Bombay High Court: In the present case, the issue for consideration arose that whether plea of alibi could be taken by the accused at the stage of filing of charge-sheet. A Single Judge Bench of Sushil M. Ghodeswar, J., stated that Section 106 of Evidence Act, 1872 (‘IEA’) states that when any fact was especially within the knowledge of any person, the burden of proving that fact was upon him. Thus, it was for the petitioner to establish his case by adducing evidence before the Sessions Court, and therefore, at this stage, his contention as regards presence or absence on the spot could not be considered. The Court stated that as per the Section 106 of the IEA the ground of alibi could not be considered at the stage of the filing of the charge-sheet. Therefore, the Court dismissed the petition and held that the order passed by the Sessions Court was correct and proper and did not require any interference.
Background
The petitioner, a teacher in secondary school, was Accused 2 in the FIR filed against him and other co-accused persons for the offences punishable under Section 324, 447, 323, 504 and 506 of the Penal Code, 1860 (‘IPC’). However, while filing the charge-sheet, the Investigating Officer has filed the charge-sheet only against Accused 1, and not against the petitioner.
Therefore, the prosecution filed an application under Section 319 of Criminal Procedure Code, 1973 (‘CrPC’) for adding name of present petitioner as an accused in the said crime. The petitioner pleaded that at the time of the commission of the said crime, he was present on duty, and therefore, he could not be connected with the alleged offence. The Judicial Magistrate First Class (‘Magistrate’) rejected the said application of the prosecution, on the ground that there was no sufficient material against the petitioner to array him as an accused.
The victim, therefore, filed a revision petition before the Sessions Court, challenging the order of the Magistrate. The Sessions Court allowed the said revision application. Aggrieved by the same, the petitioner approached the present Court.
Analysis, Law and Decision
The Court, on the question of maintainability of the revision petition, opined that, the original informant being a victim had a right to be heard, and she could not be asked to wait for commencement of the trial for asserting her right to participate in the proceedings. The victim had legally vested right to be heard at every step post the occurrence of the offence as the victim had unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. Therefore, the victim was entitled to prefer revision application against the order of Magistrate under Section 397 of CrPC.
The Court observed that the issue for consideration before it, was whether plea of alibi can be taken by the accused at the stage of filing of charge sheet. The Court observed that Section 106 of IEA states that when any fact was especially within the knowledge of any person, the burden of proving that fact was upon him. Thus, it was for the petitioner to establish his case by adducing evidence before the Sessions Court, and therefore, at this stage, his contention as regards presence or absence on the spot could not be considered.
The Court observed that in the instant case, though the Investigating Officer had already submitted charge-sheet under Section 173 of CrPC, but the same was silent with regards to the petitioner. The Court opined that the Rules of the Bombay Police Manuals as well as provisions of CrPC indicated that the concerned officer in-charge of the Police Station had to either file a report referred to as charge-sheet in Rule 218 of Bombay Police Manual, 1959, or a final report as contemplated under Rule 219 of the Bombay Police Manual, 1959. Therefore, filing of charge-sheet or final report was not merely an empty formality and such report should contain all the details for not sending accused for trial. As in the instant case, the Investigating Officer had not filled up all the required details pertaining to petitioner, the order passed by the Sessions Court was correct and proper, and therefore, required no interference by this Court.
Accordingly, the Court held that as per the Section 106 of the IEA the ground of alibi could not be considered at the stage of the filing of the charge-sheet. On the aspect of maintainability of the petition, the Court opined that victim had the right to be heard and she could not be asked to await commencement of the trial for asserting the right to participate in the proceedings. Additionally, the Court held that as the Investigating Officer had not filled up all the required details pertaining to petitioner in the final report, therefore, the Court dismissed the petition and held that the order passed by the sessions Court was correct and proper, and did not require any interference.
[Prashant Bhausaheb Patil v. State of Maharashtra, W.P. No. 2052 of 2024, decided on: 7-10-2025]
Advocates who appeared in this case:
Advocate for the Petitioner- V. D. Hon, Senior Advocate i/b A. V. Hon
Advocate for the Respondents- G. O. Wattamwar, APP; Baig Mirza Mazhar Javed, A. D. Sonkawade, Advocates
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