REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1778  OF 2008

Manjit Singh @ Mange                                                ………….. Appellant

Versus

CBI, through its S.P.              …………..Respondent                                                                     

WITH

CRIMINAL APPEAL NO. 1826  OF 2008

Om Prakash Shrivastava @ Babloo                        ................... Appellant

Versus

State of U.P. through SP, CBI              …………..Respondent WITH

CRIMINAL APPEAL NO. 1844  OF 2008

K.K. Saini                                                                     ………….. Appellant

Versus

State of UP, through S.P., CBI,                     .................    Respondent                                   

1

WITH

CRIMINAL APPEAL NO. 1336  OF 2009

State of U.P. through S.P., CBI             ………….. Appellant                                                       

Versus

Om Prakash Shrivastava @  Babloo                            …………..Respondent

WITH

CRIMINAL APPEAL NOS. 1347-1348  OF 2009

State of U.P. through S.P.,CBI      ………….. Appellant                                                       

Versus

K.K. Saini and Anr.                                                            ……..Respondents

J U D G M E N T

H.L. Dattu, J.

(1) These appeals are preferred against the common judgment and  

order passed by the learned Sessions Judge, Designated Court  

(TADA), Kanpur dated 30.9.2008 in TADA Crl. Case No.3 of  

2

1994 (State vs. K.K. Saini), TADA Crl. Case No. 3A of 1994  

(State vs. Manjit Singh @ Mange) and TADA Crl. Case No.1 of  

1995 (State vs. Om Prakash Shrivastava @ Babloo).  By the  

impugned judgment of conviction and order of sentence, K.K.  

Saini,  Manjit  Singh@  Mange  (in  short,  “Mange”)  and  Om  

Prakash Shrivastava @ Babloo (in short, “Babloo”) have been  

convicted  for  offence  punishable  under  Section  302  IPC,  

Section 302 read with Section 34 IPC and Section 302 read  

with Section 120B IPC respectively.  They have been sentenced  

to undergo imprisonment for life and to pay fine of  `10,000/-  

each  in  respect  of  these  offences  and  in  default,  undergo  

rigorous imprisonment for a period of six months each.  K.K.  

Saini and Mange are both acquitted of charges under Sections  

3(2)  and  3(3)  read  with  Section  3(1)  of  the  Terrorist  and  

Disruptive  Activities  (Prevention)  Act,  1987  [hereinafter  

referred to as, “TADA Act”].  All the sentences were directed  

to run concurrently.

(2) The accused have filed appeals under Section 19 of the TADA  

Act  against  the  impugned judgment and order  passed by the  

Designated  Court  (TADA),  Kanpur.   State  of  Uttar  Pradesh  

3

through CBI has also filed appeals against  the judgment and  

order passed by the Designated Court (TADA) acquitting the  

accused persons for the offences under Sections 3(2) and 3(3)  

read with Section 3(1)  of the TADA Act and further for the  

enhancement of sentence imposed under the provisions of IPC  

to death sentence in view of the seriousness of the offence and  

the purpose for which it was carried out.

(3) The prosecution case in brief is as follows :-   

Shri L.D. Arora,  Additional Collector of Customs, Allahabad  

was assassinated on 24.03.1993 at about 07-07.15 p.m. in the  

area  of  P.S.  Cantonment,  Allahabad.  The  nephew  of  the  

deceased  Dr.  Satish  Arora  (PW-2)  had  lodged  the  First  

Information  Report  at  P.S.  Cantonment,  Allahabad  at  20.15  

p.m.  According to his report, on 24.03.1993, Shri L.D. Arora  

(Deceased) reached his house at HIG flat No.9, ADA Colony,  

Circular  Road,  Allahabad  by  his  car.   He  had  gone  to  his  

uncle’s house on 24.03.1993 at about 07-07.15 p.m.  He saw his  

uncle’s car parked at the same place where he used to park his  

car  regularly.  After  knocking  the  door,  he  had  entered  his  

uncle’s  house.  Soon after  his  arrival,  the neighbour told him  

4

that  something  has  happened  to  his  uncle.  He  immediately  

rushed to the place where his uncle had parked his car. Upon  

arrival at the spot, he saw his uncle was lying unconscious on  

the driving seat in a pool of blood. He immediately took his  

uncle  to  Swaroop  Ram  Medical  Hospital  with  the  help  of  

people from the neighborhood. At the hospital, his uncle was  

declared brought dead. The investigation was initially taken up  

by the Cantonment Police Station, Allahabad.   

(4) The prosecution has further stated that the post mortem of the  

dead  body was carried  out  by  Dr.  A.K.  Shrivastav  of  MLN  

Hospital  on 25.03.1993, who prepared a post  mortem report,  

which  was  duly  countersigned  by  Dr.  S.L.  Diwan,  Senior  

Surgeon of the hospital. The post mortem report revealed that  

there  were  three  entry  wounds  caused  by  fire  arm  and  

corresponding three exit wounds on the upper parts of the body  

below the pinna of right ear, below and behind the tip of right  

mastoid procure and the last was 2 cms below it. The cause of  

death was ascertained to be ante-mortem head injuries caused  

by bullets.  The time of the death was ascertained to be 7.55  

p.m. on 24.03.1993.   

5

(5) When the investigation by the State Police was still going on,  

the  Department  of  Personnel  and  Training,  Ministry  of  

Personnel,  Public  Grievances  and  Pension,  Government  of  

India  vide  Notification  No.228/48/93-A.V.D.-JJ  dated  

12.07.1993 issued with the consent of the Government of Uttar  

Pradesh, entrusted the investigation of the case to CBI, pursuant  

to  which R.C.  (10) (S)/93-S.J.U.V/C.B.I.,1I/New Delhi  dated  

13.07.1993 under Section 302 of IPC was registered in SIC.II  

Branch of CBI.  During the course of investigation, offences  

under Section 120-B of IPC and Sections 3(2) and 3(3) read  

with  Section  3(1)  of  the  TADA  Act  were  added  with  the  

permission of Superintendent of Police, CBI, New Delhi.

(6) The prosecution further states that one Mohd. Dosa, Tahir Shah  

@  Tappu  and  Babloo  entered  into  criminal  conspiracy  to  

eliminate  L.D.  Arora  to  strike  terror  among  the  customs  

officials with a view from preventing anyone from passing on  

information  about  their  smuggling  activities  or  their  

involvement  in  the  Bombay  Blasts  on  March  12,  1993.  

Pursuant  to  this  conspiracy  hatched,  Babloo  instructed  K.K.  

Saini and Mange on 20.03.1993, who were with him in Krishna  

6

Nagar, Nepal, to assassinate the deceased L.D. Arora.  Mange  

was further  informed that  one Alimuddin @ Baba would be  

available at Hotel Finero, Allahabad.  Babloo gave them  `10-

12,000/-,  one  9  mm Pistol,  12  cartridges  and  a  Maruti  Car,  

bearing  registration  No.  DNH 8440,  to  accomplish  the  task.  

Thereafter,  K.K. Saini  and Mange left  Nepal  with the above  

mentioned fire arms in the said car.  They reached Allahabad  

and checked into the above mentioned Hotel Finero in Room  

No.7 and entered their names as A.K. Singh and Harjeet Singh  

respectively  in  the  hotel  register.  Thereafter,  Alimuddin also  

checked into Room No. 5 of the same hotel along with a lady  

named  Smt.  Arshi.  On  the  same  day,  there  was  a  meeting  

between K.K. Saini, Mange and Alimuddin in Room No.7 to  

chalk out the strategy to kill the deceased on the morning of  

24.03.1993,  i.e.  the  next  day.  All  three  of  them reached  the  

office and residence of the deceased on a scooter and conducted  

a thorough survey.  Babloo further  contacted K.K. Saini  over  

telephone installed at the hotel in Allahabad, instructing him to  

kill the deceased that very day as he might leave for Bombay on  

the next day to disclose information he had gathered regarding  

7

the  Mumbai  serial  blasts  of  1993.   Persuant  to  these  

instructions,  at  around  6.45  p.m.,  K.K.  Saini,  Mange  and  

Alimuddin  waited  near  the  ADA  Colony,  Circular  Road,  

Allahabad for the arrival of the deceased in his car.  As soon as  

the car of the deceased was spotted in the vicinity, all three of  

them took up positions and when the deceased entered the ADA  

Colony through the main gate in the eastern boundary wall and  

was about to park his car, K.K. Saini took out his pistol and  

fired  three  shots  at  the  deceased,  as  a  result  of  which,  the  

deceased sustained fatal injuries and collapsed in his seat.

(7) It is further case of the prosecution that during the course of the  

investigation,  they  recovered  three  empty  cartridges  and  one  

lead from the car of the deceased and one lead from the ground,  

where  the  car  was  parked.  The  Ballistic  Expert  of  F.S.L.,  

Lucknow opined that the three empty cartridges were fired from  

the  same  9  mm  pistol.   Investigations  disclosed  that  Mohd.  

Dosa had entered into criminal conspiracy with Tahir Shah and  

Babloo  to  kill  the  deceased  L.D.  Arora  so  that  their  

involvement in the  Bombay Bomb Blasts  were  not  revealed.  

After  killing  the  deceased,  the  information  was  relayed  to  

8

Babloo and later, Mange and K.K. Saini returned to Nepal on  

25.03.1993 by crossing the Indo-Nepal border at Krishna Nagar  

by paying an amount of Rs. 600/- in Nepal currency towards  

octroi/tax  for  vehicle  No.DNH  8440.  The  course  of  

investigation further led to information that one Virendra Pant  

and  Sanjay  Khanna  met  Babloo  in  Al-Rigu  Apartments  in  

Dubai where Babloo made an extra judicial confession that he  

had got the deceased killed through the concerned people as he  

had information about the activities of Mohd. Dosa and Tahir  

Shah  especially  in  the  smuggling  of  RDX,  weapons  and  

explosives used in the Bombay Bomb Blasts.  For this job, he  

was paid `6,00,000/- by Tahir Shah, out of which `50,000/- was  

given to K.K. Saini.

(8) Prosecution  further  states  that  K.K.  Saini,  while  in  police  

custody, during the period from 06.04.1994 to 04.05.1994 made  

a confessional statement under Section 15 of the TADA Act,  

wherein  he  confessed  his  own  involvement  as  well  as  

involvement of others in the killing of L.D. Arora.  Based on  

his  confession  and  information,  the  Maruti  Car  bearing  No.  

