Kanhaiyalal’s throat was slit in public but NIA could not stop Javed’s bail, what is the alibi which made the investigating agency miss it

New Delhi: On June 28, 2022, Rajasthan High Court granted bail to Mohammad Javed, accused in the open murder of tailor Kanhaiyalal in Udaipur, due to weak investigation and facts. While hearing the case, a division bench of Justice Pankaj Bhandari said that the National Investigation Agency (NIA) arrested the accused on the basis of mere call details. The investigating agency could neither prove the location of the accused Javed, nor could it make any recovery from him/her. Since the accused has been in jail for a long time and the trial will be long. In such a situation, accused Javed is granted bail. After the bail was rejected by the NIA court on 31 August 2023, Javed had filed a bail petition in the High Court. The big question is arising that how did Javed get bail? Let us know from the legal expert what is the doctrine of plea alibi, which the accused got the benefit of. We will also know where and how the NIA failed in this case?

What is the purpose of investigation in a criminal case

Supreme Court advocate and legal expert Anil Kumar Singh Srinet says that whenever a crime occurs, the first thing that happens is an investigation. It has two purposes. First, who committed the crime and second, to collect evidence regarding that crime. The investigation, facts and evidence related to both of these can be presented in the court along with the charge sheet.
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What are the rules and what is in the charge sheet

According to Advocate Anil Kumar Singh Srinet, generally the police can arrest someone in a case only on the basis of suspicion. The police has the power that if someone is suspected in a crime, then a preliminary investigation is first conducted against him/her. It can arrest only after getting sufficient evidence. The charge sheet is a bundle of evidence and facts.

What does the court look for in the charge sheet when it begins the trial

According to Anil Singh, under pressure from media and social media or any other reason, the suspect is arrested first. Now the second task is to gather evidence, which is not found in sufficient quantity during investigation. It is the job of the court to check how much evidence is sufficient to run a case. Now the court gets witnesses examined in this case, only if they are found correct, the trial will begin.

On which argument did the NIA back foot in the court?

During the debate on the bail plea in the court, the NIA lawyer said that the accused involved in the Kanhaiyalal murder case know each other. They conspired together. Call details confirm this. A witness in the case, Zeeshan, also says that Riyaz and Javed met at the Indiana Tea Stall before the incident. At the same time, Javed’s lawyer said that according to the NIA, Javed planned the murder at the tea stall, while the owner of the tea stall did not confirm Javed’s presence there that day. The CCTV camera footage proves that Javed did not go to Kanhaiyalal’s shop. This is where the NIA failed.

What is the doctrine of plea alibi, due to which Javed was acquitted

Doctrine of plea alibi is a judicial measure of defence, under which an accused i.e. the defendant proves or tries to prove that he/she was at some other place at the time of the alleged crime. The word alibi comes from the Latin language, which means presence at another place. According to The Criminal Law Deskbook of Criminal Procedure, alibi is different from all other types of excuses or reasons. It is based on the fact that the defendant is actually innocent. Not providing relevant facts for defence can have an adverse effect on legal action. Also, a fine may have to be paid for giving false excuses or reasons. Taking advantage of this, Javed was released.

Alibi is recognized under section 11 of the law

The plea of ​​alibi is a defence that an accused can use to prove his/her innocence in a criminal case. This appeal is recognised under sections 11 and 103 of the Indian Evidence Act, 1872.

What has happened so far in the Kanhaiyalal murder case, how many are in jail and how many are free, read everything from the NIA investigation

Though valid under section 11, but these conditions are necessary

Section 103 of the Indian Evidence Act states that if a person wants the court to believe in the existence of a fact, then the burden of proving such fact is on him/her. In an alibi appeal, the accused wants the court to believe the fact that he/she was somewhere else than the scene of the crime. In such a case, under Section 103, it is the burden of the accused to prove the fact that he/she was somewhere else at the time of the crime.
However, this appeal will be valid only if the following conditions are met-

• The accused must not have been present at the scene of the crime when it was committed.
• The accused might have been at some other place, making his/her presence at the scene of crime not possible.
• The accused should make this appeal as early as possible in the legal proceedings.
• The accused will have to make this appeal with evidence and witnesses in his/her favour such as photos, GPS, videos or friends and family.
• The accused has to prove his/her plea beyond reasonable doubt.

Alibi appeals can be shields, not swords

In May 2024, the Kerala High Court held that the alibi plea taken by the accused can be treated as a defence only if the prosecution satisfactorily establishes their case. It said that once the prosecution establishes the presence of the accused at the scene of the crime, only then the defence has to produce positive evidence to show that he/she was not present at the scene of the incident or was somewhere else. Justice Sophie Thomas said that the plea of ​​alibi can be used as a shield, not as a sword.

100 criminals may be let off, but not a single innocent should be punished

Actually, this theory of alibi is born from the theory which says that even if 100 criminals are released, no innocent should be punished. Blackstone Ratio Theory is applicable in any criminal law. Actually, a judge and jurist of England, William Blackstone gave this theory that even if 10 guilty are released, not even 1 innocent should be punished. After some time, Benjamin Franklin, one of the founders of America, gave this theory that even if 100 criminals are released, no innocent should be punished.
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The British soldiers who committed the Boston massacre escaped due to this theory

Franklin increased the number of criminals from 10 to 100, after which it was recognized in the laws of the whole world that 1 innocent is more than 100 criminals. On this basis, the British soldiers who committed the massacre in Boston were saved from getting punished. This principle was much discussed in the last decades of the 18th century. This principle is now often used as a precedent in the courts in the 21st century. This has been adopted in India as well.

What was Kanhaiyalal murder case, what are the charges against Javed

On 28 June 2022, Kanhaiyalal was brutally murdered by Riyaz Attari and Gaus Mohammad by slitting his/her throat. At that time, the NIA had filed a chargesheet against a total of 11 accused Mohsin, Asif, Mohammad Mohsin, Wasim Ali, Farhad Mohammad Sheikh alias Babla, Mohammad Javed, Muslim Mohammad, including the main accused Gaus Mohammad and Riyaz Attari, declaring Salman and Abu Ibrahim, residents of Karachi, Pakistan, as absconding. The NIA court had granted bail to Farhad Mohammad alias Babla on September 1, 2023. A case under the Arms Act was registered against him/her.

Javed had done Reiki and a sword was found in his/her house

On 28 June 2022, 20 days after Kanhaiyalal’s murder, the NIA arrested Javed. he/she was accused of meeting the main accused Riyaz Attari a day before the incident. A blunt sword was found during a search of his/her house. In such a situation, a case was also registered against him/her under the Arms Act. Javed, who sells artificial jewellery, was also accused of recce. A year ago too, he/she had applied for bail in the court, which was rejected by the court on the appeal of the NIA. But this time Javed managed to get bail.

NIA has failed in court in many previous cases too

NIA had failed to present sufficient evidence against the accused in the court in many cases earlier. Due to which the case in the court had become weak at that time. In the 2007 Mecca Masjid blast case, 2008 Malegaon bomb blast and 2007 Ajmer bomb blast cases, NIA was not able to present sufficient and solid evidence in the court, due to which the accused were able to take advantage of it.