Madhya Pradesh High Court
Jitendra Singh Narwariya @ Parjeet vs The State Of Madhya Pradesh on 20 December, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:23385 1
M.Cr.C. No. 54772 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT Gwalior
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 54772 of 2024
JITENDRA SINGH NARWARIYA @ PARJEET
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Virendra Singh Pal, Advocate for the applicant.
Shri Naval Kishor Gupta, Government Advocate for the
respondents/State.
ORDER
This application, under S.482 of the Cr.P.C. (S.528 of BNSS), has
been filed for quashment of FIR in Crime No.650/2024 registered at Police
Station Maharajpura, District Gwalior for offences under sections 115(2),
296 and 3(5) of the BNS,2023, as well as, to conduct free and fair
investigation.
2. Facts necessary for disposal of the present application, in short, are
that complainant lodged an FIR alleging that on 18/10/2024, at about 8.30
AM, he went to Shatabdipuram to visit his plot. He saw that applicant, Ajay
Narvariya, Ranjit Lodhi and Jitendra Narvariya were carrying on some
construction work on the plot although civil dispute is pending in the Court.
When complainant objected to it and requested to stop the construction
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M.Cr.C. No. 54772 of 2024
work, then all the four persons started abusing him filthily in the name of
mother and sister. When complainant objected to it, then all the four persons
assaulted the complainant by fists, blows and Danda. When his nephew
Ayuman Lodhi and cousin brother Rishikesh Lodhi came to intervene, then
they too were assaulted by fists, blows and Danda by these four persons.
3. Challenging the FIR, it is submitted by counsel for applicant that
applicant was not present on the spot and he was at a distance of about 20
kms. He had booked a room in a hotel and CCTV footage of the said hotel
also shows the presence of applicant. It is further submitted that similarly
Ajay Singh Narvariya was not present on the spot. He had gone to Village
Mhow. Applicant has given multiple applications to the Authorities for
free and fair investigation, but no action has been taken.
4. Heard, learned counsel for the applicant.
5. The first question to consider is as to whether suspect/accused can
dictate his terms to the Police to investigate the matter in a particular
manner or not ?
6. The question is no more res integra.
7. The Supreme Court in the case of Romila Thapar and others vs.
Union of India and others reported in (2018) 10 SCC 753 has held as
under:-
“23. After having given our anxious consideration to the
rival submissions and upon perusing the pleadings and
documents produced by both the sides, coupled with the fact
that now four named accused have approached this Court
and have asked for being transposed as writ petitioners, the
following broad points may arise for our consideration:
23.1. (i) Should the investigating agency be changed at the
behest of the named five accused?
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M.Cr.C. No. 54772 of 2024
23.2. (ii) If the answer to Point (i) is in the negative, can a
prayer of the same nature be entertained at the behest of the
next friend of the accused or in the garb of PIL?
23.3. (iii) If the answer to Questions (i) and/or (ii) above, is
in the affirmative, have the petitioners made out a case for
the relief of appointing Special Investigating Team or
directing the court-monitored investigation by an
independent investigating agency?
23.4. (iv) Can the accused person be released merely on the
basis of the perception of his next friend (writ petitioners)
that he is an innocent and law abiding person?
24. Turning to the first point, we are of the considered
opinion that the issue is no more res integra. In Narmada Bai
v. State of Gujarat, in para 64, this Court restated that it is
trite law that the accused persons do not have a say in the
matter of appointment of investigating agency. Further, the
accused persons cannot choose as to which investigating
agency must investigate the offence committed by them.
Para 64 of this decision reads thus: (SCC p. 100)
“64. … It is trite law that the accused persons
do not have a say in the matter of appointment
of an investigating agency. The accused
persons cannot choose as to which investigating
agency must investigate the alleged offence
committed by them.”
(emphasis supplied)
25. Again in Sanjiv Rajendra Bhatt v. Union of India, the
Court restated that the accused had no right with reference to
the manner of investigation or mode of prosecution. Para 68
of this judgment reads thus: (SCC p. 40)
“68. The accused has no right with reference to
the manner of investigation or mode of
prosecution. Similar is the law laid down by
this Court in Union of India v. W.N. Chadha,
Mayawati v. Union of India, Dinubhai
Boghabhai Solanki v. State of Gujarat, CBI v.
