Orissa High Court
Khirod Kumar Nayak vs State Of Odisha ... Opposite Party on 16 September, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.8529 of 2025
(In the matter of application under Section 483 BNSS)
Khirod Kumar Nayak ... Petitioner
-versus-
State of Odisha ... Opposite Party
For Petitioner : Mr. A.K. Das, Advocate
For Opposite Party : Mr. T.K. Acharya, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING & JUDGMENT:16.09.2025 (ORAL)
G. Satapathy, J.
1. This is a bail application U/S.483 of the BNSS by the petitioner for grant of bail in connection with CID(CB) Cyber Crime PS Case No. 58 of 2024 corresponding to GR Case No.903 of 2024 pending in the Court of learned 2nd Addl. Sessions Judge, Cuttack for commission of offences punishable U/Ss. 409/419/420/467/468/471/120-B/34 of IPC r/w Sections 66/66C/66(B) of the IT Act, on the main allegation of securing an overdraft loan of Rs. 2.25 Crores fraudulently against the fixed deposit of Rs. Page 1 of 15 BLAPL No. 8529 of 2025 2.5Crores made by the Informant and transferring the said amount to bank account of his sister and thereafter, transferring it to different accounts through multiple transactions by obtaining the signatures of the Informant surreptitiously on different documents and in the process, cheating her by committing online fraud.
2. In the course of hearing, Mr. Alok Kumar Das, learned counsel for the petitioner, very politely submits that the petitioner is renewing his prayer for bail since investigation is not complete and it has been kept open and thereby, the petitioner having been detained in custody for more than the statutory period 120 days as contemplated U/S.167(2) CrPC/187(3) of BNSS, is entitled to default bail. Mr. Das also submits that since the petitioner is a family man having dependent children and already been confined for some days, the prayer of the petitioner for bail may kindly be considered positively.
2.1. On the other hand, Mr. T.K. Acharya, learned Addl. Public Prosecutor while opposing the bail application of the petitioner submits inter-alia that since BLAPL No. 8529 of 2025 Page 2 of 15 the bail application of the petitioner was earlier rejected by this Court on 03.07.2025 in BLAPL No.3243 of 2025 and there being no change in circumstances in the meantime, the prayer for bail of the petitioner may kindly be rejected.
3. After having considered the rival submissions upon perusal of records, there appears allegation against the petitioner for securing an overdraft loan of Rs.2.25 Crores fraudulently against the fixed deposit of Rs.2.5 Crores made by the informant and transferring the said amount to bank account of his sister and thereafter, transferring it to different accounts through multiple transactions by obtaining signatures of the informant surreptitiously on different documents and in the process committing online fraud. The allegation against the petitioner is not only grave, but also serious. It is also not in dispute that the bail application of the petitioner was earlier rejected by this Court on 03.07.2025, but there is no real change in circumstance in the meantime to BLAPL No. 8529 of 2025 Page 3 of 15 consider the bail application of the petitioner afresh on merit.
4. In response to the submission for default bail to the petitioner, it appears that the petitioner has relied upon the decision in Ritu Chhabaria Vrs. Union of India; Writ Petition (Criminal) No.60 of 2023 to set up the plea for default bail on the ground of keeping the investigation open U/S.173(8) of the CrPC/193 (9) of the BNSS, but in Directorate of Enforcement Vrs. Manpreet Singh Talwar; Special leave to criminal No.5724 of 2023(with IA No.90183 of 2023), a three judge Bench of the Apex Court has been pleased to held as under:-
"1. we clarify that the order shall not preclude any trial Court or, as the case may be, High Court for considering an application for grant of default bail U/S.167 of the Code of Criminal Procedure 1973 independent of and without relying on the judgment dated 26th April 2023 in Writ Petition (Criminal) No.60 of 2023."
