# Jai Prakash Rai &Ors v. State of U.P.&Anr

- **Citation:** (2019) 1 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-02
- **Case number:** CIVIL MISC. WRIT PETITION No.13549 of 2014
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-rai-ors-v-state-of-u-p-anr-44394
- **Pages:** 8

## Headnote

A. Section 482 Cr.P.C - complaint alleging
offence under sections 323, 504, 506, 427
IPC - Statement of complainant recorded
under sections 200 Cr.P.C. Two daughters
of complainant examined under Section
202
Cr.P.C
-
both
gave
identical
statements. Trial court summoned the
accused applicants. Held- it cannot be
denied that on the basis of statements,
offences prima facie made out.
Application dismissed

List of Cases Cited: -

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES

21. That three judge decision of the
Supreme Court is based on and follows
the earlier three judge decision of that
Court inSt. of Madras Vs C.V. Parekh
and Anr. (1970) 3 SCC 491, the
principle laid down and applied being, in
the case of an offence being committed
by a juristic person, the occasion to
proceed against the person authorized by
such person would arise only if the latter
is first arraigned as an accused person
and held guilty.

22. Plainly, there is no ratio laid
down, that in case of a sole-proprietary
concern, both the business concern and
the sole proprietor would be liable to be
prosecuted or be impleaded as accused
person in the criminal complaint. To that
extent, the decision of the learned single
judge
in
Hitendra
Kishan
Lal
Jain(supra), is not based on a correct
reading of Aneeta Haada (supra).

23. The above principle enunciated in
Aneeta
Haada
(supra)
or
C.V.
Parekh(supra) has no bearing in the case
of a sole-proprietary concern. Neither
there exist two persons/accused, nor there
exists any person other than the soleproprietor whose actions may constitute
ingredients of an offence under section
138 of the Act. He is the person engaged
in the conduct of his business/'concern'
and he is the person who issues/signs the
cheque, whose dishonour is the primary
ingredient of the offence.

24. While I would otherwise have been
bound to refer the matter to the larger bench
in view of my disagreement with Hitendra
Kishan Lal Jain (supra), however, in view
of further fact that the position in law stands
clearly
enunciated
by
authoritative
pronouncements of the Supreme Court in the
case of Ashok Transport Agency v.
Awadhesh Kumar (supra) and Bhagwati
Vanaspati Traders v. Supt. of Post Offices
(supra) as followed and directly applied to
section 141 of the Act in Raghu
Lakshminarayanan v. Fine Tubes (supra),
which decisions had not been placed and
therefore not considered in Hitendra
Kishan Lal Jain (supra), it appears that that
decision of the learned single judge, is
contrary to the binding law laid down by the
Supreme Court. Also, it has been rendered
per incuriam. Being bound by the law laid
down by the Supreme Court, there is no
requirement to refer the question to a larger
bench of the Court.

25. Accordingly, there is no defect
in the complaint lodged against the
applicant, in his capacity as the sole
proprietor of the concern M/s Manoj Rice
Mill. There was no requirement to
implead his sole proprietary concern as an
accused person nor there was any need to
additionally implead the applicant by his
trade name.

26. The present application lacks
merit and is accordingly dismissed.
-------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

CIVIL MISC. WRIT PETITION No.13549 of 2014
(u/s -482 Cr. P.C.)

Jai Prakash Rai &Ors. ...Applicants
Versus
State of U.P.&Anr. ...Opposite Parties

Counsel for the Applicants:
Sri
Ali
Hasan,
Sri
Istiyaq
Ali.
1 All. Jai Prakash Rai & Ors. Vs. State of U.P. & Anr.
103
Counsel for the Opposite Parties:
A.G.A., Sri Daya Shanker

A. Section 482 Cr.P.C - complaint alleging
offence under sections 323, 504, 506, 427
IPC - Statement of complainant recorded
under sections 200 Cr.P.C. Two daughters
of complainant examined under Section
202
Cr.P.C
-
both
gave
identical
statements. Trial court summoned the
accused applicants. Held- it cannot be
denied that on the basis of statements,
offences prima facie made out.
Application dismissed

List of Cases Cited: -

1. Chilakamarthi Venkateshwarlu and another
vs State of Andhra Pradesh and another, 2019
SCC Online SC 948

2. Zandu Pharmaceuticals Work Ltd Vs Mohd.
Sharful Haque, (2005) 1 SCC 122

3. Dinesh Singh and others vs State of UP and
another, 2008 lawsuit (All) 686 (E-5)

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri Ali Hasan, learned
counsel for applicants, Sri Daya Shanker,
learned counsel for the opposite party no.
2, Sri G.P. Singh, learned A.G.A.
appearing for State and perused the
record.

