80. The learned senior counsel appearing on behalf of
A-2, A-3 and A-4 submitted that the mandatory
provisions laid down in Section 32 were not followed
by PW-78 Mr. Sanjaykumar Gadhvi while recording their
confessional statements. It was argued by the learned
senior counsel that Section 32(2) had not been
complied with since the accused persons were not
statutorily informed in writing that they were not
bound to make confessional statements and their
statements, if made, shall be used against them. The
learned senior counsel on behalf of the prosecution,
on the other hand contended that the statutory
mandates had been complied with by the police.
We have perused the evidence on record in this
aspect. We have found stark discrepancies in the
manner in which the statements of the accomplices and
those of the accused persons were recorded. While the
statements of the accomplices in the present case,
namely- PW-50, PW-51 and PW-52 were preceded by
written records of cautions in the same document, the
confessional statements of the accused persons do not
show such caution.
On the other hand, the intimation
by the DCP Sanjaykumar Gadhvi (PW-78) appeared on a
separate documents marked as separate Exhibits from
the confessions. The same are as follows:
For A-2- Adambhai Sulaimanbhai Ajmeri
Intimation letter given by DCP prior to
confession- Ex.457
Confessional Statement- Ex. 458
For A-3-Mohammad Salim Mohammad Hanif Sheikh
Intimation letter given by DCP prior to
confession- Ex.453
Confessional Statement- Ex. 454
For A-4- Abdul Kayum
Intimation letter given by DCP prior to
confession- Ex. 459
Confessional Statement- Ex. 460
For A- 6- Shanmiya@ Chandkhan Sajjadkhan Pathan
Intimation letter given by DCP prior to
confession- Ex. 461
Confessional Statement- Ex. 462
On this aspect of the matter, the CJM, PW-99 made the
following statement during cross examination by the
learned counsel for the accused persons vide Ex.568:
“....It is true that the explanation given to
the accused and statement made by him, the said
both were separate papers. I agree to the fact
that generally the explanation and the
statement should be in same paper. As both of
this were in same papers, I did not suspect
that the said explanation which was given, has
been brought later on”
(translation extracted from the Additional
documents submitted on behalf of the
It is also pertinent to extract one of the intimation
letters given by the DCP prior to the confession of
one of the accused persons. The intimation letter
given by DCP to A-2 reads thus:
“....... your statement under section 32 of the
POTA before the Superintendent of Police is to
be taken. But you are not bound to make this
statement or confession and the confession that
you will make could be used against you as
evidence. So it is informed to you that you
give this statement willingly and free from any
kind of pressure or threat or allurement.”
(translation extracted from the Additional
documents submitted on behalf of the
81. It was held by this Court in the case of Hardeep
Singh Sohal & Ors. v. State of Punjab through CBI(2004)11 SCC 612
that the police officer recording the confessional
statement under TADA is required to give in writing at
the end of the statement, that the accused was
informed that the confessional statement he has
voluntarily decided to make, can be used against him
as evidence and also the fact that the accused after
fully knowing the consequences has decided to make the
confessional statement. The relevant paragraphs of the
judgment can be read as under:
“16. The constitutional validity of Section 15
of the TADA Act was challenged. A Constitution
Bench of this Court in Kartar Singh v. State of
Punjab upheld the constitutional validity of
the said provision. The contention urged in
Kartar Singh case was that the procedure in the
TADA Act is the antithesis of a just, fair and
reasonable procedure and this power could be
abused to extort confession by unlawful means
by using third-degree methods. This plea was
rejected on the ground that sufficient
safeguards have been made in the Rules as to
the manner in which the confession is to be
recorded. Rule 15 extracted above would show
that confession shall be in writing and signed
by the person who makes the confession. The
police officer shall also certify under his own
hand that such confession was taken in his
presence and recorded by him and that the
record contains a full and true account of the
confession made by the person and such police
officer shall make a memorandum at the end of
the confession and the pro forma of such
certificate also is appended to Rule 15.
17. Ext. PAA does not contain such a
certificate having been given by PW 34. It is
true that PW 34 had put certain questions to
the accused as to whether he was aware that the
statement which he wants to make could be used
against him and on the basis of the same he
will be sentenced. The officer also asked him
whether there is any pressure, fear on him and
he answered in the negative. However, PW 34 did
not give the certificate at the end of the
confession. The certificate should have
specifically stated that he had explained to
the person making the confession that he was
not bound to make the confession and, if he
does so, the confession he may make may be used
against him and that he believed that this
confession was voluntarily made and it was
taken in his presence and recorded by him and
was read over to the person making it and
admitted by him to be correct, and it contained
a full and true account of the statement made
by him.
