pointed out by Subba Rao, J in Major E.G. Barsay Vs. State of Bombay (AIR 1961 SC 1762): "the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts".

Under section 43 of the IPC, an act would be illegal if it is an offence or if it is prohibited by law. Section 120-A and 120-B were brought on the statute book by way of amendment to IPC in 1913. The Statement of Objects and Reasons to the amending Act reveals that the underlying purpose was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. This definition is almost similar to the definition of conspiracy, which we find in Halsbury's Laws of England. The definition given therein is:

"Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied, and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be".

In America, the concept of criminal conspiracy is no different. In American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of conspiracy is given:

"A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful ... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy."

Earlier to the introduction of Section 120-A and B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121-A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Section 107 of IPC. The punishment therefor is provided under various sections viz. Section 108 to 117. Whereas under Section 120A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 requires the commission of some act or illegal omission pursuant to the conspiracy. A charge under Section 107/109 should therefore be in combination with a substantive offence, whereas the charge under Section 120-A/120-B could be an independent charge.

In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120-A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law ." Thus, Sections 120-A & B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still be attracted. The passages from Russell on Crimes, the House of Lords decision in Quinn vs. Leathem (1901 AC 495), and the address of Willes, J to the Jury in Mulcahy Vs. Queen (1868 3 HL 306) are often quoted in the decisions of this Court. The passage in Russell on Crimes referred to by Jagannatha Shetty, J in Kehar Singh's case [1988 (3) SCC at page 731] is quite apposite:

"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough"

This passage brings out the legal position succinctly.

In Nalini's case, S.S.M. Quadri, J, pointed out that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is a sine qua non of the criminal conspiracy. Judge L. Hand, in Van Riper vs. United States (13 F 2d. 961) said of conspiracy: "When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime."

In Yashpal Mittal vs. State of Punjab [1977 (4) SCC 540], Goswami, J, speaking for a three-Judge Bench analysed the legal position relating to criminal conspiracy. At pages 610-611, the learned Judge observed that "the very agreement, the concert or league is the ingredient of the offence." and that "it is not necessary that all the conspirators must know each and every detail of the conspiracy". It was then observed that "there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators."

Dr. Sri Hari Singh Gour in his well known 'Commentary on Penal Law of India', (Vol.2, 11th Edn. page 1138) summed up the legal position in the following words:

"In order to constitute a single general conspiracy there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient."

In State of H.P. Vs. Krishan Lal Pradhan [1987 (2) SCC page 17], it was reiterated that every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts.

In the case of State Vs. Nalini [1999 (5) SCC 253], S.S.M. Quadri, J, after a survey of case law made the following pertinent observations: (at paragraph 662)

"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.

There is exhaustive reference to various cases by Arijit Pasayat, J, in Mohd. Khalid Vs. State of W.B. [2002 (7) SCC 334]. In Mohammed Usman Vs. State of Maharashatra [1981 (2) SCC 443] it was observed that the agreement amongst the conspirators can be inferred by necessary implication.

There is one particular observation made by Jagannadha Shetty in Kehar Singh's (supra) case which needs to be explained. The learned Judge observed:

"It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient".

The expression 'physical manifestation' seems to be the phraseology used in the Article referred to by the learned Judge. However, the said expression shall not be equated to 'overt act' which is a different concept. As rightly stated by the learned senior counsel, Mr. Gopal Subramanium, the phrase has reference to the manifestation of the agreement itself, such as by way of meetings and communications.

Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini's case (supra) at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." G.N. Ray, J. in Tanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this Court should not allow the suspicion to take the place of legal proof.

As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC 665], " in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." In this context, the observations in the case Noor Mohammad Yusuf Momin vs. State of Maharashtra (AIR 1971 SC 885) are worth nothing:

"in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."

A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. [vide Esher Singh vs. State of A.P., 2004 (11) SCC 585].

Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR 1945 PC 140), the Privy Council warned that in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against others. "A co- defendant in a conspiracy trial", observed Jackson, J, "occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together." [vide Alvin Krumlewitch vs. United States of America, (93 L.Ed. 790). In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. vs. Falcone (109 F. 2d,579) was referred to: "This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders." At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows: "One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."

One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict."