DNH 8440, the vehicle used in the commission of the offence,  

9

was also recovered. Later, K.K. Saini refused to join the Test  

Identification  Parade  and  his  refusal  was  recorded  by  Shri  

Rakesh  Kapoor,  Metropolitan  Magistrate,  Delhi.  The  

confessional  statement  of  Mange  was  also  recorded  on  

11.07.2001  by  S.P.,  CBI,  Delhi.  Accordingly,  charge  sheet  

against  K.K.  Saini  and  Mange  was  filed  in  the  Designated  

Court both under the provisions of the IPC and the TADA Act  

on 26.11.2001, which was registered as Criminal Case No.3 of  

1994 and Criminal Case No.3A of 1994.  It is also relevant to  

notice that Babloo was arrested in Singapore on 21.04.1995 in  

response to look out notice issued by Interpol, India.  On the  

request  of Govt.  of  India,  he was extradited by the Govt.  of  

Singapore.  The  Extradition  Treaty  signed  between  the  two  

countries provided that the person being extradited could only  

be tried  for  criminal  acts  recognized  as offences  in  both the  

countries.  Since,  there  was  no  law  in  Singapore  which  

corresponds to the TADA Act, though Babloo was extradited,  

he could only be tried under Section 120-B and 302 of the IPC  

and,  therefore,  no charge under  Section 3 of  the  TADA Act  

was framed against Babloo. After completion of investigation,  

10

the  investigating  agency  filed  charge  sheet  before  the  

Designated Court (TADA) for the offences under Section 302  

IPC against K.K. Saini and Mange for offences under Section  

302 read with Section 34 of the IPC and against Babloo under  

Section 302 read with Section 120B IPC. K.K. Saini and Mange  

were  also  charged  under  Section  3(2)  and  3(3)  read  with  

Section  3(1)  of  the  TADA  Act.  To  prove  the  charges,  the  

prosecution had examined 88 witnesses in the leading criminal  

case No. 3 of 1994 and 85 witnesses in criminal case No. 3A of  

1994  during  the  trial  and  relied  upon  various  documents  

including  confessional  statements  recorded  during  

investigation.  All the accused persons abjured their guilt and  

pleaded  innocence  and  stated  that  they  have  been  falsely  

implicated in this case.

(9) The Designated Court (TADA) had framed nearly eleven issues  

for  its  consideration.   The  Court,  relying  on  Section  12  of  

TADA Act,  has held that Babloo was rightly charged for an  

offence under Section 302 read with Section 120B of the IPC  

and tried him jointly with the accused K.K. Saini and Mange  

and for  technical  reason,  he  could not  be charged under  the  

11

TADA  Act.  The  Court  has  further  held  that  since  the  

investigation  was  handed  over  to  Superintendent  of  Police,  

CBI, by the State of Uttar Pradesh by issuing notification, prior  

approval from S.P., CBI, was sufficient compliance of Section  

20A of the TADA Act.  On the issue of the admissibility of the  

confessional  statement of the accused K.K. Saini and Mange  

against the co-accused Babloo, the learned Designated Judge,  

after noticing the language employed in Section 12 and Section  

15  of  the  TADA  Act,  has  concluded  that  merely  due  to  

technicality in the Extradition Treaty, Babloo was not charged  

under TADA Act.  However, in the light of the provisions and  

the decisions  of  this  Court,  the confessional  statements  were  

held to be admissible against the co-accused even when he was  

not  charged  under  the  TADA Act,  but  was  tried  jointly  for  

offences  under  other  law  by  the  Designated  Court  (TADA).  

The Designated Court (TADA) did not find any merit  in the  

contention  that  the  confession  statements  of  K.K.Saini  and  

Mange were  not  recorded voluntarily.  The Designated  Judge  

(TADA), after carefully considering the evidence on record, has  

held that the prosecution has successfully proved the recovery  

12

of Maruti Car No. DNH 8440 on the information furnished by  

K.K.  Saini.  As  regards  the  issue  of  proving  charges  of  

conspiracy under Section 120B of IPC, it was held that from the  

facts and circumstances and prosecution evidence, it was clear  

that the three accused namely, K.K. Saini, Babloo and Mange  

hatched conspiracy to kill L.D. Arora and all the three accused  

were involved in the conspiracy. Hence, all the three accused  

were  held  liable  for  conviction for  the  charge  under  Section  

120B read with Section 302 of the IPC. As regards the last issue  

of proving the guilt of all the three accused and the sufficiency  

of  the  evidence  other  than  confessional  statement,  it  was  

observed that the prosecution has proved the same by producing  

both  oral  and  documentary  evidence.  The  Designated  Court  

(TADA),  after  considering  the  material  evidence  on  record,  

including the Post Mortem Report and the statements made by  

the  accused  persons  under  Section  313  of  the  Criminal  

Procedure  Code,  has  concluded  that  the  prosecution  has  

adduced  sufficient,  reliable  oral  and  documentary  evidence,  

which  corroborates  the  confessional  statement  of  both  the  

accused namely, K.K. Saini and Mange and further concluded  

13

that  there  is  enough  evidence,  other  than  the  confessional  

statement against Babloo, which proves the prosecution case in  

so far as charges framed under the provisions of the IPC.   

(10) We have heard Shri  K.T.S.  Tulsi,  learned senior  counsel  for  

Mange and Babloo and Shri Amrendra Sharan, learned senior  

counsel  for  K.K.  Saini  and  Shri  P.P.Malhotra,  learned  

Additional Solicitor General for the CBI.

(11) As these appeals are preferred against the judgment and order  

of learned Designated Court (TADA) under Section 19 of the  

TADA Act, therefore, we have to consider these appeals both  

on facts as well as on question of law for our conclusion and  

decision.

(12) The  learned  senior  counsel  Shri  K.T.S.  Tulsi  and  Shri  

Amrendra Sharan submitted that K.K. Saini and Mange were  

charged under the TADA Act and not Babloo.  It is argued that  

since there was no terror caused in the society by the acts of the  

accused, they cannot be charged under Section 3(1) and 3(2) of  

the  TADA  Act  and,  therefore,  they  could  only  be  tried  for  

committing offence of murder under Section 302 of the IPC.  

Further, it  was argued that prior approval was required to be  

14

taken  from  the  Superintendent  of  Police  of  the  District,  as  

required  under  Section  20-A  of  the  TADA  Act,  to  try  the  

accused  for  the  offences  under  the  TADA  Act  and  the  

Superintendent of Police, CBI was not the competent authority  

to  give  such  permission.  It  is  further  submitted  that  the  

confessional  statements  of  K.K.  Saini  and  Mange  were  

recorded in complete defiance of provisions of the TADA Act  

and the rules framed thereunder and that mandatory provisions  

have not been followed. Therefore, the confessional statement  

is  to  be  completely  eschewed  from consideration.  It  is  also  

contended  that  there  is  no  sufficient  and  reliable  evidence  

against Babloo except the confessional statement of K.K. Saini  

and Mange and the prosecution has therefore failed to prove the  

conspiracy between the accused tried in the present case. Shri  

K.T.S.  Tulsi,  learned  senior  counsel,  who  also  appears  for  

Babloo,  submitted  that  the  confessional  statement  of  the  co-

accused K.K. Saini and Mange recorded under Section 15 of  

the  TADA Act  cannot  be  used  against  Babloo  as  he  is  not  

charged  under  the  provisions  of  the  TADA  Act  and  also  

because  no  prior  approval  from the  prescribed  authority,  as  

15

required  under  Section  20A  of  the  TADA  Act,  had  been  

obtained. He also submitted that the penal provisions require to  

be strictly construed. In support of his submission, the learned  

senior counsel has placed reliance on several decisions of this  

Court.  We  will  make  reference  to  the  submissions  and  the  

decisions while considering the issues raised in these appeals.   

(13) Shri  P.P.  Malhotra,  learned  Additional  Solicitor  General,  

submitted that when the investigation is transferred to the CBI,  

with  the  consent  of  the  State,  the  CBI  takes  over  further  

investigation of the case.  Therefore, Superintendent of Police,  

CBI, was competent to record the confession made by a person  

and the same is admissible in the trial  of such person for an  

offence  under  the  TADA  Act.   He  further  submits  that  the  

aforesaid officer, before recording the confession under Section  

15(1) of the TADA Act, had followed the safeguards provided  

under sub Section (2)  of Section 15 of  the TADA Act.  It  is  

further submitted that the confessional statement of K.K. Saini  

and  Mange  recorded  before  S.P.,  C.B.I.,  was  admissible  in  

evidence vide Section 15 of the TADA Act, which provides for  

the recording of the confessional statements before the police  

16

officer, not lower in the rank than Superintendent of Police, and  

it  is  made  admissible  even  against  co-accused,  abettor  or  

conspirator and the bar under the Evidence Act and Criminal  

Procedure  Code  will  not  come  into  play.  It  was  further  

submitted that the confessions made by K.K. Saini and Mange  

are admissible as substantive evidence against Babloo.  It was  

also  submitted  by  the  learned  ASG that  there  was  sufficient  

evidence adduced by the prosecution to support the correctness  

of the confessional statements of the two co-accused persons.  

He  further  submitted  that  the  Section  takes  special  care  to  

ensure that no court shall take cognizance of any offence under  

the Act without the previous sanction of the Inspector General  

of  Police  or  the  Commissioner  of  Police.  The  safeguard  so  

provided under the Act would protect the rights of an accused  

of any offence under the Act.

(14) The issues that would arise in these appeals filed by appellants-

accused for our consideration and decision are as under :-

(I) Whether  the  confessional  statement  of  the  co-

accused is admissible against Babloo, who was not  

charged under the TADA Act.

17

(II) If for any reason, confession of the co-accused is  

eschewed  against  Babloo,  whether  there  is  any  

other  evidence  against  him  to  sustain  the  

conviction  and  sentence  under  Section  302  read  

with Section 120-B IPC.   

(III) Since  the  TADA  Act,  being  a  special  statute  

enacted for a specific purpose and object, whether  

the interpretation of provisions of the TADA Act  

requires any specific mode of interpretation.   

(IV) Whether  there  is  breach  of  mandatory  

requirements  provided  in  Section  20A(1)  of  the  

TADA Act  while recording the commission of an  

offence under the Act.

(V) Whether the conviction of K.K. Saini and Mange  

for the offences under the provisions of the I.P.C.  

are  sustainable  with  the  available  evidence  on  

record.

(VI) Whether  the  learned  Designated  Judge  (TADA)  

was justified in acquitting all the accused persons  

18

for the offences charged and tried under the TADA  

Act.      

Case of Babloo

(15) The object and purpose of the TADA Act is explained by this  

Court in number of decisions.  Therefore, it is not necessary for  

us to repeat and reiterate the same.  We will  only notice the  

relevant provisions which are necessary for the purpose of this  

case.     

(16) Section  12  of  the  TADA  Act  speaks  of  the  power  of  the  

Designated Courts with respect to other offences.  By virtue of  

this  Section,  the  Designated  Court  may  also  try  any  other  

offence  with  which  the  accused  may,  under  the  Code,  be  

charged at the same trial if the offence is connected with such  

other offence. Sub-section (2) further empowers the Designated  

Court that in the course of the trial under the TADA Act of any  

offence, if it  is found that the accused person has committed  

any  other  offence  under  the  TADA  Act  or  any  rule  made  

thereunder or under any other law, the Designated Court may  

convict  such  person  of  such  other  offence  and  pass  any  

sentence authorized under this Act or such rule or such other  

19

law for the punishment thereof. A Designated Court constituted  

under Section 9 of the TADA Act or a transferee Designated  

under  Section  11  of  the  TADA  Act  is  vested  with  the  

jurisdiction  to  try  all  the  offences  punishable  under  the  

provisions of the TADA Act.  While trying such offence, if the  

accused is charged for offence punishable under the provisions  

of any other law connected with such offence, the Designated  

Court has power to try the accused in such offence also during  

trial,  if it  is found that the accused has also committed other  

offence punishable under any other law, the Designated Court  

can convict the accused for such offence also.  The Designated  

Court can pass any sentence, on conviction of the accused, as  

authorized  in  the  respective  statute  for  punishment  of  such  

offence.      