18. This Court has in a series of decisions
deprecated the practice of non-observance of
this provision and held that such violation
would be inadmissible. In Bharatbhai v. State
of Gujarat this Court held that Rule 15(3)(b)
of the TADA Rules was not complied with and no
memorandum as required was made. There was also
no contemporaneous record to show the
satisfaction of the recording officer after
writing of confession that the confession was
voluntarily made or read over to the accused.
Thus, the confessional statement was
inadmissible and cannot be made the basis for
upholding the conviction.
19. In S.N. Dube v. N.B. Bhoir this Court held
that writing the certificate and making the
memorandum under Rule 15(3)(b) to prove that
the accused was explained that he was not bound
to make a confession and that if he made it, it
could be used against him as evidence; that the
confession was voluntary and that it was taken
down by the police officer fully and correctly
are all matters not left to be proved by oral
evidence.”
Though the case mentioned supra dealt with TADA, the
Rules of which cannot be imported into POTA, the main
objective behind mentioning this case was that the
underlying safeguards which were required to be taken
while making confessional statement to the police
cannot be compromised with.
82. The intimation letters of caution written by PW-78
fail to prove that the process of intimation preceded
the recording of confessional statements as a
continuous process. On the other hand, the letters of
intimation and the confessional statements exist as
disjunctive evidence, failing to prove the required
chain of procedure, i.e, that the letters of caution
precede the confessional statements and not vice
versa.
Further, in the instant case, the CJM (PW-99 : Ex.568)
during cross examination before the Special Court
(POTA) by the learned counsel for the accused persons,
on being asked about sending the accused to judicial
custody after confession, stated:
“I had not sent him in judicial custody. I did
not feel that I should send him in judicial
custody......I had not asked the accused about
how many days of his remand are left. I had not
told him that he will not be sent to police
custody again”.
In the case of Mohammad Ajmal Mohammad Amir Kasab
Alias Abu Mujahid v. State of Maharashtra(2012) 9 SCC 1
the
accused was willing to make confessional statement
while he was in police custody. Yet, his confession
was deferred on the ground that he shall be sent to
judicial custody after the confession was made before
the CJM and this would hinder the investigation
procedure. However, in the present case, presenting
the accused persons before the CJM for half an hour
was a mere formality to show compliance with the
provisions of Sections 32(4) and 32(5) of POTA since
they were sent back to police custody immediately
after being presented before the CJM.
83. In the present case, the CJM (PW-99 : Ex.568),
during cross examination went on to record that:
“..... I did not make inquiry with any police
officers with regard to the said confessions. I
had not asked the two accused produced before
me as to whether they need any lawyer or not. I
had not taken the said accused persons in my
custody. It is true that I did not issue any
warrant for them to be sent to judicial
custody. It is true that I did not inquire with
the accused about where and at what time and
who recorded their statements. It is true that
I have not kept any rojkam or record in my
court about the accused persons produced before
me on date 25th. There is entry in the postal
book with regards to the covers along with the
statements having been sent by me to the POTA
court.”
(translation extracted from the Additional
documents submitted on behalf of the
The statements made by the CJM show how casually the
mandates under Sections 32(4) and 32(5) were followed,
rendering the said requirement a hollow and empty
exercise.
84. Now, we proceed to examine the statement of PW-78,
DCP Mr. Sanjaykumar Gadhvi(Ex.452), who recorded the
confessional statements of the accused persons. On
being cross examined by the learned counsel for A-1,
A-3 and A-5, he stated as under:
“..I have not asked the accused about since how
many days they were in custody. I had asked to
the officer who had brought the accused about
since how many days the accused was in police
custody. I had asked him but I don’t remember
presently what reply was given by him. Before
taking the statement of the accused persons, I
did not examine their physical condition by
removing their clothes. I knew that the fact
that the accused persons were brought from the
custody of Crime Branch. I had not asked to the
accused persons before recording confessional
statement that since how many days they were in
custody prior to the recording of the
confessional statement. I had not informed the
accused persons that if they do not give
confessional statement they will not be sent
back to the Crime Branch custody. I have not
made any note with regards to the fact that I
had sent back the Crime Branch Officer along
with vehicle. It is true that I had also not
written the fact at any place with regards to
the instruction given by me to return after
around three hours and only when called by me.