In proceeding to examine as to whether keeping of investigation open after submitting charge-
sheet against some of the accused persons would enure to such accused persons, who have been charge BLAPL No. 8529 of 2025 Page 4 of 15 sheeted for certain offences for default bail, it is no more res-integra that compulsive/default bail is compulsorily enforceable only on non-filing of Challan/charge-sheet/Police report as prescribed U/S.173(2) of the CrPC/193(3) of the BNSS, but it does not survive or remain enforceable once challan/police report is filed against the accused in terms of Sec.173(2) of CrPC/193(3) of BNSS inasmuch as Sec.167(2) of CrPC/187(3) of BNSS which provides the scheme for the default bail, does not refer to charge-
sheet, rather it only says about authorization of detention of the accused in custody for a maximum or stipulated period of 90/60 days(120/60 days for the State of Odisha) pending completion of investigation and the right of the accused for bail on expiry of the aforesaid period. In the aforesaid premises, a conjoint reading of Sec.167 & 173 of the CrPC/187 & 193 of the BNSS makes it apparently clear about the right crystallized in favour of the accused, once the investigation is not completed within the aforesaid stipulated period.BLAPL No. 8529 of 2025 Page 5 of 15
5. It is apparently clear that the basic framework on which release of the accused on default bail has been provided in proviso(a) to Sub-section 2 of Section 167 of the CrPC/187(3) of BNSS, which is to be guided by filing of Police report U/s. 173(2)(i) of the CrPC/193(3)(i) of the BNSS read with Section 173(5) of the CrPC/193(6) of the BNSS. Section 173(2) of the CrPC/193(3) of the BNSS mandates that once investigation is completed, the Officer in-charge of a Police Station shall forward to the Magistrate empowered to take cognizance of the offences on a Police report, a report in the form prescribed by the State indicating/stating the details that has been described therein. Section 173(5) of the CrPC/193(6) of the BNSS, however, mandates that when such report is in respect of a case, to which Section 170 of the CrPC/190 of BNSS applies, the Police Official shall forward to the Magistrate along with report, all documents or relevant extract thereof, on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation and the BLAPL No. 8529 of 2025 Page 6 of 15 statements recorded U/S. 161 of the CrPC/180 of BNSS of all the persons whom the prosecution proposes to examine as its witnesses. The scheme of further investigation has been elaborated U/S. 173(8) of the CrPC/193(9) of the BNSS, which deals with the provision for further investigation. It is, therefore, very clear that further investigation in a case is well within the scheme of the CrPC/BNSS. It cannot be, however, considered that the investigation kept open for further investigation would automatically entitle the accused to default bail inasmuch as the statutory scheme does not lead to a presumption that keeping the matter open for further investigation in terms of Section 173(8) of the CrPC/193(9) of the BNSS qua the other accused persons or for production of some documents not available at the time of filing of charge sheet, would render the report filed U/s. 173(2) of the CrPC/193(3) of the BNSS as incomplete or defective one. In this regard, this Court is alive with the principles/ratio laid down in K. Veeraswami vs. Union of India; (1991) 3 SCC 655 wherein while explaining the scope of BLAPL No. 8529 of 2025 Page 7 of 15 Section 173(2) of the CrPC, a Constitutional Bench of Apex Court in paragraph 76 has held as under:-
"76. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the Code. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties;
(b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi v. State of Bihar;1980 3 SCC 152 that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not BLAPL No. 8529 of 2025 Page 8 of 15 necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence."
6. In the context of default bail as advanced in this case, this Court, however, considers it profitable to refer to the decision in Central Bureau of Investigation Vrs. Kapil Wadhawan and another; (2024) 3 SCC 734, wherein in a similar situation, the Apex Court has held as under:-
"23. The benefit of proviso appended to sub- section (2) of Section 167 of the Code would be available to the offender only when a charge- sheet is not filed and the investigation is kept pending against him. Once however, a charge- sheet is filed, the said right ceases. It may be noted that the right of the investigating officer to pray for further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet is filed under sub-section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the charge-sheet, nonetheless for some reasons, if all the documents are not filed along with the charge- sheet, that reason by itself would not invalidate or vitiate the charge-sheet. It is also well settled that the court takes cognizance of the offence and not the offender. Once from the material produced along with the charge-sheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial BLAPL No. 8529 of 2025 Page 9 of 15 whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of charge-sheet would neither vitiate the charge-sheet, nor would it entitle the accused to claim right to get default bail on the ground that the charge-sheet was an incomplete charge- sheet or that the charge-sheet was not filed in terms of Section 173(2) Code."
7. In adverting to another decision on similar issue in Dinesh Dalmia vs. CBI.; (2007) 8 SCC 770, the Apex Court while discussing the scope of Section 167(2) vis-à-vis Section 173(8) of the CrPC has held the followings in paragraphs-19, 20 and 22:-
"19. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any offence appears to have been committed and, if so, by whom. In some cases, the accused having not been arrested, the investigation against him may not be complete. There may not be sufficient material for arriving at a decision that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused.BLAPL No. 8529 of 2025 Page 10 of 15
20. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge- sheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate.
