Judgment Summary: Surendra Koli’s acquittal in Nithari killings after 16 years on death row, and why curative jurisdiction remains crucial

ON TUESDAY, THE SUPREME COURT set free Surendra Koli of the lone case in which he was sentenced to death in connection with the Nithari killings, which came to light with the discovery of skeletal remains of children from a drain behind businessman Moninder Singh Pandher’s house in Noida in 2006.

A three-judge Bench comprising Chief Justice of India (‘CJI’) B.R. Gavai and Justices Surya Kant and Vikram Nath passed this judgment in exercise of their curative jurisdiction, which the Supreme Court devised in Rupa Ashok Hurra v. Ashok Hurra (2002) to prevent any miscarriage of justice. Curative jurisdiction is invoked only after review has failed to correct a grave error.

The narrow issue before the Bench was whether two outcomes could be reconciled with each other when they had arrived on the same piece of evidence, namely, the so-called confessional statement under Section 164 of the Code of Criminal Procedure (‘CrPC’), given by Koli and so-called recoveries.  

Acquittal in 12 cases, which laid the foundation for curative

The Nithari killings followed as many as thirteen trials against Koli and his employer Moninder Singh Pandher.

Before coming to the matter from which the curative petition had arisen, it is important to refer to 12 cases in which Koli was acquitted by the Allahabad High Court because it laid the foundation for Koli to file the curative petition.

On October 16, 2023, a division Bench of Justices Syed Aftab Husain Rizvi and Ashwani Kumar Mishra of the Allahabad High Court acquitted Koli in 12 cases. The High Court held that the confession by Koli under Section 164 of CrPC could not be treated as voluntary or reliable.

The High Court highlighted that Koli had been kept in uninterrupted police custody for about sixty days before the confession was recorded, that there was no meaningful or private access to legal aid, that the recording Magistrate did not express the clear satisfaction on voluntariness that Section 164 of CrPC requires, and that the Investigating Officer was brought into the room at the outset and kept immediately available outside, which undermined voluntariness.

The High Court also flagged repeated assertions within the confession of tutoring and references to torture. It also highlighted that the alleged discoveries and recoveries under Section 27 of the Indian Evidence Act were inadmissible and unreliable. It also held that the prosecution did not prove any contemporaneous disclosure statement.

Importantly, the High Court also held that there were material contradictions between the panchnama narrative and the remand papers, including a reference to a joint disclosure by both the accused that could not stand with the later version that the petitioner alone led to discovery.