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Various authorities were referred to by Mr. Garg like 12 Law Years Edition page 908, and Sarkar on Evidence page 238 to the effect that it is sufficient for such exclusion if it appears to the court that the confession of the accused is not voluntary and that it is not necessary to prove this beyond doubt. It is true that Evidence Act postulates that the sine qua non of any confession is the voluntariness of it and if that is missing the truth of the contents of confession are inadmissible. See . As a proposition of law it is unexceptionable. It is also true that if the accused takes the plea that the confession was not voluntary that point must be examined by the court and finding recorded : See (1940) 2 All ER 599 and (1941) 3 All ER 318. But whether a confession is voluntary or not is a question of fact and must be proved before the tribunal holding a trial which alone must be satisfied that no duress was effected to obtain the confession. We find from the record that this objection as to the voluntary nature of the confession was raised before the court martial which however, overruled it. It is not, therefore, as if the plea of forced confession was raised but was not examined by the court trying the petitioner. What, however, Mr. Garg urges and what we find unacceptable is that simply because this plea has now been again raised before us that we should without any prima facie proof of there being any duress exercised on the petitioner hold an independent enquiry and decide on merits ourselves. Mr. Garg obviously conscious of the limitation on our enquiry on merits under Art. 226 of the Constitution has chosen to dress his argument in the garb of fundamental right by invoking Article 20(3) of not being compelled to be a witness against oneself. In our view contention based on Article 20(3) is misconceived. This is because if the confession is voluntary then no question of the petitioner being compelled to be a witness against himself or of any violation of Article 20(3) arises. If on the other hand the confession is involuntary one then virtue of Section 24 of the Evidence Act which is applicable to the proceedings before the court martial the some is inadmissible and it is not necessary to invoke Article 20(3) for the purpose of ruling out that confession which has been obtained under duress. In reality the limited and short point for determination is whether the finding of the court martial rejecting the plea of the petitioner that the confession was taken under duress can be said to be such that no person properly instructed in law could have come to that conclusion. If the finding is on the material placed before the court martial and it has arrived at a conclusion that a reasonable person could have come to namely that the confession is voluntary one, this court cannot under Article 226 seek to reappraise that finding of fact on the supposed plea of violation of fundamental rights under Article 20(3) or under Article 21 of the Constitution. Fairness of procedure under Article 21 can only mean that if the confession is involuntary, the same is inadmissible. This what is provided by S. 24 of the Evidence Act. But there is no presumption that the confession was coerced.

22. In the present case the petitioner was arrested on 8-4-1977. His confession was recorded on 24-4-1977. Earlier he had been interrogated by one Captain Sudhir. The summary of evidence was recorded from 7-5-1977 of 11-6-1977. The petitioner never objected that his confession was obtained under torture. The court martial started proceeding from 25-7-1977. The charges against the petitioner related to his having passed on sensitive documents to an agent of a foreign country which would be prejudicial to the interest of safety of the State and thus contrary to Section 3(1)(c) of the Official Secrets Act. Evidence was led of GNR Servan Dass who admitted that he had been serving as an agent of a foreign country and also deposed how he took the accused across the border where he had a talk with the army officer of the foreign country. He also claimed that some money was paid to him as well as to the petitioner. He also gave details as to how even subsequently when he was arrested he was told by the petitioner not to worry and he would look after his interest. Another witness examined before the court martial was GNR Aya Singh. This witness has deposed that he had gone to Pakistan and one Major Khan had given him a chit which contained something about an armoured division and he had given that chit to the accused when he met him when he returned from Pakistan. Captain Sudhir was the officer who had investigated the matter and has deposed that after some interrogation the accused made a confession in bits and starts on 19th and 20th of April 1977 and that he gave time to the accused to think over the matter and on 24-4-1977 the accused made a confessional statement which he (accused) wrote in his presence in his own hand. He i.e. the petitioner signed each page of his confessional statement and Capt. Sudhir attested the statement of the accused. When this witness was going to produce a confessional statement the defending counsel raised the objection on behalf of the accused. The objection amongst other was that the confession is inadmissible inasmuch as Capt. Sudhir should also be considered to be a police officer within the meaning of the Evidence Act and also that it was involuntary confession, and the same is, therefore, inadmissible. The record shows that there were full-fledged arguments before the court martial and the Judge Advocate referred to Chandra v. State of W.B. in which the court had held that confession made to a Customs Officer is not a confession made to a member of a Police Force. Reference was also made to Badaku Joti Sayant v. State of Mysore, and after hearing the parties the court-martial overruled this objection. Thereafter the defending officer raised a further objection under Section 24 of the Evidence Act on the ground that the confession of the accused was involuntary and requested permission of the court to allow him to cross examine Capt. Sudhir with regard to the circumstances under which the accused made a confessional statement. There was then a detailed cross-examination of Capt. Sudhir as to the circumstances in which the confession was made. Capt. Sudhir denied that he had slapped the accused or used criminal force or in any manner subdued the petitioner in making the confessional statement. The defending officer objected to the confession being taken into account on various grounds amongst others that the petitioner was made to give confession by putting pressure on him and by inducing him that he will be rewarded if he confesses. This was denied by the prosecution. Detailed arguments from the prosecution and the defending officer were heard. The Judge Advocate pointed out that the accused was interrogated between 11th 20th April, 1977 with an interval of 12th, 13th and 17th of April, 1977. The evidence also revealed that accused started making his confessional statement on 19th/20th of April, 1977 in bits and pieces and he was given time to think over and recollect and the accused finally made a confessional statement on 24-4-1977. It was pointed out that the accused had never complained to any one that he had been subjected to torture and that the accused was a fairly senior officer and had put in 13 years of services and that a person of rank and service of the accused would normally have objected if he had been put under torture and agony. The court thereafter took time to consider the matter and then overruled this objection. It will thus be clear that full-fledged arguments were raised before the court-martial as to the admissibility or otherwise of confession on various grounds including the one that it was made made coercion and pressure. It is thereafter that the court martial overruled this objection. We cannot, therefore, say that this objection of voluntary nature of confession was not examined by the court-martial. It is a different matter that it found that confession was not obtained under coercion. This decision on merits about the confession has necessarily to be of the court martial which was trying the accused. We cannot reassess the evidence and seek to substitute our own finding on this matter. The court martial thus had various pieces of evidence before it on which it could have come to a conclusion of fact. It having done so this court cannot reopen the matter. This plea is, therefore, repelled.