Before we close the discussion on the topic of conspiracy in general, we must note the argument of the learned senior counsel for the State Mr. Gopal Subramanium who in his endeavour to invoke the theory of agency in all its dimensions so as to make each of the conspirators constructively liable for the offences actually committed by others pursuant to the conspiracy, relied on the dictum of Coleridge, J. in Regina vs. Murphy (173 ER 502), which will be referred to later on. The learned senior counsel submits that where overt acts have been committed, all conspirators will have to be punished equally for the substantive offence irrespective of non-participation of some of them in such overt acts. The observations made by Wadhwa, J in Nalini at paragraph 583 and by Mohapatra, J, in Firozuddin Basheeruddin vs. State of Kerala [2001 (7) SCC 596], are pressed into service to buttress his argument that all the conspirators would be liable for all the offences committed pursuant to the conspiracy on the basis of the principle of agency where the conspiracy results in overt acts constituting distinct offences.

We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle. We have to explain the decision in Ferojuddin's case at length in view of heavy reliance placed on it. The Court observed thus at para 25: "Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission"

In para 26, the discussion was on the point of admissibility of evidence i.e. whether declaration by one conspirator made in furtherance of a conspiracy and during its subsistence is admissible against each co-conspirator. In other words, the question of applicability of the rule analogous to Section 10 of the Evidence Act was the subject matter of discussion. The following passage from Van Riper Vs. United States [13 F 2d 961 at page 967] was quoted. "Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime'. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all."

Then, in the immediately following paragraph, this Court observed as follows: "Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres."

The conclusion at paragraph 27 that the conspirators are liable for the overt acts and crimes committed by their associates on the theory of agency is not in conformity with the discussion "Regarding admissibility of evidence"-- which is the opening phraseology of paragraph 26. It was made clear in the second sentence of para 26 that contrary to the usual rule, any declaration by one conspirator made in furtherance of a conspiracy and during its pendency is admissible against each co-conspirator. Thus, the gist of Section 10 of the Evidence Act is implicit in that observation. Nothing is stated in paragraph 26 to indicate that their Lordships were discussing the larger question of culpability of all the conspirators for the criminal acts done by some of them pursuant to the conspiracy. However, the view expressed in paragraph 27 that on the theory of agency, the conspirators are liable for the statements and overt acts of the co-conspirators is at variance with the tenor of discussion in the earlier para. The apparent reason which influenced their Lordships seem to be the observations of Judge Hand in the case of Van Riper Vs. United States (supra). Those observations were in the context of the discussion on the liability of the 'defendants' for conspiracy to defraud. The ratio of the decision is evident from the concluding observation: "For this reason, all that was done before he entered may be used against him, but obviously not what was done after he left." The joint liability for the overt acts involved in the actual crime did not come up for consideration. That apart, the statement of law that "such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime" does not hold good under Indian law. The reason is that the declarations contemplated by Judge Hand are made admissible under Section 10 of the Indian Evidence Act but not under the substantive law of crimes. Thus, the conclusion reached at paragraph 27 overlooked the difference in legal position between what was obtaining in USA in the year 1926 and the statutory rule of evidence contained in the Indian Evidence Act. The proposition in the earlier para i.e. paragraph 25 (quoted supra) was too widely stated, probably influenced by the observations in Van Riper's case. In fact, in Ferojuddin's case, some members of the group who conspired were convicted only under Section 120B whereas the other members who accomplished the objective of conspiracy by committing the planned offence were convicted for the substantive offence as well as for the conspiracy. Thus, the observations made therein are no more than obiter dicta. The very decision of Maj. E.G. Barsay referred to by their Lordships make it clear that "for individual offences, all the conspirators may not be liable though they are all guilty for the offence of conspiracy." In Ajay Aggarwal vs. Union of India [1993 (3) SCC 609], while discussing the question whether the conspiracy is a continuing offence, the following pertinent observations were made by K. Ramaswamy, J, speaking for the Bench at para 11:

"Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy."

Thus, a distinction was maintained between the conspiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the conspiracy, a rule of evidence is enacted in Section 10 based on the principle of agency. We may recall that Section 10 of the Evidence Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in the opening part of the section. Thus, the evidence which is in the nature of hearsay is made admissible on the principle that there is mutual agency amongst the conspirators. It is in the context of Section 10 that the relevant observations were made in the first Caveeshar case (AIR 1957 SC 747) and Nalini's case at page 517. In the former case, Jagannadhadas, J, after referring to the passage in Roscoe's Criminal Evidence (16th Edn.) that "an overt act committed by any one of the conspirators is sufficient, on the general principles of agency, to make it the act of all", observed that "the principle underlying the reception of evidence under Section 10 of the Evidence Act of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency". It was not held in those cases that the same principle of agency should be stretched further to make all the conspirators liable for the offensive acts done pursuant to the conspiracy, irrespective of their role and participation in the ultimate offensive acts. Whether or not the conspirators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, in the case of Section 34 IPC, the constructive liability for the crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But Section 120B does not convey that idea.

