Saquib Abdul Hameed Nachan vs State Of Maharashtra

5) Muzzamil Akhtar Abdul Raheem Ansari, Accused No.12 filed this petition from the Jail complaining that because of the stay order granted by this Court on 18.10.2005 in Crl. Appeal Nos. 419-421 of 2008 staying the trial pending before the Special POTA Court, Mumbai, he has been prevented from proceeding further in the trial, hence, prayed for appropriate direction for vacating the stay order.

By this provision, the ban against the reception of confessional statements made to the police is lifted. That is why the non obstante clause. This sub-section is almost identical to Section 15(1) of TADA excepting that the words "or co-accused, abettor or conspirator" occurring after the expression "in the trial of such person" were omitted. The other four sub-sections (2) to (5) of Section 32 are meant to provide certain safeguards to the accused in order to ensure that the confession is not extracted by threat or inducement. Sub-section (2) says that the police officer, before recording a confession should explain in writing to the person concerned that he is not bound to make a confession and that the confession if made by him can be used against him. The right of the person to remain silent before the police officer called upon to record the confession is recognised by the proviso to sub-section (2). Sub-section (3) enjoins that the confession shall be recorded in a threat-free atmosphere. Moreover, it should be recorded in the same language as that used by the maker of the confession. The most important safeguard provided in sub-sections (4) and (5) is that the person from whom the confession was recorded is required to be produced before a Chief Metropolitan Magistrate or Chief Judicial Magistrate, within 48 hours, together with the original statement of confession in whatever manner it was recorded. The CMM or the CJM shall then record the statement made by the person so produced. If there is any complaint of torture, the police shall be directed to produce the person for medical examination and thereafter he shall be sent to judicial custody.

50. We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co- accused ought not to be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the first and second accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co-accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a 10 confession which qualifies for proof in accordance with the provisions of the Evidence Act, then of course, the said confession could be considered against the co-accused facing trial under POTA. But, that is not the case here.

accused is concerned.

11) Mr. Akhil Sibal strenuously contended that after answering the reference, the Full Bench, without giving notice to the counsel, without affording any opportunity to the 12 parties and without considering the merits of the matter disposed of the main matter which is not warranted and permissible. Generally, there is no bar in deciding and considering the merits of the matter referred to the Full Bench.

Counsel for other respondents have not seriously disputed the grievance of the counsel for appellants herein. In the light of the assertion by the counsel and not seriously disputed by other parties, we are of the view that now it is for the Division Bench to consider the claim of the parties on merits on the basis of the ratio in Navjot Sandhu' s case(supra).

12) Inasmuch as we are disposing of the Crl. Appeal Nos.

419-421 of 2008, we vacate the interim stay order granted by this Court on 18.10.2005 staying the trial pending before the Special POTA Court, Mumbai. In view of the same, no separate orders are required in Writ Petition (Crl.) No. 128 of 13 2008 and S.L.P.(Crl.)......(D.No. 17899 of 2008). However, in the light of the above discussion, we pass the following order:

13) We have not expressed anything on the merits of the claim made by the parties except pointing out the legal position.

14) In view of the foregoing reasons, Criminal Appeal Nos.

419-421 of 2008 are allowed on the above terms. Writ Petition (Crl.)No. 128 of 2008 and S.L.P.(Crl.).....(D.No. 17899 of 2008) are disposed of as indicted above.

AUGUST 11, 2010.