(17) Section 15 of the TADA Act commences with a non obstinate  

clause by stating that notwithstanding anything contained in the  

IPC  or  the  Evidence  Act,  the  confession  made  by  a  person  

before a police officer not lower in rank than a Superintendent  

of Police and recorded by such Police Officer in writing etc.,  

shall  be  admissible  in  the  trial  of  such  person,  co-accused,  

20

abettor or conspirator for an offence under the TADA Act or  

rules  made  thereunder.  The  proviso  appended to  the  Section  

carves out an exception to the main Section.  It  says that the  

confession made by a person accused of an offence under the  

Act  or  the  rules  framed  thereunder  can  be  used  against  co-

accused, abettor or conspirator, provided he is charged for any  

offence under the Act or the rules framed thereunder and tried  

in the same case together with the accused. It was contended by  

Shri  K.T.S.  Tulsi,  that  Babloo  was  not  charged  under  the  

provisions of the TADA Act or  the rules framed thereunder.  

Therefore,  the  confession  statement  made  by  co-accused  i.e.  

K.K. Saini and Mange cannot be used against Babloo and if the  

confessional  statement  of  the  co-accused  is  eschewed,  then  

there is no other evidence to implicate Babloo for the offence  

alleged to have been committed under the Indian Penal Code  

and,  therefore,  the  conviction  and  sentence  imposed  by  the  

Designated Court cannot be sustained.   

(18) The  main  question  before  us  is  whether  the  confessional  

statement made by K.K. Saini and Mange can be used against  

co-accused Babloo in the light of the fact that Babloo was not  

21

charged and tried for any offence under the TADA Act or the  

rules framed thereunder.

(19) This  issue  was  raised  before  the  learned  Designated  Judge  

(TADA).  The learned Judge has answered the issue and in his  

opinion,  Babloo was not  tried for  offences  under  the  TADA  

Act,  only  due  to  the  extradition  terms  that  were  agreed  by  

Union of  India  with Singapore  Government.   He has further  

stated that it was only due to this technicality that Babloo was  

not tried for offences under the Act,  though his actions fully  

justified a trial for offences under the Act.  It is this reasoning  

of the learned Designated Judge that was commented and taken  

exception to by learned senior counsel Shri K.T.S. Tulsi.  We  

have already noticed that the submission of the learned senior  

counsel  is  that  confession  made  by  the  co-accused  charged  

under the TADA Act cannot be used against co-accused who is  

not charged and tried under the TADA Act. The learned senior  

counsel, while relying on the observations made by this Court  

in  the  case  of  Baba Peer  Paras  Nath vs.  State  of  Haryana,  

(1996)  10 SCC 500,  in  aid  of  his  submission,  would further  

contend that this Court in the case of State vs. Nalini, (1999) 5  

22

SCC 253 and the Constitution Bench decision of this Court in  

the  case  of  Prakash  Kumar@Prakash  Bhutto  vs.  State  of   

Gujarat, (2005) 2 SCC 409, did not deal with the admissibility  

of a confession statement made by an accused under the TADA  

Act against co-accused not charged under the Act or the rules  

framed thereunder and therefore not applicable to the facts of  

the case.

(20) Shri  P.P.  Malhotra,  learned  Additional  Solicitor  General,  

submits that all the three accused were being tried in the same  

case  by  the  Designated  Court  (TADA).  Therefore,  the  

confession of the accused K.K. Saini and Mange, charged for  

the offence under the TADA Act, could be used against Babloo,  

who was charged for the offence under Section 302 read with  

Section  120B  of  the  IPC.  The  learned  ASG  would  further  

contend that Section 15 of the Act is a rule of procedure and no  

one has any vested rights in the procedural provisions.

(21) We are of the view that the issue raised needs to be appreciated  

in the light of several decisions of this Court and principles of  

statutory interpretation. For appreciating the contention of the  

learned counsel Shri K.T.S. Tulsi, firstly we need to notice the  

23

provision  which  empowers  the  police  officer  to  record  the  

confessional statement of the accused.

(22) Section 15 of the TADA Act was amended by Act No. 43 of  

1993 with effect from 22.05.1993. By this amendment, not only  

some  changes  are  brought  in  the  main  Section  but  also  the  

proviso is added to sub-section (1) of Section 15. The amended  

provision reads:  

“15. 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 thereunder: 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.”

24

(23) Under the amended provision of Section 15 of the TADA Act,  

the confession of a co-accused recorded under Section 15 of the  

TADA Act  is  made admissible  subject  to  certain  conditions.  

The confession recorded under Section 15 of the TADA Act by  

a  co-accused  could  be  made  use  of  against  that  accused  

provided the co-accused is charged and tried in the same case  

together  with  the  accused.   Section 15  of  the  TADA Act  is  

amended by Act No. 43 of 1993, which clearly stipulates that  

the confession recorded under Section 15 of the TADA Act is  

admissible only if the confessor is charged and tried in the same  

case  together  with  the  co-accused.   After  the  amendment  of  

1993,  the  addition  of  the  words  ‘co-accused,  abettor  or  

conspirator  is  charged  or  tried  together  with  the  accused’  

clearly shows that the confession could be considered by the  

Court only when the co-accused, who makes the confession, is  

charged and tried along with the other accused.

(24) This  Court  in  the  case  of  Kartar  Singh vs.  State  of  Punjab,   

(1994) 3 SCC 569 considered the validity of Section 15 of the  

TADA  Act.   While  considering  the  question  whether  the  

25

procedural law is oppressive and violates the principles of just  

and fair  trial  offending Article  21 of  the  Constitution and is  

discriminatory violating the equal protection of laws offending  

Article 14 of the Constitution, and therefore, whether Section  

15 of the TADA Act needs to be struck down, this court held  

Section  15  of  the  TADA  Act  stands  good  on  the  test  of  

constitutional  validity  as  the  classification  of  offenders  and  

offences to be tried by the Designated Court under the TADA  

Act or by the Special Courts under the Act of 1984 are not left  

to the arbitrary and uncontrolled discretion of the Central Govt.,  

but  the Act itself  has made a  delineated classification of the  

offenders as terrorists and disruptionists in the TADA Act and  

the  terrorists  under  the  Special  Courts  Act,  1984 as  well  as  

classification of offences under both the Acts.  This Court also  

stated that the Act also provides for procedural safeguards to be  

followed  by  the  police  officers  with  regard  to  mode  of  

recording the confession and, therefore, Section is not liable to  

be struck down as it does not offend either Article 14 or 21 of  

the Constitution of India. The Court further observed as under :-

26

“255. As the Act now stands after its amendment   consequent upon the decision of Section 21(1)(c),   a  confession  made  by  a  person  before  a  police   officer  can  be  made  admissible  in  trial  of  such  person  not  only  against  the  person  but  also  against  the  co-accused,  abettor  or  conspirator,   provided that co-accused, abettor or conspirator is   charged  in  the  same  case  together  with  the   accused, namely the maker of the confession.  The  present position is in conformity with Section 30 of   the Evidence Act.”    

(25) The  scope  of  Section  15  of  the  TADA  Act  was  

considered by a three Judge Bench of this Court in  State vs.   

Nalini (supra). The three learned Judges were pleased to deliver  

three separate judgments.  We shall extract the relevant portion  

of the judgments.  While answering this question, K.T. Thomas,  

J. opined:  

“81. Section 15 of TADA enables the confessional  statement of an accused made to a police officer  specified therein to become admissible “in the trial  of such a person”. It means, if there was a trail of  any offence under TADA together with any other  offence under any other law, the admissibility of  the confessional statement would continue to hold  good even if the accused is acquitted under TADA  offences.”

“…The  correct  position  is  that  the  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  

27

were tried along with TADA offences, no matter  that the accused was acquitted of offences under  TADA in that trial.” (Para 82)

“…In  other  words,  after  the  amendment  a  Designated Court could not do what it could have  done before the amendment with the confession of  one accused against a co-accused. Parliament has  taken  away  such  empowerment.  Then what  is  it  that Parliament did by adding the words in Section  15(1)  and  by  inserting  the  proviso?  After  the  amendment  the  Designated  Court  could  use  the  confession of one accused against another accused  only if two conditions are fulfilled:

(1) The co-accused should have been charged in  the same case along with the confessor.

(2) He should have been tried together with the  confessor in the same case.”  (Para 90)

“92.  While  considering  the  effect  of  the  non  obstante  limb  we  can  see  that  Section 15(1) of  TADA  was  given  protection  from  any  contrary  provision in the Evidence Act. But what is it that  Parliament  did  through  Section 15(1) regarding  a  confession made to  a  police  officer?  It  has only  made such confession "admissible" in the trial of  such person or the co-accused etc.”

“…It  must  be  remembered  that  Section 15(1) of  TADA does not say that a confession can be used  against a co-accused. It only says that a confession  would  be  admissible  in  a  trial  of  not  only  the  maker  thereof  but  a  co-accused,  abettor  or  conspirator tried in the same case.”  (Para 97)

28

(26) In other words, Thomas, J. took the view that the confession of  

another person is weak evidence and hence the confession made  

by one co accused was admissible in evidence against another,  

but  would  be  conclusive  only  if  the  same was  corroborated,  

even if such person was acquitted of charges under the TADA  

Act in joint trial.  It must be noted that the majority view is not  

in concurrence with this opinion.

(27) Now we will notice the observations made by D.P. Wadhwa, J.

“415. When Section 15 TADA says that confession  of an accused is admissible against a co-accused   as well, it would be substantive evidence against   the  co-accused  as  well,  it  would  be  substantive   evidence against the co-accused.  It  is a different   matter as to what value is  to be attached to the   confession with regard to the co-accused as that   would  fall  in  the  realm  of  appreciation  of   evidence.”

(28) The  learned  Judge  further  went  on  to  observe  that  the  

confession made by the accused can be used as a substantive  

piece of evidence against another accused in the light of Section  

15  of  the  TADA  Act.  This  view  was  supported  by  S.S.M.  

Qadri, J. in a concurring opinion.  In other words, this Court  

took the view that even if a person is acquitted of the TADA  

29

charges, the confession recorded under Section 15 of the TADA  

Act would be admissible.

(29) The majority view in this case is that confessional statement is a  

substantive piece of evidence and can be used against the co-

accused.  The decision in Nalini’s case was considered in S.N.   

Dube vs. N.B. Bhoir, (2000) 2 SCC 254.  The Court observed  

that  Section  15  of  the  TADA Act  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 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, if held to be admissible, voluntary and believable.

(30) In Jameel Ahmed vs. State of Rajasthan, AIR 2004 SC 588, it is  

observed:

“. ...............Herein it is relevant to note that S.15  of TADA  Act by the use of non-obstante clause   has  made  confession  recorded  under  S.15   admissible notwithstanding anything contained in   the Indian Evidence Act or the Code of Criminal   Procedure.   It  also specifically  provides that the  confession so recorded shall be admissible in the   trial  of  a  co-accused  for  offence  committed  and  

30

tried in the same case together with the accused  who makes the confession.”

