By Jumping the Gun In the 7/11 Case, the Supreme Court Has Needlessly Invited Criticism

This is the second article of a two-part series on the Supreme Court's interim order in the Maharashtra government's appeal against the acquittal of all remaining accused in the 7/11 train blasts case. Read the first here.

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Section 18 of the Maharashtra Control of Organised Crime Act (MCOCA) is similar to Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The Supreme Court had earlier upheld Section 15:

“254. In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement and there should be no room for hyper criticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability as it could be ironically put that when a Judge remarked, "Am I not to hear the truth", the prosecution giving a startling answer, "No, Your Lordship is to hear only the evidence. […]

257. As per Section 15(1), a confession can either be reduced into writing or recorded on any mechanical device like cassettes, tapes or sound tracks from which sounds or images can be reproduced. As rightly pointed out by the learned counsel since the recording of evidence on mechanical device can be tampered, tailored, tinkered, edited and erased etc., we strongly feel that there must be some severe safeguards which should be scrupulously observed while recording a confession under Section 15(1)so that the possibility of extorting any false confession can be prevented to some appreciable extent.

258. Sub-section (2) of Section 15enjoins a statutory obligation on the part of the police officer recording the confession to explain to the person making it that he is not bound to make a confession and to give a statutory warning that if he does so it may be used as evidence against him.

259. Rule 15 of the TADA Rules imposes certain conditions on the police officer with regard to the mode of recording the confession and requires the police officer to make a memorandum at the end of the confession to the effect that he has explained to the maker that he was not bound to make the confession and that the confession, if made by him, would be used as against him and that he recorded the confession only on being satisfied that it was voluntarily made. Rule 15(5) requires that every confession recorded under Section 15should be sent forthwith either to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and the Magistrate should forthwith forward the recorded confession received by him to the Designated Court taking cognisance of the offence.

260. For the foregoing discussion, we hold that Section 15is not liable to be struck down since that section does not offend either Article 14or Article 21 of the Constitution.” (Kartar Singh vs State Of Punjab, 1994 (3) SCC 569)

Dissenting from this view, Justice K. Ramaswamy, who had agreed with the majority on all other issues, warned about the consequences of allowing police officers to record confessions. According to him, recording a confession is a judicial act which cannot be given to an executive agent like a police officer, who has an interest in reducing the crime graph and who may thus indulge in unprofessional or unethical practices.

In his dissent note, Justice Ramaswamy said:

“406. It would, therefore, be clear that any officer not below the rank of the Superintendent of Police, being the head of the District Police Administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of officers but the source and for removal of suspicion from the mind of the suspect and the objective assessor that built-in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. It is, therefore, obnoxious to confer power on police officer to record confession under Section 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution.” (Kartar Singh case (cited supra))

Also read: Decade After 7/11 Acquittal, Wahid Shaikh Seeks Rs 9 Crore In Compensation For Torture, Captivity

In light of the judicial discourse on this serious deviation from due process, certain minimum safeguards must necessarily be observed before accepting confessions recorded by any police officer – without which such confessions will have to be rejected outright.

The Maharashtra government has framed rules under the MCOCA Act. Rule 3(6) of the MCOC Rules also requires the confessional statements to be certified by the competent officer at the bottom of the said statements. In the present case, the division bench of the Bombay High Court has analysed the worth of the confessional statements and in para 1,481 recorded the following findings as to why they were not acceptable:

“1481. The confessional statements held to be inadmissible on numerous grounds, some of which are as follows:

(1) No relevant material was available with the authority to reach to a subjective satisfaction about the compliance of prerequisites for grant of prior approval.

(2) The prior approval suffers from non-application of mind.

(3) The two chargesheets against A.13, which have been relied upon for grant of prior approval, do not satisfy the prerequisites to constitute ‘continuing unlawful activity’.

(4) Shri. Jaiswal, who granted the prior approval, did not enter into the witness box to prove the contents of the letter of prior approval. Mere identification of signature of Shri. Jaiswal by PW-174 does not prove the contents of prior approval.

(5) Identical Part-I and Part-II of some of the confessional statement.

(6) Variation in the correspondence made by the concerned DCPs, before or after recording of confession, in mentioning of offences.

(7) Absence of Certificates, as mandated by Sub-Rule 6 of Rule 3 of the MCOC Rules, at the bottom of the confessional statement of A.1, A.3, and A.10.

(8) Failure to establish by oral evidence of the concerned DCPs, the voluntariness of the confessional statements, in absence of such certificate or even where the certificate is there but does not fulfill the requirement of Sub-Rule 6 of Rule 3 of the MCOC Rules.

