Karnataka High Court
Mehidi Masroor Biswas vs The State Of Karnataka on 14 August, 2018
Equivalent citations: AIRONLINE 2018 KAR 568, 2018 (4) AKR 385, (2019) 1 ALLCRILR 909
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8749 OF 2016
BETWEEN:
MEHIDI MASROOR BISWAS
S/O BISWAS MEKAIL
AGED ABOUT 24 YEARS,
R/AT NO.14, SUJATHA BUILDING,
A BLOCK, 2ND MAIN,
S.M.ROAD, JALAHALLI,
BENGALURU-560015
AND NATIVE OF FLAT NO.18
RGM (RAJARHAT GOPALPUR MUNICIPALITY)
DOOR NO.55/42, BIMAN NAGAR,
KAIKHALI POST,
KOLKATA-700052
WEST BENGAL.
... PETITIONER
(BY SRI: S BALAKRISHNAN, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY GANGAMMANAGUDI POLICE STATION,
(BY CCB) BENGALURU,
2
REP BY SPP,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
... RESPONDENT
(BY S.RACHIAH, HCGP)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO QUASH THE ORDER
PASSED IN SPL.C.C.NO.272/2015 ON THE FILE OF XLIX ADDL.
CITY CIVIL AND S.J., (CCH-50) (SPECIAL COURT FOR TRIAL OF
NIA CASES) AT BANGALORE DATED 19.11.2016 PERMITTING
PW2 TO DEPOSE REGARDING THE INFORMATION ALLEGEDLY
GIVEN BY THE ACCUSED.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.08.2018 AND COMING ON FOR
PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE
THE FOLLOWING:-
ORDER
Whether the confessional statement of an accused is receivable in evidence is the question that falls for determination in this petition.
2. The outline facts leading to the above question are that on 13.12.2014, CW-1/PW.2 the Assistant Commissioner of Police, lodged a first information in Gangammanagudi Police 3 Station, Bengaluru alleging that on the information received by him, he and his team of officials Sri. Balraj & Sri. Prakash-Police Inspectors, after satisfying themselves regarding the identity of @shamiwitness being the same person as the one who was residing at No.14, Sujatha Building, 'A' Block, 2nd Main, S.M.Road, Jalahalli West, Bengaluru West, Bengaluru, conducted a raid and subjected Mr. Biswas to enquires. During enquiries, Mr. Biswas confessed to the fact that he was the one who was responsible for creating and operation of the twitter handle @shamiwitness.
3. Based on his complaint a FIR in Crime No.218/2014 came to be registered for the offences punishable under section 125 of Indian Penal Code (for short "IPC"), sections 3, 13, 18 and 39 of Unlawful Activities (Prevention) Act, 1967 (for short "UAPA Act") and section 66F of Information Technology Act, 2000 (for short "IT Act"). After investigation, charge-sheet was filed against the petitioner/accused under sections 13(1)(b), 18B 4 and 39 of UAPA Act and section 66F of IT Act and sections 121, 124A, 125, 153A and 505 of IPC.
4. On securing the petitioner and after hearing his counsel, charges were framed against him for the above offences.
5. In the course of trial, the informant (CW.1) was examined as PW.2. In his examination, CW-1/PW-2 intended to depose before the Court regarding the information given by the petitioner/accused to him and other police personnel on 13.12.2014. The same was opposed by the petitioner/accused on the ground that such statement amounted to confession and is hit by section 25 of the Evidence Act. In view of the said objection, learned Trial Judge deferred the chief-examination and after affording an opportunity of hearing to both sides, by order dated 19.11.2016 rejected the objection raised by the petitioner with the following order:-
"PW.2 is permitted to depose regarding the information allegedly given by the accused 5 to him on 13.12.2014, when he had gone to the house of the accused and took him to his custody subject to objection raised by the accused i.e., its admissibility, to be decided at the time of final judgment."
