BIRAJA PANDA ALIAS BUTIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, accused in G. R. Case No. 1923 of 1993 pending in the court of the S.D.J.M., Sadar, Cuttack, has filed this case under Section 482, Cr. P.C. to quash the order of the Magistrate taking cognizance of the offence under Section 398 read with Sections 114 and 34, IPC.

(2.) To appreciate the question raised. it is necessary to recapitulate the prosecution case as under :One Anuj Kumar Nayak of Mathasahi, P. S. Bidanasi, District Cuttack, lodged a written report at Bidanasi Police Station on 21-11-93 alleging that on the previous night when all the family members were asleep, his elder brother woke up hearing some sound, opened the door and found a criminal collecting utensils from the kitchen house. He then raised lue and cry hearing which all the family members woke up and apprehended the culprit and identified him to be (Bala) alias Ashok Kumar Das of Baurisahi. On the next day FIR being lodged, a case under Sections 487 and 398, IPC was registered and investigated into by the Officer-in-charge, Bidanasi Police Station. In course of investigation, it came to light that accused as in while undergoing treatment in the hospital had confessed before his wife, Chhabi that in the night of occurrence the present petitioner and two others helped him to enter into the house of the informant. Basing on this statement alone the Investigating Officer arrayed the petitioner as an accused in this case.

(3.) Learned counsel for the petitioner. Mr. D. Panda has strenuously urged that by bringing the alleged statement of Chhabi the I.O. perhaps intended to use the same under Section 30 of the Evidence Act against the present petitioner. Even if that statement is accepted to be true, submit. Mr. Panda, the same cannot be treated as evidence against the petitioner to have a finding of conviction. He further contends that in the present proceeding under Section 482, Cr. P.C. this Court is required to see whether the above material if unrebutted is sufficient to sustain the charge and on consideration if it is answered in the negative, then in exercise of inherent power the Court would be well within its jurisdictions to quash the order of taking cognizance.