(9) Confessional statements were not found to be truthful and complete on various grounds, including some portions of the same were found to be similar and copied.

(10) The accused succeeded in establishing the fact of torture inflicted on them to extort confessional statements, etc.”

As per Section 12 of MCOCA, an appeal  against any conviction under that law lies as a matter of right. As an appellate court, the high court is entitled to go into both questions of fact and law.

Moreover, as some of the accused were given the death sentence, the high court – under Section 366 (which requires that a high court confirm a death sentence passed by a sessions court) read with Section 368 of the Code of Criminal Procedure – has the power to hear the case as a referred trial and it can either confirm or modify the sentence or annul the conviction. Such matters will have to be heard by a division bench of the high court.

Thus, even if those awarded the death penalty do not appeal, the ‘reference’ will still mandatorily be heard by the high court. In the present case, the high court was hearing both appeals and references.

In exercising this special power, the high court virtually becomes a trial court and is entitled to disbelieve evidence made available to the sessions court and come to different conclusions than that of the trial court.

Here, an interesting digression is necessary. When the Constitution came into effect, the Supreme Court under Articles 133 and 134 was empowered to hear civil and criminal appeals by grant of certificates by the high court delivering the judgment, as one fit to be appealed from.

Additionally and independently of this, by Article 136, the Supreme Court has also been empowered to grant special leave from any judgment, decree, determination, sentence or order in any case or matter passed or made by any court of tribunal in the territory of India. Article 136 is not limited to only appeals from high courts, but includes appeals from any court or tribunal in the land.

Needless to repeat, under Article 141, the law declared by the Supreme Court is the law of the land and binding on all courts and authorities in India. This principle of “stare decisis” (binding decision) also has a corollary i.e. “ratio decidendi” (rationale of the decision). It only means that all the decisions of a higher court are made binding, but the reason for deciding the case alone is a relevant precedent.

Not many know this, but whenever a decision of the Supreme Court was cited before the high court, there was a time when the judges used to ask whether that decision was made under Article 136 or under Article 133/134 of the Constitution. because under Article 136, if the appeal was against an order of a court or tribunal other than a high court, the Supreme Court had a wider power of scrutiny. Therefore, even among Supreme Court decisions, the manner of reliance to be placed depended on their category.

This being the scenario, it is not clear to why the Supreme Court bench in the Bombay case, even at the stage of admission, found it fit to declare that the judgment under appeal was not to be treated as a precedent in any other proceedings by lower courts. Such declarations by the Supreme Court even at the admission stage is beyond comprehension. Besides, the court lacks such a power of declaration without overruling the decision under appeal.

It is also not clear as to what pressing urgency there was to make such open declarations, except that it was an MCOCA matter.

The Bombay high court had also gone into the issue of oral evidence and has found the same to be insufficient. The test identification was being made after four years. The confession made by all the accused was retracted, but yet relied upon by the special court.

Similarly the conspiracy theory advanced by the prosecution had very weak links. The recovery of so-called explosives used and maps from the alleged accused were also found to be inadequate.

More than anything else, the invocation of MCOCA in the proceedings was without any basis and wrongly invoked. The prosecution also suppressed the call detail records but no adverse inference as warranted had been drawn by the sessions court.

Anyhow, these are all matters which will be considered by the Supreme Court in a calm and composed atmosphere uninfluenced by an exhibition of anxiety by the government.

A reading of the interim order passed by the court also shows that it was cognisant that the accused were already out, and there was no justification to cancel their bail bonds and order their rearrest.

The bombings took place on July 7, 2006. The trial court after a period of nine years convicted the accused variously with sentences of life or of death. While the reference was filed in 2015, it was tagged along with the subsequent criminal appeals filed by the accused from the year 2019 to 2023 and finally heard by a division bench in the year 2025, i.e nearly ten years after their conviction.

By this time, many of the accused had spent nearly 20 years in prison. When a case comes to the Supreme Court after two decades, one would have expected a more appropriate reaction.

Not only was the matter urgently listed upon a ‘mentioning’ by the solicitor general, it is unthinkable that the bulky volumes of evidence recorded by the trial court and the lengthiest of decisions rendered by a division bench of the high court could be grasped for the issuance of notice, that too with a special caution of declaration given not to use the judgment of the high court as a precedent.

While the government may be embarrassed by the outcome of its weak, evidence‑unsupported case, the Supreme Court ought to have demonstrated greater sagacity in addressing such matters. Unnecessarily negating the precedential value of the high court’s decision will only invite criticism.

The author is a retired judge of the Madras high court.

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