By A. Mirsab, TwoCircles.net,
Mumbai: It is not only the investigation agency of Gujarat who was at the receiving end of Supreme Court while deciding the high profile ‘Akshardham terror case’ but also the Chief Judicial Magistrate (CJM) and police officers (not connected with investigation) who recorded alleged confessional statements of accused persons under sections of POTA. The divisional bench observed, “The statements made by the CJM (during cross examination) show how casually the mandates under Sections 32(4) and 32(5) were followed, rendering the said requirement a hollow and empty exercise.”
“It is also pertinent to take note of the callous manner in which PW-99 (CJM) had discharged his duty in the present case………His conduct in recording of statement under Section 32(5) of POTA merely resembles that of a passive reluctant officer involved in some procedural formality”, the Supreme Court had remarked while delivering the judgment in the Akshardham terror case.
The above observations came from the Apex Court while determining the below question among many other questions:
Whether the confessional statements of the accused persons were recorded as per the procedure laid down in Section 32 of POTA, CrPC and the principles laid down by this Court?
Prevention of Terrorist Act 2002 (POTA) was a stringent act under the sections of which statements made by accused before competent police authority followed by the recording of same statements before Chief Judicial Magistrate (CJM) makes it as an evidence on the basis of which alone an accused can be convicted. Every minute procedure as laid down in sections of POTA or as prescribed by Supreme Court in many TADA or POTA cases has to be meticulously followed while recording confessional statements mainly because of the severe consequences which follow such statements, which could result in deprivation of life and personal liberty of the accused.
Keeping in mind the stringent behavior of POTA, the court observed, “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.”
Every person holding authority should be conscious enough that life and personal liberty of every citizen of India has been categorized as a fundamental right guaranteed by the Constitution and hence cannot be taken away but by following the procedure established by law. Fundamental rights of a person cannot be compromised with except when he does an act which goes in contravention of recognized law. The procedures which are laid down in the Criminal code or sections of the Acts must be thoroughly observed by the law enforcing authorities.
[Courtesy: indianexpress.com]
According to the Criminal Procedure Code and enacted stringent Acts following are some of the important legal procedures which should be adhered to by the competent authorities while recording confessional statement of accused under any stringent Act:
1. Accused person should be brought to notice in writing by confession recording competent authority that he is not bound to make confession and if he makes it then it can be used as evidence against him for obtaining conviction.
2. Confessional statement is made before a competent police officer in a threat-free environment.
3. Competent police officer and CJM must inquire accused if he was tortured or compelled to make confession by investigation agency.
4. Accused must be assured that if he does not make the confessional statement, it will not jeopardize his well-being and he will not be sent to police custody.
5. Competent police officer and CJM must provide sufficient time to accused to reflect on his decision to make confessional statement.
6. Accused should be sent to judicial custody and not ‘police custody’ after completion of recording of confessional statement by CJM.
In the present Akshardham terror case the Supreme Court examined if all these mandatory provisions were followed when the defense learned senior counsel brought to its notice during argument that statutory provisions of POTA were not complied with during recording of confession and thus the Apex Court found that many of the procedures were indeed not followed by the competent authorities and hence observed, “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.”
The divisional bench discovered that the competent authorities, especially CJM who recorded confessions of accused persons had not informed in writing to accused that they were not bound to make confessional statements and they were not allowed adequate time to reflect on their decision of making confessional statements.
The CJM had not sent the confession making accused to judicial custody but sent to police custody which was in contrast with the safeguards provided under sections of POTA. To fortify its finding of non fulfillment of this procedure as illegal the divisional bench referred to the case of 26/11 convict Mohammad Ajmal Mohammad Amir Kasab Alias Abu Mujahid v. State of Maharashtra and termed presenting of the accused persons in ‘Akshardham terror case’ before the CJM a mere formality to show compliance with the provisions of POTA since they were sent back to police custody immediately after being presented before the CJM.
[Courtesy: The Hindu]
The court ruled,” …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.”
The divisional bench pointed out the insensitive and casual behavior of CJM while recording confessional statements of accused persons and termed it as an empty and hollow exercise followed by an authority who is suppose to deliver perfect procedural regulations.
The bench ruled the question at hand in favor of accused by saying, “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.”
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