Plea of Alibi Must Be Proved at Trial — Investigating Officer Cannot Unilaterally Accept It (Allahabad HC, Rajvir v. State of UP)

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Overview

The Allahabad High Court has held that a plea of alibi raised by an accused during a criminal investigation must be proved by leading evidence at trial, and that an investigating officer commits “gross illegality” by unilaterally treating such a plea as established and closing the investigation on that basis through a final report. Dismissing an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) that challenged a Special Judge’s summoning order, the Court reaffirmed that the credibility of an alibi is a matter for the trial court, not for the investigating officer’s file.

Case: Rajvir and Another v. State of U.P. and 3 Others
Citation: 2026 LiveLaw (AB) 388
Bench: Justice Vivek Kumar Singh
Date: 12 July 2026

Facts

An FIR was registered on 23 December 2023 against an unknown person concerning the kidnapping of a 16-year-old girl, said to have occurred on 21 December 2023. The victim was recovered by the police on 13 January 2024. In her statement recorded under Section 161 of the Code of Criminal Procedure, 1973 (CrPC), she stated that she had been forcibly kidnapped by applicant no. 2 in a car and thereafter gang-raped by both applicants.

Investigation proceeded, and the accused were eventually summoned to face trial for offences under Sections 363 (kidnapping), 366 (kidnapping or abducting a woman to compel marriage or seduce her to illicit intercourse), 376D (gang rape) and 342 (wrongful confinement) of the Indian Penal Code, 1860 (IPC), read with Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Special Judge (POCSO Act), Aligarh, passed the summoning order in February 2025.

Rajvir and the co-accused challenged that summoning order before the Allahabad High Court through an application under Section 528 BNSS — the provision that preserves the High Court’s inherent power to give effect to orders under the Sanhita, prevent abuse of the process of any court, and secure the ends of justice. It is the direct successor of Section 482 of the erstwhile CrPC. Their case, in essence, was that material gathered during investigation supported their plea of alibi, and that this ought to have led the investigating officer to close the case rather than allow it to proceed to a summoning order.

What the Court Held

An alibi must be proved at trial, not accepted by the investigating officer. The Court held that a plea of alibi is a matter of defence which must be established through cogent evidence during the trial itself. It is not open to an investigating officer to arrive at a conclusion on the truth of an alibi during investigation and treat the case as closed on that basis.
Unilateral acceptance of an alibi by the IO amounts to “gross illegality.” Where the material on record — including the victim’s own statement and other evidence gathered during investigation — otherwise disclosed a prima facie case connecting the accused to the offence, the Court held it would be gross illegality for the investigating officer to file a final report relying merely on the statements of witnesses who supported the applicants’ plea of alibi. An investigating officer is expected to remain impartial and place all the material, not merely the version favourable to the accused, before the court.
An alibi can be tested only through cross-examination at trial. The Court observed that the correctness of a plea of alibi can be tested only before the trial court, where the prosecution has the opportunity to cross-examine the defence witnesses and demonstrate that their testimony does not hold up. An alibi recorded in the case diary, or relied upon to justify a final report, has not been through that adversarial test and cannot be treated as conclusively established.
A Magistrate is not bound by the investigating officer’s conclusion. The Court reiterated the settled position that a Magistrate examining a police report is not bound to accept the conclusion recorded by the investigating officer. The Magistrate may independently apply his mind to the facts that have emerged during investigation and take cognizance of the offence if he considers it fit to do so.
The High Court’s findings are tentative and do not bind the trial. In dismissing the application and declining to interfere with the summoning order, the Court clarified that its observations were confined to the limited question of whether that order warranted interference, and were not to be read by the trial court as any comment on, or evaluation of, evidence that is yet to be led. The truth of the prosecution case, the Court noted, has to be established beyond doubt at the trial, in accordance with law.

Precedents Relied On

The reported account of this order does not set out the full list of authorities cited by the Bench. The principle it applies, however, sits within a settled line of Supreme Court authority on the limited evidentiary weight of a police final report and a Magistrate’s independent power to disagree with it:

H.S. Bains v. State (Union Territory of Chandigarh), (1980) 4 SCC 631 — on facts closely comparable to Rajvir, the police had submitted a final report accepting the accused’s alibi (that he was in Amritsar, not Chandigarh, at the relevant time) and recommending closure. The Supreme Court held that a Magistrate is not bound by the conclusion reached by the police in a final report, just as he is not bound by a complainant’s version, and may independently take cognizance of the offence.
Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 — the Supreme Court held that while a Magistrate cannot compel the police to submit a charge sheet once a final report has been filed, the Magistrate is not thereby bound to accept the police’s conclusion and may take cognizance under Section 190(1)(c) of the CrPC (now Section 210 of the BNSS) where the material on record discloses an offence.

These authorities form the doctrinal backdrop against which the Rajvir Bench’s holding operates: the investigating officer’s opinion is not the last word, and a plea of alibi recorded during investigation carries no conclusive weight until it is tested at trial.

Takeaway

The order is a reminder that an alibi is, in law, a matter of defence to be proved — the burden lies on the accused to establish it through evidence, not on the investigating officer to accept it as a matter of course. By describing the unilateral acceptance of an alibi in a final report as “gross illegality,” the Allahabad High Court drew a clear line: an investigating officer’s role is to gather and place all the material — both supporting and contradicting the accused — before the court, leaving the actual assessment of a defence such as alibi to the trial, where the prosecution retains the right to cross-examine defence witnesses. The order also reaffirms the long-established position that a Magistrate examining a police report retains independent power to take cognizance despite a closure recommendation, and that observations made at the pre-trial stage — whether by a Magistrate summoning an accused or by a High Court declining to interfere with that summons — do not amount to a finding on the merits, which remain to be established at trial in accordance with law.

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