2. This application under Section
482 Cr.P.C has been moved with a prayer
to quash the criminal proceedings in
Criminal Complaint Case No. 254 of
2013 (Leelawati vs. Jai Prakash) under
sections 323, 504, 506, 427 IPC, Police
Station Kerakat, District Jaunpur pending
in the Court of Additional Chief Judicial
Magistrate-II,
Jaunpur
including
the
summoning order dated 28.10.2013 and
also a prayer is made to stay the
proceedings in this case till the disposal of
this application.

3. To understand the dispute better it
would be appropriate to refer here the
facts in brief of the case which are as
follows. The opposite party no. 2 who is
wife of the accused applicant no. 2 made
a complaint before the Additional Chief
Judicial Magistrate II, Jaunpur stating
therein that 2 daughters were born out of
their wedlock but no son which led to the
annoyance to her husband, who kept
Shakuntala daughter of Basantu/Applicant
no. 3 with him and was issuing threats to
the opposite party no. 2 that he would not
give his property to the opposite party no.
2 and her 2 daughters namely Mamta and
Babita rather the same would be written
in favour of Shakuntala and regarding this
the Opposite Party no. 2 has filed a suit
no. 1219 of 2011, Lilawati vs Somaru.
Getting annoyed due to this, the applicant
no. 1 Jai Prakash Rai alias Kailash Nath,
who is a man of gunda character and is
involved in an offence under sections 302
IPC and is notorious for spreading terror
at his instance Somaru and Shakuntala
after getting bulldozer called, razed to the
ground the kachcha house of the opposite
party no. 2 and had stolen away her
household goods. When the opposite
party no. 2 resisted, all the above named
three accused abused her badly and
threatened opposite party no. 2 and her
daughters to run away failing which they
would also be done to death by using
bulldozer and saying all this the opposite
party no. 2 was beaten badly and when
her daughter reached there to save, they
were also beaten. Hearing the commotion
Habibullah and various other persons of
the village also reached there who
intervened and witnessed the occurrence.
The accused then left the place gaving
104 INDIAN LAW REPORTS ALLAHABAD SERIES
threats uttering " madarchod agar koi
karyavahi karegi to jan se mar kar khatm
kar denge". Saving her life from the
terrorism of the accused the opposite
party no. 2 came to the police station
Kerakat to lodge a written report which
was given there, but the police did not
register the same nor was she sent for
medical examination nor police went to
the spot and feeling frustrated the
opposite party no. 2 sent a registered
complaint to the Superintendent Police
but when no action was taken by them,
she
presented
the
complaint
dated
29/09/2013 before the court to summon
the accused and punish them. The
statement of the opposite party no. 2 was
recorded under sections 200 Cr. P.C. in
which she has stated that her entire house
was demolished by the applicant nos 1 to
3. Both her daughters had been married.
Her husband had kept daughter of
Basantu. Her husband consumes liquor
and abuses. He has written agricultural
land in the name of applicant no.
3/Shakuntala. Both the daughters Mamta
and Babita live with her while Shakuntala
is wife of Ram Khelawan. All the three
accused would get opposite party no. 2
and her daughters killed and had abused
all of them regarding which a complaint
was made at the police station but no
action was taken. There is one bigha of
land in the name of her husband, out of
which half used to be sown by her while
the other half by Shakuntala. As on date,
the said land was being cultivated by the
accused while she herself was meeting her
expenditure by doing labourer's work. The
entire land is in the name of her husband.
The two daughters namely, Mamta and
Babita have been examined under Section
202 Cr. P.C. by the trial court and both of
them have given identical statements
stating that their father had got annoyed
with their mother and had threatened that
all his movable and immovable property
would be given to Shakuntala daughter of
Basantu, by which their mother became
perturbed and had filed an Original Suit in
the court of Civil Judge Junior Division,
Shahganj, Jaunpur. Due to this their father
Somaru became angry and on 19/03/2013
atabout 10 AM Jai Prakash alias Kailash
Nath/applicant no. 1 called a bulldozer
and started demolishing the kachcha
house of opposite party no. 2 which was
resisted by her, whereafter all the three
accused started beating their mother by
fists and kicks, abused her badly and
when both the daughters raised alarm,
hearing the same Habibullah and other
persons of the village reached there and
had seen the occurrence, who intervened
into this matter. Accused had taken away
the household articles of their mother and
had issued threats while leaving the place
that in case any action was taken against
them they all would be eliminated.