Learned senior counsel Mr. Gopal Subramanium placed reliance on the summary of legal position as to proof of conspiracy by Coleridge, J in Regina vs. Murphy [(1837) 173 E.R. 502] which is as under:

"I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means  the design being unlawful? .... "If you are satisfied that there was concert between them, I am bound to say that being convinced of the conspiracy, it is not necessary that you should find both Mr. Murphy and Mr. Douglas doing each particular act, as after the fact of conspiracy is already established in your minds, whatever is either said or done by either of the defendants in pursuance of the common design, is, both in law and in common sense, to be considered as the acts of both."

We do not find anything in Murphy's case which supports the argument that all the conspirators are equally liable for the offence committed by some of them in execution of the common design. The Court was only considering whether the offence of conspiracy was made out and whether the acts or declarations of co-conspirators can be relied on against others. The crucial question formulated is: "Had they this common design and did they pursue it by these common means  the design being unlawful? The learned Judge was only explaining the ingredients of conspiracy and as to the principle on which anything said or done by either of the conspirators in pursuit of common design can be put against the other. In other words, the principle analogous to Section 10 was being highlighted.

The other decision relied upon by the learned counsel for the State is Babu Lal vs. Emperor (AIR 1938 PC 130) at page 133. What was held in that case was that if several persons conspire to commit the offences and commit overt acts pursuant to the conspiracy, such acts must be held to have been committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The Privy Council was concerned with the interpretation of the expression "in the course of the same transaction" occurring in Section 239(d) of the old Criminal Procedure Code which dealt with joinder of charges. It does not support the argument based on the agency theory.

One point raised by Shri Ram Jethmalani based on the decision of House of Lords in R Vs. Anderson [1985 2 All ER Page 961] remains to be considered. The principle laid down in that case is discernible from the following summary in the head note.

"Beyond the mere fact of agreement, the necessary mens rea for proving that a person is guilty of conspiring to commit an offence under Section 1(1) of the Criminal Law Act 1977 is established if, and only if, it is shown that he intended when he entered into the agreement to play some part in the agreed course of conduct involving the commission of an offence. Furthermore, a person may be guilty of conspiring even though he secretly intended to participate in only part of the course of conduct involving the commission of an offence."

The learned counsel submits that in order to sustain a charge of conspiracy under Section 120A, the same test could be usefully applied. That means, there must be evidence to the effect that the accused who entered into the agreement in the nature of conspiracy had intended to play and played some part in the agreed course of conduct involving the commission of an offence. But, if there is no evidence attributing any role to the accused in the course of conduct involving the commission of offence, he or she cannot be held guilty under Section 120A. However, as rightly pointed out by the learned counsel for the State Mr. Gopal Subramanium, the provision dealt with by the House of Lords, namely, Section 1(1) of the Criminal Law Act, 1977 is different from the wording of Section 120A. It reads as follows:

"Subject to the following provisions of this Part of this act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions, he is guilty of conspiracy to commit the offence or offences in question."

It may be noted that by the 1977 Act, the offence of conspiracy at common law was abolished and a statutory definition of 'conspiracy to commit the offence' was enacted. The provision that was interpreted by the House of Lords is not in pari materia with the provision in the Indian Penal Code. However, one clarification is needed. If there is proof to the effect that the accused played a role, attended to certain things or took steps consistent with the common design underlying the conspiracy, that will go a long way in establishing the complicity of the accused, though it is not a legal requirement that the conspirator should do any particular act beyond the agreement to commit the offence.

13. The interpretation of Section 27 of the Evidence Act has loomed large in the course of arguments. The controversy centered round two aspects:-

(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things concrete or non-concrete.

(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance? The subsequent event of discovery by police with the aid of information furnished by the accused - whether can be put against him under Section 27?

