STATE Vs. YASIN MALIK

JUDGEMENT

(1.) In what manner the Chief Judicial Magistrate has to act when the person from whom a confession has been recorded u/S. 32(1) of Prevention of Terrorist Act 2002 (POTA) before a police officer, is produced before him ?; Is the question arising for consideration in this case. For better appreciation of the point involved Section 32 is being reproduced hereunder :

(2.) It may be noticed that the section opens with a non-obstante clause indicating thereby that the provisions made in the section is an exception to the provision contained in the Code of Criminal Procedure and the Indian Evidence Act in this behalf. By incorporating said clause in the section the confession made before a police officer has been made admissible in a Court of law. In sub-section (1) it has been provided that such confession recorded by a police officer shall be admissible, in the trial of such person for an offence under the Act. Some safeguards for the benefit of such person who makes the confession have been enshrined in sub-sections (2) to (5). Sub-sec. (2) enjoins upon the police officer to explain in writing to such person that he is not bound to make such confession and that if he does so it may be used against him. Sub-sec. (3) provides that such confession should be recorded in an atmosphere free from threat or inducement whereas sub-section (4) makes production of such person with the original statement of confession before the Court of Chief Judicial Magistrate within 48 hours mandatory and finally sub-sec. (5) makes it obligatory on the part of such Magistrate to record the statement of the person who has made the confession and get his signatures or thumb impression thereon. It is further provided therein that if there is any complaint of torture then the Magistrate is required to direct for his medical examination.

(3.) Here in this case we are concerned with the scope of powers of the Magistrate under sub-sec. (5), Let us first take notice of the facts involved.