4. After having considered the
evidence cited above, the trial court has
summoned the accused applicants to face
trial under sections 323, 504, 506 and 427
IPC by the impugned order which is
prayed to be quashed in the present
proceedings.

5. By way of filing affidavit in
support of the present application, it has
been submitted from the side of the
applicant that it was wrong submission on
the part of the opposite party no. 2 that
she had just two daughters, in fact three
daughters were born out of the wedlock of
opposite party no. 2 and the accused
applicant no. 2 . The two daughters
namely, Mamta and Babita had been
married but unfortunately the third
daughter namely Shakuntala/accused no.
1 All. Jai Prakash Rai & Ors. Vs. State of U.P. & Anr.
105
3 was a poor lady who was residing with
the accused applicant no. 2, her father and
used to take his care and as a result of that
a registered will deed was executed in her
favour on 01/08/2007, true copy of which
has been annexed as Annexure no. 6 to
the affidavit. The opposite party no. 2
filed original suit no. 1219 of 2011, Smt.
Lilawati
vs
Somaru
for
permanent
injunction against the applicant no. 2, a
true copy of the plaint dated 25/10/2011
has been annexed as Annexure 7 to the
affidavit. The Opposite Party no. 2 has
also instituted another original suit no.
840 of 2013 Smt. Lilawati and another vs
Somaru and another, for cancellation of
sale deed dated 11/04/2013 which was
executed by the applicant no. 2 in favour
of the applicant no. 3, true copy of which
is annexed as annexure no. 8 to the
affidavit. The applicant no. 2 is very old
person aged about 72 years who is on
death bed. He is not even able to walk and
perform his daily routine but for the help
and care taken by his daughter i.e.
applicant no. 3 which led him to execute
the will deed in her favour and the same
has antagonised the complainant/opposite
party no. 2, who is his wife who has ill
intention and has filed two original suits
mentioned above. From the material
evidence on record no prima facie case is
made out under the above-mentioned
sections and hence the proceedings are
liable to be quashed being malicious
prosecution of the applicants in the light
of law laid down in Bhajan Lal's case.

6. Per contra in counter affidavit the
opposite party no. 2 has denied the facts
pleaded by the applicants and has stated
that a forged will deed has been executed
in favour of the accused applicant no.
3/Shakuntala by the applicant no. 2. With
respect to the facts averred in paragraph
10 of the affidavit, it is mentioned that the
reply of the same shall be given at the
stage of argument and has further stated
that the applicants have beaten the
opposite party no. 2 and her daughters
who had witnessed the said incident and
the case is made out under the abovementioned sections.

7. Rejoinder affidavit has also been
filed from the side of the applicants
reiterating therein the same facts which
have been mentioned in the affidavit.

8. The learned counsel for the
applicants vehemently argued that only
with a view to pressurising the accused
applicants, this false case has been lodged
against them by the opposite party no. 2
so that pressure may be exerted in the two
original suits which have been filed by
opposite party no. 2 against the applicant
no. 2, hence it would fall in the category
of malicious prosecution as per settled
principle of law laid down in Bhajan Lal's
case and therefore the proceedings need to
be quashed against the applicants.