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M.Cr.C. No. 54772 of 2024
Rajesh Gandhi, CCI v. SAIL and Janata Dal v.
H.S. Chowdhary.”
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E.
Sivakumar v. Union of India, while dealing with the appeal
preferred by the “accused” challenging the order of the High
Court directing investigation by CBI, in para 10 observed:
(SCC pp. 370-71)
“10. As regards the second ground urged by
the petitioner, we find that even this aspect has
been duly considered in the impugned
judgment. In para 129 of the impugned
judgment, reliance has been placed on Dinubhai
Boghabhai Solanki v. State of Gujarat, wherein
it has been held that in a writ petition seeking
impartial investigation, the accused was not
entitled to opportunity of hearing as a matter of
course. Reliance has also been placed on
Narender G. Goel v. State of Maharashtra, in
particular, para 11 of the reported decision
wherein the Court observed that it is well
settled that the accused has no right to be heard
at the stage of investigation. By entrusting the
investigation to CBI which, as aforesaid, was
imperative in the peculiar facts of the present
case, the fact that the petitioner was not
impleaded as a party in the writ petition or for
that matter, was not heard, in our opinion, will
be of no avail. That per se cannot be the basis to
label the impugned judgment as a nullity.”
27. This Court in Divine Retreat Centre v. State of Kerala,
has enunciated that the High Court in exercise of its inherent
jurisdiction cannot change the investigating officer in the
midstream and appoint an investigating officer of its own
choice to investigate into a crime on whatsoever basis. The
Court made it amply clear that neither the accused nor the
complainant or informant are entitled to choose their own
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M.Cr.C. No. 54772 of 2024
investigating agency, to investigate the crime, in which they
are interested. The Court then went on to clarify that the
High Court in exercise of its power under Article 226 of the
Constitution can always issue appropriate directions at the
instance of the aggrieved person if the High Court is
convinced that the power of investigation has been exercised
by the investigating officer mala fide.
28. Be that as it may, it will be useful to advert to the
exposition in State of West Bengal and Ors. Vs. Committee
for Protection of Democratic Rights, West Bengal and
Ors.13 In paragraph 70 of the said decision, the Constitution
Bench observed thus:
“70. Before parting with the case, we deem it
necessary to emphasise that despite wide
powers conferred by Articles 32 13 (2010) 3
SCC 571 38 and 226 of the Constitution, while
passing any order, the Courts must bear in mind
certain self-imposed limitations on the exercise
of these Constitutional powers. The very
plenitude of the power under the said articles
requires great caution in its exercise. Insofar as
the question of issuing a direction to the CBI to
conduct investigation in a case is concerned,
although no inflexible guidelines can be laid
down to decide whether or not such power
should be exercised but time and again it has
been reiterated that such an order is not to be
passed as a matter of routine or merely because
a party has levelled some allegations against the
local police. This extraordinary power must be
exercised sparingly, cautiously and in
exceptional situations where it becomes
necessary to provide credibility and instil
confidence in investigations or where the
incident may have national and international
ramifications or where such an order may be
necessary for doing complete justice andSignature Not Verified
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M.Cr.C. No. 54772 of 2024enforcing the fundamental rights. Otherwise the
CBI would be flooded with a large number of
cases and with limited resources, may find it
difficult to properly investigate even serious
cases and in the process lose its credibility and
purpose with unsatisfactory investigations.”
