The plea of alibi is not a ground for discharge and needs to be proved by the accused after the prosecution has proved its case.

JUDGMENT :

The challenge in this petition is made to the following:-

(i) Order dated 07.05.2022, passed in Criminal Case No.259 of 2020, State Vs. Ganesh Datt Badhani, (“the case”) by the Court of 3rd Additional Civil Judge (Senior Division)/ACJM, Haridwar, by which the Court directed that there are sufficient grounds to frame charge under Sections 324, 504 and 506 IPC against the petitioner. And;

(ii) Judgment and order dated 16.08.2022, passed in Criminal Revision No.178 of 2022, Ganesh Badhani Vs. State of Uttarakhand and Another, by the Court of District and Sessions Judge, Haridwar. By it, the order dated 07.05.2022, passed in the case, has been upheld.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary to appreciate the controversy, briefly stated, are as follows: The FIR in the instant case was lodged by the respondent no.2, Rajendra Kumar on 30.01.2018. According to it, when the informant was returning to his house at about 9:15 PM, the petitioner attacked him on his head by a sharp edged weapon, due to which he fell on the ground. Subsequently, when the informant reached his home, he along with his son, went to hospital.

4. Learned counsel for the petitioner would submit that the petitioner was not present at the place of incident, at the time when the incident allegedly took place. He would submit that the applicant works in a Government Department. He was on duty and the Superior Officers have endorsed it that on 29.01.2018, the applicant was on duty from 04:00 PM to 12:00 in the midnight. It is argued that the Investigation Officer has not considered this aspect and did not investigate it. He would also submit that the certificate given by Government Officer is admissible in evidence, in view of Section 35 of the Indian Evidence Act, 1872 (“the Act”) unless otherwise proved.

5. Learned counsel for the petitioner would also submit that, in fact, earlier, the petitioner had filed a report against the informant of the instant case, in which matter, a revision was preferred by the informant of the instant case being CRLR No.240 of 2019 (“the revision”). In the revision, on 14.06.2018, the informant had obtained a stay order. It is argued that as a counterblast to it, the FIR in the instant case has been lodged. He would also place reliance upon the principles of law as laid down in the case of Birad Mal Singhvi Vs. Anand Purohit, 1988 Supp SCC 604, to argue that the entry made in Government record is admissible.

6. Learned State Counsel would submit that there is no illegality in the impugned orders.

7. The impugned order has been passed in the case under Section 240 of the Code of Criminal Procedure, 1973 (“the Code”). In fact, Sections 239 and 240 of the Code are interconnected. In case the Magistrate considers that the charges are groundless, he may record a finding of discharge and if, in the opinion of the Magistrate, there are sufficient grounds to frame charges, charge(s) shall be framed. This is what is provided under Section 240 of the Code. Sections 239 and 240 of the Code read as follows:-

“239. When accused shall be discharged.—If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge.—(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whe