DILLIP KUMAR PATRA vs UNION OF INDIA

S. K. SAHOO, J.

This is an application under section 482 of Cr.P.C. filed by the petitioner Dillip Kumar Patra to quash the impugned order dated 13.01.2000 passed by

the learned S.D.J.M., Jagatsinghpur in 2(C) C.C. Case No. 78 of 1995 in issuing notice to the petitioner as an accused in the case along with issuance

of warrant.The learned counsel for the petitioner contended that Mr. Manoranjan Jena, Inspector, Railway Police Force, Paradeep, S.E. Railway

lodged the first information report indicating therein that on 22.12.1995, he along with other railway police officials noticed four persons coming

towards phone signal in between Kandarpur down home and distant signal and the person who was in front of the four persons was carrying

something heavy on his left shoulder in a suspicious manner and the other persons were following him. The railway police officials caught hold of that

person but the other three persons managed to escape and out of those three persons, two of them were identified by Railway Police Force as

Chatrubhuja Rout and Panchanan Rout.

The apprehended person disclosed his name as Jachi Rout @ Kalia. He was found carrying one railway distributor valve in a gunny bag. He could not

produce any authority or receipt for the possession of railway distributor valve. He disclosed before the railway police officers about the name of his

associates and also confessed to have committed theft of railway article from a wagon. The names disclosed by co-accused Jachi Rout @ Kalia are

Chatrubhuja Rout, Panchanan Rout and Dillip Mohapatra and he stated that during the night on 20.12.1995, they committed theft of the railway article

detaining the train near his village closing the vacuum pressure on the wagon. On the basis of such first information report, RPF/Post/Paradeep Case

No.5/1995 dated 22.12.1995 was registered under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and ultimately complaint

petition was filed by the M.R. Jena, Inspector, RPF, Paradeep, S.E. Railway in the Court of S.D.J.M., Jagatsinghpur and accordingly 2(C) C.C. Case

No.78 of 1995 was instituted. In the list of absconding accused persons, three names were reflected, out of which one name is Dillip Kumar

Mohapatra, S/o- Jhari Mohapatra, village- Daradagram, P.S./District- Jagatsinghpur. Accused Dillip Kumar Mohapatra, son of Jhari Mohapatra

approached this Court earlier in an application under section 482 Cr.P.C. in Criminal Misc. Case No. 4728 of 1999 contending, inter alia, that his name

has been wrongly included by the Inspector of Railway Protection Force, Paradeep in the complaint petition and another person in his village namely

Dillip Kumar Patra, son of Jharendra Patra is there and the police is trying to arrest him even though he is no way connected with the alleged offence.

This Court vide order dated 29.09.1999 directed the petitioner in the said petition to appear before the learned S.D.J.M., Jagatsinghpur to file a petition

stating the facts and further directed the learned S.D.J.M., Jagatsinghpur to hold an inquiry to ascertain about the identity of the accused. As per the

said order, not only Dillip Kumar Mohapatra filed a petition before the learned S.D.J.M., Jagatsinghpur but also one petition was filed by M.R. Jena,

Inspector, RPF, S.E. Railway, Paradeep dated 16.10.1999 indicating to take cognizance against the petitioner instead of Dillip Kumar Mohapatra, son

of Jhari Mohapatra. Similar petition was also filed by one Sona Hembram, Inspector of Railway Protection Force on 28.10.1999.

The learned S.D.J.M., Jagatsingpur vide order dated 13.01.2000 has been pleased to hold that since the age of the real accused was 18 years at the

time of alleged occurrence and the age of the Dillip Kumar Mohapatra was thirty nine years as revealed from the report of the Inspector, RPF,

