R.K Dash, J.:— The petitioner, acccused 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, I.P.C.
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 hue and cry heating which all the family members woke up and apprehended the culprit and identified him to be Asia alias Ashok Kumar Das of Baurisahi. On the next day F.I.R being lodged, a case under sections 457 and 398, I.P.C was registered and was investigated into by the Officer-in-charge, Bidanasi Police Station. In course of investigation, it came to light that accused Asia 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, submits Mr. Panda the same cannot be treated as evidence against the petitioner to base a finding of conviction. Ha 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 jurisdiction to quash the order of taking cognizance.
4. section 30 of the Evidence Act provides that when accused persons more than one are tried jointly for the same offence, confession of a co-accused implicating himself and other accused may be taken into consideration by the Court against those accused persons as well as the person making it. However, before such a confessional statement is taken into consideration against the other accused, the following conditions must be fulfilled ‘—
(1) There must be joint trial for the same offence;
(2) It must be a confession
(3) The confession of guilt must implicate the maker substantially to the same extent as the other co- accused, and
(4) The confession of guilt must be duly proved.
5. It has been commented upon by the Jurists that section 30, Evidence Act is an extraordinary provision by which something which is not evidence may be used against an accused person at the trial. Such a provision must be used with great care and caution to make sure that it is not stretched one line beyond the necessary intention. On the whole the provision has not been looked upon with favour and so, it has been observed that a confession by an accused is not to be treated as ‘evidence’ against the co-accused in the sense that conviction on that alone could not be supported. It can only be taken into consideration and used as corroboration if other evidence has been brought in support of the charge. 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 the accused may be treated as a corroboration for believing that evidence.
6. Confessional statement of a coaccused per se being not evidence and in the present case there being no other material save and except the statement of Chhabi, wife of the main accused, there is remote chance of the petitioner being convicted of the offence.
7. It is trite law that the High Court in exercise of nherent power under section 482, Cr. P.C may pass such orders is may be necessary to prevent the abuse of the process of any court or otherwise to secure the ends of justice. However, such power has to be exercised sparingly and with circumspection. In exercising that power the court should not embark upon an enquiry whether the allegations made in the complaint or in the charge-sheet are likely to be established by evidence or not, because hat is the function of the trial court. But when it appears clear that allegations as set out in the complaint or in the charge-sheet to not in law constitute any offence or in the opinion of the court chances of ultimate conviction are bleak, it would be well within its jurisdiction to quash the proceeding by invoking the inherent power, the reason being that continuance of the criminal proceeding in such circumstances amounts to an abuse of the process of the court. For such conclusion I derive support from the decision of the appex Court in the case of Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 : A.I.R 1988 Supreme Court 709, where Ranganath Mishra, J (as he was then) speaking for the Court in paragraph 7 of the judgment observed thus:
“The legal position is well-settled that when a prosecution at the initial stage is asked to be Quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence., It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
8. On a conspectus of the facts and circumstances of the case coupled with the principle of law enunciated by the Supreme Court referred to above I am of the considered opinion that it is a fit case where inherent power should be exercised to quash the order of taking cognizance of the offence passed by the S.D.J.M, Sadar, Cuttack, in so far as the petitioner is concerned. Accordingly the said order is quashed and the Criminal Misc. Case is allowed.
Criminal Misc. Case allowed.