29. In the present case, except pointing out some
circumstances to question the manner of arrest of the five
named accused sans any legal evidence to link them with the
crime under investigation, no specific material facts and
particulars are found in the petition about mala fide exercise
of power by the investigating officer. A vague and
unsubstantiated assertion in that regard is not enough. 39
Rather, averment in the petition as filed was to buttress the
reliefs initially prayed (mentioned in para 7 above) –
regarding the manner in which arrest was made. Further, the
plea of the petitioners of lack of evidence against the named
accused (A16 to A20) has been seriously disputed by the
Investigating Agency and have commended us to the
material already gathered during the ongoing investigation
which according to them indicates complicity of the said
accused in the commission of crime. Upon perusal of the
said material, we are of the considered opinion that it is not a
case of arrest because of mere dissenting views expressed or
difference in the political ideology of the named accused,
but concerning their link with the members of the banned
organization and its activities. This is not the stage where the
efficacy of the material or sufficiency thereof can be
evaluated nor it is possible to enquire into whether the same
is genuine or fabricated. We do not wish to dilate on this
matter any further lest it would cause prejudice to the named
accused and including the co-accused who are not before the
Court. Admittedly, the named accused have already resorted
to legal 40 remedies before the jurisdictional Court and the
same are pending. If so, they can avail of such remedies as
may be permissible in law before the jurisdictional courts at
different stages during the investigation as well as the trial
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M.Cr.C. No. 54772 of 2024
of the offence under investigation. During the investigation,
when they would be produced before the Court for obtaining
remand by the Police or by way of application for grant of
bail, and if they are so advised, they can also opt for remedy
of discharge at the appropriate stage or quashing of criminal
case if there is no legal evidence, whatsoever, to indicate
their complicity in the subject crime.
30. In view of the above, it is clear that the consistent view
of this Court is that the accused cannot ask for changing the
Investigating Agency or to do investigation in a particular
manner including for Court monitored
investigation…………………”
8. The Supreme Court in the case of Dinubhai Boghabhai Solanki v.
State of Gujarat, reported in (2014) 4 SCC 626 has held as under:-
“50. In W.N. Chadha [Union of India v. W.N. Chadha, 1993
Supp (4) SCC 260 : 1993 SCC (Cri) 1171] , the High Court
had quashed and set aside the order passed by the Special
Judge in charge of CBI matters issuing the order rogatory,
on the application of a named accused in the FIR, Mr W.N.
Chadha. The High Court held that the order issuing letter
rogatory was passed in breach of principles of natural
justice. In appeal, this Court held as follows: (SCC pp. 290-
91 & 293, paras 89, 92 & 98)
“89. Applying the above principle, it may be
held that when the investigating officer is not
deciding any matter except collecting the
materials for ascertaining whether a prima facie
case is made out or not and a full enquiry in
case of filing a report under Section 173(2)
follows in a trial before the Court or Tribunal
pursuant to the filing of the report, it cannot be
said that at that stage rule of audi alteram
partem superimposes an obligation to issue a
prior notice and hear the accused which the
statute does not expressly recognise. TheSignature Not Verified
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M.Cr.C. No. 54772 of 2024question is not whether audi alteram partem is
implicit, but whether the occasion for its
attraction exists at all.
***
92. More so, the accused has no right to have
any say as regards the manner and method of
investigation. Save under certain exceptions
under the entire scheme of the Code, the
accused has no participation as a matter of right
during the course of the investigation of a case
instituted on a police report till the investigation
culminates in filing of a final report under
Section 173(2) of the Code or in a proceeding
instituted otherwise than on a police report till
the process is issued under Section 204 of the
Code, as the case may be. Even in cases where
cognizance of an offence is taken on a
complaint notwithstanding that the said offence
is triable by a Magistrate or triable exclusively
by the Court of Sessions, the accused has no
right to have participation till the process is
issued. In case the issue of process is postponed
as contemplated under Section 202 of the Code,
the accused may attend the subsequent inquiry
but cannot participate. There are various
judicial pronouncements to this effect but we
feel that it is not necessary to recapitulate those
decisions. At the same time, we would like to
point out that there are certain provisions under
the Code empowering the Magistrate to give an
opportunity of being heard under certain
specified circumstances.
***
98. If prior notice and an opportunity of hearing
are to be given to an accused in every criminal
case before taking any action against him, such
a procedure would frustrate the proceedings,Signature Not Verified
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M.Cr.C. No. 54772 of 2024obstruct the taking of prompt action as law
demands, defeat the ends of justice and make
the provisions of law relating to the
investigation lifeless, absurd and selfdefeating.
