# Nirdosh Tyagi & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2019) 2 ILRA 631
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Case number:** Application u/s 482 No. 27216 of 2019
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirdosh-tyagi-ors-v-state-of-u-p-anr-opp-parties-44716
- **Pages:** 5

## Headnote

A. Indian Evidence Act, 1872 - Section
103 - Quashing of Charge-sheet and
entire criminal proceedings - Plea of alibi
cannot be examined by this Court in the
exercise of its inherent powers under
Section 482 Cr.P.C. - For the Plea of Alibi
the
burden
of
proof
can
only
be
discharged by leading evidence before
the trial Court-Statement recorded under
Section 161 of Cr.Pc is not a substantive
piece of evidence - Judicial precedent-
has to be understood in context of facts
based on which the observation made
therein are made. (Para 9,10,11,12,13 & 14)
Accused resorted to indiscriminate firing upon
the brother of informant who after sustaining
injuries succumbed on the spot.

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.

Section 103 of Evidence Act - 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 - This could be done by leading
evidence in the trial court.

Statement recorded under Section 161 Cr.P.C. is
not a substantive piece of evidence and 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.
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. - The application under
Section 482 Cr.P.C. is bereft of merit and is,
accordingly, dismissed.
Application u/s 482 Cr.P.C. dismissed (E-3)

Case law relied upon/discussed: -

## Text

2 All. Nirdosh Tyagi & Ors. Vs State of U.P. & Anr.
631
(2019)10ILR A 631

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE

THE HON'BLE RAJUL BHARGAVA, J.

Application u/s 482 No. 27216 of 2019

Nirdosh Tyagi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Zia Naz Zaidi

Counsel for the Opposite Parties:
A.G.A., Sri Sudhir Mehrotra, Sri Dhirendra
Kumar Agrahari
A. Indian Evidence Act, 1872 - Section
103 - Quashing of Charge-sheet and
entire criminal proceedings - Plea of alibi
cannot be examined by this Court in the
exercise of its inherent powers under
Section 482 Cr.P.C. - For the Plea of Alibi
the
burden
of
proof
can
only
be
discharged by leading evidence before
the trial Court-Statement recorded under
Section 161 of Cr.Pc is not a substantive
piece of evidence - Judicial precedent-
has to be understood in context of facts
based on which the observation made
therein are made. (Para 9,10,11,12,13 & 14)
Accused resorted to indiscriminate firing upon
the brother of informant who after sustaining
injuries succumbed on the spot.

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.

Section 103 of Evidence Act - 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 - This could be done by leading
evidence in the trial court.

Statement recorded under Section 161 Cr.P.C. is
not a substantive piece of evidence and 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.
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. - The application under
Section 482 Cr.P.C. is bereft of merit and is,
accordingly, dismissed.
Application u/s 482 Cr.P.C. dismissed (E-3)

Case law relied upon/discussed: -

1. St. of Orissa Vs Debendra Nath Padhi
(2004) 8 S.C.C. 568
2. Quinn Vs Leathem (1901) AC 495 Earls of
Halsbury L.C.
3. Criminal Appeal No.1105 of 2019 Shiv
Prakash Mishra Vs St. of U.P. & Ors. (S.C. of
India)- Distinguished on facts.
(Delivered by Hon'ble Rajul Bhargava, J.)

1. 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
632 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
2 All. Nirdosh Tyagi & Ors. Vs State of U.P. & Anr.
633
cognizance order and impugned chargesheet 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. 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 Court Cases 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. 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
634 INDIAN LAW REPORTS ALLAHABAD SERIES
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:

B wishes the Court to believe that, at
the time in question, he was elsewhere.
He must prove it.

11. 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 Subsection (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.

12. 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
2 All. Smt. Manisha @ Ranu Vs State of U.P. & Ors.
635
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.

13.

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."

14. 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.

15. The application under Section
482 Cr.P.C. is bereft of merit and it is,
accordingly, dismissed.
----------

(2019)10ILR A 635

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.
Application u/s 482 No. 32602 of 2019

Smt. Manisha @ Ranu ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Ray Sahab Yadav

Counsel for the Opposite Parties:
A.G.A.

A. Indian Penal Code, 1860 - Section 498A, 406, 323, 504 and 506 and Cr.P.C., 1973
- Section 482 - Complaint filed against
husband
and
other
relatives
-
Only
husband of the complainant summoned
since
specific
allegations
made
only
against him- In exercise of inherent
powers under Section 482 of Cr.P.C High
Court cannot examine questions of fact.

Complainant was examined, under Sections
200 and 202 of Cr.P.C. wherein she has
specifically levelled accusations against her
husband only. No recital against in-laws
regarding demand of dowry. Even, in the
complaint, it has been written that gift was
given to her husband by complaint's parents.
Thus, on the basis of it, only husband was
summoned for above offence and this order
was confirmed in the revision as well by the
revisional Court.

This Court, in exercise of inherent power,
under Section 482 of Cr.P.C., is not expected to
analyze the factual aspect of the cases
because the same remains with trial court,
being questions of fact. Section 482 of Cr.P.C.
is the saving of inherent power of High Court,
with a provision that nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such orders
as may be necessary to give effect to any
order under this Code, or to prevent abuse of
the process of any Court or otherwise to
secure the ends of justice. The orders,
impugned, do not suffer from any illegality or
irregularity or defeat ends of justice. Hence,
this proceeding, by way of Application under
Section 482 of Cr.P.C., merits rejection and as
such Application stands dismissed accordingly.