I had also not made any note with regards to
the fact that I had got the accused persons
seated in my P.A.s room. The fact that I had
informed accused persons in writing that they
are not bound to make statement and if they
make then the same can be used against them,
with regard to the said fact, I have not kept
any copy with me. On asking me about how I had
reached to the conclusion as stated by me with
regards to the language of Mohammad Salim, I
state that that he was speaking fearlessly and
whatever facts were stated by him, its point
were clear. There was no sign of fear in his
expression and he was not crying. I have not
made any note at any place with regards to the
fact stated by me to the accused persons that
their case is with Crime Branch and I am not
associated with Crime Branch in any way. I have
also not made note about having stated to the
accused that I am Deputy Superintendent of
different area. It is true that I have not
noted the fact separately regarding which I
have stated in my deposition that for the
purpose that he can re-think about giving
statement voluntarily, I had called my office
boy and had got him seated in adjacent office
of my PA and had asked to have water and think
over with peaceful mind for 10-15 minutes and
then come back to my office.
It is true that I have not made any note with
regards to the fact that “After 15 minutes, he
had again come to my office and had stated that
he had thought with peaceful mind about his
good and bad, thereby on the basis of feeling
regret felt by him, and that he in fact desires
to make his statement”. It is true that there
is no note regarding the fact that I had read
over the statement to the accused. I have also
not made note about the fact that I had stated
to the accused that “this statement is still
with me and since it is in the form of
confession, he is free to give or not give
statements, and he can also deny the same”.
(translation extracted from the Additional
documents submitted on behalf of the State of
Further, during cross examination by the learned
counsel for A-2 and A-4, he stated that:
“It is true that with regards to the fact
stated by me during cross examination regarding
non- presence of written notes, the said
written notes are not present in case of every
accused. ...It is true that the two documents
which have been shown to me today in court,
except for the said documents, there are no
other written records with regards to
confessional statement. It is true that there
is no note with regards to time at any place in
the statement under s. 32 or in the document of
understanding. It is true that there is no
mention of any specific place of Ahmedabad city
in the column for place therein. “
(translation extracted from the Additional
documents submitted on behalf of the State of
On being asked about what kind of understanding was
given by him to the accused persons before the
recording of the confessional statement, he stated:
“I had given understanding to the accused
during oral understanding that the type of his
statement is confessional statement.”
(translation extracted from the Additional
documents submitted on behalf of the State of
Reverting to the requirement of Section 32, the police
officer recording the confessional statements is
required to explain in writing to the accused that he
is not bound to make confessional statement and once
such statement is made, the same can be used against
him. Further, it is imperative that the accused is
assured that if he does not make the confessional
statement, it will not jeopardize his well-being while
in police custody and also to ensure that such
statements are made before a competent police officer
in a threat-free environment. The deposition of the
police officer PW-78 who had recorded the confessional
statements of the accused persons however, reflects
otherwise. He admitted to the fact that he did not
assure the accused persons that not making the
confessional statement will not put them in adverse
position.
85. Further, there is nothing available on record to
show that reasonable reflection time was given to the
accused persons before making the confessional
statements, though the prosecution claimed to have
given them 15 minutes as reflection period. We will
examine this aspect of the matter herein.
It is pertinent to mention here that the two
exhibits referred to supra, namely, the letter of
intimation and the statements of confession, in the
case of each of the accused persons, are of the same
day. It has been contended by the learned senior
counsel of the accused persons that not enough time
was given to them to reflect on the incident before
making confessional statements. They were given a
token amount of time i.e., 15 minutes to think and
reflect and thereafter the recording of confessional
statements began, which fact is on record as per the
statement of PW-78, who recorded their confessional
statements. While it has been laid down by this Court
that the amount of time to be given for reflection
before confession depends on the facts and
circumstances of the case, it is imperative to bear in
mind that in the present case, the accused persons
were making confessions after a period almost 11
months after the incident. Hence, a mere period of 15
minutes does not appear to be reasonable time for
reflection on the incident of the attack and their
involvement in the same. In this regard, we wish to
mention the observation made by this Court on this
issue. In the case of State of Rajasthan v. Ajit Singh
& Ors.(2008) 1 SCC 601 , this Court observed as follows:
“12. We have perused the confession of the
seven accused and the prefatory proceedings
relating thereto. We first examine the
confession made by Noordeen. From Ext. P-18,
the note recorded by Shri Ranjit Basot as a
prelude to the recording of the confession, it
transpires that he had been produced before him
at 12.30 p.m. on 21-9-1991 and after the
completion of the formalities the recording of
the confession had started at 12.45 p.m.
