ASIARIGHTS ISSUE THREE DEC 2004
Admissibility of Confessions taken under POTA for Conviction for Offences under the IPC
Sarayu Natarajan & Ananth Lakshman
In India a legislation that has been in the midst of controversy from inception to the present day is the Prevention of Terrorism Act, 2002 . Born from Government enthusiasm to tackle the terrorism menace and amidst immense public outrage the Act is nurtured by the judiciary and certain sections of society, especially investigative agencies. POTA has been defended as a ‘national necessity' and the various reasons for the enactment of the POTA given have been the September 11 attacks; the December 13 attack on Parliament; the attack on the US embassy at Kolkata; the Akshardham Temple attack and others . These were seen as threats to national security, and thus the need for the enactment of a stricter legislation was felt.
There are numerous aspects of POTA that are considered to be in violation of numerous constitutional guarantees, as well as numerous international civil and political rights covenants. For instance, the presumptions under S. 53 of the POTA are said to militate against A. 14 of the International Covenant on Civil and Political Rights, which states that a person is presumed to be innocent until proven guilty. In this section, an adverse inference is drawn against the accused if it is proved that the accused hair, blood samples, fingerprints, etc were found at the site, or on anything involved in the terrorist act. Another instance is S. 49 (5) of the POTA, which excludes the operation of S. 438 of the Code of Criminal Procedure, 1973, that deals with the granting of anticipatory bail.
In a joint sitting of the two Houses of Parliament with 425 members voting for and 296 voted against POTA was passed. POTA has been touted as a benevolent legislation, considering the nature of the offences it seeks to deal with. The ‘beneficent' features of POTA include S. 52, that deals with arrest, Section 32, which makes confessions made to the police admissible in evidence, and also contains numerous safeguards to ensure that there is absolutely no threat to or torture of the accused. There is so much protection, that if the Investigating officer seeks it, he may get the accused transferred to police custody on an application to the Court, according to the provisions of S. 49, which modifies, inter alia, the application of S. 167 of the Code.
Considering the grave nature of the offence the POTA seeks to deal with there is a special provision for the interception of communications in Chapter 5 of POTA. The aim of POTA is to secure conviction in cases where the evidence is shaky, and if the case gets rejected under the IPC because of rigorous standards in accordance with the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.
Apart from the problems of POTA's general scheme, there are many specific issues as well. The numerous procedural safeguards guaranteed to the accused by the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 are abrogated by POTA. On a reading of POTA certain sections stand out as being deviations from the Code of Criminal Procedure, 1973. We examine the admissibility of confessions taken under S. 32 of the POTA for conviction for offences under the IPC.
S. 32 of the Prevention of Terrorism Act, 2002 allows the admission in court, of certain confessions made to police officers. The confession is required to be made to an officer not lower in rank than a Superintendent of Police. The other conditions required are:
It should have been explained to the accused that he is not required to make a confession, and that if the person chooses to make a confession, then it may be used against him.
The confession should be in an atmosphere free of threat and inducement, and should be in the language of the person making it.
Subsequent to the recording of the confession, the person who made the confession and the original statement – whether written or recorded on a mechanical device, it should be produced before the Court of a Chief Metropolitan Magistrate or that of a chief Judicial Magistrate. This should be done within forty-eight hours.
Subsequent to production, the Magistrate shall record the statement of the person, if he wishes to make one, and get his signature/thumb-impression on the statement, and then if there is a complaint of torture, the accused should be directed to a Medical Officer not lower in rank than that of Assistant Civil Surgeon.
The section begins with an non-obstante clause excludes the operation of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 in connection with the provisions contained therein with respect to admissibility of confessions. The purpose of including such a clause is to give the enacting part of the section an overriding effect over provisions that comes in conflict with it, thereby negating its effect. The non obstante clause is seen as throwing light on the enacting part of the section in case there is ambiguity.
S. 32 of POTA begins with a non-obstante clause that negates the effect of the effect of the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973. By reading the enacting part of S. 32, it may be inferred that the contrary provisions in the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 deal with the non-admissibility of confessions made to police officers. The marginal note to this section reads: ‘certain confessions made to police officers to be relevant'. The word ‘certain' may be read to be applicable to certain police officers, above a certain cadre, in contrast with the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 which place a blanket ban on confessions made to police officers.