(31) In Esher Singh vs. State of A.P. (2004) 11 SCC 585, it is stated:  

“19. Crucial words in the provision are “charged  and  tried”.  The  use  of  the  expression  “charged  and tried” imposes cumulative conditions. Firstly,   the two persons who are the accused and the co- accused in the sense used by the legislature under   Section 15, must be charged in the same trial, and  secondly,  they  must  be  tried  together.  Kalpnath  Rai case has been overruled in Nalini case making  the  position  clear  that  the  confession  of  a  co- accused is substantive evidence. 20. Section  2(b)  of  the  Code  of  Criminal   Procedure,  1973  (in  short  “the  Code”)  defines   “charge” as follows: “2. (b) ‘charge’ includes any head of charge when  the charge contains more heads than one;” The Code does not define what a charge is. It is   the precise formulation of the specific accusation   made against a person who is entitled to know its   nature  at  the  earliest  stage.  A charge is  not  an   accusation  made  or  information  given  in  the  abstract, but an accusation made against a person  in  respect  of  an  act  committed  or  omitted  in   violation of penal law forbidding or commanding  it. In other words, it is an accusation made against   a person in respect of an offence alleged to have  been  committed  by  him.  A  charge  is  formulated   after  inquiry  as  distinguished  from  the  popular  meaning of the word as implying inculpation of a   person for an alleged offence as used in Section  224 IPC.

31

21. Chapter  XVII  of  the  Code  deals  with   “charge”. Section 211 thereof deals with content   of charge. Section 273 appearing in Chapter XXIII   provides  that  evidence  is  to  be  taken  in  the  presence of the accused. The person becomes an  accused for the purpose of trial after the charges  are framed. The expression used in Section 15 of   TADA  is  “charged  and  tried”.  The  question  of   having a trial before charges are framed does not   arise.  Therefore,  the only interpretation that can  be given to the expression “charged and tried” is   that the use of a confessional statement against a   co-accused is permissible when both the accused  making  the  confessional  statement  and  the  co- accused are facing trial after framing of charges.   In State of Gujarat v. Mohd. Atik this position was  highlighted. Unless a person who is charged faces   trial  along with  the  co-accused  the  confessional   statement of the maker of the confession cannot be  of any assistance and has no evidentiary value as   confession when he dies before completion of trial.   Merely  because  at  some  stage  there  was  some  accusation, unless charge has been framed and he   has faced trial till its completion, the confessional   statement,  if  any,  is  of  no  assistance  to  the   prosecution so far as the co-accused is concerned.   In  fact,  in  para  10  in  Mohd.  Atik  case it  was  observed that when it was impossible to try them  together the confessional statement has to be kept   out of consideration.

22. So  far  as  application  of  Section  30  of  the   Evidence  Act  is  concerned,  in  Nalini  case this   question was examined and it was held in SCC pp.   306-07, paras 90 and 91 as follows: “90. But the amendment of 1993 has completely   wiped  out  the  said  presumption  against  a  co- accused  from  the  statute-book.  In  other  words,   after the amendment a Designated Court could not   

32

do what it could have done before the amendment   with the confession of one accused against a co- accused.  Parliament  has  taken  away  such  empowerment. Then what is it that Parliament did   by  adding  the  words  in  Section  15(1)  and  by   inserting  the  proviso?  After  the  amendment  the  Designated Court could use the confession of one   accused  against  another  accused  only  if  two  conditions are fulfilled:

(1)  The  co-accused  should  have  been  charged in the same case along with the confessor.

(2) He should have been tried together with   the confessor in the same case. Before amendment the Designated Court had no  such restriction as the  confession of  an accused   could  have  been  used  against  a  co-accused  whether  or  not  the  latter  was  charged  or  tried  together with the confessor.

91.  Thus  the  amendment  in  1993  was  a  clear   climbing  down from a  draconian  legislative  fiat   which was in the  field of  operation prior to the   amendment  insofar  as the use of  one confession   against  another  accused  was  concerned.  The  contention  that  the  amendment  in  1993  was  intended to make the position more rigorous as for  a co-accused is, therefore, untenable.”

(32) A  two  Judge  Bench  of  this  Court,  doubting  the  

correctness of the decision in State vs. Nalini (supra), had  

referred the matter to three Judge Bench of this Court.  

Since  Nalini’s case (supra) was decided by three Judge  

Bench of this Court, the three Judge Bench had referred  

33

the matter to Constitution Bench in  Prakash Kumar @  

Prakash Bhutto vs. State of Gujarat, (2005) 2 SCC 409.  

The primary question referred to the Bench, as noticed by  

the  Constitution  Bench  itself  is,  as  to  whether  

confessional statement duly recorded under Section 15 of  

the TADA Act would continue to remain admissible as  

for the  offences under any other  law which were  tried  

along with TADA offences under Section 12 of the Act,  

notwithstanding the fact that the accused was acquitted of  

offences under the TADA Act in the said trial.   

“18. The  questions  posed  before  us  for  the  determination  are  no  more  res  integra.  In  our  view, the same have been set at rest by the three- Judge  Bench  decision  rendered  in  Nalini.  The  rigours of Sections 12 and 15 were considered in   Nalini case and a finding rendered in paras 80, 81  and 82 (SCC p. 304) as under: “80. Section 12 of TADA enables the Designated   Court to jointly try, at the same trial, any offence  under TADA together with any other offence ‘with   which  the  accused  may  be  charged’  as  per  the   Code  of  Criminal  Procedure.  Sub-section  (2)  thereof empowers the Designated Court to convict   the accused, in such a trial, of any offence ‘under  any other law’ if  it  is found by such Designated   Court in such trial that the accused is found guilty   of such offence.  If the accused is acquitted of the   offences under TADA in such a trial, but convicted   of  the  offence  under  any  other  law,  it  does  not   

34

mean that  there  was only  a  trial  for  such other  offence under any other law. 81. Section 15 of TADA enables the confessional   statement of an accused made to a police officer   specified therein to become admissible ‘in the trial   of such a person’. It means, if there was a trial of   any offence under TADA together with any other  offence under any other law,  the admissibility of   the confessional statement would continue to hold   good even if the accused is acquitted under TADA  offences. 82. The aforesaid implications of Section 12 vis-à- vis Section 15 of TADA have not been adverted to   in  Bilal  Ahmed  case.  Hence  the  observations   therein (at SCC p. 434, para 5) that ‘while  dealing  with  the  offences  of  which  the   appellant  was  convicted  there  is  no  question  of   looking into the confessional statement attributed   to  him,  much  less  relying  on  it  since  he  was  acquitted of all offences under TADA’ cannot be followed by us.  The correct position is   that  the  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.”(emphasis supplied) We are in respectful agreement with the findings  recorded by a three-Judge Bench in Nalini case.

40. For the reasons aforestated, we are of the view  that  the  decision  in  Nalini  case has  laid  down  correct  law  and  we  hold  that  the  confessional   statement duly recorded under Section 15 of TADA  and the Rules framed thereunder would continue  to  remain admissible  for  the  offences under any   

35

other  law  which  were  tried  along  with  TADA  offences  under  Section  12  of  the  Act,   notwithstanding that the accused was acquitted of   offences under TADA in the same trial.”

(33) In  view  of  the  decisions  rendered  by  this  Court  in  the  

aforementioned cases, it is settled law that the confession of an  

accused can be used against him as well as other co-accused,  

even if they are acquitted for offences under the TADA Act.

(34) In the present case, the question that needs to be answered is the  

admissibility  of  such  confession  against  the  co-accused  not  

charged under the TADA Act. Shri K.T.S. Tulsi brought to our  

notice the decision of this Court in the case of Baba Peer Paras  

Nath (supra),  wherein  the  issue  that  was  considered  was  

whether  the  confessional  statement  of  the  co-accused  is  

admissible  against  co-accused if  not  tried  for  offences  under  

TADA Act.  This Court distinguished the Constitutional Bench  

decision of Kartar Singh vs. State of Punjab, (1994) 3 SCC 569  

stating that the observation of this Court in that decision is not  

about the admissibility of the confessional statement recorded  

under Section 15 of the TADA Act against an accused when  

such  accused  is  tried  with  the  other  co-accused,  abettor  or  

36

conspirator  but  such  accused  is  not  charged  for  any  offence  

under the TADA Act. Thus, the principle in this case which was  

upheld was that confessional statement recorded under Section  

15 of the TADA Act was admissible against co-accused, abettor  

or conspirator provided such accused tried with the other co-

accused or abettor or conspirator in the same trial in respect of  

offence under the TADA Act and not otherwise.

(35) In the present case, Babloo was not charged under the TADA  

Act,  but  tried  in  the  same  trial  along  with  K.K.  Saini  and  

Mange, who were tried under the TADA Act.   The question  

raised by Shri K.T.S. Tulsi is whether it is permissible to use  

the  confession  statement  of  K.K.  Saini  and  Mange  against  

Babloo,  when  he  is  not  charged  for  the  offence  under  the  

TADA Act to convict him, especially, when there is no other  

evidence available against him.   

(36) In the case of Baba Peer (supra), this Court held that in view of  

the language employed in Section 15 of the TADA Act,  the  

confession recorded under the aforesaid provision is admissible  

only if  the co-accused is  charged and tried in the same case  

together with the confessor.    

37

(37) In the case of Nalini (supra), the Court held that the confession  

recorded shall  be  admissible  in  the  trial  of  a  co-accused  for  

offence committed and tried in the same case together with the  

accused that makes the confession. Plain language of Section  

15 of the TADA Act excludes the application of the provisions  

of the Evidence Act and the Criminal Procedure Code. In view  

of the language of Sub-Section (1) of Section 15, a confession  

of an accused is made admissible evidence as against all those  

charged and tried with him.  This view of the Bench of three  

learned  Judges  in  Nalini’s  case  is  approved  by  Constitution  

Bench of this Court in Prakash Kumar’s case. The Constitution  

Bench decision is binding on us.    

(38) The language of Section 12 clearly states that in the course of  

any trial under the TADA Act of any offence, if it is found that  

the  accused  person  has  committed  any  other  offence  either  

under this Act or any other law, the Designated Court (TADA)  

may convict  such person of such other offence and pass any  

sentence  authorized  by  this  Act  or  such  other  law,  for  the  

punishment  thereof.  Section  15  of  the  TADA  Act,  after  its  

amendment,  authorizes  the  Designated  Court  to  use  the  

38

confession statement  of  one  accused against  another  accused  

only when the co-accused is  charged in the same case along  

with the confessor and is tried together with the confessor in the  

same case.  The  language  of  these  two Sections  is  clear  and  

unambiguous.  It  is  well  settled  principle  of  law  that  the  

jurisdiction to interpret a Statute can be invoked when the same  

is ambiguous. This Court in  Nasiruddin and Ors. v. Sita Ram  

Agarwal, (2003) 2 SCC 577, observed that:-

“38. The court's jurisdiction to interpret a statute  can be invoked when the same is ambiguous. It is   well known that in a given case the Court can iron  out the fabric but it cannot change the texture of   the  fabric.  It  cannot  enlarge  the  scope  of   legislation  or  intention  when  the  language  of   provision is plain and unambiguous. It cannot add  or subtract words to a statute or read something  into  it  which  is  not  there.  It  cannot  re-write  or  recast legislation. It is also necessary to determine   that there exists a presumption that the legislature   has  not  used  any  superfluous  words.  It  is  well- settled  that  the  real  intention  of  the  legislation  must be gathered from the language used. It may  be true that use of the expression 'shall or may' is   not decisive for arriving at a finding as to whether   statute is directory or mandatory. But the intention   of  the  legislature  must  be  found  out  from  the   scheme of  the Act.  It  is  also equally  well-settled   that when negative words are used the courts will   presume that the intention of the legislature was  that the provisions are mandatory in character.”   

