SJA E-NEWSLETTER Official Newsletter of Jammu & Kashmir Judicial Academy (For Internal Circulation Only)

SJA e-NEWSLETTER Official Newsletter of Jammu & Kashmir Judicial Academy (For internal circulation only) Volume 3 Monthly May 2020 Patron-in-Chief From the Editor’s Desk Hon’ble Ms. Justice Almost whole of the world is woefully grappling with the Gita Mittal worst pandemic of the century. It is now more than five months Chief Justice on since the formal recognition by the world body, WHO, of the alarming situation created by Coronavirus. It is now, in the entire Governing Committee world, Europe and America being the worst sufferers, more than Hon’ble Shri Justice 2.3 Lakh people have lost lives and more than 33.40 Lakh Rajesh Bindal affected. Immense pressure is staring at the economic resources, Chairman medical institutions, medical professionals, administrative and Hon’ble Shri Justice police organizations. Judicial institutions are also facing great Tashi Rabstan difficulty in providing access to justice. Hon'ble Supreme Court and High Courts are putting in place various innovative methods Hon’ble Smt. Justice Sindhu Sharma to ensure continued functioning of the Judicial institutions at all levels. At District and Taluk level also mechanism are being Hon’ble Shri Justice devised to address the urgent judicial needs of the citizens. It is Rajnesh Oswal becoming practically difficult to resume the regular court processes in the wake of threat of community spread of COVID- Hon’ble Shri Justice 19, and then subsequent waves of pandemic. Sanjay Dhar Government institutions are coming up with newer modes Members of dispensation of public services. Frontline workers are putting all resources and energy as Corona-warriors to minimize the Contents community spread of the virus. Information Technology is From Editor’s Desk ……...1 emerging as a viable and effective tool to keep the instructions of Legal Jottings……………..2 public service functioning. Information Technology is also a handy tool for the judicial institutions to provide urgent relief to Activities of Academy .....16 the needy consumers of justice. There are certain difficulties being Legislative Update ……...20 faced owing to the reason that there is no universal solution to Judicial Officers’ Column provide access to Justice. All sorts of ICT platforms are being ………………………………...21 employed to keep going, however common solution is far from near sight. Urgent and grave concern is projected by the Editor stakeholders as regards non availability of common platform. It is, Rajeev Gupta therefore, required that a universal platform is recognized, tested Director and put in place to facilitate all the stakeholders and consumers of Justice. Traditionally, as precedent and for regular trial procedures Composed by: presence of a litigant is requisite, especially an accused, at various Vishali Razdan stages of the case hearings. Methods are required to be developed Computer Operator where such presence can be secured through virtual mode. LEGAL JOTTINGS “Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but are mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy.” Dr Arijit Pasayat, J. in Zahira Habibullah H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, para 19 CRIMINAL Criminal Appeal No. 1120 of 2010 provision has issued certain guidelines to be Raja @ Ayyapan v. State of Tamil Nadu followed while recording confession. These Decided on: April 1, 2020 guidelines have been issued to ensure that In this Criminal Appeal the Supreme the confession obtained in the pre Court has considered two vital questions : indictment interrogation by a police officer The first question for consideration is not lower in rank than a Superintendent of whether the appellant has made the Police is not tainted with any vice but is in confession voluntarily and truthfully. Held strict conformity with the well recognised that - The law of confession is embodied in and accepted aesthetic principles and Sections 24 to 30 of the Indian Evidence Act, fundamental fairness. These guidelines are: 1872. The confession is a form of admission “(1) The confession should be recorded consisting of direct acknowledgment of guilt in a free atmosphere in the same language in in a criminal charge. In this connection, it is which the person is examined and as relevant to notice the observations of Privy narrated by him; Council in Pakala Narayana Swami v. (2) The person from whom a Emperor (1939 PC 47) which is as under: confession has been recorded under Section “…..a confession must either admit in 15(1) of the Act, should be produced before terms of an offence, or at any rate the Chief Metropolitan Magistrate or the substantially all the facts which constitute Chief Judicial Magistrate to whom