Section 162 of the Code of Criminal Procedure, 1973 does not permit statements made by any person to the police in the course of investigation to be signed, and such statement is not to be used for any purpose. Such statements are not to be used for ‘for an inquiry or trial in respect of any offence under investigation at the time when such statement was made'. The proviso to S. 162 of the CrPC allows the use of statements in certain cases, if it had been put into writing and has been duly proved, but it is subject to the permission granted by the Court. If it is so used, it may be used in the re-examination of the witness
S. 25 of the Indian Evidence Act, 1872 makes all confessions made to a police officer inadmissible. The wording of the section is unambiguous – and there are no exceptions, no confession made to a police officer shall be proved. This rule in India was enacted because of the special circumstances that are prevalent in the country, because of the instances where confessions were extracted by the police by the use of force and torture. The reasons are twofold – the basis is that the police are generally untrustworthy and that and that they should not be encouraged to extract confessions rather than relying on their investigative powers.
It would be instructive in this regard to look at the provisions of S. 15 of the Terrorist and Disruptive Activities Act, 1987. It is significant to note that the section contains a specific clause that allows the admission of the confession for an offence being tried under the Terrorist and Disruptive Activities Act, 1987 against the co-accused, abettor and conspirator. This section does not even give the minimal safeguard envisaged in the POTA, i.e. taking the person to a Magistrate within 48 hours. In this respect it seems that TADA was more draconian than POTA. However, the safeguards provided in the POTA section are quite artificial. There is no remedy if indeed the confession was obtained by the use of force. There is nothing in the statute that prohibits the admission of a confession taken by force. There is, in fact, nothing that even allows for a reduction in probative value.
Compounding the problem is the fact that the accused is returned to the police after the appearance before the Magistrate. If the accused at the place of the Magistrate says anything contrary to what he said to the police, he faces possible police retribution.
However, this does not seem to be the case if there is a complaint of torture. In such a case, the person is directed to the Surgeon of a particular rank, and after that the accused is taken to judicial custody. This means, that if the accused complains of the confession having been recorded in an ‘atmosphere of threat', then he will be returned to police custody, and only his statement to that effect remains . Under TADA, that a confessional statement not signed by the police officer is not admissible. In Kartar Singh v. State of Punjab , a case under TADA , the SC laid down certain conditions with respect to recording of confessions . It appears that they have been followed in POTA, with specific provisions in POTA incorporating these guidelines.
While the clause requiring that confessions be recorded in an atmosphere free of threat is one that the word ‘shall', making it seem mandatory, it this is one of the most ambiguous clauses, being nearly impossible to disprove as the burden would be on the accused . In fact, this provision in the POTA is an excuse for shoddy investigation. The police rely on a confession that they extract by the use of threat or even force to secure convictions. The rationale behind this section is that given the nature of the offence being so grave, there must be a way to secure greater convictions. While it may be radical to say that the presumption of innocence of the accused is violated, there are certain sections of the POTA that give that impression. For example S. 53 of the POTA states that in case the prosecution proves that the accused was in possession of certain arms( as specified in S. 4 of the POTA) and the Special Court believes that they were used for the commission of the offence, an adverse inference may be drawn against the accused. This is also the case if the fingerprints of the accused are found on anything including the arms and vehicles used in connection with the offence , then an adverse inference may be drawn. If the italicized parts are read together, then it may imply that if my fingerprints are found on my table that is later used for making a bomb, I may be charged under POTA. The reason for allowing extra-judicial confessions under POTA is to ensure that people who commit crimes of the magnitude that POTA seeks to prevent and punish do not get away. Otherwise the effectiveness of POTA may be diminished due to the difficulty in adhering to procedural requirements. The intention of the legislature was to ensure that professional safeguards do not interfere with the administration of justice .
Whether confessions obtained under the POTA can be used to sustain a conviction in an offence under the IPC?
POTA does not define the term confession, and nor does the Code of Criminal Procedure, 1973 . Therefore, the definition given by the judiciary to the term must be taken. There is no bar in the POTA or the Code of Criminal Procedure, 1973 against the use of the confessions obtained under POTA for conviction for offences under the IPC. Thus, the prosecution, may charge the person for numerous offences, including offences under POTA, and then proceed to obtain a confession under the POTA and use it as a basis to convict the accused. A confession can stand alone, and may be the sole basis of conviction. Thus, it is possible that a confession that is obtained in blatant violation of the provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 could be used to convict a person. The non-obstante clause with which the section begins excludes the operation of the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973. This means, for an offence under the IPC, the governed by the CrPC and the Indian Evidence Act, 1872, a statement obtained in gross violation of the provisions of the governing provisions may be used.