Further, the scheme of the relevant statutory
provisions relating to the procedure of
investigation does not attract such a course in
the absence of any statutory obligation to the
contrary.”
These observations make it abundantly clear that it would
not be necessary to give an opportunity of hearing to the
proposed accused as a matter of course. The Court cautioned
that if prior notice and an opportunity of hearing have to be
given in every criminal case before taking any action against
the accused person, it would frustrate the entire objective of
an effective investigation. In the present case, the appellant
was not even an accused at the time when the impugned
order was passed by the High Court. Finger of suspicion had
been pointed at the appellant by independent witnesses as
well as by the grieved father of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh Gandhi, (1996) 11
SCC 253 : 1997 SCC (Cri) 88] , this Court again reiterated
the law as follows: (SCC pp. 256- 57, para 8)
“8. There is no merit in the pleas raised by the
first respondent either. The decision to
investigate or the decision on the agency which
should investigate, does not attract principles of
natural justice. The accused cannot have a say
in who should investigate the offences he is
charged with. We also fail to see any provision
of law for recording reasons for such a
decision. … There is no provision in law under
which, while granting consent or extending the
powers and jurisdiction of the Delhi Special
Police Establishment to the specified State and
to any specified case any reasons are required
to be recorded on the face of the notification.
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M.Cr.C. No. 54772 of 2024
The learned Single Judge of the Patna High
Court was clearly in error in holding so. If
investigation by the local police is not
satisfactory, a further investigation is not
precluded. In the present case the material on
record shows that the investigation by the local
police was not satisfactory. In fact the local
police had filed a final report before the Chief
Judicial Magistrate, Dhanbad. The report,
however, was pending and had not been
accepted when the Central Government with
the consent of the State Government issued the
impugned notification. As a result, CBI has
been directed to further investigate the offences
registered under the said FIR with the consent
of the State Government and in accordance
with law. Under Section 173(8) CrPC, 1973
also, there is an analogous provision for further
investigation in respect of an offence after a
report under sub-section (2) has been forwarded
to the Magistrate.”
The aforesaid observations would clearly support the course
adopted by the High Court in this matter. We have earlier
noticed that the High Court had initially directed that the
investigation be carried under the supervision of the Special
Commissioner of Police, Crime Branch, of the rank of the
Additional Director General of Police. It was only when the
High Court was of the opinion that even further
investigation was not impartial, it was transferred to CBI.
52. Again in Sri Bhagwan Samardha [Sri Bhagwan
Samardha Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC
(Cri) 1047] , this Court observed as follows: (SCC pp. 742-
43, paras 10-11)
“10. Power of the police to conduct further
investigation, after laying final report, is
recognised under Section 173(8) of the Code of
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M.Cr.C. No. 54772 of 2024
Criminal Procedure. Even after the court took
cognizance of any offence on the strength of the
police report first submitted, it is open to the
police to conduct further investigation. This has
been so stated by this Court in Ram Lal Narang
v. State (Delhi Admn.) [(1979) 2 SCC 322 :
1979 SCC (Cri) 479] . The only rider provided
by the aforesaid decision is that it would be
desirable that the police should inform the court
and seek formal permission to make further
investigation.
11. In such a situation the power of the court to
direct the police to conduct further investigation
cannot have any inhibition. There is nothing in
Section 173(8) to suggest that the court is
obliged to hear the accused before any such
direction is made. Casting of any such
obligation on the court would only result in
encumbering the court with the burden of
searching for all the potential accused to be
afforded with the opportunity of being heard.
As the law does not require it, we would not
burden the Magistrate with such an obligation.”
These observations also make it clear that there
was no obligation for the High Court to either
hear or to make the appellant a party to the
proceedings before directing that the
investigation be conducted by CBI.
53. We had earlier noticed that the High Court had come to
the prima facie conclusion that the investigation conducted
by the police was with the motive to give a clean chit to the
appellant, in spite of the statements made by the independent
witnesses as well as the allegations made by the father of the
deceased. The legal position has been reiterated by this
Court in Narender G. Goel [Narender G. Goel v. State of
Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC (Cri) 933] :
(SCC pp. 68-69, paras 11-13)
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M.Cr.C. No. 54772 of 2024“11. It is well settled that the accused has no
right to be heard at the stage of investigation.
