Orissa High Court
Vicky Kumar @ Kashyap vs State Of Odisha . Opposite Party on 24 November, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3669 of 2025
An application under Section 528 of the BNSS, 2023.
Vicky Kumar @ Kashyap . Petitioners
and another
Mr. Sk. Zafarulla, Advocate
-versus-
State of Odisha . Opposite Party
Smt. Sasmita Nayak,
Additional Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE A.K. MOHAPATRA
Date of hearing : 12.11.2025 | Date of Judgment : 24.11.2025
A.K. Mohapatra, J. :
1. By filing the present application under Section 528 of BNSS, the
Petitioners seek to invoke the inherent jurisdiction of this Court to quash
order dated 11.08.2025 arising out of Balasore Cyber P.S. Case No.12 of
2025, corresponding to C.T. Case No.198 of 2025, pending before the
learned S.D.J.M., Balasore. The above noted case was registered at the
instance of the Informant-Opposite Party No.2 alleging commission of
offence punishable under Sections 3(5), 318(4), 319(2), 336(3), 338,
340(2) of BNS read with Sections 66-C & 66-D of Information
Technology Act' 2008. By virtue of the impugned order, the learned trial
Court has rejected the prayer of the Petitioners for their release on default
bail under Section 187(3) of BNSS, 2023.
2. Heard learned counsel for the Petitioners and learned counsel for
the State. Perused the application as well as the prayer made therein.
3. Learned counsel for the Petitioners at the outset contended that
after registration of the FIR on 17.03.2025 at about 16:30 hours at Cyber
Crime & Economic Offences, Balasore Police Station, the investigation
of the case commenced. In course of investigation the Petitioners were
arrested on 10.05.2025. He further submitted that the Petitioners
remained in custody for 90 days from the date of arrest, however, no
charge-sheet was filed within the aforesaid statutory period of 90 days.
Thereafter, on the 92nd day, i.e. on 12.08.2025, application under Section
187(3) of BNSS, 2023 was filed for release of the Petitioners on default
bail. It is stated by learned counsel for the Petitioners that by that date the
charge-sheet has not been filed by the I.O. as the investigation had not
been completed.
4. In the aforesaid context, learned counsel for the Petitioners referred
to the impugned order to impress upon this Court that at the time of
hearing of his application for grant of default bail under Section 167(2) of
Cr.P.C., which corresponds to Section 187(3) of BNSS, the charge-sheet
was not before the learned trial Court. Thus, an indefeasible right has
accrued in favour of the Petitioners to be released on bail on the ground
that the investigating agency has not been able to file the charge-sheet
within the statutory period of 90 days, which expired on 09.08.2025, as
has been prescribed under the BNSS, 2023,. Even at the time of hearing
of the application under Section 187(3) of BNSS, the charge-sheet was
not before the learned trial Court. Learned counsels appearing for both
sides submitted that the charge-sheet was not before the Court at the time
of hearing of the application under Section 187(3) on 12.08.2025.
Admittedly, the same has been filed after rejection of the petition filed by
the Petitioners under Section 187(3) of BNSS.
5. Learned counsel for the Petitioners further submitted that since the
FIR was registered on 17.03.2025, there exists no doubt with regard to
the applicability of the procedural law, i.e. either the erstwhile Cr.P.C.,
1973 or the BNSS, 2023. Thus, the FIR filed by the Informant in this case
was rightly registered under the provisions of the BNSS and the trial was
to be conducted under the BNSS, 2023. With regard to the statutory
period that has been prescribed in the BNSS, learned counsel for the
Petitioners contended that Section 187(3)(i) of BNSS provides that the
Magistrate may authorize the detention of the accused person beyond the
initial period of 15 days which may extent up to 90 days from the date of
his detention in custody. For better appreciation, the provision contained
in 187(3) of BNSS is quoted herein below;
"187. Procedure when investigation cannot be completed in
twenty-four hours.
xxx
(3) The Magistrate may authorise the detention of the accused
person, beyond the period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under
this sub-section for a total period exceeding-
(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for a term of ten years or more;
(ii) sixty days, where the investigation relates to any
other offence,
and, on the expiry of the said period of ninety days, or sixty
days, as the case may be, the accused person shall be released
on bail if he is prepared to and does furnish bail, and every
person released on bail under this sub-section shall be deemed
to be so released under the provisions of Chapter XXXV for the
purposes of that Chapter."
6. Learned counsel for the Petitioners, further referring to the
impugned order dated 11.08.2025, submitted before this Court that the
learned trial Court has proceeded on the footing that the statutory period
up to which the detention can be extended, if the charge-sheet is not filed,
is 90 days as was the law under Section 167 of Cr.P.C. He further
contended that although Section 167 of Cr.P.C. provides a statutory
period of 90 days, however, by virtue of the Odisha Amendment to the
Cr.P.C. [Vide Orissa Act 11 of 1997, s. 2] the same was extended to 120
days. He further contended that since the BNSS, 2023 has repealed the
Cr.P.C., as is evident from Section 531 of BNSS, 2023 the present case is
to be tried under the provisions of the BNSS, 2023. In the aforesaid
context, it would be pertinent to refer to Section 531(1) of BNSS which is
quoted herein below;
"531. Repeal and savings.