These issues have arisen especially in the context of the disclosure statement (Ex. PW 66/13) of Gilani to the police. According to the prosecution, the information furnished by Gilani on certain aspects, for instance, that the particular cell phones belonged to the other accused : Afzal and Shaukat, that the Christian colony room was arranged by Shaukat in order to accommodate the slain terrorist Mohammad, that police uniforms and explosives 'were arranged' and that the names of the five deceased terrorists were so and so are relevant under Section 27 of the Evidence Act as they were confirmed to be true by subsequent investigation and they reveal the awareness and knowledge of Gilani in regard to all these facts, even though no material objects were recovered directly at his instance.

The arguments of the learned counsel for the State run as follows:-

The expression "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as 'meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious' (emphasis supplied). Thus, the definition comprehends both physical things as well as mental facts. Therefore, Section 27 can admit of discovery of a plain mental fact concerning the informant- accused. In that sense, Section 27 will apply whenever there is discovery (not in the narrower sense of recovery of a material object) as long as the discovery amounts to be confirmatory in character guaranteeing the truth of the information given the only limitation being that the police officer should not have had access to those facts earlier.

The application of the Section is not contingent on the recovery of a physical object. Section 27 embodies the doctrine of Confirmation by subsequent events. The fact investigated and found by the police consequent to the information disclosed by the accused amounts to confirmation of that piece of information. Only that piece of information, which is distinctly supported by confirmation, is rendered relevant and admissible U/S 27.

The physical object might have already been recovered, but the investigating agency may not have any clue as to the "state of things" that surrounded that physical object. In such an event, if upon the disclosure made such state of things or facts within his knowledge in relation to a physical object are discovered, then also, it can be said to be discovery of fact within the meaning of Section 27.

The other aspect is that the pointing out of a material object by the accused himself is not necessary in order to attribute the discovery to him. A person who makes a disclosure may himself lead the investigating officer to the place where the object is concealed. That is one clear instance of discovery of fact. But the scope of Section 27 is wider. Even if the accused does not point out the place where the material object is kept, the police, on the basis of information furnished by him, may launch an investigation which confirms the information given by accused. Even in such a case, the information furnished by the accused becomes admissible against him as per Section 27 provided the correctness of information is confirmed by a subsequent step in investigation. At the same time, facts discovered as a result of investigation should be such as are directly relatable to the information.

Reliance is placed mainly on the decisions of this Court in Inayatullah Vs. State of Maharashtra [(1976) 1 SCC 828] and State of Maharashtra Vs. Damu [(2000) 6 SCC 269]. Referring to the land-mark decision of Privy Council in Pulukuri Kotayya Vs. Emperor [AIR 1947 PC 67] the learned counsel Mr. Gopal Subramanium tried to distinguish it and explain its real ratio.

The learned senior counsel appearing for the defence have contended that the scope of Section 27 should not be unduly stretched by having resort to the second part of the definition of 'fact' in Section 3 of the Evidence Act. According to Mr. Ram Jethmalani, it is too late in the day to contend that the 'fact' discovered within the meaning of Section 27 could either be the physical object or the mental fact of which the accused giving the information is conscious. The learned counsel submits that on a true understanding of the ratio of the opinion of the Privy Council in Kotayya's case, the word 'fact' shall be construed as being a combination of both the elements. The fact discovered, it was ruled by the Privy Council, was the physical fact of hidden spear and the mental fact was that the accused knew that he had so hidden it at a particular place. Great reliance was placed on the fact that in Kotayya's case, the full Bench decision of the Lahore High Court in Sukhan Vs. Emperor [AIR 1929 Lahore 344] and the division Bench decision of the Bombay High Court in Ganuchandra Vs. Emperor [AIR 1932 Bombay 286] were specifically approved by the Privy Council. It is pointed out that Section 27 is virtually borrowed from Taylor's treatise on the Law of Evidence as pointed out by the full Bench of the Allahabad High Court in the vintage decision in Queen Empress Vs. Babu Lal [1884, Indian Decisions, 6 Allahabad 510]. The passage in Taylor's Evidence (which is found in paragraph 902 of Volume 1 of 1931 Edition) is as follows:

"902. (i). When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement about his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found, but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confessed that the had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement cannot have been false."

