Defence Of Alibi Can Be Raised At The Stage Of Framing Charge, No Rule That It Can Be Considered Only During Defence Evidence: Bombay HC

Justice SG Mehare of the Aurangabad bench set aside trial court summons issued under section 319 of the CrPC to a man for trial under the POCSO Act observing that the trial court should have considered his defence of alibi.

“…it is always wise to raise the plea of alibi as early as possible in the initial stage of the trial. The initial stage could be the stage of framing charge…it is not a rule that the plea of alibi should be considered only at the stage of defence evidence”, the court observed.

Allegations were made against the applicant and he was named in the FIR for offence under section 4 (sexual assault) of the POCSO Act and various offences under IPC. His brother submitted an application before the Investigating Officer (IO) stating that the time of the alleged incident, the applicant was at his workplace, a bank. The IO submitted a chargesheet but did not arraign the man as an accused. The Chemical Analysis report of the bank’s CCTV footage supported the applicant’s case. After the CA report, the IO did not submit a supplementary charge sheet against the applicant.

The Extra Joint Additional Sessions Judge, Osmanabad, allowed the Special Public Prosecutor’s application under section 319 CrPC for summoning the applicant and submitting charge sheet against him. It observed that the defence of alibi would be considered at the appropriate time in evidence. Hence the present revision application.

The court reiterated that section 319 of the Cr.PC is not to be exercised in a mechanical manner. Only because some evidence exists, it is not a ground to issue process by itself. There must be substantive evidence against a person in order to summon him for trial.

The court noted that the IO was not prima facie satisfied that the applicant was not present at the spot of the incident. Rather, IO reserved his right to file a supplementary charge sheet depending on the CA report. But after submission of the CA report, he did not seek to file additional chargesheet. This shows that he was satisfied that the applicant was not present on the spot of the alleged incident, the court said.

The court said that the IO is supposed to investigate the facts and circumstances where the offence is cognisable. He shouldn’t just believe the allegations in the FIR as “gospel truth”.

The court noted that the plea of alibi was not raised for the first time during the summons application. It was also raised during the investigation and the IO had investigated the facts. The trial Judge completely ignored the evidence that the applicant was not present on the spot of the incident, the court said.

Referring to Section 1, para 137, Chapter-V of the Maharashtra Police Manual, the court said that if any evidence is produced by the accused, the IO should consider it carefully. “…if any evidence is produced on behalf of an accused, the investigating officer should consider it carefully. Such evidence should be the part of investigation that may help the investigating officer to discover the truth. His primary duty is to collect the evidence and satisfy himself that it is sufficient to send the case to the Magistrate.”

In the present case, the evidence that the applicant was not on the spot of the incident is proved through electronic evidence, the court observed.

“He (applicant) has proved his alibi through electronic evidence, which is admissible evidence. Therefore, it can safely be said that the plea of alibi has been proved with absolute certainty, completely excluding the possibility of the presence of the applicant at the place of occurrence. In the circumstances discarding the plea of alibi supported by the genuine electronic evidence collected by a neutral investigating officer soon after registering a crime appears not legally correct”. The court held.

Thus, the court concluded that the trial court should have declined to exercise power under section 319 of Cr.P.C.

Advocate V.B. Deshmukh represented the applicant while APP S.P. Sonpawale represented the state.

Case no. – Criminal Revision Application No. 296 of 2022

Case Title – Anand s/o Shivaji Ghodale v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 96