Allahabad High Court
Pradeep Kumar vs State Of U.P. Thru. Secy. Home Lko. And 3 ... on 10 March, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:14383
Court No. - 12
Case :- APPLICATION U/S 482 No. - 1590 of 2025
Applicant :- Pradeep Kumar
Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And 3 Others
Counsel for Applicant :- Shiv Kumar Vishwakarma,Avneesh Kumar Rai
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the applicant, learned AGA for the State and perused the record.
2. The present application has been filed for the following main relief(s):-
"(1) Quash the impugned order dated 15.10.2024 by which the Final Report 24/2023 submitted in the case crime 348/2022 under Sections 354Kha, 323, 506 IPC sand under section 3 and 14 of the Child Labour (Prohibition and Regulation) Act, 1986 and 7/8 POCSO Act has been rejected by the Learned Additional Sessions Judge /Special Judge POCSO Act (Exclusive) I, Raebareli.
(II) To stay the arrest of the Petitioner in course of the further investigation of the case crime no. 0348/2022 under Sections 354Kha, 323, 506 IPC and under section 3 and 14 of the Child Labour (Prohibition and Regulation) Act, 1986 and 7/8 POCSO Act, registered at Police Station Sareni District - Raebareli on 26.08.2022."
3. By means of the present application, the applicant has assailed the order dated 15.10.2024 passed by the Additional Sessions Judge /Special Judge POCSO Act (Exclusive) I, Raebareli (in short 'concerned court'), whereby the concerned court rejected the final report submitted by Investigating Officer (in short 'I.O.') and directed the I.O. to further investigate the matter. A relevant portion of order dated 15.10.2024 reads as under:-
"15.10.2024
.......
सुना एवं पत्रावली का अवलोकन किया।
पाखण्डू बनाम उ० प्र० राज्य 2002 सी०आर०एल०जे० 1210 में माननीय इलाहाबाद उच्च न्यायालय ने एवं वासन्ती दुबे बनाम म० प्र० राज्य (2012)2, एस०सी०सी०ए 731 में माननीय उच्च न्यायालय ने यह अभिमत दिया है कि यदि पुलिस धारा 173 (1) में प्रतिकूल आख्या प्रेषित करती है तो न्यायालय मामले में-
1. पुलिस द्वारा प्रस्तुत रिपोर्ट के निष्कर्षो से सहमत होकर पुलिस रिपोर्ट स्वीकार कर सकती है, परन्तु उससे पूर्व वादी को नोटिस प्रेषित होगा, या को
2. अभियुक्त के विरूद्ध संज्ञान लेने हेतु धारा 190 (1) (बी) दं०प्र०सं० के अन्तर्गत अभियुक्त को विचारण हेतु तलब कर सकती है. या
3.अग्रिम विवेचना का आदेश पारित कर सकती है या,
4. धारा 190 (1) (बी) दं०प्र०सं० के अन्तर्गत मामले का प्रसंज्ञान लेकर वादी मुकदमा के मूल प्रार्थना पत्र को परिवाद के रूप में दर्ज कर धारा 200 एवं धारा 202 दं०प्र०सं० का बयान अंकित करने के पश्चात यह निष्कर्ष दे सकती है कि मामला परिवाद के रूप में अग्रेतर कार्यवाही किए जाने योग्य है अथवा खारिज किए जाने योग्य है।
प्रस्तुत मामले में वादिनी मुकदमा द्वारा प्रार्थना पत्र 156 (3) जा०फौ० के माध्यम से न्यायालय के आदेश द्वारा प्रथम सूचना रिपोर्ट दर्ज कराया गया है। वादिनी ने प्रथम सूचना रिपोर्ट में पीडिता की जन्मतिथि स्वामी विवेकानन्द इण्टर कालेज रायपुर दुधवन, रायबरेली के अभिलेखों के अनुसार दिनांक 13.07.2004 है एवं उसके साथ घटित घटना दिनांक 29.03.2021 की है घटना के समय वादिनी मुकदमा नाबालिग थी. केस डायरी के अवलोकन से स्पष्ट है कि पीड़िता द्वारा अपने बयान 161 जा०फौ० एवं 164 जा०फौ० में प्रथम सूचना रिपोर्ट के कथनों को समर्थन किया है। पत्रावली पर उपलब्ध चिकित्सीय परीक्षण आख्या में भी पीड़िता ने डाक्टर के समक्ष दिये गये बयान में घटना होने की पुष्टि की है, परन्तु प्रस्तुत मामले में विवेचक द्वारा अन्तिम रिपोर्ट दाखिल की गयी है।
अतः उपरोक्त विधि व्यवस्थाओं एवं प्रस्तुत मामले के समस्त तथ्यों एवं परिस्थितियों और पत्रावली पर उपलब्ध साक्ष्यों के परिशीलन उपरान्त मैं इस मत का हूँ कि मामले के तथ्यों एवं परिस्थितियों में अग्रिम विवेचना कराया जाना विधि सम्मत एवं न्यायोचित होगा।
आदेश
अप० सं० 348/2022 अन्तर्गत धारा 354ख, 323, 506 भा०दं०सं० व धारा 3/14 बाल श्रम (प्रतिषेध और विनियमन) अधिनियम 1986 व धारा 7/8 पाक्सो एक्ट प्रस्तुत अन्तिम रिपोर्ट संख्या 43/2022 दिनांकित 26.9.2022 निरस्त की जाती है। थानाध्यक्ष सरेनी, जिला रायबरेली को निर्देशित किया जाता है कि वह मामले में विधिनुसार अग्रेतर विवेचना कराया जाना सुनिश्चित करें। तद्नुसार अन्तिम रिपोर्ट संख्या 24/2023 निस्तारित की जाती है।"
4. The order dated 15.10.2024 has been challenged on the plea of alibi. The plea of alibi is based upon the fact that accused applicant was present at Singhbhum Jharkhand.