The prosecution will however have to prove its
case at the trial when the accused will have full
opportunity to rebut/question the validity and
authenticity of the prosecution case. In Sri
Bhagwan Samardha Sreepada Vallabha
Venkata Vishwanandha Maharaj v. State of
A.P. [Sri Bhagwan Samardha Sreepada
Vallabha Venkata Vishwanandha Maharaj v.
State of A.P., (1999) 5 SCC 740 : 1999 SCC
(Cri) 1047] this Court observed: (SCC p. 743,
para 11) „
11. … There is nothing in Section 173(8) to
suggest that the court is obliged to hear the
accused before any such direction is made.
Casting of any such obligation on the court
would only result in encumbering the court
with the burden of searching for all the
potential accused to be afforded with the
opportunity of being heard.‟
12. The accused can certainly avail himself of
an opportunity to cross-examine and/or
otherwise controvert the authenticity,
admissibility or legal significance of material
evidence gathered in the course of further
investigations. Further in light of the views
expressed by the investigating officer in his
affidavit before the High Court, it is apparent
that the investigating authorities would
inevitably have conducted further investigation
with the aid of CFS under Section 173(8) of the
Code.
13. We are of the view that what is the
evidentiary value can be tested during the trial.
At this juncture it would not be proper to
interfere in the matter.”
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9. This Court in the case of Prabal Dogra vs. Superintendent of Police,
Gwalior and State of M.P. by order dated 30.11.2017 passed in
M.Cr.C.No.10446/2017 has held that accused has no say in the matter of
investigation.
10. Furthermore, in the light of judgment passed by the Supreme Court
in the case of Manohar Lal Sharma Vs. Principal Secretary and
others, reported in (2014) 2 SCC 532, this Court cannot supervise
investigation.
11. Supreme Court in the case of Manohar Lal Sharma (Supra) has
held as under:-
“38. The monitoring of investigations/inquiries by the Court
is intended to ensure that proper progress takes place
without directing or channelling the mode or manner of
investigation. The whole idea is to retain public confidence
in the impartial inquiry/investigation into the alleged crime;
that inquiry/investigation into every accusation is made on a
reasonable basis irrespective of the position and status of
that person and the inquiry/investigation is taken to the
logical conclusion in accordance with law. The monitoring
by the Court aims to lend credence to the
inquiry/investigation being conducted by CBI as premier
investigating agency and to eliminate any impression of
bias, lack of fairness and objectivity therein.
39. However, the investigation/inquiry monitored by the
court does not mean that the court supervises such
investigation/inquiry. To supervise would mean to observe
and direct the execution of a task whereas to monitor would
only mean to maintain surveillance. The concern and interest
of the court in such “Court-directed” or “Court- monitored”
cases is that there is no undue delay in the investigation, and
the investigation is conducted in a free and fair manner with
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M.Cr.C. No. 54772 of 2024
no external interference. In such a process, the people
acquainted with facts and circumstances of the case would
also have a sense of security and they would cooperate with
the investigation given that the superior courts are seized of
the matter. We find that in some cases, the expression
“Courtmonitored” has been interchangeably used with
“Court-supervised investigation” Once the court supervises
an investigation, there is hardly anything left in the trial.
Under the Code, the investigating officer is only to form an
opinion and it is for the court to ultimately try the case based
on the opinion formed by the investigating officer and see
whether any offence has been made out. If a superior court
supervises the investigation and thus facilitates the
formulation of such opinion in the form of a report under
Section 173(2) of the Code, it will be difficult if not
impossible for the trial court to not be influenced or bound
by such opinion. Then trial becomes a farce. Therefore,
supervision of investigation by any court is a contradiction
in terms. The Code does not envisage such a procedure, and
it cannot either. In the rare and compelling circumstances
referred to above, the superior courts may monitor an
investigation to ensure that the investigating agency
conducts the investigation in a free, fair and time-bound
manner without any external interference.”