Likewise Ajit Singh alias Guru Lal Singh had
been produced before the officer at 10.50 a.m.
and the recording of the confession had started
half an hour later. We have seen the record of
confessions of the other accused as well and it
shows that 15 to 30 minutes’ time was given to
the accused for reflection before the actual
confessions were recorded. We accordingly find
that sufficient cooling-off time had not been
given to the accused, in the background that
they had been in police custody over a long
period of time. It has been held in Ranjit
Singh case: (SCC pp. 76-77, paras 10-12)
“10. According to the deposition of PW 3
in cross-examination, the accused were in
police custody 18-20 days prior to
recording of their confessional
statements. PW 3 has deposed that he gave
the requisite warning to the accused that
they were not bound to make the
confessional statement and if they make it
will be used as evidence against them, but
despite the warning they were prepared and
willing to make the statement. After
recording the introductory statement in
this behalf in question-answer form he
still considered it proper to give them
some time for rethinking and for this
purpose they were allowed to sit in a
separate room for some time and were
brought to him after about half an hour
and expressed their desire to make
statement and thereafter the confessional
statements were recorded.
11. Before adverting to the facts said to
have been narrated by the accused as
recorded in the two confessional
statements, it deserves to be noticed that
in case the recording officer of the
confessional statement on administering
the statutory warning to the accused forms
a belief that the accused should be
granted some time to think over the
matter, it becomes obligatory on him to
grant reasonable time for the purpose to
the accused. In other words, the cooling
time that is granted has to be reasonable.
What time should be granted would of
course depend upon the facts and
circumstances of each case. At the same
time, however, when the time to think over
is granted that cannot be a mere farce for
the sake of granting time. In a given
case, depending on facts, the recording
officer without granting any time may
straight away proceed to record the
confessional statement but if he thinks it
appropriate to grant time, it cannot be a
mechanical exercise for completing a
formality.
12. In Sarwan Singh Rattan Singh v. State
of Punjab where a Magistrate granted about
half an hour to the accused to think over
and soon thereafter recorded the
confessional statement, this Court
reiterated that when an accused is
produced before the Magistrate by the
investigating officer, it is of utmost
importance that the mind of the accused
person should be completely freed from any
possible influence of the police and the
effective way of securing such freedom
from fear to the accused person is to send
him to jail custody and give him adequate
time to consider whether he should make a
confession at all. It would naturally be
difficult to lay down any hard-and-fast
rule as to the time which should be
allowed to an accused person in any given
case.”
13. Applying the aforesaid principles to the
facts of the present case, we are of the
opinion that adequate time had not been given
to any of the accused as they had been in
police custody for almost 45 days in each case.
We also observe that there is no evidence on
record to suggest that the special report
envisaged under sub-rule (5) of Rule 15 had
been submitted to the Magistrate. The
confessions cannot, therefore, be taken into
account for any purpose.
Further, in the case of Ranjit Singh v. State of
Punjab (2002) 8 SCC 73 which case is relied upon in the case of Ajit
Singh(supra) this Court observed as under:
“11. Before adverting to the facts to have been
narrated by the accused as recorded in the two
confessional statements, it deserves to be
noticed that in case the recording officer of
the confessional statement on administering the
statutory warning to the accused forms a belief
that the accused should be granted some time to
think over the matter, it becomes obligatory on
him to grant reasonable time for the purpose to
the accused. In other words, the cooling time
that is granted has to be reasonable. What time
should be granted would of course depend upon
the facts and circumstances of each case. At
the same time, however, when the time to think
over is granted that cannot be a mere farce for
the sake of granting time. In a given case,
depending on facts, the recording officer
without granting any time may straightaway
proceed to record the confessional statement
but if he thinks it appropriate to grant time,
it cannot be a mechanical exercise for
completing a formality.