6. Pursuant to the above order, PW-2 was further examined-in-chief on 06.12.2016 and he deposed as under:-
"While enquiring the accused, he informed that he was handling twitter account under the name of '@Shami witness'.
7. The order dated 19.11.2016 and the offending portion of the evidence of CW-1/PW-2 as extracted above are challenged in this petition.
8. I have heard the learned counsel for the petitioner and the learned HCGP.
9. Placing reliance on the decision of the Hon'ble Supreme Court of India in the case of AGHNOO NAGESIA vs. STATE OF 6 BIHAR reported in AIR 1966 SC 119, the learned counsel for the petitioner would contend that by rejecting the objection raised by the defence, the trial court has allowed to come on record the confessional statement of the petitioner/accused contrary to the bar contained under section 25 of the Evidence Act. The procedure followed by the trial court has caused grave prejudice to the accused in his defence and hence he has sought to quash the impugned order dated 19.11.2016 and the consequent evidence recorded by the trial court on 06.12.2016 touching the alleged confessional statement of the accused.
10. Per contra, learned HCGP would submit that the trial court has followed the procedure laid down by the Hon'ble Supreme Court of India in BIPIN SHANTILAL PANCHAL vs. STATE OF GUJARAT & Another, (2001) 3 SUPREME COURT CASES 1. The objection of the petitioner is taken into consideration and the same is over-ruled by assigning proper reasons. No injustice is caused to the petitioner/accused, as the trial court has left open the question of admissibility for determination at the time 7 of final judgment and therefore there is no reason to interfere with the procedure adopted by the trial court.
11. I have bestowed my careful thought to the issue in question and have carefully scrutinized the impugned order and the evidence adduced by PW-2.
12. In the light of the contentions urged by the parties, firstly, it is required to be determined:-
1. "Whether the extracted portion of chief-
examination of PW-2 amounts to confession within the meaning of Section 25 of the Evidence Act.?
2. Whether the above statement is receivable in evidence.?"
13. Section 25 of the Evidence Act renders any statement made to the Police Officer inadmissible in evidence. It is now well settled that, "the terms of section 25 are imperative.8
The confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before the investigation has begun."-
AGHNOO NAGESIA vs. STATE OF BIHAR reported in AIR 1966 SC 119.
14. To decide the controversy raised in this petition, on factual score, it is necessary to refer to the evidence of PW.2.
According to PW.2, on receiving credible information, he alongwith two other Police Inspectors proceeded to the residence of accused Sri.Mehidi Biswas Meharoor and took him into custody. The relevant portion of evidence of PW.2 in this regard reads as follows:
"On 12.12.2014, I received an information from reliable source that twitter account in the name of '@shamiwitness' belongs to one Mehdi Biswas Meharoor and that the said person is from Bangalore City. Based on such information, I discussed the matter with my team members i.e., CW54 - B.Balaraj, 9 CW55 - Prakash K and other police men and then we tried to find out his address in Bangalore City. During midnight, we came to know that the said person is residing in Ayyappanagara, which is situated near Jalahalli Cross. Accordingly on 13.12.2014 around 4.00 am to 5.00 am, I and my team went near his house situated at Ayyappanagara and surrounded his house. Then we went to house No.A14 in the second floor of the said building and took Mehdi Biswas to our custody."
15. The further examination of PW.2 after the ruling given by the learned Sessions Judge, recorded on 06.12.2016, reads as under:-
"While enquiring the accused, he informed that he was handling twitter account under the name of '@Shami witness'.