12. Furthermore, the plea of alibi is a disputed question of fact and it is
for the accused to prove the same by leading cogent evidence. The
Supreme Court in the case of Vijay Pal v. State (Govt. of NCT of
Delhi), reported in (2015) 4 SCC 749 has held as under :
25. At this juncture, we think it apt to deal with the plea of alibi
that has been put forth by the appellant. As is demonstrable, the
trial court has discarded the plea of alibi. When a plea of alibi is
taken by an accused, burden is upon him to establish the same
by positive evidence after onus as regards presence on the spot
is established by the prosecution. In this context, we maySignature Not Verified
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M.Cr.C. No. 54772 of 2024profitably reproduce a few paragraphs from Binay Kumar Singh
v. State of Bihar: (SCC p. 293, paras 22-23)
“22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Penal Code, 1860 or any
other law. It is only a rule of evidence recognised in Section 11
of the Evidence Act that facts which are inconsistent with the
fact in issue are relevant. Illustration (a) given under the
provision is worth reproducing in this context:
‘(a) The question is whether A committed a crime at Calcutta
on a certain day. The fact that, on that date, A was at Lahore is
relevant.’
23. The Latin word alibi means ‘elsewhere’ and that word is
used for convenience when an accused takes recourse to a
defence line that when the occurrence took place he was so far
away from the place of occurrence that it is extremely
improbable that he would have participated in the crime. It is a
basic law that in a criminal case, in which the accused is
alleged to have inflicted physical injury to another person, the
burden is on the prosecution to prove that the accused was
present at the scene and has participated in the crime. The
burden would not be lessened by the mere fact that the accused
has adopted the defence of alibi. The plea of the accused in
such cases need be considered only when the burden has been
discharged by the prosecution satisfactorily. But once the
prosecution succeeds in discharging the burden it is incumbent
on the accused, who adopts the plea of alibi, to prove it with
absolute certainty so as to exclude the possibility of his
presence at the place of occurrence. When the presence of the
accused at the scene of occurrence has been established
satisfactorily by the prosecution through reliable evidence,
normally the court would be slow to believe any counter-
evidence to the effect that he was elsewhere when the
occurrence happened. But if the evidence adduced by the
accused is of such a quality and of such a standard that the
court may entertain some reasonable doubt regarding his
presence at the scene when the occurrence took place, the
accused would, no doubt, be entitled to the benefit of that
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M.Cr.C. No. 54772 of 2024
reasonable doubt. For that purpose, it would be a sound
proposition to be laid down that, in such circumstances, the
burden on the accused is rather heavy. It follows, therefore, that
strict proof is required for establishing the plea of alibi.”
(emphasis supplied)
The said principle has been reiterated in Gurpreet Singh v. State
of Haryana, Sk. Sattar v. State of Maharashtra and Jitender
Kumar v. State of Haryana.
13. The Supreme Court in the case of S.K.Sattar v. State of
Maharashtra, reported in (2010) 8 SCC 430 has held as under :
35. Undoubtedly, the burden of establishing the plea of alibi lay
upon the appellant. The appellant herein has miserably failed to
bring on record any facts or circumstances which would make
the plea of his absence even probable, let alone, being proved
beyond reasonable doubt. The plea of alibi had to be proved
with absolute certainty so as to completely exclude the
possibility of the presence of the appellant in the rented
premises at the relevant time. When a plea of alibi is raised by
an accused it is for the accused to establish the said plea by
positive evidence which has not been led in the present case.
We may also notice here at this stage the proposition of law laid
down in Gurpreet Singh v. State of Haryana as follows: (SCC p.
27, para 20)
“20. … This plea of alibi stands disbelieved by both the courts
and since the plea of alibi is a question of fact and since both
the courts concurrently found that fact against the appellant, the
accused, this Court in our view, cannot on an appeal by special
leave go behind the abovenoted concurrent finding of fact.”
36. But it is also correct that, even though the plea of alibi of
the appellant is not established, it was for the prosecution to
prove the case against the appellant. To this extent, the
submission of the learned counsel for the appellant was correct.