39

(39) In  the  case  of  Dadi  Jagganadhan  v.  Jammulu  

Ramulu and Ors., AIR 2001 SC 2699, a Constitution Bench of  

this court observed:-

“13.........The  settled  principles  of  interpretation  are that the Court must proceed on the assumption  that  the  legislature  did  not  make a  mistake  and  that it did what it intended to do. The Court must,   as far as possible, adopt a construction which will   carry out the obvious intention of the legislature.   Undoubtedly if there is a defect or an omission in  the words used by the legislature, the Court would  not  go  to  its  aid  to  correct  or  make  up  the   deficiency.  The Court  could not  add words to  a   statute or read words into it which are not there,   especially  when  the  literal  reading  produces  an   intelligible  result.  The  Court  cannot  aid  the  legislature's defective phrasing of an Act, or add  and  mend,  and,  by  construction,  make  up  deficiencies which are there.”

(40) In the case of Feroze N. Dotivalaz v. P.M Wadhwani and  

co., (2003) 1 SCC 14, this court stated:-

“Generally, ordinary meaning is to be assigned to   any word or phrase used or defined in a statute.   Therefore,  unless  there  is  any  vagueness  or   ambiguity, no occasion will arise to interpret the  term in a manner which may add something to the   meaning of the word which ordinarily does not so   mean  by  the  definition  itself,  more  particularly,   where it is a restrictive definition. Unless there are   compelling  reasons  to  do  so,  meaning  of  a   restrictive and exhaustive definition would not be   expanded  or  made  extensive  to  embrace  things  which are strictly  not  within  the meaning of  the   word as defined.”

40

 (41) In the case of  Union of India v. Harsoli Devi, (2002) 7  

SCC 273, a Constitution Bench of this court laid down:-

“4. Before we embark upon an inquiry as to what  would be the correct interpretation of Section 28- A, we think it appropriate to bear in mind certain   basic  principles  of  interpretation  of  statute.  The   rule stated by Tindal, CJ in Sussex Peerage case,   (1844)  11  Cl  &F.85,  still  holds  the  field.  The   aforesaid rule is to the effect: "If  the  words  of  the  statute  are  in  themselves   precise  and unambiguous,  then  no  more  can be  necessary  than  to  expound  those  words  in  their   natural and ordinary sense. The words themselves   do alone in such cases best declare the intent of   the lawgiver." It is a cardinal principle of construction of statute   that  when  language  of  the  statute  is  plain  and  unambiguous, then the court must give effect to the   words used in the statute and it would not be open  to the courts to adopt a hypothetical construction  on  the  ground  that  such  construction  is  more  consistent with the alleged object and policy of the  Act. In Kirkness v. John Hudson & Co. Ltd. 1955  (2) ALL ER 345, Lord Reid pointed out as to what   is the meaning of "ambiguous" and held that - "a   provision  is  not  ambiguous  merely  because  it   contains  a  word  which  in  different  context  is   capable  of  different  meanings  and  it  would  be   hard to  find anywhere  a sentence  of  any  length   which does not contain such a word. A provision  is, in my judgment, ambiguous only if it contains a   word or phrase which in that particular context is   capable of having more than one meaning." It is   no doubt true mat if  on going through the plain   meaning  of  the  language  of  statutes,  it  leads  to   anomalies,  injustices  and  absurdities,  then  the   

41

court  may  look  into  the  purpose  for  which  the  statute has been brought and would try to give a   meaning,  which would adhere  to  the  purpose of   the statute.”  

(42) In Quebec Railway, Light Heat & Power Co. v. Vandray,   

AIR 1920 PC 181, it had been observed that the Legislature is  

deemed not to waste its words or to say anything in vain and a  

construction which attributes redundancy to the legislature will  

not be accepted except for compelling reasons. Similarly, it is  

not permissible to add words to a statute which are not there  

unless on a literal construction being given a part of the statute  

becomes meaningless.  

(43) In  the  case  of  Standard  Chartered  Bank  and  Ors.  v.   

Directorate of Enforcement and ors. AIR 2005 SC 2622, it was  

stated:-

“It is true that all penal statutes are to be strictly   construed in the sense that the Court must see that   the thing charged as an offence is within the plain  meaning of the words used and must not strain the   words on any notion that there has been a slip that   the thing is so clearly within the mischief that it   must have been intended to be included and would  have included if  thought of.  All  penal provisions  like  all  other  statutes  are to  be  fairly  construed   according to the legislative intent as expressed in  the enactment.”

This court further added:-

“55.  The  rule  of  interpretation  requiring  strict   construction of penal statutes does not warrant a   narrow and pedantic construction of a provision  so as to leave loopholes for the offender to escape  

42

[See  :  Murlidhar  Meghraj  Loya v.  State  of   Maharashtra:1976CriLJ1527]. A penal statute has   to also be so construed as to avoid a lacuna and to  suppress mischief and to advance a remedy in the   light of the rule in Heydon's case. A commonsense  approach for solving a question of applicability of   a penal statute is not ruled out by the rule of strict   construction.  [See  :  State  of  Andhra  Pradesh v.   Bathu  Prakasa  Rao MANU/SC/0177/1976  :   1976CriLJ1387 and also G. P. Singh on Principles   of  Statutory  Interpretation,  9th Edition,  2004,   Chapter 11, Synopsis 3 at pgs. 754 to 756].”

(44) A Three-Judge Bench of this Court in the case of  The  

Assistant Commissioner, Assessment-II, Bangalore and Ors. v.   

Valliappa Textiles Ltd. and Ors., AIR 2004 SC 86, laid down:-

“22. .................Though  Javali (supra) also refers   to  the  general  principles  of  interpretation  of   statute  the  rule  of  interpretation  of  criminal   statutes is altogether a different cup of tea. It is not   open  to  the  court  to  add  something  to  or  read  something  in  the  statute  on  the  basis  of  some   supposed intendment  of  the  statute.  It  is  not  the   function of this Court to supply the casus omissus,   if  there  be  one.  As  long  as  the  presumption  of   innocence of the accused prevails in this country,   the benefit of any lacuna or casus omissus must be  given  to  the  accused.  The  job  of  plugging  the   loopholes  must  strictly  be  left  to  the  legislature  and not assumed by the court.”

(45) It is pertinent to note that this Court in the case of Nalini   

(supra) had taken the view that the confessional statement of  

one of the accused can be used as conclusive evidence against  

43

another accused if they are both tried in the same trial. This has  

been  so  held  despite  the  fact  that  in  case  of  a  confessional  

statement,  the incriminated accused cannot cross examine the  

maker.                      

(46) When the validity of Section 15 of the TADA Act was  

challenged in the case of Kartar Singh (supra), the Constitution  

Bench of  this  Court  held  that  Section 15 of  the  TADA was  

playing  the  role  of  Section  30  of  the  Evidence  Act,  which  

makes  the  confession  of  an  accused  admissible  in  evidence  

against its maker as well as other co-accused in a criminal trial.  

The main concern while making such confession admissible is  

to test the veracity of the confession, as the incriminated co-

accused  does  not  get  the  opportunity  to  cross  examine  the  

maker. However, such evidence must be corroborated in order  

to determine the guilt  of a person.  In the event,  independent  

evidence supports the confessional  statement then there is no  

harm  in  relying  upon  the  confession  adding  further  to  the  

independent incriminating evidence.  

(47) In any case, it would lead to absurdity for a court to rely  

on confessions of the maker  against  himself,  and not against  

44

another person, when such other person features prominently in  

the confessional statement,  in a joint trial of offences for the  

same criminal  act,  especially  in  circumstances  when there  is  

independent incriminating evidence.  

(48) In  view  of  the  above  discussion,  we  hold  that  the  

confessional statement made by a person under Section 15 shall  

be admissible in the trial of a co-accused for offence committed  

and tried in the same case together with the accused who makes  

the confession.

(49) The  next  argument  of  Shri  K.T.S.  Tulsi  and  Shri  

Amrendra Sharan, learned senior counsel, is with regard to the  

procedural irregularities in the investigation conducted by the  

prosecution  which,  according  to  them,  is  not  properly  

appreciated  by  the  learned  Designated  Court.  The  learned  

counsel  contends  that  under  Section  20A of  the  TADA,  the  

sanction of the District Superintendent of Police is required to  

be obtained before the police record any information about the  

commission of an offence under the TADA. Since the same has  

not  been  obtained,  the  conviction  of  the  accused  cannot  be  

sustained.  In the instant case, according to the learned senior  

45

counsel, the sanction has been obtained from the S.P., C.B.I.  It  

is  urged  that  the  Act  does  not  envisage  an  officer  of  an  

equivalent  rank,  but  requires  the  sanction  from the  authority  

that  is  envisaged  in  the  Statute.  It  is  further  urged  that  the  

provisions of the TADA Act require to be strictly construed and  

interpreted, and for this reason also, an officer of S.P., C.B.I.  

would not mean the Superintendent of Police of the District.

(50) The learned senior counsel relies on several judgments of  

this court in support of his submissions that penal provisions  

require to be strictly interpreted and we should not interpret the  

plain language of the statute or that words having an ordinary  

meaning  cannot  be given a  different  interpretation.  It  is  also  

brought to our notice that the plain and simple language of a  

statute  best  describes  the  intention  of  the  Legislature.  The  

decision on which reliance was placed are:  Nasiruddin v. Sita  

Ram  Agrawal,  (2003)  2  SCC  577,  Firoz  Dotiwala  v.  P.M.  

Wadwani,  (2003) 1 SCC 433, Union of India v. Hansoli Devi,   

(2002)  7  SCC  273,  Dadi  Jaganadham  v.  Jamulu  Ramulu,   

(2001) 7 SCC 71, Union of India v. Elphinstone Company Ltd.,   

46

(2001)  4  SCC  139,  Whirpool  of  India  v.  ESI  Corporation,   

(2000) 3 SCC 185, Mohd. Ali Khan v. CWI, (1997) 3 SCC 511.

(51) Section 20A of the TADA Act was inserted by Act No.  

43 of 1993. The relevant portion of section 20A is as under:

“20A.  Cognizance  of  offence.  –  (1)   Notwithstanding anything contained in the Code,   no information about the commission of an offence   under  this  Act  shall  be  recorded  by  the  police  without  the  prior  approval  of  the  District   Superintendent of Police. (2)…...No  court  shall  take  cognizance  of  any   offence  under  this  Act  without  the  previous   sanction of the Inspector General of Police or as  the case may be, the Commissioner of Police.”

