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2019 DIGILAW 1876 (ALL)

Nirdosh Tyagi v. State Of U. P.

2019-08-02

RAJUL BHARGAVA

body2019
JUDGMENT : Rajul Bhargava, J. Heard Ms Zia Naz Zaidi, learned counsel for the applicants, Sri Dhirendra Kumar Agrahari, learned counsel for the opposite party no.2 and learned A.G.A. for the State and perused the material placed on record. 2. This application under Section 482 Cr.P.C. has been filed for quashing the entire criminal proceeding as well as charge-sheet no. 14B of 2019 dated 25.5.2019 in Case No.4050 of 2019 (State vs. Nirdosh Tyagi and others) arising out of Case Crime No. 202 of 2016 under Sections 302 and 120-B IPC, P.S.Sayana, District Bulandshahar, pending in the court of Chief Judicial Magistrate, Bulandshahar. 3. Brief facts of this case are that an F.I.R. was lodged by opposite party no.2 on 29.6.2016 at 10.30 a.m. with the allegation that on the same day at about 7.30 a.m., his elder brother Sanjay and father were present on the tubewell, at that time the applicants and two others armed with firearms reached there and then accused Nirdosh and Alok resorted to indiscriminate firing upon the brother of informant who after sustaining injuries succumbed on the spot. The accused persons unleashed reign of terror by indiscriminating firing and fled away from the place of the occurrence. 4. Submission of learned counsel for the applicants is that the applicants have not committed any offence and they have been falsely nominated in the F.I.R. by opposite party no.2. The allegation in the F.I.R. that the applicants had taken part in commission of murder of informant's brother stood falsified from the fact that on the date of the incident the applicants were present in High Court of Judicature at Allahabad on the alleged date and time of the incident for swearing an affidavit in connection with some case. During investigation ample evidence was placed before the Investigating Officer that on 29.06.2016 verification photo for affixing on the affidavit was done at 12.23 p.m. and 12.24 pm, evidencing that the applicants could not have been present at the place of the incident in the morning at 7.30 a.m. Copy of the verification photo has been annexed as annexure-4 to the affidavit. It has been argued that the applicants had also furnished tickets that they have travelled by Sangam Express a day before the incident i.e. 28.06.2016 and they had reservation in sleeper class, the ticket was booked online on 28.06.2016. 5. It has been argued that the applicants had also furnished tickets that they have travelled by Sangam Express a day before the incident i.e. 28.06.2016 and they had reservation in sleeper class, the ticket was booked online on 28.06.2016. 5. The applicants had given the tickets to investigating officer that they had travelled on 28.06.2016 from Ghaziabad to Allahabad and they had returned to Ghaziabad on 29.06.2016. The investigating officer has also recorded the statement of Manager of the hotel where the applicants had stayed in a hotel on 28.06.2019 and checked out on 29.06.2016. The statement under Section 161 Cr.P.C. was recorded especially of the lawyer who had got photo verification done from High Court and statements of some other persons from which earlier investigating officer drew conclusion that the applicants could not remain present on the place of the occurrence. Thereafter, the matter was transferred to CBCID and ultimately charge-sheet was submitted against the applicants on which cognizance was also taken by learned Magistrate. Learned counsel has argued that that there was ample evidence in the form of documentary and oral evidence i.e statements of the witnesses recorded under Section 161 Cr.P.C., yet not only charge-sheet was submitted by the investigating officer for extraneous considerations against the applicants but learned Magistrate has also taken cognizance in a routine manner without considering the evidence collected in respect of plea of alibi of the applicants. Therefore, prayer for quashing the cognizance order and impugned charge-sheet has been made. 6. Per contra, learned A.G.A. as well as learned counsel for the opposite party no.2 have submitted that the applicants had challenged the F.I.R. on the basis of plea of alibi and had prayed for quashing of the F.I.R. and the entire investigation in Criminal Misc. Writ Petition No.14162 of 2019. The said writ petition was dismissed vide order dated 24.05.2019 by the Division Bench of this Court while recording that from perusal of the F.I.R. prima facie offence of committing murder is made out against the applicants. The F.I.R. was lodged promptly against them. The applicants have challenged aforesaid order in Special Leave to Appeal (Criminal) 5265 of 2019) in which the applicants had placed material / evidence in support of their plea of alibi. However, the Hon'ble Apex Court vide order dated 17.06.2019 declined to interfere in the matter and the SLP was accordingly dismissed. 