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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -124-officer shall make a memorandum at the end ofthe confession and the pro forma of suchcertificate also is appended to Rule 15.17. Ext. PAA does not contain such acertificate having been given by PW 34. It istrue that PW 34 had put certain questions tothe accused as to whether he was aware that thestatement which he wants to make could be usedagainst him and on the basis of the same hewill be sentenced. The officer also asked himwhether there is any pressure, fear on him andhe answered in the negative. However, PW 34 didnot give the certificate at the end of theconfession. The certificate should havespecifically stated that he had explained tothe person making the confession that he wasnot bound to make the confession and, if hedoes so, the confession he may make may be usedagainst him and that he believed that thisconfession was voluntarily made and it wastaken in his presence and recorded by him andwas read over to the person making it andadmitted by him to be correct, and it containeda full and true account of the statement madeby him.18. This Court has in a series of decisionsdeprecated the practice of non-observance ofthis provision and held that such violationwould be inadmissible. In Bharatbhai v. Stateof Gujarat this Court held that Rule 15(3)(b)of the TADA Rules was not complied with and nomemorandum as required was made. There was alsono contemporaneous record to show thesatisfaction of the recording officer afterwriting of confession that the confession wasvoluntarily made or read over to the accused.Thus, the confessional statement was

Crl.A.Nos.2295-2296 of 2010 -125-inadmissible and cannot be made the basis forupholding the conviction.19. In S.N. Dube v. N.B. Bhoir this Court heldthat writing the certificate and making thememorandum under Rule 15(3)(b) to prove thatthe accused was explained that he was not boundto make a confession and that if he made it, itcould be used against him as evidence; that theconfession was voluntary and that it was takendown by the police officer fully and correctlyare all matters not left to be proved by oralevidence.”Though the case mentioned supra dealt with TADA, theRules of which cannot be imported into POTA, the mainobjective behind mentioning this case was that theunderlying safeguards which were required to be takenwhile making confessional statement to the policecannot be compromised with.82. The intimation letters of caution written by PW-78fail to prove that the process of intimation precededthe recording of confessional statements as acontinuous process. On the other hand, the letters ofintimation and the confessional statements exist as

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