Orissa High Court

Rajeev Lugun @ Topno 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.8470 of 2025

   (In the matter of application under Section 439 CrPC r/w.
   Section 167(2) of CrPC/ Sec.483 r/w Sec.187(3) of
   BNSS.)

   Rajeev Lugun @ Topno ...                           Petitioner
                               -versus-
   State of Odisha               ...             Opposite Party

   For Petitioner          :         Mr. R.K. Sahoo, Advocate

   For Opposite Party      :         Mr. P. Satpathy, Addl. PP

          CORAM:
                      JUSTICE G. SATAPATHY

     DATE OF HEARING & JUDGMENT:16.09.2025 (ORAL)

G. Satapathy, J.

1. This is bail application U/S.483 of BNSS by

the petitioner for grant of bail in connection with

Birmitrapur P.S. Case No.177 of 2024 corresponding

to S.T. Case No.151/11 of 2024 pending in the file of

learned Ad-hoc ADJ (FTSC) POCSO, Rourkela, for

commission of offences punishable U/Ss. 376(D)/

376(2)(1)/114 of IPC, on the main allegation of

committing Gang Rape upon the victim.

2. In the course of hearing, Mr. Ramesh Kumar

Sahoo, learned counsel for the petitioner submits that

since chemical examination report has not yet been

filed by the prosecution, the charge sheet which has

been filed in this case is incomplete one, but the

petitioner having detained in custody beyond the

statutory period as prescribed for default bail, he may

kindly be granted default bail. In support of his

contention, the learned counsel for the petitioner

relies upon the decision in Ritu Chhabaria Vrs.

Union of India; Writ Petition (Criminal) No.60 of

2023. On the sole plea of default bail, Mr. Ramesh

Kumar Sahoo, prays to grant bail to the petitioner.

2.1. On the other hand, Mr. P. Satpathy, however,

opposes such plea of the petitioner by stating that

merely because chemical examination report has not

yet been filed, it cannot be construed that the charge

sheet is incomplete and the petitioner is entitled to

default bail. Mr. Satpathy, accordingly, prays to reject

the bail application of the petitioner.

3. After having considered the rival submissions

upon perusal of record, there appears allegation

against the petitioner for committing gang rape upon

the victim, but the plea of the petitioner is for default

bail on the ground of non-submission of chemical

examination report. Undoubtedly, learned counsel for

the petitioner has relied upon the decision in Ritu

Chhabaria (supra), 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."

4. In regard to plea for default bail to the

petitioner, who is mainly accused of committing Gang

Rape upon the victim for want of CE report, this Court

considers it useful to refer to the following decisions

of the Apex Court:-

4.1. In K. Veeraswami vs. Union of India;

(1991) 3 SCC 655, while explaining the scope of

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 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."

4.2. In the context of this matter, this Court

considers it profitable to refer to the decision in

Central Bureau of Investigation v. 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 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."

4.3. In Dinesh Dalmia vs. CBI.; (2007) 8 SCC

770, while discussing the scope of Section 167(2)

vis-à-vis Section 173(8) of the CrPC, the Apex Court

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.

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."

5. 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 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 bail, unless the police report is not a complete

report in terms of Sec. 173(2) of the CrPC/193(3) of

the BNSS.

6. In the present case, the undisputed facts

disclose that soon after receipt of the report styled as

charge sheet on 20.07.2024, cognizance of the

offences U/ss. 376(D)/376(2)(1)/114 of the IPC was

taken on the same day, but the petitioner by then

having not completed the statutory period of 120

days for default bail, the right to default bail had not

accrued to the petitioner on the date of taking

cognizance of offences on presentation of report U/S.

173(2) of the CrPC/193(3) of BNSS and thereafter,

his right to default bail would not revive. In this

regard, this Court considers it appropriate to refer to

the decision in Mohamed Iqbal Madar Sheikh and

others v. State of Maharashtra; (1996) 1 SCC

722, wherein the appellants were taken into custody

on 16.01.1993 and charge sheet was submitted on

30.08.1993; which was obviously beyond the

statutory period U/S. 20(4)(b) of the Terrorists and

Disruptive Activities (Prevention Act) (in short "the

TADA Act") and, though the appellants therein were

entitled to be released on default bail in view of the

charge sheet not being filed within the statutory

period prescribed U/S. 20(4)(b) of the TADA Act r/w.

proviso (a) to Section 167(2) of the Code, but they

did not make an application for release on bail on the

ground of default in completion of investigation within

the statutory period. In such situation, the Apex

Court in paragraph-11 therein has held as under:-

"11. xx xx xx It is now settled that this right [U/S. 167(2) of the Code(CrPC)] cannot be exercised after the charge sheet has been submitted and cognizance has been taken,

because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not U/S. 167(2), but under other provisions of the Code (CrPC)."

7. Thus, on a careful conspectus of facts of the

present case and the law laid down by Apex Court in

Madar Sheikh (supra), it can be well considered

that the right to statutory bail becomes unenforceable

after cognizance having been taken on the Police

report U/S. 173(2) of the CrPC/193(3) of BNSS. In

view of the precedents laid down by the Apex Court

in the decisions referred to above together with

consideration of facts involved in this case, it is

crystal clear that the non-submission of CE report in a

case of this nature where allegation against the

petitioner is for committing Gang Rape would not