SUNIL PANDEY AND ORS. vs STATE OF ORISSA

S. K. SAHOO, J.

Heard Mr. Aditya Kumar Mohapatra, learned counsel for the petitioners and Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate for the State.

In this application under section 482 of Cr.P.C., the petitioners Sunil Pandey @ Sunil Kumar Pandey and Hareram Pandey challenged the impugned

order dated 04.06.1998 of the learned S.D.J.M., Balasore in G.R. Case No.727 of 1997 in taking cognizance of offence under sections 407/34 of the

Indian Penal Code and issuance of process against them. The said case arises out of Remuna P.S. Case No.99 of 1997.

It appears that on the first information report submitted by one Nawal Kishore Mishra on 05.06.1997 before the officer in charge of Remuna police

station, the case under sections 407/34 of the Indian Penal Code was instituted against one Harendra Pandey and Satendra Pandey, the drivers of the

two trucks bearing Registration Nos. UP 65H 8537 and UP 65C 2331. After completion of investigation, charge sheet was submitted against the

petitioners and others.

It is the prosecution case that the aforesaid two trucks were taken on hire basis by the informant who was the Branch Manager of Maruti Freight

Movers Pvt. Ltd. for carriage and safe delivery of goods to the factory of TELCO Ltd., Lucknow, U.P. and the owners of the vehicles are Sri Suresh

Singh and Paresh Singh and the drivers were Satendra Pandey and Harendra Pandey. As per the contract, the truck owners through their drivers

were supposed to deliver the tyres and tubes at TELCO Ltd., Lucknow in due time. Both the trucks did not reach their destination and therefore, a

doubt was entertained that the drivers of the trucks have dishonestly misappropriated the goods by making breach of contract with the company.

During course of investigation, 176 nos. of tyres and tubes were seized and some of the accused persons were arrested and the involvement of the

petitioners was found in the alleged crime and accordingly, charge sheet was submitted. Mr. Aditya Kumar Mohapatra, learned counsel for the

petitioners contended that there is absolutely no material against the petitioners relating to their involvement in the alleged crime and the entire case of

the prosecution is based on the confessional statement of co-accused before police and therefore, it is a fit case where this Court should exercise its

inherent power under section 482 of Cr.P.C. to quash the criminal proceeding against the petitioners. Mr. Prem Kumar Patnaik, learned Addl. Govt.

Advocate produced the case diary and placed the relevant pages from the same which indicate that truck No. UP 65C 2331 stood in the name of Mr.

Suresh Singh and truck No. UP 65H 8537 stood in the name of Mr. Paresh Singh. He placed the statement of co-accused Satendra Pandey which

shows the role played by the petitioners. Learned counsel for the State fairly submits that except the confessional statement of co-accused, there is no

other material against the two petitioners.

Thus the sole material available on record against the petitioners is the confessional of statement of co-accused Satendra Pandey 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 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 A.I.R. 1964 S.C. 1184, it is held that a confession of an accused cannot be treated as

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 (I) 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 of the Evidence Act

makes it abundantly clear that where the evidence against the co-accused is sufficient to base conviction, the confessional statement of coaccused

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 in that

case 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.

In view of the available materials on record, when except the confessional statement of co-accused Satendra Pandey before police, there is no other

material against the petitioners, I am inclined to accept the prayer made in this application under section 482 of Cr.P.C. inasmuch as continuance of

the proceeding against the petitioners basing on such material would amount abuse of process.

Accordingly, the CRLMC application is allowed. The impugned order dated 04.06.1998 passed by the learned S.D.J.M., Balasore in taking cognizance

of offence under sections 407/34 of the Indian Penal Code and issuance of process so far as the petitioners are concerned, stand quashed. This order

shall not affect the continuance of the criminal proceeding in any manner so far as the other accused persons are concerned.