9. On the contrary the learned
counsel the opposite party no. 2 has
vehemently defended the summoning
order relying upon the judgment and order
dated 29/02/2008 delivered by a learned
single Judge of this court in Dinesh Singh
and others vs State of UP and another,
2008 lawsuit (All) 686 in which in a case
under sections 494/109 IPC following
was held in Para 14 of the judgment:

"[14]
This
Court
while
exercising the inherent jurisdiction cannot
examine the question of sufficiency of
evidence for conviction of the offence of
bigamy. In paragraph 8 of the rejoinder
affidavit filed by Ram Chandra Singh, the
106 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant No. 2 it has been stated that
there is no evidence that marriage of
Dinesh Singh was legally solemnized with
another lady. The applicant No. 2 is the
father of Dinesh Singh, the applicant No.
1, husband of sister of opposite party No.
2. the averments made in paragraph 8 of
the
rejoinder
affidavit
amount
to
admission of solemnization of second
marriage. However, the validity of the
marriage has been challenged. The
accusations made in complaint and
evidence of complainant and witnesses
are prima-facie sufficient for proving the
performance of marriage of Dinesh Singh
applicant No. 1 with Santosh Kumar
during the life-time of his first wife, the
sister of opposite party No. 2. The
decisions
relied
on
behalf
of
the
applicants in relation to celebration of
marriage with proper ceremonies were
pronounced in criminal appeals directed
against the judgments and order of
conviction and sentence. The present case
is at the threshold. On thorough scrutiny
of the material brought on record there
was sufficient evidence to proceed against
the applicants for the offence under
Section 494/109 I.P.C. and the Magistrate
concerned committed no illegality by
summoning the applicants. Consequently,
the application deserves dismissal."

10. It is apparent from the above
citation that the fact of the second
marriage was denied from the side of the
accused but it was held that the decisions
relied on by the applicants in relation to
celebration of marriage with proper
ceremonies were pronounced in criminal
appeals directed against the judgement
and order of conviction and sentence
while in the present case the matter was at
the threshold. Further it was held that the
inherent
jurisdiction
could
not
be
exercised in order to examine the question
of sufficiency of evidence of conviction
of the offence of bigamy and it was held
that there was sufficient evidence to
proceed
against
the
applicants
for
offences under sections 494/109 IPC.

11. In the present case the opposite
party no. 2 has claimed that the accused
applicant no. 2 is her husband who was
annoyed with her because she could not bear
any male child and hence he kept a lady
called Shakuntala daughter of Basantu who
is made accused no. 3 in this case by her and
had threatened her that his entire property
would be given to Shakuntala and not to the
daughters of the opposite party no. 2 or to the
opposite party no. 2 herself. He actually went
on to carry out that threat by executing a will
deed in favour of Shakuntala in respect of
land belonging to applicant no. 2 over which
opposite party no. 2 claims her right along
with her two daughters being legal heirs of
the applicant no. 2. And it is further stated
that when the opposite party no. 2 filed
original suits which have been cited above,
this led to further annoyance to the applicant
no. 2 who along with Shakuntala and
accused applicant no. 1, who is a notorious
criminal have razed to the ground kachcha
house of the opposite party no. 2 and the
household goods had been stolen away by
them and at the time of this occurrence
resistance was offered by the opposite party
no. 2 which resulted in her being beaten by
the accused applicants and when her two
daughters came to her rescue they were also
beaten, abused and were threatened to be
killed. On the other hand the applicant's
version is that the accused no. 3/Shakuntala
is the third daughter of the opposite party no.
2 and of her husband Somaru i.e. applicant
no. 2, who is a poor lady who is looking after
applicant no. 2, he being 72 years old person,
who cannot attend to his daily routine and is
lying on death bed because of which he has
1 All. Jai Prakash Rai & Ors. Vs. State of U.P. & Anr.
107
executed a registered will deed in her favour
in respect of the property belonging to him.
This has led to the annoyance of the opposite
party no. 2 and her two daughters because of
which the opposite party no. 2 has filed two
original suits against the applicant no. 2 in
order to get the said will deed cancelled as
well as for permanent injunction. It is in
order to create pressure in those original suits
that the present false criminal case has been
initiated against the applicants by the
opposite party no. 2 and her two daughters
only. This case is nothing but a counterblast
and is a malicious prosecution which ought
to be quashed in accordance with the
principle of law laid down in para-102 of the
Bhajan Lal's case as per Condition no. 7
which says that where a criminal proceeding
is manifestly attended with malafide and/or
where
the
proceeding
is
maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and with
a view to spite him due to private and
personal grudge, the same could be quashed.

