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TMI Blog2007 (5) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 and Section 25(1)(b), 25(1)(c), 27 and 29 of the Arms Act in the D.C.B. Police Station, Ahmedabad. The names of the appellants, however, did not figure in the said First Information Report. The first informant was one Tarun Kumar Amrutlai Barot, Police Inspector, Ahmedabad Crime Branch. An information was received that after the Godhra massacre some youths from Ahmedabad City had gone to Pakistan for obtaining training for carrying out terrorist activities with a view to take revenge of loss of lives and properties caused to the Muslim community in communal riots which had taken place therein and they have returned back to India after training. An investigation was carried out. On the allegations that he was a party to the conspiracy, Appellant Afzal Khan was arrested on 15.4.2003. We may notice that a First Information Report almost on the same terms was registered in Hyderabad on or about 19.4.2003 wherein also allegations had been made that a group of boys had gone to Pakistan for terrorist training. Appellant Saiyed Ejaz Ahmed @ Chota Ejaz who is a resident of Hyderabad was arrested in connection with the said case on 3.12.2003. During investigation of the Ahmedabad case als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed with the trial, but as now the original records have since been received by the learned Special Judge, all endeavours would be made to complete the trial as expeditiously as possible. 8. The validity of Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) came up for consideration before this Court in Kartar Singh v. State of Punjab : 1994 CriLJ 3139. Therein inter alia the validity of provisions in regard to the exceptions made to Sections 25 and 26 of the Indian Evidence Act by reason thereof had been upheld. At this stage, it is not desirable, although called upon to do so by the learned Counsel, to go into the merit of the matter so as to prejudice the case of either of the parties in the main trial. The value of a confessional statements made before a high ranking officer under the Special Acts and the precautions which are necessary to be taken therefrom which are exceptions to the provisions of the general statute namely Indian Evidence Act had been considered by this Court in some of its decisions. We may notice some of them. 9. In Simon and Ors. v. State of Karnataka (2004) 1 SCC 74, this Court held: 22. It is the duty of the recording officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the statement made by him. Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it it could be used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral evidence alone. The requirement of the rule is preparation of contemporaneous record regarding the manner of recording the confession in the presence of the person making it. Though giving of the statutory warning, ascertaining the voluntariness of the confession and preparation of a contemporaneous record in the presence of the person making the confession are mandatory requirements of that rule, we see no good reason why the form and the words of the certificate and memorandum should also be held mandatory. What the mandatory requirements of a provision are cannot be decided by overlooking the object of that provision. They need not go beyond the purpose sought to be achieved. The purpose of the provision is to see that all formalities are performed by the recording officer hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read it and that he had ascertained that it was recorded as per his say, that would mean that it contains a full and true account of the confession and that the contents were admitted by the accused. Thus, while writing the certificate and the memorandum what Shinde has done is to mix up the two and use his own words to state what he had done. The only thing that we find missing therein is a statement to the effect that he had explained to the accused that he was not bound to make a confession and that if he did so the confession might be used as evidence against him. Such a statement instead of appearing at the en d of the confession in the memorandum appears in the earlier part of the confession in the question and answer form. Each of the accused making the confession was explained about his right not to make the confession and the danger of its being used against him as evidence. That statement appears in the body of the confession but not at the end of it. Can the confession be regarded as not in conformity with Rule 15(3)( b ) only for that reason? We find no good reason to hold like that. We hold that the trial court was wrong in holding that there was a breach of Rule 15( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained by the Privy Council in Bhuboni Sahu v. R. 23 in the following words: (AIR p. 260) 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) However, it was held: 50. We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not to be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the first and second 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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