22. It is true that ordinarily all documents accompany the charge- sheet. But, in this case, some documents could not be filed which were not in the possession of CBI and the same were with GEQD. As indicated hereinbefore, the said documents are said to have been filed on 20-1- 2006 whereas the appellant was arrested on 12-2- 2006. The appellant does not contend that he has been prejudiced by not filing of such documents with the charge-sheet. No such plea in fact had been taken. Even if all the documents had not been filed, by reason thereof submission of charge- sheet itself does not become vitiated in law. The charge-sheet has been acted upon as an order of cognizance had been passed on the basis thereof. The appellant has not questioned the said order taking cognizance of the offence. Validity of the said charge-sheet is also not in question."
8. Further, it is reiterated that the indefeasible right accruing to the accused is enforceable only prior to the filing of the police report U/S. 173(2) of the CrPC/193(3) of the BNSS and it does not survive or remain enforceable, once such report is filed. It is, however, made clear that once report U/S. 173(2) of the CrPC/193(3) of the BNSS is filed within the statutory period, the question of grant or refusal of bail BLAPL No. 8529 of 2025 Page 11 of 15 has to be considered and decided only on merits and the same is not governed by Sec. 167(2) of the CrPC/187(3) of the BNSS in such situation. A brief reference to the charge-sheet filed in this case, it appears that the investigating officer has submitted charge-sheet against the accused-petitioner, but keeping investigation open for other purpose.
9. In the aforesaid situation and on a careful consideration of the provision governing the default bail and investigation, it appears to the Court that there is a difference between filing a charge sheet and forwarding of the documents together with the charge sheet, since the charge sheet is filed upon completion of investigation after the Investigating Officer finding sufficient evidence to prosecute the accused for offences and the documents collected by the Investigating Officer is only corroborative in nature to the accusations. Further, Section 173(2)(i)(d) of the CrPC/193(3)(i)(d) of the BNSS discloses that while submitting a Police report, it is the duty of the Investigating Officer to state whether any offence BLAPL No. 8529 of 2025 Page 12 of 15 appears to have been committed and if so, by whom and the forwarding of documents referred to in Section 173(5) of the CrPC[193(6) of the BNSS] along with police report U/S. 173(2) of the CrPC[193(3) of the BNSS] is only directory in nature, but not mandatory as held by the Apex Court in Narendra Kumar Amin v. Central Bureau of Investigation and others; (2015) 3 SCC 417. Moreover, when the further investigation as contemplated U/S. 173(8) of the CrPC/193(9) of the BNSS is permissible, the Investigating Officer, if situation so calls for can conduct further investigation and thereby, no statutory Bar having been imposed for collection of further evidence in the form of additional documents which are gathered prior to or subsequent to the investigation can be produced before the Court. In this situation, there being no statutory Bar for production of additional documents before the Court, mere non-filing of full set of documents with police report/charge sheet within statutory period does not entitle the accused to default BLAPL No. 8529 of 2025 Page 13 of 15 bail, unless the police report is not a complete report in terms of Sec. 173(2) of the CrPC/193(3) of the BNSS.
10. In view of the discussion made hereinabove, together with analysis of law laid down by Apex Court in the decisions referred to above, the petitioner is not entitled to any default bail merely because the investigation has been kept open in this case, more particularly when the trial is likely to commence or might have been commenced in the meantime. In such view of the matter and regard being had to the allegation of committing fraud by forging documents and the supporting materials collected by the IO against the petitioner and keeping in view the manner in which a senior citizen (informant) has been defrauded and taking into account the nature and strength of materials collected by the Investigating Agency, so also the magnitude of crime, this Court does not considers it proper to grant bail to the petitioner at this stage, especially when the trial is yet to be completed.
BLAPL No. 8529 of 2025 Page 14 of 15
Hence, the bail application of the petitioner stands rejected. Accordingly, the BLAPL stands disposed of.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 16th day of September, 2025/Jayakrushna Signature Not Verified Digitally Signed Signed by: JAYAKRUSHNA DASH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Sep-2025 18:10:43 BLAPL No. 8529 of 2025 Page 15 of 15