12. I can take assistance of the law
laid down by the Hon'ble Apex court in
Chilakamarthi Venkateshwarlu and
another vs State of Andhra Pradesh
and another, 2019 SCC Online SC 948,
in which the appeal was preferred against
the judgment and order dated 30/08/2018
passed by the High Court of Judicature at
Hyderabad
dismissing
the
Criminal
Petition No. 9225 of 2018 filed by the
appellant under sections 482 of the
Criminal Procedure Code to quash the
criminal proceedings in PRC no. 2 of
2018 pending against the appellants in the
court of Additional Judicial First-Class
Magistrate, Narsapar, West Godavari
District for the offences punishable under
sections 307, 323, 427, 447 and 506 (2)
read with Section 34 of the Indian Penal
Code. The appellants and the respondent
no. 2,, being the de facto complainant,
were pretty close relatives and were
embroiled in Partition Suit. The appellant
no. 2 had also filed a criminal complaint
against the de facto complainant and
others under sections 120 B, 420, 463,
464, 466, 467, 468, 469, 470 and 471 of
the IPC. The appellants' case was that the
de
facto
complainant
had
falsely
implicated the appellants as a counterblast
to the Criminal Complaint No. 518 of
2012 filed by the appellant no. 2. The case
of the de facto complainant was that an
attempt to cause injuries on the head was
made, which was a vital organ, which
could have resulted in causing death of
the de facto complainant. The High Court
found that the allegations in the complaint
attracted the offences, punishable under
the sections mentioned in the complaint
and rejected the contention of the
appellants that the complaint was lodged
as a counterblast observing that the
complaint of the second appellant was
filed on 28/09/2012, whereas the instant
complaint was filed on 21st July, 2015,
that is after almost 3 years. The case of
the appellants was that the appellant no. 1,
who
was
working
as
lecturer
at
Hyderabad had been falsely implicated,
therefore whether the appellant no. 1 was
at Hyderabad when the alleged incident
took place, or whether he was falsely
implicated, was a question of fact which
had to be decided in the trial by adducing
evidence. Therefore it was held the High
Court rightly concluded that it was open
to the appellants to adduce evidence to
show that the appellants and/or one of
them was not present at the time of the
alleged offence. It was further held that
the pleanary inherent jurisdiction of the
court under sections 482 Cr. P.C. may be
exercised to give effect to an order under
the Code; to prevent abuse of process of
108 INDIAN LAW REPORTS ALLAHABAD SERIES
the court; and to otherwise secure the
ends of justice. The inherent jurisdiction,
though wide and expansive, has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in the Section itself, that is, to make
orders as may be necessary to give effect
to any order under the Code, to prevent
the abuse of process of any court or to
otherwise secure the ends of justice. For
the Interference under Section 482, three
conditions are to be fulfilled. The
injustice which comes to light should be
of a grave, and not of a trivial character; it
should be palpable and clear and not
doubtful and there should exist no other
provision of law by which the party
aggrieved could have sought relief. In
exercising jurisdiction under sections 482
it is not permissible for the court to act as
if it were a trial court. The court is only to
be prima facie satisfied about existence of
sufficient ground for proceeding against
the accused. For that limited purpose, the
court
can
evaluate
materials
and
documents on record, but it cannot assess
the evidence to conclude whether the
materials produced are sufficient or not
for convicting the accused. The High
Court
should
not,
in
exercise
of
jurisdiction under Section 482, embark
upon an enquiry into whether the
evidence is reliable or not, or whether on
a reasonable appreciation of evidence the
allegations are not sustainable, for this is
the function of the trial Judge. This
proposition
finds
support
from
the
judgment of Apex Court in Zandu
Pharmaceuticals Work Ltd Vs Mohd.
Sharful Haque, (2005) 1 SCC 122. It
was further held in this case that the High
Court had rightly refused to quash the
criminal complaint observing that it can
excise power under Section 482 of the Cr.
P.C. only in rare cases. The power to
quash
the
proceedings
is
generally
exercised when there is no material to
proceed against the petitioners even if the
allegations in the complaint are prima
facie accepted as true. The High Court in
effect found, and rightly, that the
allegations in the complaint coupled with
the statements recorded by the learned
Magistrate had the necessary ingredients
of the offences under sections 307, 323,
427, 447 and 506 (2) read with Section 34
of the IPC. Therefore this case was not
found to be fit case to quash the criminal
proceedings.