It is therefore contended that the fact discovered must basically be a concrete or material fact but not mental fact. The learned counsel Mr. Ram Jethmalani further submits that the word 'discovery' had two shades of meaning: one is 'find and detect' and the other is 'to uncover or reveal' vide 'Dictionary of Modern Legal Usage' by Bryan A. Garner. Though the first of the meanings viz., 'to uncover or reveal' has become obsolete according to Garner, still, the expression 'discover' should be construed according to its original sense when the Indian Evidence Act was framed. It is therefore submitted that the discovery of a physical thing by the accused is a must. The doctrine of confirmation by subsequent events which is the expression used in some of the cases and text books only means that the discovery of the material object is subsequent to the information leading to discovery. The learned counsel reinforces his argument by stating that in the context and setting of Section 27 and in the company of the word 'discover', fact only means the object, its location and concealment. The entire definition of 'fact' should not be bodily lifted into Section 27. The fact discovered is the concealment or disposal of the object which is brought to light by the accused, but not anything relating to the object in general. All the learned counsel for the defence then stressed on the expression 'thereby discovered' which means discovered pursuant to information which he himself supplied. Countering the argument of the learned senior counsel for the State, the learned counsel for the accused then contend that the information and the discovery of fact should be intimately and inextricably connected and the confirmation by means of subsequent investigation cannot be considered to be discovery of fact as a direct result of information furnished by the accused. Apart from Kotayya's case, heavy reliance is placed on the judgment of Privy Council in Kotayya's case. We have noticed above that the confessions made to a police officer and a confession made by any person while he or she is in police custody cannot be proved against that person accused of an offence. Of course, a confession made in the immediate presence of a Magistrate can be proved against him. So also Section 162 Cr.P.C. bars the reception of any statements made to a police officer in the course of an investigation as evidence against the accused person at any enquiry or trial except to the extent that such statements can be made use of by the accused to contradict the witnesses. Such confessions are excluded for the reason that there is a grave risk of their statements being involuntary and false. Section 27, which unusually starts with a proviso, lifts the ban against the admissibility of the confession/statement made to the police to a limited extent by allowing proof of information of specified nature furnished by the accused in police custody. In that sense Section 27 is considered to be an exception to the rules embodied in Sections 25 and 26 (vide AIR 1962 SC 1116). Section 27 reads as follows:

27. How much of information received from accused may be proved:  Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

The history of case law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in Kotayya's case, which has been described as a locus classicus, had set at rest much of the controversy that centered round the interpretation of Section 27. To a great extent the legal position has got crystallized with the rendering of this decision. The authority of Privy Council's decision has not been questioned in any of the decisions of the highest Court either in the pre or post independence era. Right from 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State.

The first requisite condition for utilizing Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the Section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the Section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kotayya's case, "clearly the extent of the information admissible must depend on the exact nature of the fact discovered and the information must distinctly relate to that fact". Elucidating the scope of this Section, the Privy Council speaking through Sir John Beaumont said "normally, the Section is brought into operation when a person in police custody produces from some place of concealment, some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is the accused". We have emphasized the word 'normally' because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words: "If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect"

Then, their Lordships proceeded to give a lucid exposition of the expression 'fact discovered' in the following passage, which is quoted time and again by this Court:

"In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (emphasis supplied).

The approach of the Privy Council in the light of the above exposition of law can best be understood by referring to the statement made by one of the accused to the police officer. It reads thus:

"About 14 days ago, I, Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya."

The Privy Council held that "the whole of that statement except the passage 'I hid it' (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" is inadmissible. There is another important observation at paragraph 11 which needs to be noticed. The Privy Council explained the probative force of the information made admissible under Section 27 in the following words:

"Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law."

