93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 010

Evidence of Shri P K. Jain (PW-189)

195) He joined Maharashtra Police in January 1983 as an Assistant Superintendent of Police. He was promoted as Superintendent of Police in April 1985. The rank of Superintendent was equivalent to the rank of Deputy Commissioner of Police (DCP) in Greater Bombay. He is conversant and well versed with English, Hindi, Marathi and Punjabi languages and according to him, he is able to speak, read and write the said four languages. Since January 1993, he was posted as DCP, Zone IX, Bombay. In February 1993, Zone IX of Bombay was re-named as Zone X and he functioned as DCP for Zone X up till August, 1994. He recorded the confessional statement of 96 accused persons in this case. First, he recorded the confessional statement of A-11. He explained before the Court the relevant provisions of TADA for recording a confession, procedure to be followed etc. He also deposed before the Court that before recording a confession, he used to receive a letter of requisition for the same. He also explained that on each and every occasion, he explained his position to the accused who intended to make a confession and apprised him of the fact that there was no compulsion on the part of the accused to make a confessional statement and also informed the Court that he had also explained to the accused that the confession would be used against him. He further explained that upon the production of each accused, he verified that the accused was not under compulsion and was free from any pressure either by the investigating agency or by anyone else. He also informed the Court that after highlighting all the procedures and satisfying himself, he allowed every accused to have 48 hours breathing time and asked the accused concerned that still if he was desirable to make such a statement he was free to appear before him in his office. His evidence also shows that whenever such accused was produced, he used to verify that no police personnel or anybody else was present inside his Chamber and recorded his confessional statement after closing the door and only after proper verification. He also informed the Court that every accused who has made a statement before him was apprised of the fact of his position i.e. DCP, Zone X. After making sure that the accused understood his position and after verifying the language, in which he desired to make a statement, recorded the same in his own handwriting. He also explained that no accused had raised any complaint/grievance against any police officer or police in general. He also said that he had asked all the accused who confessed before him “whether he was under any fear or pressure or given any inducement for making the confession”. After completion of his recording in his own handwriting and after explaining the same to the accused in the language known to him, he obtained the signature of the accused on all the pages. After satisfying the accused about confessional statement made and the procedure followed, he used to handover the custody of the said accused to the police officer concerned. Thereafter, the recorded confessions were sealed in one envelope and after preparing a covering letter, the same were sent to Chief Metropolitan Magistrate. According to him, he also obtained the acknowledgement for receipt of the same in the said Court through his subordinate officers. He also informed the Court that by following the said elaborate procedure, he recorded the confessional statements of various accused, viz., A-11, A-67, A-17, A-12 and A-9. He also informed the Court that he had issued the necessary certificate as required under Rule 15 of the Rules. He also issued a certificate regarding the voluntariness of the confession made by the accused and the correctness of the record of the same prepared by him. He also signed below the said certificates. He also produced and marked the letters of requisition received by him from various Investigating officers for recording the confession.

196) In the cross-examination, he specifically informed the Court that he had not investigated any offence under TADA. He also clarified that in his Zone i.e. Zone-X, none of the bomb explosions had occurred and that no case was registered with regard to the same. He also stated that he was not asked to carry out any investigation in connection with LAC Case No. 389 of 1993 registered with Worli Police Station and according to him, the area under Worli Police Station does not fall within the jurisdiction of Zone X.

197) With regard to the allegation that confession was recorded in the Police Station, he explained that he had recorded the confession in the Chamber of DCP, Zone IV, at Matunga. According to him, the said office is situated in the building in which Matunga Police Station is also housed. However, he explained that the office of DCP, Zone IV is on the fourth floor of the said building. For a further query, he also clarified that Zone IV office is different office then the Matunga Police Station. He asserted that he had followed the procedures mentioned in the Rules and instructions while making the record of confession of all the accused whose confession were recorded by him.

