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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -118-deter the police officers from obtaining aconfession from an accused by subjecting him totorture. It is also worthwhile to note that anofficer who is below the rank of aSuperintendent of Police cannot record theconfessional statement. It is a settledposition that if a confession was forciblyextracted, it is a nullity in law. Noninclusionof this obvious and settled principledoes not make the Section invalid. (See: KartarSingh case, p. 678, para 248 –49 of SCC).Ultimately, it is for the Court concerned todecide the admissibility of the confessionstatement. (See: Kartar Singh case p. 683, para264 of SCC). Judicial wisdom will surelyprevail over irregularity, if any, in theprocess of recording confessional statement.Therefore we are satisfied that the safeguardsprovided by the Act and under the law areadequate in the given circumstances and wedon’t think it is necessary to look more intothis matter. Consequently we uphold thevalidity of Section 32.”(emphasis laid by this Court)79. The provisions of a Special Act prevail over theprovisions of General Act. Since the constitutionalityof the POTA was declared as valid by this Court, itsprovisions would prevail over CrPC. However,considering the stringency of the provisions of POTA

Crl.A.Nos.2295-2296 of 2010 -119-and the grave consequences that misuse of the Actmight carry i.e, violation of right to life andpersonal liberty, we need to ensure that theguidelines laid down in the Act are rigorouslyobserved while recording the confessional statementsof the accused persons. We will examine herein thevarious mandatory provisions to be followed whilerecording the confessional statements and whether thesame have been followed in the instant case.80. The learned senior counsel appearing on behalf ofA-2, A-3 and A-4 submitted that the mandatoryprovisions laid down in Section 32 were not followedby PW-78 Mr. Sanjaykumar Gadhvi while recording theirconfessional statements. It was argued by the learnedsenior counsel that Section 32(2) had not beencomplied with since the accused persons were notstatutorily informed in writing that they were notbound to make confessional statements and theirstatements, if made, shall be used against them. The

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