In paragraph 11, their Lordships observed that they were in agreement with the view taken by the High Courts of Lahore and Bombay in Sukhan Vs. Emperor [AIR 1929 Lahore 344] and Ganuchandra Vs. Emperor [AIR 1932 Bombay 286]. The contrary view taken by the Madras High Court in Attappa Goundan Vs. Emperor [ILR 1937 Madras 695] was not accepted by the Privy Council. In Attappa Goundan's case, the High Court held that even that part of the confessional statement, which revealed the connection between the objects produced and the commission of murder was held to be admissible under Section 27 in its entirety. This approach was criticized by the Privy Council. To complete the sequence, we may refer to another decision of the Madras High Court in Emperor Vs., Ramanuja Ayyangar [AIR 1935 Madras 528]. In that case, the majority of learned Judges had disagreed with the view taken in Sukhan's case that the expression 'fact' in Section 27 should be restricted to material objects or something which can be exhibited as material object. It was held that the facts need not be self-probatory and the word 'fact' as contemplated by Section 27 is not limited to "actual physical material object". Emphasis was laid on the wording 'any fact'. In this respect, the view taken in Sukhan's case (supra) was dissented from. The minority view was that the discovery of a witness to the crime or the act of the accused in purchasing the incriminating material cannot be proved by invoking Section 27. We have referred to this decision in Ramanuja Ayyangar's case for the reason that the expression 'fact' was given a wider meaning in this case -- which is the meaning now sought to be given by Mr. Gopal Subramnium. In Attappa Goundan's case, the connotation of the word 'fact' i.e. whether it can be restricted to a material object was not specifically dealt with. The reason for referring to these two decisions of Madras High Court rendered before Kotayya's case becomes evident when we advert to the decision of this Court in Omprakash [(1972) 1 SCC 249] a little later.

We retrace our discussion to Kotayya's case for a while. Sir John Beaumont who gave the opinion of the Privy Council in that case, was the Judge who spoke for the Division Bench in Ganuchandra's case [AIR 1932 Bombay 286]. In that case, the learned Judge observed:

"the fact discovered within the meaning of that Section must I think be some concrete fact to which the information directly relates, and in this case, such fact is the production of certain property which had been concealed". 

This is also the view taken by Shadi Lal, CJ who expressed the opinion of the majority in Sukhan's case wherein the learned Judge held that the phrase 'fact discovered' refers to a material and not to a mental fact. It was further elucidated by saying that "the fact discovered may be the stolen property, the instrument of the crime, a corpus of a person murdered or any other material thing; or it may be a material thing in relation to the place or locality where it is found". On the facts of the case, it was pointed out that "the fact discovered is not the 'karas' simplicitor but the 'karas' being found in the possession of Alladin. The information to be admitted must relate distinctly to the latter. Thus, both in Sukhan's case and Ganuchandra's case which were approved by the Privy Council, two questions arose for consideration (a) whether Section 27 was confined to physical objects and (b) as to the extent of information that was admissible under Section 27. Mr. Gopal Subramanium is right in his submission that the only point of controversy in Kotayya's case related to the extent of information that becomes admissible under Section 27 and it was with reference to that aspect the view taken in Sukhan and Ganuchandra were approved, though it was not said so in specific words. The other question as regards the exact meaning and import of the expression 'discovery of fact' was not considered. Where a physical object was discovered in consequence of the information furnished, which part of that information/statement becomes relevant was the line of inquiry before the Privy Council. No doubt, the illustrations given coupled with the fact that the same learned Judge took a particular view on this aspect in Ganuchandra's case may lead to an impression that the learned Judges of the Privy Council understood the expression 'fact' primarily in the sense of material object but, as observed already, the illustrations given are not exhaustive.

We are of the view that Kotayya's case is an authority for the proposition that 'discovery of fact' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.

We now turn our attention to the precedents of this Court which followed the track of Kotayya's case. The ratio of the decision in Kotayya's case reflected in the underlined passage extracted supra was highlighted in several decisions of this Court.

The crux of the ratio in Kotayya's case was explained by this Court in State of Maharashtra vs. Damu. Thomas J. observed that "the decision of the Privy Council in Pulukuri Kotayya vs. Emperor is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect". In Mohmed Inayatullah vs. The State of Maharashtra [(1976) 1 SCC 828], Sarkaria J. while clarifying that the expression "fact discovered" in Section 27 is not restricted to a physical or material fact which can be perceived by the senses, and that it does include a mental fact, explained the meaning by giving the gist of what was laid down in Pulukuri Kotayya's case. The learned Judge, speaking for the Bench observed thus:

"Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Pulukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh)"

So also in Udai Bhan vs. State of Uttar Pradesh [AIR 1962 SC 1116]. Raghubar Dayal, J. after referring to Kotayya's case stated the legal position as follows:

"A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence."

The above statement of law does not run counter to the contention of Mr. Ram Jethmalani, that the factum of discovery combines both the physical object as well as the mental consciousness of the informant-accused in relation thereto. However, what would be the position if the physical object was not recovered at the instance of the accused was not discussed in any of these cases.