13. In the light of above cited law I
would like to analyse the facts of the
present case. There is dispute of the fact
that whether accused applicant no. 3 was
third daughter of the accused applicant
no. 2 and the opposite party no. 2 born out
of their wedlock or whether the accused
applicant no. 3 was daughter of some
Basantu as was stated by the opposite
party no. 2 who was kept by the applicant
no. 2 when he got annoyed from the
opposite party no. 2 because she did not
bear any male child. The main dispute
appears to be between the two sides that
the opposite party no. 2 and her daughters
were deprived by the accused applicant
no. 2 of his property as the will of his
property had been executed in favour of
Shakuntala/accused applicant no. 3. It is
also stated from the side of the
complainant/opposite party no. 2 that
when she filed the original suit to get the
said will deed cancelled and to seek
injunction, feeling annoyed by that, all the
accused together had beaten up accused
and threatened to kill opposite party no. 2
and her two daughters and the kachcha
house of the opposite party no. 2, in
which she was living, was also razed to
1 All. Mukesh Sharma Vs. State of U.P. & Anr.
109
the ground by them and the household goods
were stolen away. These averments have been
supported by the complainant as well as her 2
daughters in their statements mentioned
above, therefore it cannot be denied that on
the basis of those statements the offences as
mentioned above would be prima facie made
out. If these allegations are taken to be true,
certainly the offences of the above-mentioned
sections would be made out. It cannot be held
at this stage that merely because the injuries
have not been found to have been caused to
the opposite party no. 2, offence under Section
323 would not be held to be made out, the
opposite party no. 2 has clearly stated that she
approached the police but the police did not
send her for medical examination. It does not
appear that any grave injustice would be
caused to the accused if this prosecution is
allowed to continue. It does not fall in the case
of rare case in which jurisdiction of 482 Cr.
P.C. would need to be invoked. The theory of
counterblast cannot be allowed to be pleaded
in the present case from the side of the
applicants. Therefore I do not see any
justification in quashing the proceedings in the
present case. Accordingly this application
deserves to be dismissed and is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

CIVIL MISC. WRIT PETITION No. 24545 of 2019
(u/s -482 Cr. P.C.)

Mukesh Sharma ...Applicant
Versus
State of U.P &Anr. ...Opposite Parties

Counsel for the Applicant:
Sri J.B.Singh

Counsel for the Opposite Parties:
A.G.A., Sri Deepak Dubey, Sri Siddarth
Shankar Mishra.

A. Section 233(3) Cr.P.C - Accused- right
to summon defence witnesses - Trial - is
sacrosanct fundamental right - Request
to summon defence witness can be
turned down only if the Judge considers
that it is for vexation or delay or for
defeating the ends of justice - Court is
required to record its plausible reason
for refusing the request of the accused
to summon a defence witness. (Para 9)

B. Constitution of India - Article 20(3)-
Right to Silence-Article 20(3) constitutes
right to silence of accused which has
various facets: One is that the burden is on
the State or rather the prosecution to prove
that the accused is guilty. Another is that an
accused is presumed to be innocent till he is
proved to be guilty. A third is the right of
the
accused
against
self-incrimination,
namely, the right to be silent and that he
cannot be compelled to incriminate himself.
 (Para 13)

Accused moved application under Section 233
Cr.P.C. to summon defence witnesses to prove
his plea of alibi - Trial Judge rejected
application holding that application was moved
merely to delay the trial as plea of alibi was
set up by the accused for the first time and
was never made part of investigation or
discharge was claimed on its basis or stated a
word about leading defence evidence in
respect of alibi under Section 313 Cr.P.C.-
Held-Rejection of application on the ground
that no plea of alibi was suggested to any of
the prosecution witnesses nor disclosed it in
his statement recorded under Section 313
Cr.P.C., is illegal as the accused was not
obligated to make any such suggestion as
even if accused has suggested any plea of alibi
the prosecution could not have led any
evidence in rebuttal thereof, when the
prosecution evidence was being recorded.

Application allowed.

List of Cases Cited:-