Khirod Kumar Nayak vs State Of Odisha ... Opposite Party
2025 Latest Caselaw 8278 Ori

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.

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

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

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

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.

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

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

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."

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

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.

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

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

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.

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.

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

Location: High Court of Orissa, Cuttack