There is almost a direct decision of this Court in which the connotation of the expression "fact" occurring in Section 27 was explored and a view similar to Sukhan's case was taken on the supposition that the said view was approved by the Privy Council in Kotayya's case. That decision is Himachal Pradesh Administration vs. Om Prakash [(1972) 1 SCC 249]. In that case, on the basis of information furnished by the accused to the Police Officer that he had purchased the weapon from a witness (PW11) and that he would take the Police to him, the Police went to the Thari of PW11 where the accused pointed out PW11 to the Police. It was contended on behalf of the accused that the information that he purchased the dagger from PW11 followed by his leading the Police to the Thari and pointing him out was inadmissible under Section 27 of the Evidence Act. This argument was accepted. Jaganmohan Reddy, J. speaking for the Court observed thus:

"In our view there is force in this contention. A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case?. Not the dagger but the dagger hid under the stone which is not known to the Police (see Pulukuri Kotayya and others v. King Emperor). But thereafter can it be said that the information furnished by the accused that he purchased the dagger from PW11 led to a fact discovered when the accused took the police to the Thari of PW11 and pointed him out"

The learned Judge then referred to the decision of Madras High Court in Emperor vs. Ramanuja Ayyangar [AIR 1935 Mad 528] which held that the information relating to the purchase from the pointed shop and its carriage by a witness pointed out was admissible. Reference was then made to the law laid down in Athappa Goundan's case [AIR 1937 Mad 618] and observed that "this view was overruled by the Privy Council in Pulukuri Kotayya's case" (supra).

The passage in Sukhan's case was then approvingly referred to and the law was enunciated as follows:

"In the Full Bench Judgment of Seven Judges in Sukhan vs. the Crown, which was approved by the Privy Council in Pulkuri Kotayya's case, Shadi Lal, C.J., as he then was speaking for the majority pointed out that the expression 'fact' as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the 'cause and effect'. That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved".

The following observations are also crucial.

"As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. the concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible".

Then follows the statement of law: "But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to PW11 and pointed him out and as corroborated by PW11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused".

In an earlier paragraph, the Court stressed the need to exercise necessary caution and care so as to be assured of the credibility of the information furnished and the fact discovered.

Confronted with this decision which affirms the law laid down in Sukhan's case (supra), and which militates against the contention advanced by the prosecution, the learned senior counsel Mr. Gopal Subramanium has questioned the correctness and the binding authority of this judgment. Firstly, according to him, the judgment was based on certain wrong assumptions and, secondly, it is pointed out that in the light of the later decisions, the enunciation of law in Om Prakash case does not hold good.

In regard to the first point of criticism, the learned counsel Mr. Gopal Subramanium contended as follows:

"OM PRAKASH was delivered on the basis that Sukhan had been approved in Pulukuri Kotayya, and the contrary view had been rejected by the Privy Council. It is submitted that the very basis of the decision in Om Prakash was incorrect. It is submitted that a reading of para 13 of the judgment indicates that the ratio in Athapa Goundan and Ramanuja Ayyangar were perceived to be similar and it is on this assumption this Court held that mental facts are not admissible in evidence under Section 27. The Court failed to note that Ramanuja Ayyangar dealt with the admissibility of mental facts which was not under consideration before the Privy Council in Pulukuri Kottaya. Athapa Goundan which dealt with the question of extent of admissibility was considered by the Privy Council and overruled."

We find considerable force in this criticism. However, this criticism does not justify a departure from the view taken by a coordinate Bench of this Court, unless we categorize it as a decision rendered per incuriam. It is not possible to hold so. In fact, as pointed out by Mr. Ram Jethmalani, the said interpretation of expression 'fact' placed in Om Prakash (supra) and in some other decisions of the pre-independence days, is in conformity with the opinion of TAYLOR (quoted supra) which had apparently inspired the drafters of the Indian Evidence Act. But that is not to say that the legal position canvassed by Mr. Gopal Subramanium is not a reasonably possible one. However, we are handicapped in approaching the issue independently, unfettered by the decision in OM PRAKASH case.