Evidence of Shri K.L. Bishnoi (PW-193)

198) According to him, he had joined the Police Department in January, 1986 as an Assistant Superintendent of Police. He was promoted as Superintendent of Police in January, 1990 and was posted at Latur as Superintendent of Police. He was posted as DCP in Bombay from April, 1992, up till December, 1995. He worked in Bombay City in various categories. He also informed the Court that the post of Superintendent of Police in District is equivalent to Deputy Commissioner of Police (DCP) in Commissionarate area. He admitted that he had supervised one case registered with Worli Police Station then under his jurisdiction and one crime registered in connection with the serial bomb blasts which had occurred in the month of March, 1993. He had recorded confessions of several accused persons arrested in the year 1993 in connection with the offences for which the crimes were registered in respect of the bomb blasts which had occurred in the month of March, 1993 in Bombay.

199) He explained before the Court the relevant provisions of TADA for recording a confession, procedure to be followed etc. He also deposed before the Court that before recording a confession, he used to receive a letter of requisition for the same. He also explained that on each and every occasion he had explained his position to the accused who intended to make a confession and had apprised him of the fact that there is no compulsion on the part of the accused to make a confessional statement and also informed the Court that he had also explained to each accused that the confession would be used against him and there was no compulsion to make such a statement. He further explained that upon production of each accused, he verified that the accused was not under compulsion and was free from any pressure either by the investigating agency or by anyone else. He also informed the Court that after highlighting all the procedures and satisfying himself, he allowed the accused to have 48 hours breathing time and asked the accused concerned that still if he was desirable to make such a statement, he was free to appear before him in his office. His evidence also shows that whenever such accused were produced, he would verify that no police personnel or anybody else was present in his Chamber and recorded the confessional statements after closing the door and after proper verification that nobody was there inside. He also informed the Court that every accused who made a statement was apprised of the fact of his position i.e., DCP. After making sure that the accused understood his position and after verifying the language in which he desired to make a statement, he recorded the same in his own handwriting. He was also used to tell the respective accused that during the said period of two days i.e., 48 hours, he would be kept at other Police Station away from the influence of I.O.

200) He further explained that he used to write the question after asking the same to the accused and record the answer to the said question after the same was given by the accused. He further made it clear that he was following the same procedure while making the record on the typewriter instead of writing the questions asked, he was dictating the same to the typist. After recording in the aforesaid manner, he would read over the whole confessional statement to the accused in the language known to him. He would also obtain signatures on all the pages of the concerned accused. After satisfying the accused about the confessional statement made and the procedure followed, he would handover the custody of the said accused to the police officer concerned. Thereafter, the recorded confessions were sealed in one envelope and after preparing a covering letter, the same were sent to the Chief Metropolitan Magistrate. According to him, he also obtained the acknowledgement for receipt of the same in the said Court through his subordinate officers. He also informed the Court that by following the said elaborate procedure, he recorded the confessional statements of the following accused, namely, Gul Mohammed (A-77), Asgar Yusuf Mukadam (A-10), Dawood Phanse (A-14), Shaikh Ali (A-57), Mobina (A-96), Imtiyaz Ghavate (A-15), Sanjay Dutt (A-117), Nulwala, Kersi Bapu Adejania, Mohammed Usman Jan Khan (PW-2) and Raju Kodi (A-26).

201) In respect of a question asked regarding whether during the relevant period he was not only supervising the investigation of the said case (LAC No. 381 of 1993) but also coordinating the investigation, he admitted to the same. In para 584 of his evidence, in reply, he admitted that he had the recorded confessions of accused A-14, A-10 and Sujat Alam in a period when he was supervising the investigation of the case against them. However, he clarified that the public prosecutor has produced and marked an order dated 22.04.1993 passed by the Joint Commissioner of Police regarding the overall supervision of investigation of the Bombay Bomb Blast case being given to the DCB (CID).

Recording of Confessions by Police Officers:

202) Further, it is contended that confessions recorded before the Police Officers should be discarded since the same were recorded by the officers who were also supervising the investigation. To this, the prosecution pointed out that in the instant case, the confessions of the accused have been recorded after following all the safeguards as enumerated under Section 15 of TADA and the rules framed thereunder. It is further pointed out that the appellants have volunteered to confess their role in the crime and they were aware of the fact that they were under no compulsion to make a confession and that the same could be used against them. Further, this Court, in S.N. Dube vs. N.B. Bhoir, (2000) 2 SCC 254 negated a similar contention and held that no illegality or impropriety persists in recording of a confession by an officer supervising the investigation:

