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2017 DIGILAW 1163 (ORI)

Kanhu Ch. Ojha v. State of Orissa

2017-10-16

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. This is an application under section 482 of Cr.P.C. filed by the petitioners Kanhu Charan Ojha and Tikia @ Jayanta Kumar Das challenging the impugned order dated 26.03.2004 of the learned J.M.F.C.(P), Kujang in taking cognizance of the offence under sections 379/34 of the Indian Penal Code and issuance of process against them. The said case arises out of Paradeep P.S. Case No. 199 of 2002. 2. It appears from the first information report lodged by one Kedarnath Jena before Inspector in-charge, Paradeep Police Station on 20.08.2002 that his Maruti 800 Delux car bearing registration No. OR-05-E-6446 of green colour which was kept in front of his quarters in the Railway Colony, House No. 59/B had been stolen by somebody in the intervening night of 19/20.08.2002 which was detected by him during the morning hours on 20.08.2002. 3. On the basis of such F.I.R., the case was registered against unknown persons. During course of investigation, at the instance of co-accused Kalia @ Ramakanta Parida, the stolen Maruti car was seized in front of the house of one Sarat Sahu, Plot No. 509, Nuasahi, Nayapalli, Bhubaneswar in presence of the independent witnesses. So far as the petitioners are concerned, the only material available on record against them is the confessional statement of the co-accused. 4. In case of Sumanta Behura @ Lita Vrs. State of Orissa reported in (2016) 65 Orissa Criminal Reports 215: 2016 (II) Orissa Law Reviews 504, it is held that 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 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. 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. 5. In case of Hari Charan Kurmi Vrs. State of Bihar reported in A.I.R. 1964 S.C. 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. 6. 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. 7. In case of Satyajit Das Vrs. 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. 7. 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. 8. 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. 9. 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 petitioners, I am of the view that the ingredients of the offence under sections 379/34 of the Indian Penal Code are not attracted against the petitioners and therefore, I am inclined to accept the prayer made by the petitioners and quash the impugned order dated 26.03.2004 passed by the learned J.M.F.C.(P), Kujang in G.R. Case No. 380 of 2002 in respect of the petitioners in taking cognizance of the offence under sections 379/34 of the Indian Penal Code and issuance of process. 10. Accordingly, the CRLMC application is allowed.