JUDGMENT :

S.K. SAHOO, J.

1. Heard Mr. Aditya Kumar Mohapatra, learned counsel for the petitioners and Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate for the State.

2. In this application under section 482 of Cr.P.C., the petitioners Sunil Pandey @ Sunil Kumar Pandey and Hareram Pandey challenged the impugned order dated 04.06.1998 of the learned S.D.J.M., Balasore in G.R. Case No.727 of 1997 in taking cognizance of offence under sections 407/34 of the Indian Penal Code and issuance of process against them. The said case arises out of Remuna P.S. Case No.99 of 1997.

3. It appears that on the first information report submitted by one Nawal Kishore Mishra on 05.06.1997 before the officer in charge of Remuna police station, the case under sections 407/34 of the Indian Penal Code was instituted against one Harendra Pandey and Satendra Pandey, the drivers of the two trucks bearing Registration Nos. UP 65H 8537 and UP 65C 2331. After completion of investigation, charge sheet was submitted against the petitioners and others.

4. It is the prosecution case that the aforesaid two trucks were taken on hire basis by the informant who was the Branch Manager of Maruti Freight Movers Pvt. Ltd. for carriage and safe delivery of goods to the factory of TELCO Ltd., Lucknow, U.P. and the owners of the vehicles are Sri Suresh Singh and Paresh Singh and the drivers were Satendra Pandey and Harendra Pandey. As per the contract, the truck owners through their drivers were supposed to deliver the tyres and tubes at TELCO Ltd., Lucknow in due time. Both the trucks did not reach their destination and therefore, a doubt was entertained that the drivers of the trucks have dishonestly misappropriated the goods by making breach of contract with the company.

5. During course of investigation, 176 nos. of tyres and tubes were seized and some of the accused persons were arrested and the involvement of the petitioners was found in the alleged crime and accordingly, charge sheet was submitted.

6. Mr. Aditya Kumar Mohapatra, learned counsel for the petitioners contended that there is absolutely no material against the petitioners relating to their involvement in the alleged crime and the entire case of the prosecution is based on the confessional statement of co-accused before police and therefore, it is a fit case where this Court should exercise its inherent power under section 482 of Cr.P.C. to quash the criminal proceeding against the petitioners.

7. Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate produced the case diary and placed the relevant pages from the same which indicate that truck No. UP 65C 2331 stood in the name of Mr. Suresh Singh and truck No. UP 65H 8537 stood in the name of Mr. Paresh Singh. He placed the statement of co-accused Satendra Pandey which shows the role played by the petitioners. Learned counsel for the State fairly submits that except the confessional statement of co-accused, there is no other material against the two petitioners.

8. Thus the sole material available on record against the petitioners is the confessional of statement of co-accused Satendra Pandey before police.

9. Section 25 of the Indian Evidence Act, 1872 enumerates that no confession made to a police officer shall be proved as against the person accused of any offence. The reason behind declaring such confession to be inadmissible is to avoid the danger of admitting false confessional statements obtained by coercion, torture or ill-treatment. A confessional statement made by any person whilst is in the custody of a police officer cannot be proved against him unless it is made in the immediate presence of a Magistrate in view of Section 26 of the Evidence Act. A confession can only be acted upon whether it is extrajudicial or judicial, if it is made voluntarily which obviously means out of the free will and without any coercion, fear of threat of any harm, promise or any inducement or any hope of reward. Section 24 of the Evidence Act clearly enumerates that conf