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Mehidi Masroor Biswas vs The State Of Karnataka on 14 August, 2018

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 s 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/-

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