13. This Court further held:- "However,
speaking generally, it would, we think, be
reasonable to insist upon giving an accused
person at least 24 hours to decide whether or
not he should make a confession. Where there
may be reason to suspect that the accused has
been persuaded or coerced to make a confession,
even longer period may have to be given to him
before his statement is recorded. In our
opinion, in the circumstances of this case it
is impossible to accept the view that enough
time was given to the accused to think over the
matter."
20. In the facts and circumstances of the
present case the grant of half an hour to the
accused to think over before recording their
confessional statement cannot be held to be a
reasonable period. We do not think that is safe
to base conviction on such confessional
statements. Further, on the facts of the
present case, conviction cannot be maintained
on the sole testimony of two police officials.
It may also be noticed that although PW6
Chander Bhan, Armourer, was examined by the
prosecution to prove that the weapons were in
working conditions, no effort was made to prove
that the ammunition or the empties matched the
weapons.”
Therefore, in the given facts and circumstances on
record and based on the legal principles laid down by
this Court, we are of the opinion that enough time was
not given to the accused persons to record their
confessional statements, particularly in the present
case since they were making confessions after 11
months of the incident.
86. It is also pertinent to take note of the callous
manner in which PW-99 had discharged his duty in the
present case. Since A-2 and A-4 made confessional
statements on the same day, they were produced before
the CJM PW-99 thevery next day. It is pertinent
therefore, to note the observation made by him with
respect to A-2 and A-4. The statement of PW-99 with
respect to A-2 is recorded as under:
“The accused has signed in this above statement
in my presence at 16-30 hrs, today on
25.9.2013. And therefore, his statement by read
over and conveying him noted and he has signed
Chief Judicial Magistrate Rural”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
The statement of CJM with respect to the A-4 is as
“The accused has made his signature in the
above statement made by him today on dated
25.9.2003 at 5 p.m. before me. The statement is
read over and explained to accused and as he
admits the same, he has made his signature in
Chief Judicial Magistrate
Old High Court, Ahmedabad”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the
From the above statements of the CJM PW-99, it can be
inferred that he was able to record the statement of
the accused persons, read it over to them and enquire
about any coercion and torture, all in a period of
half an hour. It is highly improbable that a
confessional statement running to more than 15 pages
could be read back to them within half an hour. The
statement of PW-99 on examination in chief and also on
cross examination has been mentioned above and it is
clear that he did not enquire about the basic
compliances he was required to make himself aware of,
to ensure fair investigation against the accused
persons. His conduct in recording of statement under
Section 32(5) of POTA merely resembles that of a
passive reluctant officer involved in some procedural
87. It is pertinent to note here that while POTA makes
a departure from CrPC in that it makes confessional
statements made before a police officer admissible,
the procedural safeguards therein are not a mechanical
formality. On the other hand, it should be able to
inspire confidence to show that the procedure has been
scrupulously followed while recording confessional
statements particularly because of the grave
consequences which follow such statements, which might
result in deprivation of life and personal liberty of
the person, which is a fundamental right guaranteed by
the Constitution that can be taken away only by
following the procedure established by law. Therefore,
it is incumbent upon the CJM to strictly and
scrupulously follow all the statutory procedural
safeguards provided for under Section 32 of POTA.
88. Further, the other statutory mandate under Section
32 of POTA is that the person making the confessional
statement shall be produced for medical examination
and thereafter, be sent to judicial custody after the
CJM records the statement of the accused person. The
question which then arises for our consideration is
whether this mandate is operative only if the accused
makes a complaint of torture before the CJM or whether
the CJM is duty bound to send the accused persons to
judicial custody as a statutory requirement after
recording the statement. It had been contended by the
learned senior counsel on behalf of the accused
persons that they were subjected to physical torture
by the police before the confessional statements were
recorded and that they were also kept in police
custody in the intervening night between being
produced before the CJM and being sent to Judicial
Custody. Therefore, though they were subjected to
torture, they could not make a complaint before the
CJM due to fear and apprehension, since they were
taken back to police custody after their statements
were recorded. The learned senior counsel for the
accused persons, argued that Section 32(5)
unambiguously declares that the accused shall be sent
to judicial custody after the recording of the
confessional statements, whereas the learned senior
counsel for the prosecution contended that the accused
must be sent for medical examination only if there is
a complaint of torture and only in that case, must he
be sent to judicial custody. We are unable to agree
with the argument of the learned senior counsel for
Firstly, the use of the phrase, ‘shall be sent to
judicial custody’ after confession is a mandatory
requirement in comparison to the use of an alternative
term ‘may’ which gives discretionary power to the CJM.
