IMPORTANT POINT
The burden of proof for a plea of alibi lies on the accused, and it is a question of fact required to be proved during the trial.

JUDGMENT :

VIKRAM D. CHAUHAN, J.

1. Heard learned counsel for the applicant and learned AGA for the State-respondent.

2. This application under Section 482 Cr.P.C. has been filed by applicant for quashing the charge sheet as well as entire proceedings of Case No. 195A of 2017, arising out of Case Crime No. 197 of 2017, under Sections 147, 148, 149, 307, 302, 506, 120B I.P.C. Police Station Bhopa, District Muzaffar Nagar.

3. It is submitted by learned counsel for the applicant that initially the first information report was lodged on 6.4.2017 in respect of an incident dated 6.4.2017. The first information report was lodged against seven nominated accused persons including the applicant. As per the allegations in the first information report, it is alleged that the co-accused Manoj, Rajdeep, Virendra and Amit are said to have assaulted the deceased, as a result of the same, the deceased sustained injuries. The only allegation against the applicant is that the applicant has informed about the relevant place where the applicant is present to the other accused persons.

4. The submission of learned counsel for the applicant is that the applicant was working on the post of Sepoy in the Indian Army and at the relevant point of time on 6.4.2017 he was under training at Panchmarhi Centre of Army. In this respect, a certificate dated 10.6.2017 was issued by the Major Adjutant. The aforesaid certificate is annexed as Annexure 4 to the affidavit accompanying this application.

5. Learned counsel for the applicant has drawn attention of this Court to the Individual Course Report, which is annexed as Annexure 3 to the affidavit which has been issued on 17.5.2017 in respect of the period from 2.1.2017 to 22.4.2017.

6. Learned counsel for the applicant submits that the once the applicant was under training at Panchmarhi Centre on the date of incident and a certificate has been issued, then the applicant cannot be proceeded and the criminal proceedings are an abuse of process of law.

7. Learned counsel for the applicant has relied upon the judgment of Apex Court in the case of Harshendra Kumar D. vs. Rebatilata Koley and Others, 2011 (3) SCC 351 to submit that the documents which are beyond suspicion or doubt can be relied upon for quashing the criminal proceedings and the accused cannot be relegated to go through the trial proceedings and to prove his defence.

8. Learned counsel for the applicant has also relied upon a judgment of this Court in the case of G.N. Mishra and Another vs. Smt. Divya Awasthi and Another, 2012 (9) ADJ 455 (LB) which is a case with regard to a person being out of country in Australia and on the basis of endorsement in the passport, the criminal proceedings have been quashed.

9. It is further submitted by learned counsel for the applicant that once from the documents issued by the Indian Army it is evident that the applicant was not at the place of occurrence when the incident taken place then criminal proceeding cannot be proceeded.

10. Learned A.G.A. has opposed the present application and submits that the plea raised by the learned counsel for the applicant which in fact a plea of ali-bi and the same cannot be considered at this stage.

11. It is to be seen that in the present case, the first information report has been lodged on 6.4.2017 against seven nominated accused persons including the applicant. The only allegation against the applicant in the first information report is that the applicant was instrumental in identifying the residence of the injured and informing the same to the co-accused persons, who thereafter, assaulted the deceased. Learned counsel for the applicant has raised the issue with regard to the fact that on the date of occurrence the applicant was at the training centre. In this respect, the certificate issued on 10.6.2017 of the Army has been relied upon where it has been certified that the applicant was under training from 2.1.2017 to 22.4.2017. In effect of plea of ali-bi has been raised by the accused p