“28. The confessions have been held inadmissible mainly on two grounds. The first ground given by the learned trial Judge is that the power under Section 15 of the TADA Act was exercised either mala fide or without proper application of mind. The second ground on which they are held inadmissible is that they were recorded in breach of Rules 15(2) and 15(3) of the TADA Rules and also in breach of the requirements of Section 164 and the High Court Criminal Manual. The learned trial Judge held that the TADA Act was applied in this case without any justification. The permission was granted in that behalf without any application of mind. According to the trial court there was no material on the basis of which the TADA Act could have been invoked at that stage and that most probably the said Act was invoked in order to defeat the bail application filed by two accused in the High Court. In our opinion the trial court was wrong in taking this view. We have already pointed out earlier that Deshmukh had collected enough material on the basis of which reasonable satisfaction could have been arrived at that the acts committed by the two gangs were terrorist acts. It is no doubt true that it was wrongly reported by Deshmukh that Section 5 was also applicable in this case and that without proper verification sanction was granted to proceed under that section also. The applicability of Section 5 depended upon the existence of a requisite notification by the State Government. It was wrongly reported by PI Deshmukh in his report that such a notification was issued and relying upon his statement the higher officer had given the sanction. Merely on this ground it cannot be said that Shinde has exercised the power under Section 15 of the TADA Act mala fide. The learned trial Judge has also held that it was not fair on the part of Shinde to record the confessions as he was also supervising the investigation. Shinde has clearly stated in his evidence that he had made attempts to find out if any other Superintendent of Police was available for recording the confessions and as others had declined to oblige him he had no other option but to record them. We see no illegality or impropriety in Shinde recording the confessions even though he was supervising the investigation. One more flimsy reason given by the trial court for holding that the power under Section 15 was exercised mala fide is that the accused making the confessions were not told that they had been recorded under the TADA Act. No such grievance was made by the accused in their statement under Section

313. On the other hand, it appears from the confessions themselves that the accused were made aware of the fact that those confessions were recorded under the TADA Act.

203) Further in Mohd. Amin vs. CBI, (2008) 15 SCC 49, this Court held as under:

“61. The question whether confessions of Appellants A-4 to A-8 and A- 10 should be treated as non-voluntary and held inadmissible on the ground that the same were made before the officers who were supervising the investigation deserves to be considered in the backdrop of the following facts:

(i) Each of the confessing appellants had volunteered to confess his role in the crime.

(ii) Their confessions were recorded strictly in accordance with the manner and procedure prescribed in Section 15 of the Act and Rule 15 of the Rules.

(iii) In reply to the questions put by Shri A.K. Majumdar and Shri Harbhajan Ram, each of the confessing appellants replied that he was aware of the fact that he was under no compulsion to make confession and that the same can be used against him and that there was no threat, coercion or allurement for making confession.

(iv) When Appellant A-10 was produced before the Chief Metropolitan Magistrate, Delhi on 25-7-1996, he did state that he has not made any confessional statement but did not utter a word about any threat, coercion, inducement or allurement by Shri Harbhajan Ram (PW 103) for making confession.

(v) At the end of the period specified in transit warrants, all the confessing appellants were produced before the Magistrate concerned at Ahmedabad with an application for their remand to judicial custody. None of them made any grievance of ill-treatment, torture (physical or mental), inducement or allurement by the investigating officers or supervising officers or claimed that he had made confession under any other type of compulsion. Even when they were in judicial custody, none of the appellants made a grievance that he was tortured, threatened or coerced by the investigating officers or supervising officers or that any allurement was given to him to make the confession.

(vi) All the confessing appellants were facing trial in a number of other cases [this is evident from the statement of PW 100, Mr Satyakant, the then Deputy Inspector General of Police, CID, Crime (Ext. 430)] in which they were duly represented by advocates but till the recording of the statements under Section 313 CrPC, neither they nor their advocates made a grievance regarding denial of legal assistance or alleged that any threat was given to either of them or they were subjected to physical or mental torture or that undue influence was exercised by the investigating officers or the supervising officers or any allurement was given for the purpose of making confession.

