ORDER :

1. By filing this writ application, the petitioner has prayed for the following reliefs:

) Issue a writ, order or direction against the respondent no. 2 for registering a false First Information Report No. 0073/2022 dated 18.08.2022 under Sections 376(2)(g) of IPC, registered at Police Station-Banbasa, District- Champawat naming the petitioner at the behest of complainant/respondent no. 3.

(ii) Issue a writ, order or direction to respondent no. 1 against the respondent no. 2 and respondent no. 3 for respective consequential disciplinary as well as criminal law at the behest of complainant/respondent no. 3 naming the petitioner deliberately falsely in the First Information Report No. 0073/2022 dated 18.08.2022 under sections 376(2)(g) of IPC registered at Police Station-Banbasa, District- Champawat.

(iii) Issue a writ order or directions in the nature of certiorari to call for the record and to quash the impugned First Information Report No. 0073/2022 dated 18.08.2022 under sections 376(2)(g) of IPC registered at Police Station- Banbasa, District-Champawat.

(iv) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 & 2 not to harass or take any coercive measure against the petitioner in pursuance of the aforesaid first information report dated 18.08.2022.

(v) Issue any suitable writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

(vi) Award costs of the petition to the petitioner.

2. The petitioner has been named in the FIR and the complainant alleges that a gang rape has been committed upon her by the petitioner and two others. Learned counsel for the petitioner would submit that the allegations, made in the FIR, are false and at the relevant time he was present in Nepal in connection with his business and for that he has submitted a Compact Disk to be viewed by this Court. However, he admitted that he has not complied the requirement of Section 65B of the Indian Evidence Act, as far as this electronic evidence is concerned.

3. It is stated by the leaned A.G.A. on behalf of the State that though initially the offence was registered under section 376(2)(g) and 5(g) of the Indian Penal Code, later on, realizing the fact that a wrong section has been quoted in the FIR, the offence under Section 376 (d) has been substituted for the offence under section 376(2)(g) of the IPC.

4. Keeping in view, it is only a clerical mistake, this Court is not going to give much importance to it as in the meantime, the investigation of the case is proceeding regarding commission of offence upon Section 376(d) of the IPC. The learned A.G.A. also would submit that since the petitioner is absconding an order under Section 82 of the Cr.P.C. has already been issued on 23.08.2022 by the Additional Chief Judicial Magistrate, Champawat.

5. In a writ proceeding for issuance of a writ of certiorari for quashing of the FIR, it is not the duty of the court to take into consideration the plea of alibi and quash the FIR on that ground. The question of alibi is essentially a part of investigation and the trial of the case. In a writ certiorari generally such evidences are not taken into consideration unless an exceptional circumstance is made out to look into the materials other than the materials available on the case diary.

6. Moreover, in the case of State of Orissa vs. Devendra Nath Padhi, 2005 (1) SCC 568, the Hon’ble Supreme Court has held that while considering whether to quash an FIR, cognizance etc. or the investigation, the court in exercising jurisdiction 482 of the Code has to look into all those documents, which has relied upon the Investigating Officer. A document relied upon by the accused is not to be looked into.

7. The Hon’ble Supreme Court further in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others reported in 2021 SCC Online SC 315 has given guidelines, which should be considered by the High Court while decidi