7. The F.I.R. was lodged promptly against them. The applicants have challenged aforesaid order in Special Leave to Appeal (Criminal) 5265 of 2019) in which the applicants had placed material / evidence in support of their plea of alibi. However, the Hon'ble Apex Court vide order dated 17.06.2019 declined to interfere in the matter and the SLP was accordingly dismissed. 7. Learned A.G.A. as well as learned counsel for the opposite party no.2 have further argued that plea of alibi of an accused cannot be considered at the stage of taking cognizance or the framing of charge against the accused and submitted that the applicants will have ample opportunity to place their evidence at appropriate stage. They have relied on judgement of the Hon'ble Apex Court, rendered in the case of State of Orissa Versus Debendra Nath Padhi, 2004 (8) Supreme 568 which is quoted below: " .....Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police." 8. The above judgement relates to framing of charge. However, they argued that even at the stage of taking cognizance no meticulous scrutiny of the material collected during investigation can be done. 9. After giving my anxious consideration to the submission made by learned counsel for the parties, I find sufficient force in the submission made by learned counsel for the opposite party no.2 and learned A.G.A. that plea of alibi cannot be examined by this Court in the exercise of its inherent powers under Section 482 Cr.P.C. whether it is the stage of taking cognizance or the framing of charge. The Magistrate at the stage of taking cognizance of the offence has primarily to be satisfied that prima facie commission of cognizable offence is disclosed and cannot meticulously scan the statements of witnesses recorded under Section 161 Cr.P.C. and other material / evidence collected during investigation by the Investigating Officer. 10. Section 103 of Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Second illustration to Section 103 of Indian Evidence Act reads as under: 11. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. 12. This proviso makes it obvious that burden to establish plea of alibi set up by the accused-applicants in petition filed under Section 482 Cr.P.C. lay squarely upon them. There is hardly any doubt regarding this legal proposition. This could be done by leading evidence in the trial court. He must prove it. 12. This proviso makes it obvious that burden to establish plea of alibi set up by the accused-applicants in petition filed under Section 482 Cr.P.C. lay squarely upon them. There is hardly any doubt regarding this legal proposition. This could be done by leading evidence in the trial court. Learned counsel for the applicants wants this court to believe the statements of the some of the witnesses recorded under Section 161 Cr.P.C. to record a positive finding that the applicants could not have been present at the scene of occurrence as they were present in High Court Allahabad. It is well settled that statement recorded under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of proviso Sub-section (1) to Section 162 Cr.P.C. the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, High Court, especially in the present case wherein brutal day light murder has been committted, cannot quash the proceeding relying on the wholly inadmissible evidence to accept the plea of alibi of the applicants. 13. Learned counsel for the applicants has placed reliance on a recent judgement of Hon'ble Apex Court rendered in Criminal Appeal No.1105 of 2019 Shiv Prakash Mishra Versus State of Uttar Pradesh and another wherein the accused were named in the F.I.R. and were exonerated during investigation and the application for summoning them under Section 319 Cr.P.C. was moved, based on the plea of alibi and the material collected during investigation in respect of their plea of alibi the trial court refused to summon them and the said order was upheld by the High Court of Judicature at Allahabad. Thus the Hon'ble Apex Court has also recognized that evidence/material collected in support of plea of alibi during investigation that accused were not present on the spot of the incident can be considered, even at the stage of summoning them under Section 319 Cr.P.C. At the very outset, with profound respect and utmost humility, I may record that the aforesaid judgement of Hon'ble Apex Court renders no help to the applicants and is distinguishable on the facts of the case inasmuch as there were material contradictions in the statements of the witnesses recorded during trial. 14. 14. It is well settled that authority/judicial precedent has to be understood in context of facts based on which the observation made therein are made. The ratio of a decision is generally secundum subjectam materiam. In Quinn v. Leathem, 1901 AC 495, Earls of Halsbury L.C. stated: "...that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found." 15. In the light of aforesaid, I do not find good ground to quash the impugned charge-sheet and the order taking cognizance against the applicants. 16. The application under Section 482 Cr.P.C. is bereft of merit and it is, accordingly, dismissed.