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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -144-confessional statements, whereas the learned seniorcounsel for the prosecution contended that the accusedmust be sent for medical examination only if there isa complaint of torture and only in that case, must hebe sent to judicial custody. We are unable to agreewith the argument of the learned senior counsel forthe prosecution.Firstly, the use of the phrase, ‘shall be sent tojudicial custody’ after confession is a mandatoryrequirement in comparison to the use of an alternativeterm ‘may’ which gives discretionary power to the CJM.Further, this court in the case of State (NCT ofDelhi) v. Navjot Sandhu 47 , has unambiguously observedas under:“177. Now we look to the confession fromother angles, especially from the point ofview of in-built procedural safeguards inSection 32 and the other safeguards containedin Section 52. It is contended by the learned47 (2005) 11 SCC 600

Crl.A.Nos.2295-2296 of 2010 -145-senior counsel Mr. Gopal Subramanium that theDCP before recording the confession, gave thestatutory warning and then recorded theconfession at a place away from the policestation, gave a few minutes time forreflection and only on being satisfied thatthe accused Afzal volunteered to makeconfession in an atmosphere free from threator inducement that he proceeded to record theconfession to the dictation of Afzal.Therefore, it is submitted that there wasperfect compliance with sub-Sections (2)&(3).The next important step required by sub-Section (4) was also complied with inasmuchas Afzal was produced before the AdditionalChief Metropolitan Magistrate-PW63 on thevery next day i.e. 22.12.2001 along with theconfessional statements kept in a sealedcover. The learned Magistrate opened thecover, perused the confessional statements,called the maker of confession into hischamber, on being identified by PW80-ACP andmade it known to the maker that he was notlegally bound to make the confession and ongetting a positive response from him that hevoluntarily made the confession without anythreat or violence, the ACMM recorded thestatement to that effect and drew upnecessary proceedings vide Exts.PW63/5 andPW63/6. It is pointed out that the accused,having had the opportunity to protest orcomplain against the behavior of police inextracting the confession, did not say asingle word denying the factum of making theconfession or any other relevantcircumstances impinging on the correctness ofthe confession. It is further pointed outthat Afzal and the other accused were also

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