5. To support this plea, the accused applicant has placed reliance on the details of mobile location of the applicant, annexed as Annexure No.4 to the present application, certificate of Principal of Upgraded Model School, Bada Urdu (other particulars are not legible), annexed as Annexure no.5, as also, certificate of Mukhiya of the West Musabani Panchayat East Singhbhumi, Jharkhand and certificate of Gram Pradhan, Gram Panchayat Dudhawan, Post and Police Station Sareni, District Raibareli, annexed as Annexure No.-6 and 7 respectively.
6. The relief(s) quoted above, as appears from the pleadings and submission advanced before this Court by learned counsel for the applicant, has been sought on the ground of plea of 'alibi'.
7. In so far as the plea of 'alibi' is concerned, it is a settled law that it is a plea of defence. In Binay Kumar Singh v.State of Bihar [(1997) 1 SCC 283], the Hon'ble Apex Court observed as under:
"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;
(i) the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime.
(ii) The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi.
(iii) The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.
(iv) 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.
(v) 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.
(vi) 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 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. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379]; State of Maharashtra v. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63]".
8. In Rajendra Singh v. State of U.P., (2007) 7 SCC 378 the Hon'ble Apex Court has held as under: -
"8. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 CrPC was that of alibi. Section 103 of the 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 proved by any law that the proof of that fact lie on any particular person. The second illustration to Section 103 reads as under:
"B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it." This provision makes it obvious that the burden of establishing the plea of alibi set up by Respondent 2 in the petition filed by him under Section 482 CrPC before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. (See Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : 1956 Cri LJ 827], Chandrika Prasad Singh v. State of Bihar [(1972) 4 SCC 140 : AIR 1972 SC 109] and State of Haryana v. Sher Singh [(1981) 2 SCC 300 : 1981 SCC (Cri) 421 : AIR 1981 SC 1021].) This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge."
13. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 CrPC being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 CrPC. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained."
9. In Shaikh Sattar v. State of Maharashtra [(2010) 8 SCC 430], the Hon'ble Apex court has observed 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 [(2002) 8 SCC 18 : 2003 SCC (Cri) 186] 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."
13. It is the prosecution to prove its case by adducing evidence. The petitioner is at liberty to take the plea of alibi as his defence and to establish the same with positive evidence. Before prosecution adduce evidence to establish the incident, and to prove participation of the accused, there is no scope for entertaining a defence plea of alibi."
10. From the observations made by the Hon'ble Apex Court in the judgments referred above, what appears is as under:-
(a) The prosecution has to prove its case including the role of the accused in that incident.
(b) Only when prosecution succeeds in discharging the burden by establishing its case including participation of the accused in the crime/incident, the plea of 'Alibi' put up by the accused needs to be considered.
(c) The burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime.
(d) The burden would not be lessened by the mere fact that the accused has adopted the defence of 'Alibi'.
(e) The plea of 'Alibi' of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.
(f) 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.
(g) 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.
(h) 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 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.
(i) Strict proof is required for establishing the plea of 'Alibi'. [vide: Dudh Nath Pandey v. State of U.P. (1981) 2 SCC 166 : 1981 SCC (Cri) 379; State of Maharashtra v. Narsingrao Gangaram Pimple (1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63]".
11. In view of principle settled on the plea of 'alibi', the ground, i.e. plea of 'alibi' taken by the applicant for entertaining the instant application and causing interference in pending criminal proceedings has no force.
12. At the stage of investigation, the accused has no right. {see:-Preeti Singh v. State of U.P., 2023 SCC OnLine All 1410; Union of India Versus W.N. Chaddha, 1993 (Supp) 4 SCC 260 and Romila Thapar vs. Union of India, (2018) 10 SCC 75).
13. Accordingly, the present application is hereby rejected.
Order Date :- 10.3.2025
Jyoti/-