(52) Section  20A  (1)  of  TADA  Act  commences  with  the  

words “notwithstanding anything”,  hence it  is  a  non-obstante  

clause. As regards non-obstante clause, a Constitution Bench of  

this  court  in  the case  of  Ashwini  Kumar Ghosh v.  Arabinda  

Bose and Anr. AIR 1952 SC 369 opined:-

“It should first be ascertained what the enacting  part of the section provides on a fair construction   of the words used according to their natural and  ordinary meaning, and the non obstante clause is   to be understood as operating to set aside as no   longer  valid  anything  contained  in  relevant   existing laws which is  inconsistent  with  the new  enactment.”

47

(53) In the case of Vishin N Khanchandani & Another v Vidya   

Laxmidas Khanchandani & Another,  (2000) 6 SCC 724, this  

court laid down:-

“The  non  obstante clause  is  used  to  avoid  the  operation and effect of all contrary provisions. But   to  attract  the  applicability  of  a  non  obstante  clause, the whole of the Section, the scheme, the  objects and reasons for the enactment of the Act   must be kept in mind.”

(54) We are of the view that the phrase “District SP” has been  

used in order to take the sanction of a senior officer of the said  

district, when the prosecution wants to record any commission  

of a offence under the Act, the reason appears to be that the  

Superintendent  of  Police  of  the  District  is  fully  aware  of  

necessity to initiate the proceedings under the stringent criminal  

law  like  the  TADA  Act.   In  the  instant  case,  the  State  

Government, in exercise of the power conferred by Section 3 of  

the Delhi Police Special Establishment Act, 1946, has handed  

over the investigation to CBI.  The Superintendent of Police,  

CBI,  has  authorized  his  subordinate  officer  to  record  the  

confessional  statements  of  K.K.  Saini  and  Mange  after  

following the procedure prescribed under the Act and the Rules  

48

framed thereunder. Since investigation was done by CBI, in our  

view,  Superintendent  of  Police  could authorize  the  Police  to  

record  the  information  about  the  commission  of  the  offence  

under the Act.   

(55) In  the  case  of  Ahmad  Umar  Saeed  v.  State  of  U.P  

(1996) 11 SCC 61, a similar fact situation arose. In that case,  

the  accused  contended  that  ‘cognizance  of  the  offence’  as  

required under Section 20A(1) were not followed as the FIR  

was recorded by a Sub-Inspector of Police. The accused therein  

were charged for multiple offences both under the Penal Code  

and TADA as is the case in the present appeals. This court held  

that Section 20A(1) does not prohibit the officer from recording  

the complaint and instituting investigation as a statutory right is  

conferred on him under the Code with respect to non TADA  

offences. Hence if the charges are framed with regard to an act,  

which in  the  same transaction  can be under  TADA and any  

other criminal provisions, then the mere fact that the filing of  

FIR by anyone other than the District Superintendent would not  

vitiate the whole process.  

49

(56) In the instant case, the cognizance/`prior permission’ was  

granted  by  the  S.P.  of  CBI.  The  accused contended that  the  

District  Superintendent  appointed  by  the  concerned  State  

Government cannot be equated to the post of Superintendent of  

the Central Investigation Bureau who is appointed directly by  

the Central Government. We have been apprised of the fact that  

it  was  at  the  behest  of  the  State  Government,  the  case  was  

transferred to the CBI and, therefore, this distinction has hardly  

any relevance. After careful consideration of the submission on  

the question of equation of rank, we are inclined to hold that in  

matters concerning national security, as is the case of terrorist  

acts, the Centre and an autonomous body functioning under it  

would  be  better  equipped  to  handle  such  cases.  Therefore,  

‘prior approval’ by the SP of CBI would adequately satisfy the  

requirements under Section 20A(1). We also note that there is  

no  prejudice  caused  to  the  accused  as  a  result  of  the  

authorization being granted by the SP of the CBI.  

(57) In the case of  Gurdeep Singh alias Deep v. State(Delhi   

Administration), 2000(1) SCC 498, the confessional statement,  

after it was obtained under Section 15, was not sent to a Chief  

50

Judicial  Magistrate  as  is  required  under  Rule  15(5)  of  the  

TADA Rules,  1987.  Instead,  the  confessional  statement  was  

forwarded the very next day to the Designated Court. This court  

refused  to  interfere  with  the  investigation  stating  that  no  

prejudice has been caused to the accused and that  the whole  

investigating process could not be vitiated because of a mere  

technical  flaw.  Similarly,  in  the  present  case,  with  regard  to  

non-compliance of Section 20A(1), if we are to annul the whole  

investigation process, on the basis of what at its worst, appears  

to  be  a  technical  flaw,  it  would  result  in  the  purport  of  the  

statute being ignored. Furthermore, we take note of the fact that  

the safeguards provided under Section 15 of the TADA and the  

rules made thereunder are complied with while recording the  

confession statement.    

(58) In S.N Dube v. N.B Bhoir, (2002) 2 SCC 254, the accused  

contended that the confession was obtained through malafide as  

the person who recorded the evidence was the Superintendent  

of Police [Shinde] who was investigating the case. Reversing  

the finding of the trial court, this court at Para 28 observed:

51

“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.”

(59) In our view, since no prejudice is caused to the accused,  

we are unable to agree with the contention of Shri. K.T.S. Tulsi  

and  Shri  Amarendra  Sharan  on  this  aspect  of  the  matter.  

Having  considered  the  legal  arguments  advanced  in  these  

appeals,  now  we  will  examine  the  evidence  against  Babloo  

independently.   

60) Prosecution has examined Bharat Singh (PW-30), Smt. Indu Singh  

(PW-87),  Bhushal Lal Shreshtha (PW-68). Bharat Singh (PW 30) has  

stated in his evidence that he knew Babloo and was in Allahabad on the  

said day in connection with a matter regarding Lochan Singh. He has  

further  stated  that  he  got  a  call  from  Mange  saying  that  he  was  in  

Allahabad along with K.K. Saini, and then they discussed about meeting.  

Subsequently, he got a call from Babloo from Nepal. Babloo told Bharat  

Singh that it was he who had given the phone number of Bharat Singh to  

52

Mange,  and also told him not  to meet  Mange because  Mange was in  

Allahabad for important work. This is enough to establish that Babloo  

had the knowledge that K.K. Saini and Mange were in Allahabad for a  

specific purpose.  

(61) Smt. Indu Singh (PW-87) was the owner of  the house  

where Babloo stayed in Nepal.  She recognized Babloo when  

she saw him in the Court and stated that it was the same person  

who had stayed in her house during the said period. She has  

stated that she had given the house on rent to Mirza Beg and  

Rehman,  who  she  came  in  contact  with  through  the  broker,  

Salim. When asked why she did not object to the sub-letting of  

the house to Babloo, she was frank enough to state that the only  

thing she cared about was the rent, which was duly paid. She  

stated that the telephone with number 410564 was in the name  

of her son, Parbhajan Singh and the same was installed in the  

house which was rented by Babloo. She also stated that all the  

bills for that phone were paid by Babloo. She stated that STD-

ISD  facility  was  not  there  on  the  number  when  the  phone  

connection  was  obtained,  but  was  subsequently  taken  on  

request by the tenant.  

53

(62) Bhushal Lal Shreshtha (PW-68) has stated that he was in  

the Telecom Department at  the relevant  date,  and on request  

made by the Nepal police, in the required format, he gave the  

telephone bills for the number 410564.  The telephone records  

from  the  telephone  number  410564  (being  the  telephone  in  

Nepal, from which Babloo made calls) and 622452 (being the  

telephone at Hotel Finero) has been annexed in evidence before  

us [D 38/40 and D 36/2].

(63) From  the  above  evidence,  it  can  be  established  that  

Babloo was living in the house of Smt. Indu Singh in Nepal. He  

had  the  phone  number  410564  at  his  disposal.  He  not  only  

knew that Mange and K.K. Saini were in Allahabad, but also  

knew the purpose for which they were in Allahabad.  This is  

clear from the testimony of Bharat Singh. From the phone bills,  

it  is  clear  to us that  phone calls  were made from the phone  

number  410564  to  the  phone  number  622452,  the  phone  of  

Hotel Finero. On a perusal of the phone bills, it is clear that the  

phone calls were made at the times which have been indicated  

by  the  confessional  statements  of  K.K.  Saini  and  Mange.  

Hence, we may safely conclude that the part of the confessional  

54

statements  in  question  have  been  corroborated  by  the  other  

evidence.  The  evidence  that  we  have  on  record,  without  

considering  the  confessional  statements,  is  strong  enough  to  

create  serious  doubts  about  the  conduct  of  Babloo  in  this  

matter.  The learned senior counsel Shri K.T.S. Tulsi submits  

that  the  prosecution  has  not  examined  the  owner  of  the  car  

bearing No.DNH 8440 Shri  Ramavar,  who is  the resident  of  

Delhi,  nor  the  transferee  in  whose  name  the  registration  

certificate had been standing at the relevant point of time.  In  

our view, merely because the owner of the car is not examined  

by  the  prosecution,  it  does  not  weaken  the  case  of  the  

prosecution.   In  fact,  car  was  recovered  on  the  information  

furnished  by  K.K.  Saini,  one  of  the  co-accused  in  the  case.  

This would clearly establish the prosecution case that the car  

bearing  No.DNH-8440  was  used  in  committing  the  offence  

alleged against the accused.  In our view, minor discrepancies,  

if any, would not be fatal to the entire case of the prosecution.

(64) In this background, the question before us is, even if we  

have to eschew the confessional statements of K.K. Saini and  

Mange,  whether  we  can  still  maintain  the  conviction  and  

55

sentence of Babloo – co-accused for the offence under Section  

302 read with Section 120-B of the IPC.

(65) The role played by Babloo in the present case is that of a  

“king pin”. The possibility of having direct evidence against a  

“king  pin”  is  rather  low.  In  most  cases,  it  may  be  

circumstantial. What we need to see is the chain of events that  

the  prosecution  is  expected  to  prove  can  be  linked  to  the  

evidence incriminating Babloo.  

(66) It has been consistently held by this Court that where the  

guilt of a person squarely rests on circumstantial evidence, then  

the  inference  of  guilt  can  be  justified  only  when  all  the  

incriminating  facts  and  circumstances  are  found  to  be  in  

coherence of each other and incompatible with the innocence of  

the accused.  These circumstances from which, such inference  

is to be drawn, must be shown to be closely connected to the  

facts which are sought to be proved. When the matter depends  

on the conclusions to be drawn from such circumstances, then  

the cumulative effect of the circumstances must be to negate the  

possibility  of  innocence  in  any manner.  [See  State  of  UP v.   

Satish, (2005) 3 SCC 114; Liyakat v. State of Uttranchal, 2008  

56

Cri  LJ  1931  (SC);  Swamy  Sharaddananda  v.  State  of   

Karnataka,  (2007)  12  SCC  288;  State  of  Goa  v.  Sanjay  

Thekaram, (2007) 3 SCC 755].  

(67) From the evidence on record,  it  can safely  be inferred  

that  Babloo  was  the  mastermind  of  the  whole  incident  and  

Mange and K.K. Saini committed the offence at the behest of  

Babloo.  In  our  view,  there  is  independent  incriminating  

evidence  against  Babloo,  even  if  we  have  to  eschew  the  

confessional  statement  of  co-accused.  Hence,  we  reject  the  

appeal of Babloo.

Case of K.K. Saini and Mange

(68) We now proceed to examine the evidence against K.K.  

Saini  and  Mange  independently.  It  must  be  noted  that  the  

witnesses here shall be referred to by the numbers assigned to  

them under Criminal Appeal No.3 of 1995.

(69) With regard to K.K. Saini, it must be first mentioned that  

he has confessed to the crime under Section 15 of the TADA  

Act. His confession was recorded by Shri. Sharad Kumar SP,  

57

CBI  (P.W  47).  KK  Saini  was  fully  made  aware  of  the  

consequences of making a confessional statement.

(70) The following are the details divulged in his confessional  

statement.  He has  stated  that  he  went  to  Nepal  on Babloo’s  

behest where he met Mange. He further stated that he was given  

the task to kill L.D Arora by Babloo. He also mentions that he  

was  chosen  specifically  to  open  fire  as  he  had  previously  

committed four murders.  Thereafter,  Babloo provided Mange  

with Maruti car DNH – 8440, a 9 mm pistol several cartridges  

and `10,000 to 12,000/- for this purpose. On the morning of 23rd  

March, 1993, K.K. Saini and Mange checked into Hotel Finero  

under  the  assumed  names  of  A.K.  Singh  and  Harjeet  Singh  

respectively.  Subsequently,  they  received  a  phone  call  from  

Babloo from Nepal. Babloo told them over the phone that they  

would meet Alimudeen @ Baba who would help them in the  

task.  Subsequently,  Baba met K.K. Saini and Mange in their  

room. Later in the day, Baba took him on a dark grey Bajaj  

scooter to show him the office and the house of L.D. Arora.  

They examined the area  and on their  return to  the  hotel,  all  

three of them sat and planned how to execute the task of killing  

58

L.D. Arora. On the next day in the morning, they received a  

phone call from Babloo from Nepal who asked them to finish  

the  task  the  very  next  day  as  L.D.  Arora  was  to  leave  for  

Bombay to reveal information regarding smuggling of arms and  

explosives used in the Bombay bomb blasts in the very same  

year. K.K. Saini then took Mange and showed the office and  

house and they marked the escape routes. On their return to the  

hotel, Baba came to the room and told them that they should  

reach the place around 5.00 PM and that  he would come in  

Maruti car – DNH 8440. KK Saini stated that they left Hotel  

Finero around 5.00 PM. At around 6.45 – 7.00, Baba came and  

told them that L.D. Arora would arrive shortly. They waited for  

his arrival  and on seeing Arora’s vehicle approach they took  

their respective positions. When L.D. Arora was parking his car  

alongside  the  Southern  boundary  wall,  K.K.  Saini  emerged  

from his position near the stair case and opened fire three times  

at  short  range.  He escaped through the staircase and reached  

Mange who was waiting near the scooter. They met Baba at the  

agreed spot and exchanged vehicles. Subsequently, they went  

back to Hotel Finero, checked out and left for Nepal the very  

59

same evening. They crossed the Nepal border on 25th morning  

after paying Customs duty for the car.  

(71)            The testimony of Mange is substantially similar with that  

of  K.K.  Saini.   The  learned  senior  counsel  Shri  Amrendra  

Sharan submits that the confessional statement of Mange was  

recorded nearly after eight years from the date of incident and  

the  confessional  statement  of  both  K.K.  Saini  and Mange is  

verbatim the same. Therefore, it  casts a serious doubt on the  

alleged confessional statement. In our view, merely because the  

confessional  statement  of  both  the  accused  is  more  or  less  

similar, it cannot be said they are neither normal nor unnatural  

which would vitiate  the probative value of such confessional  

statement. Therefore, we do not see any merit in this contention  

of the learned senior counsel.

(72) Subsequently both KK Saini and Mange retracted their  

confessional  statement before the Designated Court  and have  

categorically denied knowing each other or Babloo. They have  

also denied ever having gone to hotel Finero, ADA Colony etc.  

They have stated that the CBI has prevailed upon the witnesses  

produced on behalf of the prosecution to give false evidence  

60

against  them. Keeping in view that the accused has retracted  

their  confession  statement,  the  learned  senior  counsel  Shri  

K.T.S. Tulsi submitted that the confession of both KK. Saini  

and Mange, alleged to be given under Section 15 of the TADA  

Act cannot be used since the prosecution has failed to adduce  

sufficient corroborative evidence.     

(73) A confessional  statement  given  under  Section 15 shall  

not be discarded merely for the reason that the same has been  

retracted. In Ravinder Singh v. State of Maharashtra, (2002) 9  

SCC 55, the accused was charged under the provisions of the  

TADA  Act  and  under  Section  302/34,  120B  and  other  

provisions  of  the  Explosives  Act.  The  accused  thereafter  

retracted his confession. The court observed:-

“There can be no doubt that a free and voluntary   confession  deserves  the  highest  credit.  It  is   presumed to flow from the highest sense of guilt.   Having examined the record, we are satisfied that   the confession made by the appellant is voluntary  and truthful and was recorded, as already noticed,   by due observance of all the safeguards provided  under  Section  15  and  the  appellant  could  be  convicted solely on the basis of his confession.”

61

The  court  also  observed  the  decision  in  State  of   

Maharashtra v. Bharat Chaganlal Raghani,  (2001) 9 SCC 1,  

wherein  the  court  partially  overturned  the  acquittal  of  the  

accused  by  the  Designated  Court  solely  based  on  the  

confessional  statement  of  the  accused  which  had  later  been  

retracted.  In  Bharat  Chanlal’s case,  the  court  observed  that  

there was no denial of the fact that judicial confessions made  

are  usually  retracted  but  retracted confessions  are  held to  be  

good  confessions  if  they  are  made  voluntarily  and  in  

accordance with law.  

(74) In the case before us, the contest on the validity of the  

testimony has been multi pronged. Firstly, it was contended that  

since  the  procedure  under  Section  20A  (1)  had  not  been  

followed, the testimony is not valid in law. Secondly,  it  was  

asserted that the accused was made to sign on blank papers and  

that  the  confession  has  been  concocted  by  the  prosecution.  

Thirdly, that there is no corroborative evidence given the fact  

that certain witnesses including Ram Babu (PW-35) and Sanjay  

Kumar (PW- 36), who were to have witnessed the crime, had  

been declared hostile by the prosecution.

62

(75) The argument pivoted on the requirements under Section  

20A(1) not being fulfilled is, in our opinion, has no merit.  The  

learned  Additional  Solicitor  General  Shri  P.P.  Malhotra  

contends that both K.K. Saini and Mange were produced before  

the CMM, Delhi to fulfill the requirements under Rule 15 and  

the accused did not, at that point, claim that they had been made  

to  sign  on  blank papers.  Keeping  in  mind  the  possibility  of  

abuse of the process,  this  court  in  Kartar Singh (supra)  laid  

down  certain  guidelines  whereby  the  veracity  of  the  

confessional statement is ensured, for example, the confession  

given to a police officer under Section 15 is to be sent to the  

CMM without delay and if the accused when he is so produced  

before the CMM alleges torture, he is to be sent for a medical  

examination.  Here the accused were sent to the CMM, Delhi  

the very next day and they neither alleged that the confession  

was fabricated, nor that they had been tortured. In the light of  

these  circumstances,  we  have  to  give  due  credence  to  the  

confession statement and consider to what extent  it  has been  

corroborated by substantive evidence.   

63

(76) In Ravinder Singh’s case, the Court relying on Nalini v.   

State (supra),  S.N Dube v. N.B Bhoir and Devender Pal Singh  

v. State of NCT of Delhi, (2002) 5 SCC 234, held that “it is well   

established that a voluntary and truthful confessional statement   

recorded  under  Section  15  of  TADA  requires  no  

corroboration.”  

(77) This apposite observation by the bench of two learned  

Judges  in  Ravinder  Singh’s case  should  be  considered  with  

measured caution and we believe, taking into account ground  

realities, it would be prudent to examine the authenticity of a  

confession on a case to case basis. The problem seems to be the  

method we follow in ascertaining whether a specific confession  

is  truthful  and  voluntary.  Section  15  and  the  rules  made  

thereunder prescribe certain guidelines – which if ensured can,  

to a large extent, point towards the fact that the confession is  

truthful and voluntary. However, we must not overlook the fact  

that  the  TADA prescribes  a  deviation from the  conventional  

criminal jurisprudence. As a court of record, we are bound to  

keep  in  mind  situations  where  despite  the  procedure  being  

followed,  the  testimony  so  obtained  under  Section  15  is  

64

coloured by suspicion and doubt regarding its veracity.  Hence,  

albeit  the procedure is  followed, we find it  judicious to look  

into  whether  the  testimony  is  corroborated  by  the  evidence  

presented by the prosecution. The life and liberty of a person  

are at stake and we are of the view that no effort  should be  

spared in such circumstances to see that justice is done. These  

are after all the safeguards provided in our Constitution and the  

people have vested their faith in this court to keep vigil and see  

to it that these hallowed principles are not trampled upon by the  

necessities of the hour and vicissitudes of time.  

(78) The confessional statements of K.K. Saini and Mange are  

corroborated by the documentary evidence, which are marked  

in the evidence by the prosecution. Exhibit  D-20/Ka 2 is the  

notebook maintained by Hotel Finero and proves the entry of  

Maruti car DNH – 8440 against K.K. Saini’s assumed name,  

A.K.  Singh on 23/3/93.  Exhibit  D-19 is  the  hotel  register  at  

Hotel Finero and proves that K.K. Saini and Mange signed in it  

under fictitious names. Both K.K. Saini and Mange have been  

recognized by the employees of Hotel Finero. The testimony of  

Anant  Ram Saxena  (PW-1)  Hotel  Manager,  Kalidas  Jaiswal  

65

(P.W-44)  waiter  and  Jwala  Prasad  (PW  60)  appears  to  be  

credible and true and if the same is believed, it corroborates the  

fact  that  the  accused  stayed  in  the  Hotel  Finero  during  the  

relevant time and was met by Alimudeen @ Baba. The hand  

writing of the accused in the register has also been proved by  

the  detailed  report  of  Dr.  M.A  Ali  (PW-43),  Sr.  Scientific  

Officer produced as Exhibit-D-27. The car used for committing  

the  crime  has  been  recovered  at  the  instance  of  KK  Saini  

revealing its  whereabouts.  Recovery Memo dated 23.04.1994  

[Exhibit D 16/ Ka 17] records the seizure of the car from Agra.  

The  copy  of  the  Cash  Memo  seized  from  the  petrol  pump  

Barabanki [Exhibit- D 22/ Ka 27] and the Customs Receipt [D  

37/28, Ka 76] corroborates the alleged journey from Krishna  

Nagar, Nepal to Allahabad and back. The statement issued by  

the  Nepal  police  reveals  that  Car  bearing  No.  DNH –  8440  

entered Nepal through Krishna Nagar customs and was allowed  

to stay for a period of one week on payment of Rs 700 Nepal  

Currency as customs duty. Further, the printouts of call logs on  

telephone number 622452 installed in Hotel Finero (Exhibits D  

38/40 and  D 36/2), the  report of part of investigation in Nepal  

66

(Exhibits D 37, D 37/28) is read with the statements of Indu  

Singh (PW 87) (land lady of Babloo in Nepal),  Bhushan Lal  

Shreshtha (PW – 68) [he was Deputy Fiscal Officer, Telecom  

Dept,  Nepal]  corroborate  the  confessional  statement  of  KK.  