16. Undisputedly, CW-1/PW.2 was a Police Officer on duty at Gangammanagudi police station at the relevant time. It is not 10 in dispute that FIR in Crime No.218/2014 is registered based on the complaint lodged by CW-1/PW.2. Here itself, if may be relevant to refer to the averments made in the complaint so as to determine whether the above portion of the evidence amounts to "confession" within the meaning of Section 25 of the Evidence Act. In his complaint, CW-1/PW-2 has specifically narrated that:
"During the enquiries, Mr.Biswas confessed to the fact that he is the one who was responsible for the creation and operation of the twitter handle @shamiwitness. He stated that he was impressed with the ideology of ISIL/ISIS and; has been very active spreading and propagating the ideologies of the ISIL/ISIS through the said twitter handle. He also said that he is among the most followed personalities on the twitter network across the globe on the topic of ISIL/ISIS and as per him, his ability to communicate in English and his ideas has largely resulted in good following from among the West European ISIL/ISIS sympathizers and supporters."
11
17. Regarding the evidentiary value of the first information report, it is now well settled that the FIR as such is not substantive evidence. It may be used either to corroborate the informant under Section 157 of the Evidence Act or to contradict him under section 145 of the Evidence Act, when he is called as a witness. That is not the situation in the instant case. If the accused himself was the informant, the fact of his giving the information would have been admissible against him as evidence of his conduct under Section 8 of the Evidence Act. That is also not the case of the prosecution.
18. According to the prosecution, the alleged statement is said to have been made by the accused to CW-1/PW.2 when he enquired the accused before taking him into custody. It is needless to say that by virtue of the interdict contained in Section 25 of the Evidence Act, no confession made to a police officer could be proved against a person accused of any offence. As already noted above, it is immaterial whether the said 12 confession was made by the accused before his arrest or while he is in custody after commencement of the investigation. The bar enshrined in Section 25 of the Evidence Act completely debars the Court from admitting in evidence the confessional statement of the accused. If the case of the prosecution was that the above statement was made by the accused before PW.2 in the course of the investigation, it would have been protected under section 162 of Cr.P.C. to the extent provided therein. Likewise, a confession made by the accused while in custody of a Police Officer and made in the presence of the Magistrate would also have been rendered admissible against him under section 26 of the Evidence Act. But the statement of the accused which is purely in the nature of confession or admission with regard to the motive, preparation or commission of the offences for which he is charged, cannot be proved against him in view of the bar contained in Section 25 of the Evidence Act.
13. In the instant case, the accusation made against the petitioner are that he was "a stanch follower of the Sunni sect of 13 Islam, well aware of the fact that ISIS/ISIL is known for its well- funded web and social media propaganda, which includes Internet videos of the beheadings of soldiers, civilians, journalists and aid workers, as well as the deliberate destruction of cultural heritage sites, regularly taking advantage of social media, particularly Twitter, to distribute his messages by organizing hashtag campaigns, encouraging Tweets on popular hashtags(#), and utilizing software applications that enable ISIL/ISIS/IS propaganda to be distributed automatically via his supporters' accounts, from early 2013 till exposed by Channel4 on 12.12.2015 masking his identity, being anonymous through his twitter account "@shamiwitness" using airtel landline connection(080-41476668 [8060765326]) and mobile connections (7259520485 and 9663871394), knowingly for intentionally penetrated or accessed the computer resources, tweeted 1,22,203 times, and posted 15446 images, most of them which would create terror in the heart and minds of people, who oppose the ideology of Caliphate or radicalism, 14 willfully allowed his account to become a meeting place for Pro- ISIS accounts who wanted to connect to other Pro-ISIS accounts, like tweeting "Official account of Sheikh Abu Hafs al Masri, Jarabolos ISIS chief @Abu7afsi", "yes, Abu Hafs is in Jarabulus." helped those mujahir(immigrants who came to join the ISIS) to cross the border by helping with specific input of which border post was open, like "@TalabaAlHaqq walaykum salam, Tal Abyad crossing open now" using such information, data or computer database so obtained was used to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, to achieve his personal objective and THEREBY committing an offence of Cyber-terrorism punishable under section 66 of IT Act, 2000."