Paradeep, therefore, the Court came to opinion that the name of the real culprit is Dillip Kumar Patra (petitioner) and accordingly, directed to strike

down the name of the Dillip Kumar Mohapatra from the prosecution report and instead mentioned the name of the petitioner as an accused and

directed issuance of warrant of arrest against the petitioner. It is contended by the learned counsel for the petitioner that except the confessional

statement of co-accused Jachi Rout @ Kalia Rout, there is no other material against the petitioner and in the first information report which was lodged

by the Inspector, RPF, Paradeep, S.E. Railway, it is specifically mentioned that the said accused disclosed the name of accused Dillip Mohapatra

along with others to be the culprits and therefore, the investigating agency rightly lodged the complaint against the said Dillip Kumar Mohapatra. It is

further contended that there was a specific direction of this Court to the learned Magistrate to hold an inquiry to ascertain about the identity of the

accused but the same has been done in a slipshod manner and only basing on the age, the learned Magistrate has come to a finding that the petitioner

should be arrayed as an accused in the case.

Mr. Anindya Ku. Mishra, learned counsel appearing for the opp. party on the other hand supported the impugned order and contended that in the

confessional statement of coaccused Jachi Rout @ Kalia Rout who was apprehended at the spot, the name of the petitioner i.e. Dillip Kumar Patra

finds place and inadvertently in the first information report, it is mentioned that Jachi Rout disclosed the name of one Dillip Kumar Mohapatra.

However, he does not dispute that the only material available on record against the Dillip Kumar Patra (petitioner) is the confessional statement of co-

accused Jachi Rout @ Kalia Rout.

The question now crops up for consideration is whether only on the basis of the confessional statement of the co-accused before the police officials of

Railway Protection Force, the petitioner can be arrayed as an accused and whether the learned S.D.J.M., Jagatsinghpur correctly held the inquiry as

per the direction of this Court in Criminal Misc. Case No. 4728 of 1992 to ascertain about the identity of the real culprit.

In case of Balkishan A. Devidayal -Vrs.- State of Maharashtra reported in A.I.R. 1981 S.C. 379, while interpreting the provisions of section 25 of the

Evidence Act, Hon’ble Supreme Court held that an officer of the RPF could not, therefore, be deemed to be a 'police officer' within the meaning

of section 25 of the Evidence Act and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under section

8(1) of the 1966 Act cannot be excluded from evidence under the said section. It was also observed that an officer conducting an inquiry under

section 8(1) of the Act has not been invested with all powers of an officer in charge of a police station making an investigation under Chapter XIV of

the Code. He has no power to file a charge sheet before the Magistrate concerned under section 173 of Cr.P.C. The main purpose of the Act was to

invest powers of investigation and prosecution of an offence relating to Railway property in the RPF in the same manner as in a case relating to the

offences under the law dealing with excise and customs. The offences under the Act are non-cognizable which cannot be investigated by a police

officer under the Code.

The result is that initiation of inquiry for an offence inquired into under this Act can be only on the basis of a complaint by an officer of the Force.

Even though the confessional statement of co-accused Jachi Rout @ Kalia Rout before the Inspector, RPF is held to be admissible but 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 may be regarded as evidence in that generic sense

because of the provisions of section 30 of the Evidence Act but the fact remains that it is not evidence as defined by section 3 of the Evidence Act. In

dealing with a case against an accused person, the Court cannot start with the confession of a coaccused person; it must begin with other evidence

adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to

the confession in order to receive assurance to the conclusion of guilty which the judicial mind is about to reach on the said other evidence. It is further

held that confession cannot be treated as evidence which is 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. It appears that

the inquiry conducted by the learned S.D.J.M., Jagatsinghpur is not inconsonance with the direction of this Court in Criminal Misc. Case No. 4728 of

1999. Only basing on the age, the name of the accused against whom complaint petition was filed was deleted and the petitioner’s name was

included which is not proper and justified. Â Â Â Â Â Â Â Â Â In view of the well settled position of law, since the only material available on record

against the petitioner is the confessional statement of the co-accused Jachi Rout @ Kalia Rout and the inquiry conducted by the learned S.D.J.M.,

Jagatsinghpur is defective, I am of the humble view that issuance of process against the petitioner is not legal and justified. Therefore, I am of inclined

to accept the prayer made in this application and quash the impugned order dated 13.01.2000 passed by the learned S.D.J.M., Jagatsinghpur.

Accordingly, the CRLMC application is allowed.