We may add that in the case of Eerabhadrappa Vs. State of Karnataka [(1983) 2 SCC 330] A.P. Sen, J. speaking for the Bench observed that the word 'fact' in Section 27 "means some concrete or material fact to which the information directly relates". Then his Lordship quoted the famous passage in Kotayya's case. However, there was no elaboration. The next endeavour of Mr. Gopal Subramanium was to convince us that the precedential force of the judgment in OM PRAKASH has been considerably eroded by the subsequent pronouncements. Two decisions have been cited to substantiate his contention. They are: Mohd. Inayatullah vs. State of Maharashtra (supra) and State of Maharashtra vs. Damu (supra). We do not think that in any of these decisions 'discovery of fact' was held to comprehend a pure and simple mental fact or state of mind relating to a physical object dissociated from the recovery of the physical object. Let us revert back to the decision in Mohd. Inayatullah's case. The first sentence in paragraph 13 of the following passage which has already been referred to is relied on by the learned senior counsel for the State. "At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan V. Crown; Rex V. Ganee). Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh)"

The first sentence read with the second sentence in the above passage would support the contention of Mr. Ram Jethmalani that the word 'fact' embraces within its fold both the physical object as well as the mental element in relation thereto. This ruling in Inayatullah does not support the argument of the State's counsel that Section 27 admits of a discovery of a plain mental fact irrespective of the discovery of physical fact. The conclusion reached in Inayatullah's case is revealing. The three fold fact discovered therein was: a) the chemical drums, (b) the place i.e. the musafir khana wherein they lay in deposit and (c) the knowledge of the accused of such deposit. The accused took the police to the place of deposit and pointed out the drums. That portion of the information was found admissible under Section 27. The rest of the statement namely "which I took out from the Hazibundar of first accused" was eschewed for the reason that it related to the past history of the drums or their theft by the accused.

Let us see how far Damu's case supports the contention of Mr. Gopal Subramanium. At the outset, we may point out that Damu's case did not lay down any legal proposition beyond what was said in Kotayya's case. The statement of law in Kotayya that the fact discovered "embraces the place from which the object is produced and the knowledge of the accused as to it and the information given must relate distinctly to this fact" was reiterated without any gloss or qualification. In that case, A3 disclosed to the investigating officer that "Deepak's dead body was carried by me and Guruji (A2) on his motor cycle and thrown in the canal". The said statement of A3 was not found admissible in evidence by the High Court as the dead body was not recovered pursuant to the disclosure made. This Court however took a different view and held that the said statement was admissible under Section 27. It was held so in the light of the facts mentioned in paragraphs 34 & 37. These are the facts: when an offer was made by A3 that he would point out the spot, he was taken to the spot and there the I.O. found a broken piece of glass lying on the ground which was picked up by him. A motor cycle was recovered from the house of A2 and its tail lamp was found broken. The broken glass piece recovered from the spot matched with and fitted into the broken tail lamp. With these facts presented to the Court, the learned Judges after referring to Kotayya's case, reached the following conclusion in paragraph 37. "How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A2 Guruji, it can safely be held that the investigating officer discovered the fact that A2 Guruji had carried the dead body on that particular motorcycle up to the spot". (emphasis supplied)

The events highlighted in the case speak for themselves and reveal the rationale of that decision. The view taken in Damu's case does not make any dent on the observations made and the legal position spelt out in Om Prakash case. The High Court rightly distinguished Damu's case because there was discovery of a related physical object at least in part.

The decision in Pandurang Kalu Patil Vs. State of Maharashtra [(2002) 2 SCC 490] was also cited by the counsel for the State. We do not think that the prosecution can derive assistance from what was laid down in that judgment. The legal position enunciated in P. Kotayya's case was only reiterated in a little different language. It was observed that "recovery, or even production of object by itself need not necessarily result in discovery of a fact. That is why Sir John Beaumont said in Pulukuri Kotayya that it is fallacious to treat the 'fact discovered' within the Section as equivalent to the object produced".

We need not delve further into this aspect as we are of the view that another ingredient of the Section, namely, that the information provable should relate distinctly to the fact thereby discovered is not satisfied, as we see later. When we refer to the circumstances against some of the accused. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.

How the clause: "as relates distinctly to the fact thereby discovered" has to be understood is the next point that deserves consideration. The interpretation of this clause is not in doubt. Apart from Kotayya's case, various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah's case (supra). Sarkaria, J. analyzed the ingredients of the Section and explained the ambit and nuances of this particular clause in the following words:

"..The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."

In the light of the legal position thus clarified, this Court excluded a part of the disclosure statement to which we have already adverted.

In Bodhraj Vs. State of J & K [(2002) 8 SCC 45] this Court after referring to the decisions on the subject observed thus: "The words "so much of such information", as relates distinctly to the fact thereby discovered are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate"