J. VENKATESAN
Be wary of torture-induced confessions before police
Mere membership of a banned organisation will not make a person criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence, the Supreme Court held on Thursday.
A Bench of Justices Markandey Katju and Gyan Sudha Misra gave this ruling, setting aside a designated court judgment which convicted Arup Bhuyan under Section 3 (5) of the Terrorist and Disruptive Activities (Prevention) Act of being a member of the United Liberation Front of Asom.
Justice Katju quoted a U.S. Supreme Court judgment which said: “Mere advocacy or teaching the duty, necessity or propriety of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism is not per se illegal. It will become illegal only if it incites to imminent lawless action.”
Another U.S. Supreme Court judgment also held that a member of a communist organisation could not be regarded as doing an unlawful act by merely obtaining employment in a defence facility, the Bench noted.
“We respectfully agree with the decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution.”
Arup Bhuyan was convicted under the TADA Act of being a member of the banned ULFA, on the basis of a confession which is admissible evidence under the TADA Act.
Allowing the appeal against this judgment of the Designated Court, Assam, in Guwahati, the Bench said the appellant denied that he was a member of the banned outfit.
“Even assuming he was a member of the ULFA, it has not been proved that he was an active member and not a mere passive member.”
On confessional statements, the Bench said “Torture is such a terrible thing that when a person is under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture. Hence, where the prosecution case mainly rests on the confessional statement made to the police by the alleged accused, in the absence of corroborative material, the courts must be hesitant before they accept such extra-judicial confessional statements.”
WEAK EVIDENCE
The Bench said: “Confession is a very weak kind of evidence. As is well known, the widespread and rampant practice in the police in India is to use third degree methods for extracting confessions from the alleged accused. Hence, the courts have to be cautious in accepting confessions made to the police by the alleged accused.”
The judges said: “Unfortunately, the police in our country are not trained in scientific investigation (as are the police in western countries), nor are they provided the technical equipment for scientific investigation, hence to obtain a conviction they often rely on the easy short cut of procuring a confession under torture.”
In the instant case, “the prosecution case mainly relies on the alleged confessional statement of the appellant made before the Superintendent of Police. We are of the opinion that it will not be safe to convict the accused on the basis of alleged confessional statement.” Section 3 (5) of TADA could not be read literally; doing so would be violative of Articles 19 (right to freedom) and 21 (right to life and liberty) of the Constitution.
The Bench acquitted the appellant of all charges.
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 889 OF 2007
ARUP BHUYAN
VERSUS
STATE OF ASSAM
O R D E R
Heard learned counsel for the parties.
This Appeal has been filed against the impugned judgment of the Designated Court, Assam at Guwahati dated 28.03.2007 passed in TADA Sessions Case No. 13 of 1991.
The facts have already been set out in the impugned judgment and hence we are not repeating the same here except wherever necessary.
The appellant is alleged to be a member of ULFA and the only material produced by the prosecution against the appellant is his alleged confessional statement made before the Superintendent of Police in which he is said to have identified the house of the deceased.
Confession to a police officer is inadmissible vide Section 25 of the Evidence Act, but it is admissible in TADA cases vide Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
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Confession is a very weak kind of evidence. As is well known, the wide spread and rampant practice in the police in India is to use third degree methods for extracting confessions from the alleged accused. Hence, the courts have to be cautious in accepting confessions made to the police by the alleged accused.
Unfortunately, the police in our country are not trained in scientific investigation (as is the police in Western countries) nor are they provided the technical equipments for scientific investigation, hence to obtain a conviction they often rely on the easy short cut of procuring a confession under torture.
Torture is such a terrible thing that when a person is under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture. Hence, where the prosecution case mainly rests on the confessional statement made to the police by the alleged accused, in the absence of corroborative material, the courts must be hesitant before they accept such extra-judicial confessional statements.
In the instant case, the prosecution case mainly relies on the alleged confessional statement of the appellant made before the Superintendent
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extra-judicial confession and there is absence of corroborative material. Therefore, we are of the opinion that it will not be safe to convict the accused on the basis of alleged confessional statement.
For the reasons stated above, we are in agreement with the impugned judgment so far as it has taken the view that the confessional statement in question cannot be acted upon as the sole basis for conviction of the appellant.
However, the TADA Court has convicted the appellant under Section 3(5) of the TADA which makes mere membership of a banned organisation criminal. Although the appellant has denied that he was a member of ULFA, which is a banned organisation. Even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member.
In State of Kerala Vs. Raneef, 2011 (1) SCALE 8, we have respectfully agreed with the U.S. Supreme Court decision in Elfbrandt Vs. Russell, 38
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violence (See : also the Constitution Bench judgment of this Court in Kedar Nath Vs. State of Bihar, AIR 1962 SCC 955 para 26).
In Clarence Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) the U.S. Supreme Court went further and held that mere “advocacy or teaching the duty, necessity, or propriety” of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed “to teach or advocate the doctrines of criminal syndicalism” is not per seillegal. It will become illegal only if it incites to imminent lawless action. The statute under challenge was hence held to be unconstitutional being violative of the First and Fourteenth Amendments to the U.S. Constitution.
In United States Vs. Eugene Frank Robel, 389 U.S. 258, the U.S. Supreme Court held that a member of a communist organisation could not be regarded as doing an unlawful act by merely obtaining employment in a defence facility.
We respectfully agree with the above decisions, and are
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of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution.
In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.
Hence, the conviction of the appellant under Section 3(5) of the TADA is also not sustainable.
The impugned judgment of the Designated Court, Assam at Guwahati dated 28.03.2007 passed in TADA Sessions Case No. 13 of 1991 is set aside and the Appeal stands allowed.
By Order dated 29.10.2007 this Court had directed that the appellant be released on bail on his furnishing adequate security to the satisfaction of the trial court. Security furnished by the appellant in pursuance of Order dated 29.10.2007 shall stand discharged.
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NEW DELHI;
FEBRUARY 03, 2011. :5:
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