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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -110-sanction is void on the ground of non- application ofmind and is not a legal and valid sanction underSection 50 of POTA.Answer to Point no. 278. To begin with, the provisions for recordingconfessional statements can be found in CrPC underSection 164 which reads as:“164. Recording of confessions and statements.(1) Any Metropolitan Magistrate or JudicialMagistrate may, whether or not he hasjurisdiction in the case, record any confessionor statement made to him in the course of aninvestigation under this Chapter or under anyother law for the time being in force, or atany time afterwards before the commencement ofthe inquiry or trial:Provided that any confession or statement madeunder this sub-section may also be recorded byaudio-video electronic means in the presence ofthe advocate of the person accused of anoffence:Provided further that no confession shallbe recorded by a police officer on whom anypower of a Magistrate has been conferred underany law for the time being in force.

Crl.A.Nos.2295-2296 of 2010 -111-(2)The Magistrate shall, before recording anysuch confession, explain to the person makingit that he is not bound to make a confessionand that, if he does so, it may be used asevidence against him ; and the Magistrate shallnot record any such confession unless, uponquestioning the person making it, he has reasonto believe that it is being made voluntarily.(3)If at any time before the confession isrecorded, the person appearing before theMagistrate states that he is not willing tomake the confession, the Magistrate shall notauthorise the detention of such person inpolice custody.(4)Any such confession shall be recorded in themanner provided in section 281 for recordingthe examination of an accused person and shallbe signed by the person making the confession ;and the Magistrate shall make a memorandum atthe foot of such record to the followingeffect: -"I have explained to (name) that he is notbound to make a confession and that, if he doesso, any confession he may make may be used asevidence against him and I believe that thisconfession was voluntarily made. It was takenin my presence and hearing, and was read overto the person making it and admitted by him tobe correct, and it contains a full and trueaccount of the statement made by him.(Signed) A. B.Magistrate".(5) Any statement (other than a confession)made under sub- section (1) shall be recordedin such manner hereinafter provided for therecording of evidence as is, in the opinion ofthe Magistrate, best fitted to thecircumstances of the case ; and the Magistrate

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