Further, this court in the case of State (NCT of
Delhi) v. Navjot Sandhu47, has unambiguously observed
“177. Now we look to the confession from
other angles, especially from the point of
view of in-built procedural safeguards in
Section 32 and the other safeguards contained
in Section 52. It is contended by the learned
senior counsel Mr. Gopal Subramanium that the
DCP before recording the confession, gave the
statutory warning and then recorded the
confession at a place away from the police
station, gave a few minutes time for
reflection and only on being satisfied that
the accused Afzal volunteered to make
confession in an atmosphere free from threat
or inducement that he proceeded to record the
confession to the dictation of Afzal.
Therefore, it is submitted that there was
perfect compliance with sub-Sections (2)&(3).
The next important step required by sub-
Section (4) was also complied with inasmuch
as Afzal was produced before the Additional
Chief Metropolitan Magistrate-PW63 on the
very next day i.e. 22.12.2001 along with the
confessional statements kept in a sealed
cover. The learned Magistrate opened the
cover, perused the confessional statements,
called the maker of confession into his
chamber, on being identified by PW80-ACP and
made it known to the maker that he was not
legally bound to make the confession and on
getting a positive response from him that he
voluntarily made the confession without any
threat or violence, the ACMM recorded the
statement to that effect and drew up
necessary proceedings vide Exts.PW63/5 and
PW63/6. It is pointed out that the accused,
having had the opportunity to protest or
complain against the behavior of police in
extracting the confession, did not say a
single word denying the factum of making the
confession or any other relevant
circumstances impinging on the correctness of
the confession. It is further pointed out
that Afzal and the other accused were also
got medically examined by the police and the
Doctor found no traces of physical violence.
It is therefore submitted that the steps
required to be taken under sub-Sections
(4)&(5) were taken. However, the learned
counsel for the State could not dispute the
fact that the accused Afzal was not sent to
judicial custody thereafter, but, on the
request of the I.O PW80, the ACMM sent back
Afzal to police custody. Such remand was
ordered by the ACMM pursuant to an
application made by PW80 that the presence of
Afzal in police custody was required for the
purpose of further investigation. Thus, the
last and latter part of sub-Section (5) of
Section 32 was undoubtedly breached. To get
over this difficulty, the learned counsel for
the State made two alternative submissions,
both of which, in our view, cannot be
178. Firstly, it was contended that on a
proper construction of the entirety of sub-
Section (5) of Section 32, the question of
sending to judicial custody would arise only
if there was any complaint of torture and the
medical examination prima facie supporting
such allegation. In other words, according to
the learned counsel, the expression
'thereafter' shall be read only in
conjunction with the latter part of sub-
Section (5) beginning with 'and if there is
any complaint' and not applicable to the
earlier part. In our view, such a restrictive
interpretation of sub-Section (5) is not at
all warranted either on a plain or literal
reading or by any other canon of construction
including purposive construction. The other
argument raised by the learned counsel is
that the provision regarding judicial
custody, cannot be read to be a mandatory
requirement so as to apply to all situations.
If the Magistrate is satisfied that the
confession appears to have been made
voluntarily and the person concerned was not
subjected to any torture or intimidation, he
need not direct judicial custody. Having
regard to the circumstances of this case,
there was nothing wrong in sending back Afzal
to police custody. This contention cannot be
sustained on deeper scrutiny.
179. The clear words of the provision do not
admit of an interpretation that the judicial
custody should be ordered by the Chief
Judicial Magistrate only when there is a
complaint from the 'confession maker' and
there appears to be unfair treatment of such
person in custody. As already stated, the
obligation to send the person whose alleged
confession was recorded to judicial custody
is a rule and the deviation could at best be
in exceptional circumstances. In the present
case, it does not appear that the ACMM (PW63)
had in mind the requirement of Section 32(5)
as to judicial custody. At any rate, the
order passed by him on 22.12.2001 on the
application filed by PW80 does not reflect
his awareness of such requirement or
application of mind to the propriety of
police remand in the face of Section 32(5) of
POTA. Compelling circumstances to bypass the
requirement of judicial custody are not
apparent from the record.”
