1535R

IN THE

SUPREME COURT OF HIND

AT XYZ

CRIMINAL APPEAL NO._____/2019

[UNDER ARTICLE 134 OF THE CONSTITUTION OF HIND, 1949 READ WITH SECTION 379 OF THE

CODE OF CRIMINAL PROCEDURE, 1973]

IN THE MATTER OF

XYZ........................................................................................................................APPELLANT

v.

UNION OF HIND.....................................................................................................RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

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table of content

Table of contents...........................................................................................................................2

Index of authorities........................................................................................................................3

Statement of jurisdiction................................................................................................................4

Statement of facts..........................................................................................................................5

Issues for consideration.................................................................................................................6

Summary of arguments..................................................................................................................7

Arguments advanced.....................................................................................................................8

I. the confession of the accused can be proved against him:.............................................8

I-A. intelligence wing is not a police officer under section 25 of iea:...................................8
I-B. evidentiary value of retracted confession:....................................................................10
II. the accused is guilty on the basis of the presumption as to his conduct:.....................12
Prayer...........................................................................................................................................14

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 INDEX OF AUTHORITIES

Cases

Badku Joti Savant v. State of Mysore AIR 1966 SC 1746........................................................8

Balkishan A. Devidayal v. State of Maharashtra - AIR 1981 SC 379.....................................10

Bharat v. State of U. P., 1971 (3) SCC 950.............................................................................11

Illias v. Collector of Customs, Madras - AIR 1970 SC 1065....................................................9

Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 4 Supreme 359.................13

Pyare Lal Bhargawa v. State of Rajasthan AIR 1963 S.C. 1094.............................................11

Raj Kumar Karwal v. Union of India - AIR 1991 SC 45.........................................................10

Romesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940.......................................9

State of U.P. v. Boota Singh AIR 1978 S.C. 1770...................................................................11

Subramania Gounden v. The State of Madras, 1958 SCR 428................................................11

Tulsa v. Durghatiya, 2008 (1) SCR 709: 2008 (4) SCC 520...................................................13

Statutes

The Indian Evidence Act, 1872……………………………………………………………

The Code of Criminal Procedure, 1973………………………………………………………

Book

Vepa P. Sarathi, Law of Evidence, 7th ed.………………...………………………….…….

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 STATEMENT OF JURISDICTION

The Counsel for the Respondent in the Criminal Appeal No.XXX/2019 most humbly submits

to the jurisdiction of this Hon’ble Supreme Court to hear and adjudicate the matter under

Article 134 of the Constitution of Hind, 1949 read with Section 379 of the Code of Criminal

Procedure, 1973.

All of which is urged in detail in the written submission and is submitted most respectfully

before this court.

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 STATEMENT OF FACTS

I.

While responding to an attack on the National Parliament of Hind, the National Army of

Hind shot down two terrorists and captured one terrorist alive. Before the terrorist was

handed over to the police, the Intelligence Wing of the National Army interrogated him to

ensure that there weren’t any other terrorists who had escaped from the site of attack. It was

revealed during interrogation by the terrorist, that one accomplice who was a citizen of Hind

and was part of a ‘sleeper cell’ had successfully escaped. The appellant in this case was

identified and captured by the Intelligence Wing (he confessed to be the missing accomplice)

and was thereafter handed over to the Police. In the meanwhile, the captured terrorist who

had revealed the information, with regards to the person captured by the Intelligence Wing

later, had succumbed to his injuries even before the trial started.

II.

The appellant is charged of waging a war against the state. The Police had produced before

the court, the confessional statements made to the officers of the Intelligence Wing by both

the accused. The appellant pleaded innocence before the Court stating that he was an ordinary

citizen who ran a shop selling arms and ammunition. It was also stated on his behalf that

although he sold the guns found with the terrorists, he did not sell the guns to them. The

identification related documents that he procured from the buyer of those guns were later

found to be forged.

The laws in Hind are parimateria to laws in India.

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 ISSUES FOR CONSIDERATION

I. WHETHER THE CONFESSION CAN BE PROVED AGAINST THE ACCUSED?

II. WHETHER THE ACCUSED IS GUILTY ON THE BASIS OF THE PRESUMPTION AS TO HIS

CONDUCT?

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 SUMMARY OF ARGUMENTS

I. WHETHER THE CONFESSION CAN BE PROVED AGAINST THE ACCUSED?

The confession can be proved against the accused as it was made to the intelligence wing

which does not fall within the category of ‘police officer’. Section 25 will not bar the

confessional statement to be used against the appellant.

II. WHETHER THE ACCUSED IS GUILTY ON THE BASIS OF THE PRESUMPTION AS TO HIS

CONDUCT?

The conduct of the party to the proceeding is relevant under Section 8 of the Indian Evidence Act.

Section 114 of the Act provides for the presumption of the existence of any fact based on the

human conduct. Since the accused ran a shop selling arms and ammunition which were used by

the terrorists, presumption of his innocence fails.

