SATYAJIT DAS ALIAS JITY Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this petition under Section 482, Cr.P.C. the petitioner Satyajit Das alias Jitu has prayed to quash the order dated 25.10.2000 passed by the learned S.D.J.M., Dhenkanal in G.R.Case No. 606 of 1999 corresponding to Dhenkanal Town P.S. Case No. 124 of 1999 taking cognisance of the offence under Sections 457, 380, IPC. and the continuance of the proceeding against him.

(2.) On the information lodged by one Khetrabasi Mallik the aforesaid P.S. Case was registered against unknown persons. It is alleged that in the night of 8.10.1999 at about 2.00 A.M. a boy entered inside the house of the informant and took away cash of Rs. 15,000/ - by breaking open the attach. He also snatched away the gold chain of the wife of the informant from her person while two to three other culprits were outside the house. During investigation the petitioner was arrested on suspicion and has been released on bail. No incriminating material has been recovered from him and he has also not been put to T.I. parade. The only material available against the petitioner is the extra-judicial confession of two co-accused person, before the witnesses Gangadhar Dora and Mukunda Charan Jena. It has been stated by those witnesses that while making confession before them Balaram and Mitu said that the accused Jitu entered into the house of the informant. As there is no other material against the petitioner, he filed a petition before the learned S.D.J.M. to recall the order of cognisance, but the learned S.D.J.M. by his order dated 20.2.2001 rejected his prayer observing that there is extra-judicial confession of co-accused persons implicating the petitioner with the alleged offences and it is not a case where there is absolutely no material to take cognisance. Being aggrieved by the aforesaid order and the order taking cognisance, the petitioner has filed this petition to quash the aforesaid orders and the proceedings.

(3.) The learned counsel appearing for the petitioner submitted that since the confession of a co-accused cannot be treated as a substantive evidence, the order passed by the learned S.D.J.M. refusing the prayer of the petitioner to recall the order of cognisance is not in accordance with law and is liable to be set aside. The learned counsel appearing for the State fairly conceded that the only material available against the petitioner is the extra-judicial confession made by the co-accused Balaram and Mitu who while making confession before the two witnesses, namely, Gangadhar Dora and Mukunda Charan Jena stated that the petitioner entered into the house of the informant. It is now well settled that confession of co-accused cannot be treated as substantive evidence in dealing with a case against the accused person and the Court cannot start with the confession of a co-accused. 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 other words, confession by a co-accused can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. Here, in the instant case, there is no other material excepting the extra-judicial confession of the co-accused persons before the two witnesses. There is no recovery of any incriminating material from the petitioner. The petitioner has also not been put to any T.I. parade. The alleged occurrence took place in the night of 8.10.1999 at about 2.00 A.M. In absence of any other material, the chance of conviction of the petitioner for the alleged offences solely on the basis of the extra-judicial confession of the co-accused persons is bleak. Under the above circumstances, continuance of the proceeding against the petitioner will be an abuse of process of law. Hence, the order taking cognisance against the petitioner and the continuance of proceeding so far as this petitioner is concerned are quashed. The Criminal Misc. Case is allowed. Criminal Misc. Case is allowed.