(1) The Code of Criminal Procedure, 1973 is hereby repealed.
(2) Notwithstanding such repeal-
(a) if, immediately before the date on which this Sanhita
comes into force, there is any appeal, application, trial,
inquiry or investigation pending, then, such appeal,
application, trial, inquiry or investigation shall be disposed
of, continued, held or made, as the case may be, in
accordance with the provisions of the Code of Criminal
Procedure, 1973, as in force immediately before such
commencement (hereinafter referred to as the said Code), as
if this Sanhita had not come into force;
(b) all notifications published, proclamations issued,
powers conferred, forms provided by rules, local jurisdictions
defined, sentences passed and orders, rules and appointments,
not being appointments as Special Magistrates, made under
the said Code and which are in force immediately before the
commencement of this Sanhita, shall be deemed, respectively,
to have been published, issued, conferred, specified, defined,
passed or made under the corresponding provisions of this
Sanhita;
(c) Any sanction accorded or consent given under the
Code in pursuance of which no proceeding was commenced
under that Code, shall be deemed to have been accorded or
given under the corresponding provisions of this Sanhita and
proceedings may be commenced under this Sanhita in
pursuance of such sanction or consent.
(3) Where the period specified for an application or other
proceeding under the said Code had expired on or before the
commencement of this Sanhita, nothing in this Sanhita shall be
construed as enabling any such application to be made or
proceeding to be commenced under this Sanhita by reason only
of the fact that a longer period therefor is specified by this
Sanhita or provisions are made in this Sanhita for the extension
of time."
7. In view of the aforesaid provision of law, learned counsel for the
Petitioners contended that so far the present case is concerned, the
statutory period should be 90 days as has been provided under Section
187(3) of BNSS, 2023 and the provisions of the old Code which have
been repealed shall not be applicable to the present case. Learned counsel
for the Petitioners, again reverting to the impugned order dated
11.08.2025, and by referring to a notification of the State Government,
submitted that the learned trial Court has committed an error in coming to
a conclusion that the statutory period within which the charge-sheet is be
filed is 120 days as was prescribed under the erstwhile Cr.P.C. The
learned trial Court has arrived at such a conclusion by misinterpreting the
Gazette Notification of the Ministry of Law and Justice, New Delhi dated
16.07.2024 and of this Court dated 27.09.2024. On such ground, learned
counsel for the Petitioners contended that the impugned order dated
11.08.2025 is unsustainable in law and the same should be quashed.
8. Learned counsel for the State on the other hand objected to the
prayer made in the present application. In course of her argument, learned
counsel for the State contended that the learned trial Court has not
committed any illegality in rejecting the Petitioners' prayer for grant of
default bail under Section 187(3) of BNSS, 2023. While elaborating her
argument learned counsel for the State contended that the learned trial
Court has referred to the Odisha Gazette Notification dated 01.10.2024,
wherein it has been provided that where the term of imprisonment is for
life or for a term of 10 years or more, the investigation is to be concluded
and the charge-sheet is be filed within 120 days and not 90 days. She
further argued that the Odisha Amendment to the Cr.P.C. extending the
statutory period from 90 days to 120 days continues to remain in the
statute book and the BNSS, 2023 is to be read by taking into
consideration the Odisha Amendment with regard to the statutory period.
On such legal grounds, learned counsel for the State contended that the
impugned order does not call for any interference by this Court at this
stage as the learned trial Court has not committed any illegality at all.
9. Upon hearing the learned counsels appearing from both sides and
on a careful analysis of the dispute involved in the present case, this
Court observed that the question which falls for determination in the
present application is with regard to interpretation of Section 187 of the
BNSS, 2023 and as to whether the accused Petitioners are entitled to be
released on default bail as has been claimed by the learned counsel for the
Petitioners? To answer the aforesaid question, this Court is required to
first examine as to whether the Odisha Amendment to Section 167 of
Cr.P.C. vide Odisha Act 11 of 1997 would continue to remain in force
even after introduction of the BNSS, 2023, particularly keeping in view
the repeal and saving clause under Section 531 of the said Act.