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 ARGUMENTS ADVANCED

I. THE CONFESSION OF THE ACCUSED CAN BE PROVED AGAINST HIM:

The confession extracted by the intelligence wing from the accused can be proved against

him and Section 25 will not be applicable in this case.

I-A. INTELLIGENCE WING IS NOT A POLICE OFFICER UNDER SECTION 25 OF IEA:

Section 25 of the Indian Evidence Act (Confession to police officer not to be proved) -No

confession made to a police officer, shall be proved as against a person accused of any

offence.1

In order to satisfy this section the confession has to be made to a police officer otherwise it

may be considered as relevant if given to a non-police officer. The crucial test laid down by

the Supreme Court for deciding whether an officer is a police officer or not for the purpose of

Section 25 of the Evidence Act, is that such officer should not only possess the authority of

an officer in-charge of a police station to conduct an investigation under Chapter XII of the

Cr.P.C, but he should also have the authority to initiate a prosecution by filing a police report

under Section 173(2) Cr.P.C.

In Badku Joti Savant v. State of Mysore 2, the bench of five judges of the Supreme Court

settled the issue by deciding the status of central excise officers under the Central Excise and

Salt Act, 1944. Unanimously, these officers were held to not be police officers. The Supreme

Court laid down a definitive test: the power to file a charge-sheet, as under Section 173 of

Cr.P.C., on which cognizance could be taken by a Magistrate. Thus only those officers who

had been conferred this power could appropriately be called police officers for Section 25.

The court’s position was cemented by two five-judge bench decisions in Romesh Chandra

Mehta v. State of West Bengal and Illias v. Collector of Customs, which addressed the

question under both, the repealed Sea Customs Act, 1878, and the Customs Act, 1962.

1
Section 25 of the Indian Evidence Act, 1872.
2
Badku Joti Savant v. State of Mysore AIR 1966 SC 1746.

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In Romesh Chandra Mehta v. State of W.B3, the test for determining whether an officer of

customs is to be deemed a police officer is whether he is invested with all the powers of a

police officer qua investigation of an offence including the power to submit a report under s.

173, Cr. P.C. An officer of customs may exercise the various powers conferred on him for

preventing smuggling of goods dutiable or prohibited and for adjudging confiscation of those

goods. The enquiry made by him is a judicial proceeding for the purpose of Sections 193 and

228 of the I.P.C and his orders are subject to appeal and revision. He does not exercise, when

enquiring into a suspected infringement of the Sea Customs Act, powers of investigation

which a police officer may, in investigating the commission of an offence. He has neither

power to investigate an offence triable by a Magistrate nor the power to submit a report under

s. 173 Cr. P.C.

In Illias v. Collector of Customs, Madras 4, it was held that under Customs Act, 1962, the

customs authorities have been invested with many powers of a police officer in matters

relating to arrest, investigation and search. But, customs officers have not been invested with

all the powers which an officer in charge of a police station can exercise under Chapter XV,

Cr. P.C. The powers conferred do not include the power of submitting a charge sheet under s.

173, Cr. P.C., either expressly or by necessary implication. Therefore, in order to enable a

magistrate to take cognizance of an offence under the Customs Act,(the offences under the

Act are non-cognizable), the customs officer will have to file a complaint before the

magistrate under Section190(a), Cr. P.C., and cannot like a police officer submit a report

under Section 190(b). Hence even though the customs officers have been invested with many

of the powers which an officer in charge of a police station exercises when investigating a

cognizable offence he does not thereby become a police officer within the meaning of s. 25 of

3
Romesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940.
4
Illias v. Collector of Customs, Madras - AIR 1970 SC 1065.

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the Evidence Act and so the confessional statements made by accused persons to customs

officials would be admissible in evidence against them.

In Balkishan Devidayal v. State of Maharashtra 5, the test was also used to hold section 25

inapplicable to confessions made before Railway Protection Force officers.

In Raj Kumar Karwal v. Union of India6, the section 53 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (‘the NDPS Act’), which conferred powers of an officer-

in-charge of a police station upon officers of the Department of Revenue Intelligence (‘the

DRI’) was in question. In this case, the admissibility of confessions made to such officers

was challenged. The Court reiterated that the “important attribute of police power is not only

the power to investigate into the commission of cognizable offense but also the power to

prosecute the offender by filing a report or a charge-sheet under Section 173 of the CrPC.

Since all powers under Chapter XII of CrPC had not been conferred upon DRI, they were not

considered as police officers for section 25.

In the present case the confessional statement was made to the officers of the Intelligence

Wing which has no power to file the chargesheet under Section 173 of the CrPC, therefore

the provisions of Section 25 of the Indian Evidence Act does not bar such statement to be

proved against the accused.