the the offence. An admission of a gravely confession is required to be sent under Rule incriminating fact, even a conclusively 15(5) along with the original statement of incriminating fact is not by itself a confession, written or recorded on confession….” mechanical device without unreasonable Supreme Court observed that, Section delay; 15(1) of the TADA Act is a self contained (3) The Chief Metropolitan Magistrate scheme for recording the confession of an or the Chief Judicial Magistrate should accused charged with an offence under the scrupulously record the statement, if any, said Act. This provision of law is a departure made by the accused so produced and get from the provisions of Sections 25 to 30 of his signature and in case of any complaint of the Evidence Act. Section 15 of the TADA Act torture, the person should be directed to be operates independently of the Evidence Act produced for medical examination before a and the Criminal Procedure Code. In Kartar Medical Officer not lower in rank than of an Singh {1994 (3) SCC 569}, the Supreme Court Assistant Civil Surgeon; while upholding the validity of the said 2 SJA e-Newsletter (4) Notwithstanding anything The second question for consideration is contained in the Code of Criminal Procedure, whether the statement of two other co- 1973, no police officer below the rank of an accused is admissible in evidence. Held that - Assistant Commissioner of Police in the The confession statement of the co accused Metropolitan cities and elsewhere of a was recorded by the Superintendent of Deputy Superintendent of Police or a police Police (PW20) in Crime No.160/1990. The officer of equivalent rank, should investigate appellant was absconding, hence the any offence punishable under this Act of proclamation order was issued by the trial 1987. This is necessary in view of the drastic court and thereafter the case was split provisions of this Act. More so when the against the appellant. A separate trial was Prevention of Corruption Act, 1988 under conducted against the appellant and the Section 17 and the Immoral Traffic impugned judgment convicting the appellant Prevention Act, 1956 under Section 13, accused has been passed by the Designated authorise only a police officer of a specified Court. Having excluded the application of rank to investigate the offences under those Sections 24 to 30 of the Evidence Act to a specified Acts. confession recorded under Section 15(1) of (5) The police officer if he is seeking the the TADA Act, a self contained scheme is custody of any person for pre indictment or incorporated therein for recording the pre trial interrogation from the judicial confession of an accused and its custody, must file an affidavit sworn by him admissibility in his trial with co-accused, explaining the reason not only for such abettor or conspirator for offences under the custody but also for the delay, if any, in TADA Act or the Rules made there under or seeking the police custody; any other offence under any other law which (6) In case, the person, taken for can jointly be tried with the offence with interrogation, on receipt of the statutory which he is charged at the same trial. There warning that he is not bound to make a is thus no room to import the requirements confession and that if he does so, the said of Section 30 of the Evidence Act in Section statement may be used against him as 15 of the TADA Act. Under Section 15(1) of evidence, asserts his right to silence, the the TADA Act the position, in my view, is police officer must respect his right of much stronger, for it says, “a confession assertion without making any compulsion to made by a person before a police officer not give a statement of disclosure.” lower in rank than a Superintendent of It is also necessary to state here that the Police and recorded by such police officer confession recorded by the police officer is either in writing or on any mechanical device undoubtedly equated to a confession like cassettes, tapes or soundtracks from out recorded by a Judicial Magistrate under of which sounds or images can be Section 164 Cr.P.C. Thus, the said confession reproduced, shall be admissible in the trial of is a substantive piece of evidence. Therefore, such person or co accused, abettor or all the safeguards which are to be followed by conspirator for an offence under this Act or a Magistrate should have been followed by Rules made there under, provided that co- the police officer also. It is well settled that accused, abettor or conspirator is charged the satisfaction arrived at by the Magistrate and tried in the same case together with the under Section 164 Cr.P.C. is, if doubtful, then, accused.” the entire confession should be rejected.

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