The failure of the plea of alibi would not necessarily lead to the
success of the prosecution case which has to be independently
proved by the prosecution beyond reasonable doubt. Being
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aware of the aforesaid principle of law, the trial court as also the
High Court examined the circumstantial evidence to exclude the
possibility of the innocence of the appellant.
14. The Supreme Court in the case of Binay Kumar Singh v. State of
Bihar, reported in (1997) 1 SCC 283 has held as under:
22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Indian Penal Code or any
other law. It is only a rule of evidence recognised in Section 11
of the Evidence Act that facts which are inconsistent with the
fact in issue are relevant. Illustration (a) given under the
provision is worth reproducing in this context:
“The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is
relevant.”
23. The Latin word alibi means “elsewhere” and that word is
used for convenience when an accused takes recourse to a
defence line that when the occurrence took place he was so far
away from the place of occurrence that it is extremely
improbable that he would have participated in the crime. It is a
basic law that in a criminal case, in which the accused is alleged
to have inflicted physical injury to another person, the burden is
on the prosecution to prove that the accused was present at the
scene and has participated in the crime. The burden would not
be lessened by the mere fact that the accused has adopted the
defence of alibi. The plea of the accused in such cases need be
considered only when the burden has been discharged by the
prosecution satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who
adopts the plea of alibi, to prove it with absolute certainty so as
to exclude the possibility of his presence at the place of
occurrence. When the presence of the accused at the scene of
occurrence has been established satisfactorily by the
prosecution through reliable evidence, normally the court would
be slow to believe any counter-evidence to the effect that he
was elsewhere when the occurrence happened. But if the
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evidence adduced by the accused is of such a quality and of
such a standard that the court may entertain some reasonable
doubt regarding his presence at the scene when the occurrence
took place, the accused would, no doubt, be entitled to the
benefit of that reasonable doubt. For that purpose, it would be a
sound proposition to be laid down that, in such circumstances,
the burden on the accused is rather heavy. It follows, therefore,
that strict proof is required for establishing the plea of alibi.
This Court has observed so on earlier occasions (vide Dudh
Nath Pandey v. State of U.P.; State of Maharashtra v.
Narsingrao Gangaram Pimple.”
15. Even otherwise in the light of judgments passed by the Supreme
Court in the cases of XYZ v. State of Gujarat reported in (2019) 10
SCC 337, State of Tamil Nadu Vs. S. Martin & Ors. reported in
(2018) 5 SCC 718, Ajay Kumar Das v. State of Jharkhand, reported in
(2011) 12 SCC 319, Mohd. Akram Siddiqui v. State of Bihar reported
in (2019) 13 SCC 350, State of A.P. v. Gourishetty Mahesh reported in
(2010) 11 SCC 226, M. Srikanth v. State of Telangana, reported in
(2019) 10 SCC 373, CBI v. Arvind Khanna reported in (2019) 10 SCC
686, State of MP Vs. Kunwar Singh by order dated 30.06.2021 passed
in Cr.A. No.709/2021, Munshiram v. State of Rajasthan, reported in
(2018) 5 SCC 678, Teeja Devi v. State of Rajasthan reported in (2014)
15 SCC 221, State of Orissa v. Ujjal Kumar Burdhan, reported in
(2012) 4 SCC 547, S. Khushboo v. Kanniammal reported in (2010) 5
SCC 600, Sangeeta Agrawal v. State of U.P., reported in (2019) 2 SCC
336, Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460,
Padal Venkata Rama Reddy Vs. Kovuri Satyanarayana Reddy
reported in (2012) 12 SCC 437 and M.N. Ojha v. Alok Kumar
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Srivastav reported in (2009) 9 SCC 682, this Court can quash the
proceedings only if the uncontroverted allegations do not make out an
offence. This Court cannot dwell upon the defence of applicants.
16. Considering the totality of facts and circumstances of the case, this
Court is of considered opinion that no case is made out warranting
interference.
17. Application fails and is, hereby, dismissed.
(G.S.Ahluwalia)
Judge
(and)
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