Saini and Mange to a substantial extent. Indu Singh (PW 87)  

has recognized Babloo in court and stated that he was staying at  

the house rented out by her in Krishna Nagar, Nepal and that  

the telephone number from which calls were made to Room No  

7 in hotel Finero, where K.K. Saini and Mange were staying,  

was  installed  in  the  same  house  where  Babloo  was  staying.  

Harikesh  (Harbans)  Batra  (PW  21)  (Inspector  MTNL)  

identified K.K. Saini in court and stated that he had previously  

been involved in the transfer of a phone in the name of one  

A.K. Singh. He stated that K.K Saini and A.K. Singh are one  

and the same. A.K. Singh is the assumed name used by K.K.  

Saini even at Hotel Finero. K.K Saini had, in his confession,  

stated that he had obtained the driving license of A.K Singh and  

substituted the photograph therein with his own.  

(79) Bharat  Singh  (PW-30)  [was  declared  hostile  by  

prosecution]  stated  on  oath  that  he  knows  Babloo  from his  

67

University days.  Later he met Babloo when he went to meet  

Chandraswami  in  connection  with  his  reinstatement  into  

service. He admits to have been involved in solving a few land  

disputes on Babloo’s behalf. He has visited Babloo in Nepal a  

couple  of  times.  During  the  time  when  L.D.  Arora  was  

murdered, he was in Allahabad. He stated that he received calls  

from both Mange and Babloo on March 23 and 24. It was stated  

by  the  witness  that  in  the  course  of  conversation,  Mange  

revealed  that  he  had  obtained  Bharat  Singh’s  number  from  

Babloo. Mange stated that he was presently in Allahabad and  

that 2-3 people had come with him. Subsequently, he has stated  

that  Babloo called him in  relation  to  a  property  dispute  that  

Bharat  Singh  was  assisting  him  with.  When  Bharat  Singh  

mentioned talking to Mange over the phone to Babloo, the latter  

had said that he had given Bharat Singh’s number to Mange and  

that  he  was  not  to  meet  Mange.  Bharat  Singh  was  declared  

hostile and cross examined by the prosecution. In the course of  

cross examination, he has denied having told the investigating  

officer that Mange had told him that he had come to Allahabad  

to kill L.D. Arora. However, he admitted that he told the CBI  

68

officer that Babloo told him that Mange was there on a specific  

task and that is the reason why he should desist from meeting  

him.   

(80) The evidence of Bharat Singh, despite the fact that the  

prosecution has chosen to treat him as a hostile witness, need  

not be totally disregarded.  Its admissibility should be tested in  

the light of the surrounding circumstances and other evidence.  

In  Radha  Mohan  Singh  vs.  State  of  UP,  2006  Cri  LJ  1121  

(1125) (SC), this Court has observed:     

“It  is  well  settled  that  the  evidence  of  a   prosecution  witness  cannot  be  rejected  in  toto   merely  because  the  prosecution  choose  to  treat   him  as  hostile  and  cross-examined  him.  The  evidence  of  such  witness  cannot  be  treated  as   effaced or washed off the record altogether but the  same can be accepted to the extent his version is   found  to  be  dependable  on  a  careful  scrutiny   thereof.”  

(81) In the present case, testimony of Bharat Singh provides a  

vital link between the various participants in this crime, the fact  

that K.K. Saini and Mange were in Allahabad on a ‘specific  

task’ assigned to them by Babloo, who was in Nepal.  Taken  

together,  the  evidence  on  record  presents  an  unimpeachable  

69

evidence  against  the  accused,  clearly  indicating  the  modus  

operandi and the motive.   

(82) In the light of the above discussion, we are of the opinion that the  

Designated Judge (TADA) was justified in convicting and sentencing  

K.K. Saini and Mange for the offences under Section 302/34 IPC.   

Case of the State

(83) The  State  has  preferred  appeals  against  the  judgment  of  the  

Designated Court stating that the court was not justified in dismissing  

the charges under Section 3 of the TADA Act.  They have examined  

numerous  witnesses  who  have  stated  that  the  murder  of  L.D.  Arora  

resulted  in  fear  in  the  minds  of  fellow customs officers.  It  was  also  

stated that the morale of these officers were affected and that a sense of  

gloom prevailed upon them. It was also stated that L.D. Arora was to  

leave  the  very  next  day  for  Bombay  to  furnish  details  about  the  

smuggling of arms and explosives used in the Bombay bomb blasts.    

(84) It  would  be  useful  to  examine  the  purport  of  Section  3  of  the  

TADA.  It is under:-

“3. Punishment for terrorist acts. – (1) Whoever   with intent to overawe the Government as by law  established or to strike terror in the people or any  section of the people or to alienate any section of   

70

the  people  or  to  adversely  affect  the  harmony   amongst different sections of the people does any  act  or  thing by using bombs,  dynamite  or  other   explosive substances or inflammable substances or   lethal  weapons  or  poisons  or  noxious  gases  or   other  chemicals  or  by  any  other  substances  (whether biological or otherwise) of a hazardous  nature in such a manner as to cause, or as is likely   to cause,  death of,  or injuries to,  any person or  persons or loss of, or damage to, or destruction of,   property or disruption of any supplies or services   essential to the life of the community,  or detains   any  person  and  threatens  to  kill  or  injure  such  person in order to compel the Government or any   other person to do or abstain from doing any act,   commits a terrorist act. (2) Whoever commits a terrorist act, shall, - (i)  if  such  act  has  resulted  in  the  death  of  any   person, be punishable with death or imprisonment   for life and shall also be liable to fine; (ii)  in  any  other  case,  be  punishable  with   imprisonment for a term which shall  not be less   than  five  years  but  which  may  extend  to   imprisonment for life and shall also be liable to   fine. (3) Whoever conspires or attempts to commit, or   advocates, abets, advises or incites or knowingly  facilitates the commission of, a terrorist act or any  act  preparatory  to  a  terrorist  act,  shall  be  punishable  with  imprisonment  for  a  term  which  shall  not  be less  than five  years  but  which  may  extend to imprisonment for life and shall also be  liable to fine. (4) Whoever harbours or conceals, or attempts to  harbour  or  conceal,  any  terrorist  shall  be  punishable  with  imprisonment  for  a  term  which  shall  not  be less  than five  years  but  which  may  

71

extend to imprisonment for life and shall also be  liable to fine. (5)  Any person who is a member of  a terrorists   gang or a terrorist organisation, which is involved  in  terrorist  acts,  shall  be  punishable  with  imprisonment for a term which shall  not be less   than  five  years  but  which  may  extend  to   imprisonment for life and shall also be liable to   fine. (6)  Whoever  holds  any  property  derived  or   obtained from commission of any terrorist act or   has been acquired through the terrorist funds shall   be punishable with imprisonment for a term which  shall  not  be less  than five  years  but  which  may  extend to imprisonment for life and shall also be  liable to fine.”

(85) Section  3  of  the  TADA Act  gives  due  importance  to  the  aspect  of  

‘intent’. The person who is alleged to be involved in a terrorist act can  

be  charged  under  Section  3(1)  only  when  the  prosecution  has  been  

successful in establishing that the same was committed with the intent to  

awe the government or to achieve one or the other ends mentioned under  

Section 3(1). The Designated Court, while dismissing the charges under  

the  TADA  Act,  cited  with  approval  the  decision  of  this  court  in  

Hitendra Vishnu Thakur vs. State of Maharashtra, (1994) 4 SCC 602.  

This  Court  made  a  distinction  between  the  incidence  of  terror  as  a  

consequence of a particular act and causing terror being the sole intent  

72

of the same act. It  is only in case of the latter  that the provisions of  

Section 3(1) are attracted. It was held that:

“If it is only as a consequence of the criminal act   that  fear,  terror  or/and  panic  is  caused  but  the   intention  of  committing  the  particular  crime  cannot be said to be the one strictly envisaged by   Section 3(1), it  would be impermissible to try or  convict and punish an accused under TADA. The   commission  of  the  crime  with  the  intention  to  achieve the result as envisaged by the section and   not  merely  where  the  consequence  of  the  crime  committed by the accused create that result, would  attract  the  provisions  of  Section  3(1)  of  TADA.   Thus, if for example a person goes on a shooting   spree and kills a number of persons, it is bound to   create terror and panic in the locality but if it was   not  committed  with  the  requisite  intention  as   contemplated by the section, the offence would not   attract Section 3(1)”

(86) In State vs. Nalini (supra), a three Judge Bench of this Court has quoted  

the dictum laid down in Hitendra Vishnu Thakur (supra) with approval  

and concluded thus: (See p.298 Para 51):

“51.  Thus the legal position remains unaltered that   the crucial postulate for judging whether the offence   is  a  terrorist  act  falling  under  TADA  or  not  is   whether it was done with the intent to overawe the   Government  as  by  law  established  or   to  strike  terror in the people etc.”

(87)  In State of West Bengal vs. Mohammed Khalid          (1995)  

1  SCC 684,  referring  to  Corpus  Juris  Secundum               (A  

73

Contemporary  Statement  of  American  Law,  Vol  22  at  pg  116),  the  

meaning of intent was quoted as under:

“Intention- (a) In general (b) Specific or general   intent  crimes;  An  actual  intent  to  commit  the   particular crime towards which the act moves is a   necessary  element  of  an  attempt  to  commit  a  crime. Although the intent must be one in fact, not   merely in law, and may not be inferred from the   overt  act  alone,  it  may  be  inferred  from  the  circumstances”

(88) The prosecution in this case has argued that charge under  

Section 3 is maintainable in the light of the Bombay bomb blasts and the  

fact that L.D. Arora would have been pivotal in providing information  

regarding the  smuggling of  arms and explosives.  The case  before  us  

concerns  the  murder  of  L.D.  Arora.  The  prosecution  has  not  been  

successful in proving that this particular murder was committed with the  

intention to cause terror. As mentioned earlier, terror could have been  

caused as a consequence of the act. The prosecution has stated that the  

main  intention  behind  the  murder  of  L.D.  Arora  was  to  prevent  the  

names of Mohd. Dosa, Tahir Shah and others involved in smuggling of  

arms and explosives would not come to light during the investigations  

that followed the Bombay blast. It is therefore evident that the intention  

of the accused in the present case was not to cause terror but to prevent  

74

information regarding another crime from being divulged. In the light of  

these facts, we are of the opinion that the TADA Court was justified in  

dismissing the charges framed under the TADA Act. Therefore, appeals  

filed by the State for enhancement of sentence require to be dismissed.   

(89) In view of the discussion noticed above, we find no illegality  

in the judgment under appeals.  As such, appeals stand dismissed.   

  ……………………………J. [ P. SATHASIVAM ]

 ……………………………J.  [ H.L. DATTU ]

New Delhi, January 25, 2011.

75