62. Both the investigating officers, namely, Shri R.K. Saini (PW 122) and Shri O.P. Chatwal (PW 123) were subjected to lengthy cross- examination. Shri R.K. Saini denied the suggestion that Appellant A-10 Salimkhan was never willing to give any confessional statement and his statement was not recorded. He also denied the suggestion that Appellant A-10 had complained to the Chief Metropolitan Magistrate that he was ill-treated by the officers while in custody. In his cross- examination, Shri O.P. Chatwal (PW 123) categorically denied the suggestion that Shri A.K. Majumdar had instructed him to ill-treat the accused. He further stated that none of the accused was ill-treated mentally or physically by CBI. Shri Chatwal also denied the suggestion that the confessional statements of the accused were prepared by him and their signatures were obtained on the same. In reply to another question, he denied that the accused had sought for the presence of advocate but the same was declined.

63. In their statements, PW 103 Shri Harbhajan Ram and PW 104 Shri A.K. Majumdar explained the details of the mode and manner in which confessions of the accused were recorded. Both of them categorically stated that before recording confession each of the accused was told that he is not bound to make confession and that the same can be used against him and whether there was any threat, coercion or allurement for making confession. According to the two witnesses, each of the accused expressed unequivocal willingness to confess his role in the crime by stating that he knew that the confession can be used against him, that there was no threat, coercion or allurement and that he was making confession voluntarily.

64. According to PWs 103 and 104, the statements of the accused were recorded by the stenographers verbatim and each one of them appended signatures after satisfying that the same was correctly recorded. In reply to the suggestion made to him in cross-examination that the accused had been subjected to torture, PW 104 categorically stated that none of the accused was ill-treated by him or any other officer/official. The defence had made suggestion about the nature and extent of supervision exercised by PW 104 but it was not put to them that either instructed the investigating officers to torture the accused and forced them to confess their guilt. In this view of the matter, the confessions of Appellants A-4 to A-8 and A-10 cannot be held inadmissible on the premise that before recording of confessions they were in police custody and the statements were recorded by the officers supervising the investigation.”

204) Similarly, in Lal Singh vs. State of Gujarat, (2001) 3 SCC 221, this Court was pleased to observe:

“91. The next contention that Rule 15 of the TADA Rules has not been followed also does not carry any weight. For this purpose, we would refer to the evidence of PW 128, PW 132 and PW 133. PW 128 Satishchandra Rajnarayanlal, who was SP, CBI II, Punjab Cell at New Delhi in 1992 stated that he registered the offence RC No. 6-SII/92. He recorded the confessional statements of A-1 Lal Singh, Ext. 620 and A-3 Tahir Jamal, Ext. 618 along with other accused. Before recording confessional statements, he ascertained from every accused whether they were voluntarily ready to give confessional statements. Necessary questions were put to them and time was given to them to think over the matter. After being satisfied that they were willing to give voluntary confessional statements, he recorded their confessional statements. PW 132 Padamchandra Laxmichandra Sharma, who was SP, CBI, SIC II at the relevant time stated that when he took over the charge of this case RC No. 6-(S)/92 from Mr Satishchandra, this case was in the last phase. Deputy SP, CBI, D.P. Singh (PW 136) had produced A-2 Mohd. Sharief and A-20 Shoaib Mukhtiar before him on 8-7-1993 and 6-2- 1994 for recording their voluntary confessional statements, which are Ext. 650 and Ext. 654 respectively. Before recording their statements, he warned them of the consequences of making confessional statements and further gave them time to think over the matter. On being satisfied that they wanted to give confessional statements, he recorded their statements. PW 133 Sharadkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that in the year 1992 he was SP in the same branch at New Delhi. On 5-11-1992 he was directed by DIG M.L. Sharma to proceed to Ahmedabad in order to record statement of A-4 Saquib Nachan under Section 15 of the TADA Act. On 6- 11-1992 after reaching at Ahmedabad, Saquib Nachan was produced before him. He put necessary questions to A-4 Saquib Nachan. Before recording confessional statement, he ascertained from him whether he was voluntarily ready to give confessional statement and warned him that if he made confessional statement, the same can be used against him. He also apprised the accused that he is not bound to make such statement. When the accused replied that he wanted to make clean admission of guilt, he recorded the confessional statement of A-4 Saquib Nachan. From the above evidence, it is clear that Rule 15 was fully followed by the witnesses, who recorded the confessional statements of accused.

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

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