93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 011

Observations made in para 23 are also noteworthy:

“23. In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e. before 11-3-1994. Further, despite the suggestion made by this Court in Kartar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Singh case that if suggested guidelines are not followed then confessional statement would be inadmissible in evidence. Similar contention was negatived by this Court in S.N. Dube v. N.B. Bhoir by holding that a police officer recording the confession under Section 15 is really not bound to follow any other procedure and the rules or the guidelines framed by the Bombay High Court for recording the confession by a Magistrate under Section 164 CrPC; the said guidelines do not by themselves apply to recording of a confession under Section 15 of the TADA Act and it is for the court to appreciate the confessional statement as the substantive piece of evidence and find out whether it is voluntary and truthful. Further, by a majority decision in State v. Nalini the Court negatived the contentions that confessional statement is not a substantive piece of evidence and cannot be used against the co-accused unless it is corroborated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another, by holding that to that extent the provisions of the Evidence Act including Section 30 would not be applicable. The decision in Nalini case was considered in S.N. Dube case. The Court observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that the correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co-accused also.”

205) A perusal of the evidence of both the officers who recorded the confession of the accused clearly show that they were aware of the procedure to be followed before recording the confession of the accused and how the same is to be recorded. We are satisfied that before recording the confessional statements both the officers apprised the accused persons who wished to make the same that there is no compulsion on their part to make a confessional statement and thus also apprised them that the confessions would be used against them. It is also clear from their evidence that both of them had specifically verified whether such persons were under coercion, threat or promise at the time of making confession and all of them were given adequate time to think it over and make a confessional statement. It is also clear that after recording their confession, the same was explained to them in the language known to them and in token of the same, they put their signatures and the officers’ counter signed the same. Though in the cross-examination, both of them have admitted certain procedural violations, in the case of one or two persons, however, the verification of their entire evidence and the confessional statements of the accused concerned clearly show that there is no flagrant violation of any procedure. We are satisfied that the Designated Court was fully justified in relying upon the evidence of PW-189 and PW-193. Special Executive Magistrates (SEM):

206) A contention was also raised that the SEMs were not Judicial Magistrates and their appointment was not made in accordance with law. It was contended that the SEMs who conducted the parades were not eligible to do so and so the entire evidence is vitiated. It is submitted that the Criminal Manual of the Bombay High Court in Chapter 1 expressly states that non-Judicial Magistrates or Honourary Magistrates should carry out identification parades. A Special Executive Magistrate is a non-Judicial Magistrate and is an honorary appointment by the government. Extracts of the relevant provisions from the Criminal Manual are provided below:-

“Identification Parades It is not desirable that Judicial Officers should associate themselves with identification parades. All Civil Judges and Judicial Magistrates are, therefore, directed that they should not participate in identification parades which are conducted by the police for investigation purposes.

In this connection, order in the Government Circular, Home Department, No. MIS. 1054/84588 dated 22nd April, 1955, is reproduced below for the information of the Civil Judges and Judicial Magistrates:

In the Judgment delivered by the Supreme Court in Ramkishan vs. Bombay State AIR 1955 SC 104, it has been held that the statements made before police officers by witnesses at the time of identification parades are statements to the Police, and as such are hit by Section 162 of the Code of Criminal Procedure, 1898. In view of that ruling, it is necessary that such parades are not conducted in the presence of Police Officers. The alternative is to take the help of the Magistrates or leave the matter in the hands of panch witnesses. There would be serious difficulties in panch witnesses conducting parades successfully.

In regard to Magistrates, it is not feasible to associate Judicial Magistrates with such parades. The only practicable course, therefore, is to conduct the parades under Executive Magistrates and Honorary Magistrates (not doing judicial work). Government is accordingly pleased to direct that the Police Officers concerned should obtain the help of Executive Magistrates and Honorary Magistrates in holding identification parades.” (emphasis added) The Criminal Manual requires that a non-judicial Magistrate (i.e.

including an SEM) should preferably conduct identification parades of accused persons. The Criminal Manual has adopted the principles enumerated by Archibold in his treatise “Criminal Pleading, Evidence and Practice” and states that such principles would apply mutatis mutandis to identification parades with suitable variations. These guidelines include:

a) Identification parade should appear fair and precaution must be taken to exclude any suspicion of unfairness or risk of incorrect identification.

b) Officer concerned with the suspect must not take part in the parade.

c) Witnesses should be prevented from seeing the suspect before he is paraded.

d) The suspect should be placed among persons of similar height, age, weight etc. as far as possible.

e) Witnesses should be introduced one by one and should be asked to identify the suspect. Witness should be free to touch any person.

f) If parade takes place in a prison then the prison officer should be present throughout the parade.

g) SEM should prepare a parade memorandum containing details of the time, place and date of the parade; details of panch witnesses;

names of the persons standing in the parade; statements made by identifying witnesses etc. The particulars/materials placed by the prosecution show that the identification parades were carried out in compliance with the requirements of the Criminal Manual.

207) It was further contended by learned senior counsel for the accused that the identification parade should not have been conducted by the SEM. However, in the light of the provisions of the Criminal Manual, identification parades should preferably be conducted by non-Judicial Magistrates (i.e. Special Executive Magistrates) and that in the instant case identification parades were conducted by Special Executive Magistrates in compliance with the provisions of the Criminal Manual.

208) The Criminal Manual and the Government Circular, Home Department, No. MIS.1054/84588 dated 22nd April, 1955 in clear terms requires that non- judicial Magistrates or Honorary Magistrates such as a Special Executive Magistrate should preferably conduct an identification parade and, accordingly, identification parades in the instant case were conducted by Special Executive Magistrates.

FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:

93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

Part 001 / Part 002 / Part 003 / Part 004 / Part 005 / Part 006 / Part 007 / Part 008 / Part 009 / Part 010 / Part 011 / Part 012 / Part 013 / Part 014 / Part 015 / Part 016 / Part 017 / Part 018 / Part 019 / Part 020 / Part 021 / Part 022 / Part 023 / Part 024 / Part 025 / Part 026 / Part 027 / Part 028 / Part 029 / Part 030 / Part 031 / Part 032 / Part 033 / Part 034 / Part 035 / Part 036 / Part 037 / Part 038 / Part 039 / Part 040 / Part 041 / Part 042 / Part 043 / Part 044 / Part 045

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