A. Pasayat, J.
1. Petitioners, facing trial as accused in G R. Case No. 1923 of 1994 pending in the Court of learned Subdivisional Judicial Magistrate, Sadar Cuttack, have moved this Court by an application under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') to quash the order of the learned SDJM, Sadar, Cuttack (in short, 'the Magistrate) taking cognizance of offence punishable under Section 398 read with Sections 114 and 34 of the Indian Penal Code, 1860 (in short, MPC).
2. The Accusations which led to the initiation of proceeding essentially are as follows :
One Anuja Kumar Nayak (hereinafter referred to as 'the Informant') lodged a written report on 21-11-1993 at Bidanasi Police Station alleging that on the previous night when all his family members were asleep, his elder brother woke up hearing some sound, opened the door and found a person collecting utensils from the kitchen room. On hearing his cry all the family members woke up and apprehended the person, who was identified to be Asia alias Ashok Kumar Das of Baurisahi.On the nextday,first-information-report was lodged and a case under Sections 457 and 398, IPC was registered, and investigation was undertaken by the Officer-in-charge of Bidanasi Police Station. During investigation it transpired that the aforesaid Asia while undergoing treatment in the City Hospital confessed before his wife Chhabi that in the night of occurrence, Biraja Panda alias Butia and the present petitioners helped him to enter into the house of the informant. Basing on that statement alone, the petitioners and the aforesaid Biraja Panda alias Bulia were arrayed as accused.
3. Stand of the petitioners in support of the application is that the statement of Chhabi can. at the best be utilised by prosecution as a material to attract application of Section 30 of the evidence Act, 1872 (in short, 'the Act'). Even if that statement is accepted to b true, same cannot be utilisedas evidenceagainst the petitioners to record a finding or conviction.
Mr. B. L N. Swamy, learned Public Prosecutor submitted that while exercising power under Section 482 of the Code, the Court is required to see whether the material without any addition and/or altercation, and/or subtraction, is sufficient to sustain the charge. In other words his stand is that if the material is unrebutted, whether there is scope to sustain the charge, and if the answer to the aforesaid question is in the negative. Court can exercise power tinder Section 482 of the Code to quash the order taking cognizance.
4. The scope and ambit of Section 30 of the Act was considered by. this Court in Gunanidhi Maharana and three Ors. v. State : (1993) 6 OCR 158. The requirement ofSection 30 of the Act is that before it is made tooperate againstthe co-accused,it should be strictly established. In other words,what must be before the Court should be a confession proper and not a more circumstance or an information which could be anincriminating one! Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of Section 30 of the Act against the non-maker co-accused and lastly its use depends on findingother evidence so as to connect the co-accused with the crime andthattoo as a corroborative piece. It is only whentheother evidence tendered against the co-accused unmistakably points tohisguilt, thenthe confession duly proved could be usedagainst suchco-accused if it appears to be lending support or assurance to such other evidence. To attract the provisions to Section 30 it should forail purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such a guilt- The evidence of co-accused cannot be considered under Section 30 of the Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused. The confession of a co-accused does not come within the definition of evidence contained in Section 3 of the Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is only when a person admits guilt to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is guarantee for his truth, and the Legislature provides that his statement may be considered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief, independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidenceas it stands even though, if believed, it would be sufficient to sustain a conviction. In such en event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing that without the aid of the confession he could not be prepared to accept. This position has been clearly explained by the apex Court in Kashmira Singh v. State of Madhya Pradesh : AIR 1952 SC 159. The exact scope of Section 30 was discussed by the Privy Council in the case of Bhubanss v. The King : AIR 1949 PC 257. The relevant extract from the said decision which has become locus classicus reads as follows :
'Section 30 appliesto confessions, and not to statements which do not admit theguiltofthe confessing party......But a confession of a co-accusedisobviously evidence of a very weak type......It is a muchweaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30. however, provides that the Court may take the confession into consideration and thereby, no doubt, make itevidence on which the Court may act .But the Section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case ; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction.'
The apex Court cited withapprovaltheseobservations of the Privy Council in Kashmira Singh's case (supra).
5. Section 30 of the Act is an unusual provision by which something which is not in the nature of evidence may be used against the accused person at the trial. The scope of its application is very limited. The confession by a co-accused is not to be treated as evidence against another accused in the sense that conviction of the co-accused may not be supported. It can only be taken into consideration and used as corroboration if other materials brought in support of the charge exist. It has to he seen whether confession of the co-accused is of such nature that the person making such confession would be convicted on that confession for the offence with which he and his co-accused are charged. Where evidence against a co-accused is sufficient to base a conviction, confessional statement of the accused may be treated as a corroboration for believing that evidence. It is brought to my notice that in the case of co-accused Biraja Panda alias Butia. materials sought to be utilised being found to be inadequate, the order of cognizance was quashed by order dated 16-11-1995 in CrI. Misc. Case No. 1762 of 19S5. Considering the aforesaid aspects. I find this to be a fit case for exercise of power under Section 482 of the Code. Accordingly, order passed by the learned SDJM, Sadar, Cuttack taking cognizance of offences indicated above, and directing issuance of process so far as it relates to the petitioners, is quashed.
The application is accordingly disposed of.