89. Apart from Section 32 of POTA, Section 52 also
lays down certain guidelines which are to be strictly
adhered to while recording the confessional statements
of an accused person under Section 32. On this issue,
it was held in Navjot Sandhu case (supra) as under:
“158. These provisions of Section 32, which are
conceived in the interest of the accused, will
go a long way to screen and exclude
confessions, which appear to be involuntary.
The requirements and safeguards laid down in
sub-sections (2) to (5) are an integral part of
the scheme providing for admissibility of
confession made to the police officer. The
breach of any one of these requirements would
have a vital bearing on the admissibility and
evidentiary value of the confession recorded
under Section 32(1) and may even inflict a
fatal blow on such confession. We have another
set of procedural safeguards laid down in
Section 52 of POTA which are modelled on the
guidelines envisaged by D.K. Basu8 Section 52
“52. (1) Where a police officer arrests
a person, he shall prepare a custody memo
of the person arrested.
(2) The person arrested shall be
informed of his right to consult a legal
practitioner as soon as he is brought to
the police station.
(3) Whenever any person is arrested,
information of his arrest shall be
immediately communicated by the police
officer to a family member or in his
absence to a relative of such person by
telegram, telephone or by any other means
and this fact shall be recorded by the
police officer under the signature of the
person arrested.
(4) The person arrested shall be
permitted to meet the legal practitioner
representing him during the course of
interrogation of the accused person:
Provided that nothing in this sub-
section shall entitle the legal
practitioner to remain present throughout
the period of interrogation.”
Sub-sections (2) and (4) as well as sub-section
(3) stem from the guarantees enshrined in
Articles 21 and 22(1) of the Constitution.
Article 22(1) enjoins that no person who is
arrested shall be detained in custody without
being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied
the right to consult, and to be defended by, a
legal practitioner of his choice. They are also
meant to effectuate the commandment of Article
20(3) that no person accused of any offence
shall be compelled to be a witness against
159. The breadth and depth of the principle
against self-incrimination embedded in Article
20(3) was unravelled by a three-Judge Bench
speaking through Krishna Iyer, J. in Nandini
Satpathy v. P.L. Dani. It was pointed out by
the learned Judge that the area covered by
Article 20(3) and Section 161(2) CrPC is
substantially the same. “Section 161(2) of the
Criminal Procedure Code is a parliamentary
gloss on the constitutional clause” — it was
observed (SCC p. 434, para 21). This Court
rejected the contention advanced on behalf of
the State that the two provisions, namely,
Article 20(3) and Section 161, did not operate
at the anterior stages before the case came to
Court and the incriminating utterance of the
accused, previously recorded, was attempted to
be introduced. Noting that the landmark
decision in Miranda v. Arizona did extend the
embargo to police investigation also, the Court
observed that there was no warrant to truncate
the constitutional protection underlying
Article 20(3). It was held that even the
investigation at the police level is embraced
by Article 20(3) and this is what precisely
Section 161(2) means. The interpretation so
placed on Article 20(3) and Section 161, in the
words of the learned Judge,
“brings us nearer to the Miranda mantle of
exclusion which extends the right against
self-incrimination, to police examination
and custodial interrogation and takes in
suspects as much as regular accused
persons” (SCC p. 435, para 22).
The observations in M.P. Sharma v. Satish
Chandra (SCR p. 1088) to the effect that:
“the protection afforded to an accused
insofar as it is related to the phrase ‘to
be a witness’ is not merely in respect of
testimonial compulsion in the court room
but may well extend to compelled testimony
previously obtained from him”
were cited with approval in Nandini Satpathy
case (SCC p. 448, para 43).”
90. Therefore, we are of the opinion that neither the
police officer recording the confessional statements
nor the CJM followed the statutory mandates laid down
in POTA under Sections 32 and 52 while recording the
confessional statements of the accused persons, and we
hold that the confessional statements made by A-2, A-
3, A-4 and A-6 under Section 32 of POTA are not
admissible in law in the present case. Therefore, we
answer this point in favour of the appellants.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2295-2296 OF 2010
Adambhai Sulemanbhai Ajmeri & Ors. …Appellants
Versus
State of Gujarat ...Respondent
WITH
CRIMINAL APPEAL NO. 45 OF 2011
Dated 16 May 2014
Read full judgment here;https://drive.google.com/file/d/0B5vWGtQ14k1Bei1lX3p0SmdBTFU/edit?usp=sharing -
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