A case in point is State v. Nalini , all the three judges of the SC concurred that the accused had not committed any of the terrorist/disruptive activities that they had been charged with. The confessions, however, were recorded under S. 15(1) of the TADA, which is an exception to S. 25 of the Evidence Act and S. 162 of the Code of Criminal Procedure, 1973. The SC in Bilal Ahmed Kaloo' s case had held that : “Any confession made to a police officer is inadmissible in evidence as for those offences and hence it is fairly conceded that the said ban would not wane off in respect of offences under the Penal Code merely because the trial was held by the Designated Court for offences under TADA as well. Hence, the case against him would stand or fall depending on the other evidence.”
The argument that was used in the Nalini case is that S. 12 of TADA permits the Designated Court to try along with the offence under TADA, any other offence that the accused may be charged with. The Designated Court is also allowed to pass a sentence on the accused. There is an identical provision in POTA Section 26.
It is clear that this Section allows the trial for other offences under POTA. The section does not say anything about the evidence that is collected, or whether the evidence may be used for another conviction. The last line of Section 32 (1) of POTA clearly states that confessions that are recorded under this section shall be admissible for the offence under this Act or rules made there under. This should be interpreted to mean that the evidence that is collected under this section should be admissible only for offences under POTA.
However, part of S.162 is a clause that prohibits the use of a statement made to the police ‘at any inquiry or trial in respect of any offence under investigation'. This would mean that the Code of Criminal Procedure, 1973 contains a specific bar on statements made to the police when they were recorded with respect to the offence in question. While such a statement would be admissible for an offence under POTA or TADA, as they make a specific exception for this purpose, they are clearly not admissible for any offence that is governed by the Code. Reading the last line of S. 32(1) of POTA and the clause of S. 162 referred to above, the implication may be that the confession obtained under the POTA cannot be admitted as evidence for an offence governed by the Code. However, the proviso to S. 162 still remains – this may still be used with S. 27 of the Indian Evidence Act, 1872, and also for the purposes of contradiction according to S. 145 of the Indian Evidence Act, 1872. Thus, while the statement itself cannot be used, the investigating authorities may use the statement for the purpose of building their case. In the end the fact remains that although a confession may be wiped off the record for an offence other than the one under POTA, it cannot be wiped from the minds of the judges.
About the Authors
Sarayu Natarajan & Ananth Lakshman are presently studying at the National Law School of India University.
Section 15 of the TADA reads as : Certain Confessions made to police officers to be taken into consideration. (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, 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 device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made there under.
Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) the police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.
See Central Bureau of Investigation v. AH Faktoo, (2003) 3 SCC 166. The Court held that the confession was recorded in compliance with S. 15 of the TADA when it was proved that the confessions were signed by the Superintendent of Police against the signature of the accused.
Ayyub v. State of UP, (2002) 3 SCC 511. However, it has also been held that the mere fact that the person was handcuffs, and that the room was surrounded by armed guards is not to imply that the confession was not made voluntarily. ( Gurdeep Singh v. State (Delhi Admn.), (2000) 1 SCC 498.)
(2) the person who makes the confession, should, along with the recorded evidence be sent to the Magistrate without unreasonable delay.
(3) the Chief Metropolitan Magistrate or the Chief Judicial Magistrate should record the statement, and if there is a complaint of torture, then the accused should be sent for examination.
(4) only officers above a certain rank should investigate the offence – an Assistant Commissioner of Police in cities and Deputy Superintendent of Police elsewhere.
Interestingly, Justice Thomas who was a part of the Bench for Nalini v. State, (1999) 5 SCC 253 gave the decision in Bilal Ahmed Kaloo v. State of A.P. , (1997) 7 SCC 431. In Nalini's case, Thomas, J stated that: “…. a confessional statement duly recorded under Section 15 of TADA would continue to remain admissible as for the other offences under any other law which too were tried along with TADA offences, no matter that the accused was acquitted of offences under TADA in that trial.”[ State v. Nalini, (1999) 5 SCC 253 (304)]
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