Kerala High Court
Abhijith Bhuyan P.P vs State Of Kerala on 3 March, 2025
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
CRL.MC NO. 1859 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 06.02.2025 IN CRMP
NO.237 OF 2025 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
KOCHI
PETITIONER:
ABHIJITH BHUYAN P.P
AGED 38 YEARS
S/O KHIREN BHUYAN, MILANAPUR, DEUGHARIJA VILLAGE,
SIBSAGAR DISTRICT, ASSAM, PIN - 785670
BY ADVS.
DHANYA S NAIR
RAHUL.S
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
OTHER PRESENT:
SRI. M.C. ASHI, PP.
THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON
28.02.2025, THE COURT ON 03.03.2025 PASSED THE FOLLOWING:
Crl>MC.No.1859/2025
2
V.G.ARUN, J
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Crl.M.C.No.1859 of 2025
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Dated this the 3rd day of March, 2025
ORDER
The petitioner is the sole accused in Crime No.1129 of
2024 registered at Thoppumpady Police Station, Ernakulam
City. The crime was initially registered under Section 194 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS' for short)
based on the information submitted by the petitioner on
29.10.2024 that a lady by the name Kabya Jyothi Kakati was
found dead in Room No.9 of his lodge. Thereafter, on
05.11.2024, the investigating officer filed a report before the
jurisdictional court to substitute Section 194 with Section
103(1) of the BNSS. The petitioner was arrested on 05.11.2024
and remanded by the court on the same day. As the custody of
90 days had been completed, on 03.02.2025, petitioner moved
the competent court seeking statutory bail. The petition was
heard by the court on 5.02.2025 and dismissed as per Annexure
A1 order dated 06.02.2025. On the petitioner moving an urgent
petition for obtaining a copy of the final report, it came to light
that the charge sheet filed by the investigating officer had been
returned on 15.02.2025, as it did not contain all the
materials/documents listed in the index portion. Thereupon,
petitioner filed a statutory bail application, which the learned
magistrate dismissed as per Annexure A3 order dated
19.02.2025. Hence, this Criminal MC seeking the following
reliefs;
"(a) Call for the records pertaining to Annexure Al and A3 order of the
Hon'ble Judicial First-Class Magistrate Court-II Kochi in Crl.M.P.
No.237/2025 and Crl.M.P. No.327/2025 dated 06.02.2025 and
18.02.2025, respectively and to set aside the same.
(b) Grant default bail to the petitioner in view of the failure of the
Investigating Officer to file proper Final Report within the statutory
time and thus order the release of the petitioner by imposing
necessary conditions in the interest of justice."
2. Learned counsel for the petitioner contended that the
court below grossly erred in dismissing the statutory bail
application. Relying on the Apex Court decision in Ritu
Chhabaria V. Union of India and Others [2023 (2) KLJ 794]
and that of this Court in Vimal K Mohanan v. State [2023 (2)
KLT 214], it is argued that the relief of statutory bail is a
fundamental right and final report filed without completing the
investigation cannot result in denial of this valuable right.
According to the Counsel, non-production of the indexed
documents along with the final report is a major defect.
Referring to Rule 68 of the Criminal Rules of Practice, Kerala, it
is argued that the defective final report should have been
returned on the same day of filing. It is his submission that the
delay in verifying the final report by the court has caused
irreparable injury to the accused.
3. Learned Public Prosecutor submitted that the
investigation in the case was completed and charge sheet
submitted in court on 31.01.2025. As the seizure mahazar of the
blood sample of the victim was not attached to the charge
sheet, it was returned by the court on 15.02.2025. After
rectifying that defect the charge sheet was re-submitted on
17.02.2025 and the charge was taken on the files of the court,
numbered as C.P.No.6 of 2025.
4. The contention urged on behalf of the petitioner was
answered by this Court in Vimal K Mohanan (supra). Therein,
after careful scrutiny of Section 167 of the CrPC, which is pari
materia to Section 187 of the BNSS, it is held as under;
"As discussed earlier, the criteria for deciding the entitlement for
default bail is completion of the investigation and not filing of the
final report. The word 'final report' is not mentioned in S.167.
Therefore, when faced with the Public Prosecutor's application
seeking extension, or that of the accused demanding statutory bail,
the court's consideration should be whether the final report was filed
after completing the investigation. If the final report is found to have
been filed after completing the investigation in all respects, minor
defects in the report, by itself, will not confer the accused with any
right to be enlarged on default bail. On the other hand, if the final
report is filed without completing the investigation, in order to stultify
the mandate of S.167(2) and later returned to the investigating
officer for completing the investigation, that would definitely entitle
the accused to demand that he be released on default bail, if the
final report, after completing the investigation and curing the defects,
is not re - submitted in court before the 180th day. In Saharath v.
State of Kerala [2021 (4) KLT 621], this Court has held that if
the charge sheet was returned as defective, it implies permission to
cure defects. Once the defects are cured and the charge sheet
represented, it cannot be said that the proviso to S.167(2) CrPC
would get attracted. "
5. The investigation in the petitioner's case was completed
and final report filed on 31.01.2025, within the 90 days period.
The final report was returned on noting that the mahazar of
victim's blood sample report, though indexed, was not attached.
The defect was cured and the final report resubmitted within
few days. The defect was minor in nature and no further
investigation was required for curing that defect.
6. No doubt, the courts should verify final reports at the
earliest, especially in cases in which the report is filed on or just
prior to the last day for completion of investigation. Otherwise
the accused's entitlement for default bail will get defeated by
truncated charge sheets, without completing the investigation,
being filed. As far as the case at hand is concerned, the final
report as originally filed did not contain any major defect and
was returned for appending a document. Therefore it cannot be
held that as on the date of completion of 90 days investigation
was not completed.
7. The challenge based on Rule 68 of the Criminal Rules of
Practice cannot also be countenanced, since the thrust is on
compliance of Rule 67. Even otherwise, Rule 68 only mandates
return of the defective petition, application, complaint, police
report or other proceedings without numbering and with a
direction to resubmit within a specified period.
For the aforementioned reasons, the Crl.M.C is dismissed.
sd/-
V.G.ARUN, JUDGE
sj