14. In the wake of these charges, the evidence of PW-2 with regard to the information of the cognizable offences given by the accused would undoubtedly qualifies to be 'confession' within the meaning of Section 25 of the Evidence Act. In this 15 context, it may be apposite to refer to the decision of the Division Bench of this Court in the case of L.R.Nagu alias Nagendra Murthy vs. State of Karnataka reported in 2018 (1) AKR 505 wherein the purport of Section 25 has been explained as under:-
18. "Confession" is not defined under the Evidence Act. In legal parlance "confession"
is an admission of guilt by a person charged with the offence. The statement in order to amount to confession must either admit in terms the offence, or all the facts which constitute the said offence. It is not necessary that the person making the confession must be facing accusation of an offence when he made the confession. Viewed in that manner, the statement made by the accused to PW-10 disclosing the motive, preparation and the commission of the offence, undoubtedly qualifies to be a confession as understood in law. However, Section 25 of the Evidence Act renders the confessional statement inadmissible against the accused. Section 25 of the Evidence Act stipulates that;
16
"No confession made to a police officer, shall be proved as against a person accused of any offence."
19. This Section imposes a total bar in using confession against the accused. It makes no difference whether the confession was made before his arrest or while he is in custody after the commencement of the investigation. Even if such information is construed, for want of signature, as the statement recorded under Section 161 of Cr.P.C., still Section 162 of Evidence Act debars the court from using the said statement in evidence against the accused.
Therefore, whatever information of the commission of the cognizable offence given by the accused, in our opinion, cannot be used against him as confession of his guilt. However, as held by the Hon'ble Supreme Court in the case of AGHNOO NAGESIA vs. STATE OF BIHAR reported in AIR 1966 SC 119, if the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. To this extent, the facts recorded by PW-10 in the F.I.R. based 17 on the information given by the accused could be used in evidence in proof of his conduct soon after the commission of the offence."
15. In the light of the above factual and legal position, in my view, the trial court has committed a patent error in receiving in evidence the confessional statement of the petitioner/accused in violation of the bar contained in Section 25 of the Evidence Act. The decision relied on by the learned Magistrate in the impugned order deals with the procedure to be followed in case of the objection raised during the course of evidence regarding the admissibility of evidence tendered before the Court. In BIPIN SHANTILAL PANCHAL vs. STATE OF GUJARAT & ANOTHER 2001(1) Crimes 288 (SC), the Hon'ble Supreme Court has held that "whenever an objection is raised regarding the admissibility of any material or item of oral evidence, the trial court can make note of such objection and mark the objected document tentatively as an exhibit in the case(or record the objected part of the oral evidence) subject to 18 such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable, the Judge or Magistrate can keep such evidence excluded from consideration."
16. No-doubt, the learned Sessions Judge has given a ruling on the objection raised by the accused and has permitted PW-2 to depose regarding the information given by the accused subject to the objection raised by the accused regarding its admissibility to be decided at the time of final judgment, but, having regard to the serious implications of the said evidence and in view of the specific bar contained in Section 25 of the Evidence Act, in my view, the course adopted by the learned Sessions Judge has resulted in taking away the valuable legal right of the accused. The accused has a legal right to insist that only legal and admissible evidence is produced by the prosecution in proof of his guilt. The accused has a right to know that the statement attributed to him is not sought to be proved against him so that he could prepare his defence accordingly 19 during trial rather than be left in the lurch and taken by surprise after pronouncement of the judgment that his confessional statement is proved against him. As section 25 of the Act prohibits the confessional statement to be proved against the accused, in my view, the extracted portion of the evidence being a 'confession' made to the police officer cannot be allowed to be brought on record through the evidence of PW.2.
As a result, the petition is allowed. The ruling dated 19.11.2016 of the learned Sessions Judge permitting PW-2 to depose regarding the information given by the accused is set- aside. The portion of the deposition of PW-2 reading "While enquiring the accused, he informed that he was handling twitter account under the name of "@shami witness" is ordered to be eschewed from records.
Petition is allowed in terms of the above order.
Sd/-
JUDGE *mn/-