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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -142-the procedural safeguards therein are not a mechanicalformality. On the other hand, it should be able toinspire confidence to show that the procedure has beenscrupulously followed while recording confessionalstatements particularly because of the graveconsequences which follow such statements, which mightresult in deprivation of life and personal liberty ofthe person, which is a fundamental right guaranteed bythe Constitution that can be taken away only byfollowing the procedure established by law. Therefore,it is incumbent upon the CJM to strictly andscrupulously follow all the statutory proceduralsafeguards provided for under Section 32 of POTA.88. Further, the other statutory mandate under Section32 of POTA is that the person making the confessionalstatement shall be produced for medical examinationand thereafter, be sent to judicial custody after theCJM records the statement of the accused person. Thequestion which then arises for our consideration is

Crl.A.Nos.2295-2296 of 2010 -143-whether this mandate is operative only if the accusedmakes a complaint of torture before the CJM or whetherthe CJM is duty bound to send the accused persons tojudicial custody as a statutory requirement afterrecording the statement. It had been contended by thelearned senior counsel on behalf of the accusedpersons that they were subjected to physical tortureby the police before the confessional statements wererecorded and that they were also kept in policecustody in the intervening night between beingproduced before the CJM and being sent to JudicialCustody.Therefore, though they were subjected totorture, they could not make a complaint before theCJM due to fear and apprehension, since they weretaken back to police custody after their statementswere recorded. The learned senior counsel for theaccused persons, argued that Section 32(5)unambiguously declares that the accused shall be sentto judicial custody after the recording of the

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