The main legal point established in the judgment is the interpretation of 'incomplete challan' and the entitlement to default bail under Section 167(2) Cr.P.C in absence of specific documents being attached with the police report filed under Section 173 Cr.P.C.

JUDGMENT

Jaishree Thakur, J. - The petitioner has approached this High Court under section 439 Cr.P.C. along with Section 482 Cr. P.C being aggrieved against the order 11.6.2021 passed by the Additional Sessions Judge, Hisar by which the application for default bail has been dismissed.

2. In brief the facts are that the petitioner herein was nominated as an accused in FIR No. 64 dated 21.10.2020 under section 328, 363, 366A, 376, and 506 IPC 1860 read with Section 6 of the POCSO Act 2012 (Sections 376D, 420, and 201 IPC and Section 67-B I.T. Act added later on) registered at Women Police Station, Hansi. It was alleged that the daughter of the complainant had been enticed by two boys namely Sunil and Moni and taken away in a car to an unknown place, where after consuming liquor she was raped. When she woke up she found herself without any clothes. The incident complained of was 40 days ago. In the FIR it was alleged that both the boys were daily threatening her daughter as they had video and photos of her daughter, apart from threatening to kill the prosecutrix’s younger brother if she failed to listen to them. As the prosecutrix was a minor, strict action was sought against the accused. On the registration of the FIR the statement of the prosecutrix was recorded under Sections 161 and 164 Cr.P.C. consequent to which the petitioner was arrested on 27.10.2020.

3. Learned counsel appearing on behalf of the petitioner contends that the FIR was registered on 21.10.2020 and the petitioner was arrested on 27.10.2020 and an incomplete challan was submitted on 23.11.2020 (admittedly without the cyber cell report). It is argued that the application for default bail has been dismissed without taking into consideration the fact that incomplete challan was presented and hence the petitioner would be entitled to bail under provisions of Section 167 (2) Cr.P.C. In support of his argument, he placed reliance upon a judgement rendered in Fakhrey Alam vs State of U.P passed in Criminal Appeal No.319 of 2021 (arising out of SLP(Crl.) No. 6181/2020) dated 15.03.2021. He would also rely upon a judgement rendered in the case of Bikramjit Singh Versus State Of Punjab in Criminal Appeal No. 667 of 2020 decided on 12.10.2020 to contend that the investigation must be completed expeditiously and default bail is not merely a statutory right but is also a fundamental right under Article 21 of the Constitution of India. Furthermore, reliance is placed upon judgement rendered in Sharadchandra Vinayakdongre Vs. State Of Maharastra 1991 CriLJ 3329 to contend that a Magistrate cannot take cognizance of an incomplete challan.

4. Per contra, Mr. Dhruv Sihag AAG Haryana submits that the challan has been presented within specified time with all the necessary details furnished under section 173(2) Cr.P.C and in case it is not accompanied by the report of the cyber cell, it still will not be considered as an incomplete challan entitling the accused to default bail. Reliance has been placed upon Narender Kumar Amin vs. CBI (Supreme Court) 2015 (2) RCR(Criminal) 566. It is submitted that the case law as relied upon by the counsel for the petitioner is distinguishable and not applicable to the facts of the present case.

5. I have heard learned counsel for the parties and with their assistance have gone through the pleadings of the case and the case laws relied upon.

Question which this Court is called upon to answer is whether in absence of analysis report of Cyber Cell having been attached with the police report filed in the Court under Section 173 Cr.P.C within the period specified to substantiate the commission of offence under Section 67-B of the IT Act, the accused shall be entitled to default bail under Section 167(2) of the Code of Criminal Procedure, 1973 (hereafter to be referred as "the Code)?

6. Section 173 Cr.P.C reads as:

Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.