STATE OF JANDK Vs. MOHAMMAD YASIN MALIK

JUDGEMENT

(1.) In what manner the Chief Judicial Magistrate has to act when the person whom whom a confession has been recorded u/s 32(1) of Prevention of Terrorist Act 2002 (POTA) before a police officer, is produced before him? Is the question arising for consideration in this case? For better appreciation of the point involved section 32 is being reproduced hereunder :- 32.Certain confessions made to police officers to be taken into consideration-(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 11872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made hereunder. (2) A police officer shall, before recording any confession made by a person under sub-section (1) explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him; (3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it. (4) The person from whom a confession has been recorded under sub-section (1), shall be produced before the court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours; (5) The Chief Metropolitan Magistrate or the Chief Judicial Magisttrate, shall recorded the statement, if any, made by the person so produced and get his signatures or thumb impression and if there is any complaint of torture. such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter he shall be sent to judicial custody.

(2.) It may be notice that the section opens with a non-obstante clause indicating thereby that the provisions made in the section is an exception to the provision contained in the Code of Criminal Procedure and in the Indian Evidence Act in this behalf. By incorporating said clause in the section the confession made before a police officer has been made admissible in a court of law. In sub-sec.(1) it has been provided that such confession recorded by a police officer shall be admissible in the trial of such person for an offence under the Act. Some safeguards for the benefit of such person who makes the confession have been enshrined in sub-sections 2 to 5. Sub-sec.(2) enjoins upon the police officer to explain in writing to such person that he is not bound to make such confession and that if he does so it may be used against him. Sub-sec.(3) provides that such confession should be recorded in an atmosphere free from threat or inducement whereas sub-sec.(4) makes production of such person with the original statement of confession before the court of Chief Judicial Magistrate within 48 hours mandatory and finally sub-sec.(5) makes it obligatory on the part of such Magistrate to record the statement of the person who has made the confession and get his signatures or thumb impression thereon. It is further provided therein that if there is any complaint of torture then the Magistrate is required to direct for his medical examination. Here in this case we are concerned with the scope of powers of the Magistrate under sub-sec.(5).Let us first take notice of the facts involved. On 24.3.2002 Head constable Prem Nath No.37U sent a docket to Police Station Kud stating therein that he along with other officials of police station Kud was on VIP and frisking duty on national highway at Kud. A tempo-traveler bearing registration No.2067-JK02M coming from Jammu and bound to Srinagar was stopped. It was driven by driver Rakesh Kumar. While checking and frisking travelers one Miss Shazia D/O Ghulam Rasood Dar R/O Bypass Batmaloo Srinagarf was found carrying 70000 US dollars, which she had hidden in her shalwar. Her co- passenger was Mushtaq Ahmed Dar. He was also found to be carrying 30000 US Dollars besides Rs.90000/-in Indian currency. On inquiry both the passengers disclosed that they had received this money from Altaf Qadiri Executive Member All Parties Hurriet Conference presently in Pakistan at Kathmandu at the instance of Mohd Yaseen Malik JKLF Chief. They also disclosed that the said money was to be handed over to said Mohd Yasim Malik at Srinagar and was meant to be distributed amongst militants ranks and organizations. On receipt of said information FIR No.14/2002 for commission of offences u/ss 3/6 POTA was registered in Police Station Kud and investigation was taken up by Dy.SP HQ Udhampur. During the course of investigation currency recovered was seized. The designated authority under POTA, Divisional Commissioner Jammu, was also informed about the recovery of foreign currency and arrest of both accused. On the disclosure of accused persons respondents 2&3, a requisition for arrest of Mohd Yaseen Malik was made to Kashmir Zone Police. Consequently he was arrested from Srinagar and brought to Udhampur on 25.3.2002. While investigation was in progress with Udhampur police the case was transferred vide PHQ order No.1303/02 dated 26.3.2002 to Crime Branch Jammu for further investigation. A team of officers headed by Mr.M.H.Malik Dy.S.P. was constituted. During the course of investigation respondents 2&3 namely Mushtaq Ahmed and Mst.Salima @ Shazia made confessions, which were recorded by the then SSP Crimes & Railways Jammu u/s 32 POTA. The confessional statements made by the accused respondents 2&3 before the then SSP Crime and Railways Jammu along with accused 2&3 were produced by the Investigating Officer before the Chief Judicial Magistrate Jammu in terms of the requirement of sub-sec.(4) of Sec.32 within 48 hours. On the production of accused 2&3 along with confessional statements, learned C.J.M. proceeded to record the statements of the accused. The learned C.J.M. inquired from them as to whether they wanted to make statements. When the answer was in the affirmative he proceeded to record their statements. The accused made statements for retracting from the confession made before the SSP. These statements recorded by the C.J.M. are being sought to be quashed by the State by invoking the provisions of sec.561-A,Cr.PC.

(3.) The contention of Mr.Johal, learned AAG, is that the Chief Judicial Magistrate was not required to record a general statement with regard to confession etc. According to him he was empowered under sub-sec.5 only to find out whether the accused had been tortured for extracting the confession by the police. According to him as there was no grievance that the police had used any threat, torture or third-degree methods to obtain the confessions from the accused, the learned C.J.M. erred in recording the statement of the accused persons regarding retraction of the confessions made. Mr.Johal has argued that the learned C.J.M. has abused his powers conferred upon him under sub-sec.5, therefore,the statements recorded by him are not in accordance with law and are required to be quashed.