State (NCT of Delhi) v. Navjot Sandhu

Supreme Court of India · 4 August 2005 · 2 judges

Overruled in whole or in part by Anvar P.V. v. P.K. Basheer (2014), which says: “the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so.”

In the Parliament attack case the Court held a POTA confession inadmissible against co-accused, upheld Mohd. Afzal's conviction and death sentence, convicted Shaukat only under Section 123 IPC, and upheld the acquittals of S.A.R. Gilani and Afsan Guru.

Facts

On 13 December 2001 five heavily armed men entered the Parliament House complex while Parliament was in session. In a gun battle of about 30 minutes, nine persons were killed and sixteen injured, and all five attackers died. Investigation led to charges under the IPC, the Prevention of Terrorism Act, 2002 (POTA) and the Explosive Substances Act against Mohd. Afzal, Shaukat Hussain Guru, S.A.R. Gilani and Shaukat's wife Navjot Sandhu @ Afsan Guru. The designated Court sentenced the first three to death and convicted Afsan Guru under Section 123 IPC. The Delhi High Court confirmed the death sentences of Afzal and Shaukat, also imposed death under Section 121 IPC, and acquitted Gilani and Afsan Guru. Afzal and Shaukat appealed, and the State appealed against the two acquittals.

Questions before the Court

Is a confession recorded by a police officer under Section 32(1) of POTA admissible against a co-accused, directly or through Sections 10 and 30 of the Evidence Act?
What is the effect of non-compliance with the procedural safeguards in Sections 32 and 52 of POTA on such a confession?
Were the call records and intercepted telephone conversations admissible in evidence?
Did the attack amount to waging war against the Government of India, and what was the liability of each accused?

What the Court held

Section 32(1) of POTA makes a confession to a police officer admissible only against its maker, not a co-accused. Such a confession cannot be used against a co-accused under Section 30, being barred by Sections 25 and 26, nor under Section 10, since statements after arrest are made after the conspiracy has ended.
The safeguards in Section 32(2) to (5) are integral to admissibility and their breach will normally exclude the confession, though non-compliance with judicial custody does not per se vitiate it. Breach of Section 52 is a relevant factor but not as clinching. Afzal's and Shaukat's confessions were not acted upon.
Call record printouts can be proved as secondary evidence under Sections 63 and 65 of the Evidence Act irrespective of compliance with Section 65B. Interceptions made in breach of the Telegraph Act and Rule 419A are not inadmissible for that reason alone.
An attack on Parliament, the symbol of sovereignty, by armed men intending to engage security forces and destabilise the Government amounts to waging war under Section 121 IPC; every terrorist act is not waging war, and the expression must not be stretched too far.
Afzal's conviction under Section 120B read with Section 302 IPC and death sentence were upheld as a rarest of rare case, as were his conviction and death sentence under Section 121 IPC and life sentence under Section 121A; his POTA convictions were modified. Shaukat was convicted only under Section 123 IPC. The acquittals of Gilani and Afsan Guru were upheld.

Why it matters

The judgment settles that a confession to a police officer under Section 32(1) of POTA cannot be used against co-accused, and grades the effect of breaching the safeguards in Sections 32 and 52 of POTA. It also states the test for waging war under Section 121 IPC in the context of terrorist acts, explains the scope of Sections 10 and 27 of the Evidence Act, and holds that call records may be proved by secondary evidence without a Section 65B certificate.

In the Court's words

Copied from the official judgment; each passage links to its page.

“We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the 1st and 2nd accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Indian Evidence Act.”

P. Venkatarama Reddi, J.Page 22 of the judgment

“In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub-Sections (2) to (5) of Section 32. As already observed, sub-Sections (2) to (5) of Section 32 have an integral and inseparable connection with the confession recorded under Section 32(1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority.”

P. Venkatarama Reddi, J.Page 56 of the judgment

“Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.”

P. Venkatarama Reddi, J.Page 49 of the judgment

“The single most important factor which impels us to think that this is a case of waging or attempting to wage war against the Government of India is the target of attack chosen by the slain terrorists and conspirators and the immediate objective sought to be achieved thereby. The battle-front selected was the Parliament House Complex.”

P. Venkatarama Reddi, J.Page 89 of the judgment

Provisions interpreted

Sections 32 and 52, Prevention of Terrorism Act, 2002
Section 10, Indian Evidence Act, 1872Now: BSA 8 (NCRB correspondence table)
Section 27, Indian Evidence Act, 1872Now: BSA 23 (NCRB correspondence table)
Section 30, Indian Evidence Act, 1872Now: BSA 24 (NCRB correspondence table)
Section 65B, Indian Evidence Act, 1872Now: BSA 63 (NCRB correspondence table)
Section 121, Indian Penal CodeNow: BNS 147 (NCRB correspondence table)
Section 123, Indian Penal CodeNow: BNS 150 (NCRB correspondence table)
Section 5(2), Indian Telegraph Act, 1885 and Rule 419A, Indian Telegraph Rules

Related judgments

Explains Kehar Singh v. State (Delhi Administration) (1988)“There is one particular observation made by Jagannadha Shetty in Kehar Singh’s (supra) case which needs to be explained.” (page 32)

Case and bench

Parties: State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru
Case: Criminal Appeal Nos. 373-375 of 2004, with Criminal Appeal Nos. 376-378, 379-380 and 381 of 2004
Decided: 4 August 2005
Bench: P. Venkatarama Reddi, P.P. Naolekar
Opinions: Judgment delivered by P. Venkatarama Reddi, J. No separate opinion appears in the file.

Questions on this case

3 questions in live Law Maker papers mention this case. Practise them with the landmark judgments questions.