SC upholds acquittals in TADA case citing lapses in recording of confessions
A bench of justices Abhay S Oka and Ujjal Bhuyan said a Jammu court that acquitted the six accused had stopped short of observing it to be a case of abuse of power and authority
The Supreme Court has upheld the acquittal of six people who were charged with alleged roles in the abduction and murder of Kashmir University vice-chancellor Mushir-ul-Haq and his secretary Abdul Gani Zargar in 1990, citing procedural lapses in the confessions recorded under the Terrorists and Disruptive Activities (Prevention) Act (TADA) that lapsed in 1995. A special court in Jammu acquitted the six in 2009.
Mohammad Salim Zargar, Mushtaq Ahmed Khan, Shabir Bhat, Abdul Aziz Dar, Qadir Mir, and Mohammad Sadiq Rather were also acquitted in a separate case related to the abduction and murder of Hindustan Machine Tools general manager H L Khera in 1990. The Supreme Court had upheld the acquittals in that case too on the same grounds.
The Central Bureau of Investigation (CBI) alleged the accused were members of the banned Jammu and Kashmir Students Liberation Front who killed Haq and his secretary to spread terror.
A bench of justices Abhay S Oka and Ujjal Bhuyan on Thursday said the Jammu court had stopped short of observing it to be a case of abuse of power and authority. “It is indeed a sad reflection as to how investigation and trial unfolded in this case where truth and justice, both for the victims and the accused, remained elusive,” said the bench as it rejected the CBI’s appeal against the acquittals.
The bench noted draconian provisions under the TADA, which made confessions officers of the rank of police superintendents (SP) or above recorded admissible in trial. It said the accused were produced at a Border Security Force (BSF) camp where the statements were recorded. The bench added they were not given enough time to reflect and there was variance in the date of recording of confessions.
The bench said the discrepancies were crucial. “The legislature had reposed great faith in the fairness and uprightness of the higher police officials in the rank of SP and above while conferring the drastic power of recording confessional statements of the accused persons upon them making the same admissible in evidence subject to the fulfilment of the procedural safeguards.” The court said the procedural safeguards were given a complete go-bye in the case.
Justice Bhuyan, who wrote the judgment, said the Supreme Court’s order in Kartar Singh v State of Punjab about the TADA provision over the recording of confessions said it should be done in a free atmosphere. “Recording confessional statements in a heavily-guarded BSF camp or in a JIC [Joint Interrogation Centre] where the atmosphere for an accused would generally be daunting and overbearing cannot be said to be in a free atmosphere.”
The bench said the officer, who recorded the statement of Mohammad Salim Zargar, claimed to have done it on August 14, 1990, the day he was produced before him. The certificate appended to his statement recorded the date of confession as September 16, 1990. “It is thus apparent that since the confession was recorded on the same day, hardly any or no time for reflection was given which has vitiated the confessional statement,” said the court.
It added that the confession statement did not record any time nor specify whether it was voluntary by giving the accused time to reflect before recording it. The court called these factors crucial and said the statements were vague in a departure from the norms rendering the confession “highly suspect”.
The bench said the trial court judgment had no error or infirmity as no other view was possible other than the order of acquittal.