I-B. EVIDENTIARY VALUE OF RETRACTED CONFESSION:

A retracted confession is one which is withdrawn or retracted later on by the person making

it. It casts a doubt on the voluntariness of the confession. Section 24 of the Indian Evidence

Act, 1872 (IEA) makes it clear that a confession will be irrelevant if not made freely and

voluntarily. No inquisitor should offer any inducement, threat or promise to the accused. This

is further augmented by Section 164 of the Cr.P.C. which requires a Magistrate to explain to

the person making the confession that he is not bound to make a confession, and if he does

5
Balkishan A. Devidayal v. State of Maharashtra - AIR 1981 SC 379.
6
Raj Kumar Karwal v. Union of India - AIR 1991 SC 45.

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so, it may be used as evidence against him. This concept of voluntariness is a common law

principle.

Hidayatullah, C. J., on behalf of a three judge bench in the case of Bharat v. State of U. P.7

stated that it is safe to rely on a confession when the voluntary character and truth of the

statement are accepted. Its voluntary nature depends on whether there was any threat,

inducement or promise, and its truth can be determined by examining the entire prosecution

case.

As laid down in an earlier case of Subramania Gounden v. The State of Madras8, a retracted

confession may be taken into account by a court, however, it must look for the reasons for

making the confession and the reasons for its retraction. These reasons must be weighed in

order to determine whether the retraction affects the voluntary nature of the confession. It can

be said that a true confession, which is made voluntarily, may be acted upon, even with slight

evidence to corroborate it. However, there must be a general assurance that the retraction was

a mere after thought when using a retracted confession.

Pyare Lal Bhargawa v. State of Rajasthan9 clarified the legal position with regard to retracted

confessions. It is not a rule of law, but a rule of prudence, that if made voluntarily and the

court is satisfied of its truthfulness, a retracted confession may form the legal basis of a

conviction, if it is corroborated in material particulars.

The corroboration, if at all needed, is the general corroboration of the important incidents and

it is not necessary that a retracted confession should be corroborated in each material

particular. This was held in State of U.P. v. Boota Singh10.

In the present case the accused stated that he ran a shop selling arms and ammunition. It was

also stated on his behalf that he sold the guns found with the terrorists. Also the identification

7
Bharat v. State of U. P., 1971 (3) SCC 950.
8
Subramania Gounden v. The State of Madras, 1958 SCR 428.
9
Pyare Lal Bhargawa v. State of Rajasthan AIR 1963 S.C. 1094.
10
State of U.P. v. Boota Singh AIR 1978 S.C. 1770.

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related documents that he procured from the buyer of those guns were found to be forged. All

these evidences corroborate the confession that he was an accomplice. Hence, the confession

considered in the background of the attending circumstances, clearly seems be both voluntary

and true as also free from suspicion. The circumstantial evidence is also complete and

convincing so as to leave no scope for any reasonable ground of the defendant’s innocence.

This evidence amply serves to corroborate in material particulars the confession, if any

corroboration were needed.

II. THE ACCUSED IS GUILTY ON THE BASIS OF THE PRESUMPTION AS TO HIS CONDUCT :
Conduct of the party is a relevant fact under Section 8 of the Indian Evidence Act. Sec. 8 says

that the conduct of any party, or of any agent to any party, to any suit or proceeding, in

reference to such suit or proceeding, or in reference to any fact in issue therein or relevant

thereto, and the conduct of any person an offence against whom is the subject of any

proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or

relevant fact, and whether it was previous or subsequent thereto.11

Section 114 of the Indian Evidence Act says that the Court may presume the existence of any

fact which it thinks likely to have happened, regard being had to the common course of

natural events, human conduct and public and private business, in their relation to the facts

of the particular case.12 

Illustration(a) which is relevant for this case is as under:

That a man who is in possession of stolen goods soon after the theft is either the thief or has

received the goods knowing them to be stolen, unless he can account for his possession.

In Mukund alias Kundu Mishra v. State of Madhya Pradesh13, it was held that a court may

legitimately draw a presumption not only of the fact that the person in whose possession the

stolen articles were found committed the robbery but also that he committed the murder.

11
Section 8 of the Indian Evidence Act, 1872.
12
Section 114 of the Indian Evidence Act, 1872.
13
Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 4 Supreme 359.

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In Tulsa v. Durghatiya14, a woman, after death of her husband, started living with another

person where she remained for a sufficiently long period till his death. The Supreme Court

held that she acquired the status of his wife and became entitled to sell his property.

If the arms or explosives were recovered from the possession of the accused and there is

reason to believe that such arms or explosives of a similar nature were used in the

commission of such offence, then court may presume that the accused has committed an

offence of waging war against the state.

PRAYER

14
Tulsa v. Durghatiya, 2008 (1) SCR 709: 2008 (4) SCC 520.

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Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities

cited, it is most humbly and respectfully prayed before this Hon’ble Supreme Court of Hind

that it may be pleased to:

 Declare that the accused is guilty of waging a war against the state under

Section 121 of the Hind Penal Code.

 Provide him punishment under the relevant provisions of the Hind Penal

Code.

And pass any other order as it deems fit in the interest of equity, justice and good

conscience.

All of which is most humbly and respectfully, submitted.

At XYZ R

Date: 18 April, 2019 (Counsel for the Respondent)

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