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2016 DIGILAW 636 (ORI)

Sumanta Behura @ Lita v. State of Orissa

2016-08-10

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. This is an application under section 482 of Cr.P.C. filed by the petitioner Sumanta Behura @ Lita challenging the impugned order dated 4.11.2003 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No.2610 of 2003 in taking cognizance of offences under sections 419/420/120-B/34 of the Indian Penal Code. 2. The prosecution case, as per the First Information Report lodged by one Krushna Chandra Pradhan, Chairman, Admission Sub-Committee, J.E.E. (E & M)-2000 before the Inspector in-charge, Kharavela Nagar Police Station, in short, is that a candidate namely Sudhakar Dash with General Merit Rank No. 2199 came on 12th August, 2000 to the counseling desk. On interrogation, he admitted that he brought bank draft for Rs. 25,000/-which was given to him by an unknown person who posed to be his brother. The said candidate further disclosed that the accompanying person had advised him to tell that he was his brother and he would take care of all other things, if he opts for Computer Science and Engineering (payment seat) in ITER, Bhubaneswar. The said candidate alleged to have admitted that the accompanying person was completely unknown to him and on realizing his mistake, the candidate refused to take admission. A copy of the written complaint received from the said candidate was enclosed with the FIR and it is further alleged in the FIR that a racket is working for seat blocking for the purpose of depriving meritorious students. On the basis of such information, Kharavela Nagar P.S. Case No. 213 of 2000 was registered under sections 419 and 420 of the Indian Penal Code and investigation was taken up. During investigation, it was revealed that Manoj Ranjan Nayak is the Chairman of ITER and Nihar Ranjan Nayak is his brother. For the purpose of admission in the said college, both the brothers were contacting different students who had secured lower ranks in the Joint Entrance Examination for Engineering and not interested to read in Non-Government Engineering Colleges on payment of donation and were making payment on their behalf for taking admission and were also persuading them to leave the college again on payment of some amount and in the process were blocking the seats to be filled up later on, on receipt of huge amount of money from the non-deserving students. Basically on the above allegation, charge sheet was submitted for commission of the offences under sections 419/420/120-B/34 of the Indian Penal Code and accordingly, the learned Magistrate took cognizance of such offences. 3. Learned counsel for the petitioner contended that the co-accused persons namely Manoj Ranjan Nayak, Nihar Ranjan Nayak and Manas Kumar Mallick approached this Court in an application under section 482 Cr.P.C. vide CRLMC No. 2688 of 2003 challenging the very same impugned order and this Court vide judgment and order dated 9.3.2004 has been pleased to quash the order taking cognizance (Manoj Ranjan Nayak -Vrs.-State of Orissa, (2004) 27 Orissa Criminal Reports 857. Learned counsel for the petitioner further submits that there is absolutely no material available on record against the petitioner so as to constitute the ingredients of offences under which the charge sheet has been placed and the petitioner stands on a better footing than the co-accused persons who approached this Court in CRLMC No.2688 of 2003 and therefore, the order of cognizance and issuance of process against the petitioner should be quashed. 4. Learned counsel for the State Mr. Deepak Kumar, A.S.C. on verification of the case diary submits that except the confessional statement of the co-accused Mukteswar Patra, there is no other material available on record against the petitioner. He placed the statement of the said co-accused who has stated that when he went to ITER Office, he saw Manoj Nayak was present along with Manas Mallick and the present petitioner. No other role has been attributed against the petitioner. 5. Thus the sole material available on record against the petitioner is the confessional of statement of co-accused Mukteswar Patra before police. Section 25 of the Indian Evidence Act, 1872 enumerates that no confession made to a police officer shall be proved as against the person accused of any offence. The reason behind declaring such confession to be inadmissible is to avoid the danger of admitting false confessional statements obtained by coercion, torture or ill-treatment. A confessional statement made by any person whilst is in the custody of a police officer cannot be proved against him unless it is made in the immediate presence of a Magistrate in view of Section 26 of the Evidence Act. A confessional statement made by any person whilst is in the custody of a police officer cannot be proved against him unless it is made in the immediate presence of a Magistrate in view of Section 26 of the Evidence Act. A confession can only be acted upon whether it is extrajudicial or judicial, if it is made voluntarily which obviously means out of the free will and without any coercion, fear of threat of any harm, promise or any inducement or any hope of reward. Section 24 of the Evidence Act clearly enumerates that confession made by an accused by inducement, threat or promise is irrelevant in a criminal proceeding. Section 30 of the Evidence Act indicates that the confession of co-accused can be considered when he is jointly tried with the other accused and he makes a statement incriminating himself along with the other accused. In case of Hari Charan Kurmi -Vrs.-State of Bihar reported in AIR 1964 SC 1184 , it is held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. In case of Biraja Panda -Vrs.-State of Orissa reported in 1996(1) Orissa Law Reviews 85, it is held that the test as to whether the confession of an accused can be used against his co-accused is whether the person making such confession could be convicted on that confession of the crime with which he and his co-accused were charged. The confession cannot take the place of evidence as defined in section 3 of the Evidence Act and it cannot be added to supplement the evidence otherwise insufficient. The expression ‘may take into consideration’ in section 30 makes it abundantly clear that where the evidence against the co-accused is sufficient to base conviction, the confessional statement of co-accused may be treated as a corroboration for believing that evidence. The expression ‘may take into consideration’ in section 30 makes it abundantly clear that where the evidence against the co-accused is sufficient to base conviction, the confessional statement of co-accused may be treated as a corroboration for believing that evidence. In case of Satyajit Das -Vrs.-State of Orissa reported in (2001) 21 Orissa Criminal Reports 440, it is held that confession of co-accused cannot be treated as substantive evidence in dealing with a case against the accused and the Court must start with other evidence adduced by the prosecution and after forming its opinion with regard to the guilt and effect of the said evidence can turn to the confession in order to get assurance to the conclusion of guilt, if the judicial mind is about to reach on the said other evidence. In case of Satyanarayan Nayak -Vrs.-State of Orissa reported in (1988) 1 Orissa Criminal Reports 546, it is held that the statement of co-accused in course of investigation is not the evidence in the case being hit by section 162 of Cr.P.C. Considering the factual aspect of the case, it was further held that since there is no prima facie material to connect the petitioner with the commission of the offences in question excepting the statements of the co-accused persons made to the investigating officer, the materials on record cannot be the foundation of the impugned order of cognizance. 6. In view of the available materials on record, when except the confessional statement of co-accused before police, there is no other material against the petitioner and in respect of the co-accused persons similarly situated, the proceeding has already been quashed in CRLMC No.2688 of 2003, I am of the view that the ingredients of the offences under sections 419/420/120-B/34 of the Indian Penal Code are not attracted against the petitioner and therefore, I am inclined to accept the prayer made by the petitioner and quash the impugned order dated 4.11.2013 passed by the learned S.D.J.M. Bhubaneswar in G.R. Case No.2610 of 2003 in respect of the petitioner. Accordingly, the CRLMC is allowed.