13. cr wp 2893-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2893 OF 2010 P. Ramasubbu .. Petitioner Vs The State of Maharashtra & Anr .. Respondents Mr. S.K. Raj for the Petitioner Ms. U.V. Kejariwal, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 25th OCTOBER, 2010. P.C.: 1. Heard learned advocate for the petitioner-original accused no. 3 and learned APP for the State. 2. The petitioner is seeking quashing of FIR No. 432 of 2010 of Dharavi Police Station on the sole ground that the petitioner was not present in Mumbai on the date of the incident, hence, he could not have participated in the incident. The said FIR is under Sections 363, 365 and 452 read with 34 of IPC and under Sections 3 and 25 of the Arms Act. 3. The prosecution case as revealed from the FIR of Leela 1 13. cr wp 2893-10.doc Iyer, the mother of a girl who was kidnapped, reads as under: In October 2009, the petitioner had kidnapped Sonia, the daughter of Leela Iyer. On 6th September 2010 at about 1.00 to 1.30 p.m., when Leela was at home, one Anandraj, Adhishtaraj alias Raja and one unknown person entered into the house of Leela. They were armed with sword and revolver. They put Sonia into a white car and drove away. Leela has further stated that the petitioner was sitting in the car. Thereafter, she went to the police station and lodged FIR at 03.00 pm on the same day. 4. Learned advocate for the petitioner has submitted that on the date of the incident i.e on 6th September 2010, the petitioner was in Tamilnadu. He has produced certificate to show that the petitioner donated blood in Sudharson Hospital, Tirunelveli-627 003. It is further stated that the petitioner was assaulted on that date, hence he came to be admitted in Tirunelveli Medical College Hosital on 06th September 2010 at 5.08 pm. The petitioner was discharged on 9th September 2010. He submitted that if the petitioner was admitted in Hospital in Tirunelveli, it was not possible that he could have participated in the incident which occurred at 1.30 p.m. on 06th September 2010 in Mumbai. To support this contention, he has placed reliance on the medical papers of the said hospital in Tirunelveli. 2 13. cr wp 2893-10.doc 5. It is seen that the petitioner has raised defence of alibi. This FIR cannot be quashed on the basis of defence raised by the petitioner. The petitioner would have to prove his defence of alibi by leading evidence during the trial. He would also have to prove that the person mentioned in the said medical papers is the petitioner. Thus, at this stage, it would not be proper to quash the FIR based on these documents. The FIR clearly shows involvement of the petitioner in this case, hence, the petition is rejected. 6. It is stated that the anticipatory bail application of the petitioner is pending before the Sessions Court. The Sessions Court shall not be influenced by any observations in this order while disposing of the said application. The trial Court shall also, not be influenced by any observation in this order. [SMT. V.K. TAHILRAMANI, J.] 3 13. cr wp 2893-10.doc 4