10. A plain reading of Section 531 of the BNSS, 2023 would give an
impression that the Code of Criminal Procedure, 1973 has been repealed
with the coming into force of the Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023 w.e.f. 01.07.2024. Such repeal falls under Section 533(1)
of the BNSS. Insofar as the savings clause is concerned, the same has
been provided under sub-Section 2 of Section 531 of BNSS. Section
531(2), which is the saving clause in BNSS, 2023 and such provision
saves any pending appeal, application, trial, inquiry or investigation
which has been filed prior to the date the BNSS, 2023 came into force
and continued while the BNSS, 2023 was in force. Such proceedings are
to be continued under the provisions of the Cr.P.C., 1973 and all such
provisions of the Cr.P.C. which were in force prior to the BNSS, 2023
coming into force shall be made applicable to such pending proceedings.
11. Similarly, Section 531(2)(b) saves all notifications published
proclamations issued, powers conferred, forms provided by rules, local
jurisdictions defined, sentences passed and orders, rules and appointments
made under the old Code and which were in force immediately before the
commencement of the BNSS, 2023 shall be deemed to have been
continuing under the BNSS, 2023. Similarly, Section 531(2)(c) saves
sanction accorded or consent given under the Code in pursuance of which
no proceeding was commenced under the Code, shall be deemed to have
been accorded or given under the BNSS, 2023. On a close scrutiny of
Section 531 of BNSS, 2023, it appears that the State Amendment made to
the Code, 1973 have not been specifically saved. Moreover, by virtue of
the Amendment, the amending provisions have become an integral part of
the main statute. Thus, there is no doubt that by operation of Section
531(1), while the Code of Criminal Procedure, 1973 was repealed, the
effect of the State Amendment including Odisha Act 11 of 1997 gets
obliterated. What is in force now is the provision contained in Section
187 of the BNSS, 2023. Since Section 187(3)(i) provides 90 days for the
category of offence involved in the present case, the charge-sheet in the
present case should have been filed within 90 days.
12. In view of the aforesaid analysis, this Court has no hesitation in
coming to a conclusion that the Odisha Amendment vide Act 11 of 1997
has also been repealed along with the Parent Act, i.e. Cr.P.C., 1973 and
that in the trials under the BNSS, 2023 the charge-sheet is to be filed in
terms of Section 187 of BNSS thereof. Accordingly, the period of
limitation for filing of the charge-sheet for the purpose of Section 187 of
BNSS would be 90 days.
13. The notification of Home Department, Government of Odisha
No.8923 dated 28.02.2025 lays down a set of rules framed under Section
193(3) & (9) of the BNSS, 2023. Such rule is known as Odisha
submission of final form by Police Officers Rules, 2025. Such rule shall
come into force from the date of their publication in the Odisha Gazette.
Sub-Rule 2(1)(i) thereof specifically stipulates that the investigation in a
case of the present nature is to be completed within 90 days. Further, it
specifically provides in Rule 2(1)(iii) that in the event of failure to
complete the investigation within such stipulated period of time, the
accused in custody has right to be released on default bail.
14. The reference made to the Government of India notification dated
16.07.2024 as well as the notification of this Court dated 27.09.2024 in
Para-7 of the impugned order has no bearing on the outcome of the
present application. The notification dated 27.09.2024 and 16.07.2024
were general in nature and the same were in the context of replacing the
name of the repealed statute by the ones which were introduced w.e.f.
01.07.2024. Such notification does not interfere in any manner with either
Section 187 of the BNSS, 2023 or Section 531 of BNSS thereof. Thus,
this Court is of the considered view that the above noted two notifications
will have no impact while interpreting Section 187 of the BNSS, 2023.
15. On a careful analysis of the impugned order, this Court observed
that in Para-8 of the order that the learned trial Court has opined that 90
days' period is the statutory period within which the investigation has to
be concluded and charge-sheet is to be filed, failing which the accused in
custody gets a right to be released on default bail. However, in the sub-
para of Para-8 the learned trial Court appears to have been misguided by
the notification dated 16.07.2024 and 27.09.2024 which have been
referred to hereinabove in detail. On a careful analysis of the legal
position as well as taking into consideration the factual background of the
present case, this Court has no hesitation in coming to a conclusion that
the period of limitation to conclude the investigation, as per the relevant
provision under Section 187 of BNSS, is 90 days and not 120 days as has
been held by the learned trial Court. Accordingly, order dated 11.08.2025
at Annexure-2 passed by the S.D.J.M., Balasore in C.T. Case No.198 of
2025 is hereby quashed. Further, the matter is remanded back to the
learned trial Court to reconsider the application of the Petitioners for their
release on default bail by applying the principle laid down hereinabove,
within a period of two weeks from the date the Petitioners approach the
learned trial Court along with a certified copy of this order.
16. With the aforesaid observation/direction, the CRLMC application
stands disposed of.
(Aditya Kumar Mohapatra)
Judge
Orissa High Court, Cuttack
The 24th November, 2025/ S.K. Rout, Jr. Stenographer
Designation: Junior Stenographer
Location: High Court of Orissa
Date: 24-Nov-2025 17:09:57
