The remedy for challenging the denial of regular bail is to file a Criminal Revision Petition, and the order under Section 167(2) Cr.P.C is final and should be challenged through a revision petition.

JUDGMENT

Jaishree Thakur, J. - The petitioner has approached this High Court under Section 439 Cr.P.C. read with Sections 167(2) and 482 Cr.P.C aggrieved against order dated 11.6.2021 passed by the Additional Sessions Judge, Hisar by which his application for default bail has been denied.

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, 366-A, 376, and 506 IPC read with Section 6 of the POCSO Act, 2012 (Sections 376-D , 420, and 201 IPC and Section 67-B of the Information Technology Act added later on) registered at Women Police Station Hansi. It was alleged that the daughter of the complainant had been enticed away by two boys namely Sunil and Moni 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 prior to the date of filing of the FIR. 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 victim'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 statements of the prosecutrix was recorded under Section 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 raises a two-fold contention while challenging the above-mentioned impugned order. It is contended that the FIR was registered on 21.10.2020 and the petitioner was arrested on 27.10.2020. Thereafter 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 that an incomplete challan was presented and hence the petitioner would be entitled to bail under provisions of Section 167 (2) Cr.P.C. It is submitted that default bail under first proviso to Section 167(2) Cr. P.C. is a fundamental right and not merely a statutory right. It is also submitted that the petitioner would be entitled to regular bail as well, while considering that the statement of the prosecutrix under Section 164 Cr.P.C. and the medical report do not indicate that the petitioner herein is guilty of an offence under Section 376 IPC. Counsel has placed reliance upon a judgement rendered by the Supreme Court recently on 15.03.2021 in Fakhrey Alam vs State of U.P in Crl. Appeal No. 319 of 2021 arising out of SLP (Crl.) No. 6181 of 2020 in support of his argument. He would also rely upon a judgement rendered in Bikramjit Singh Versus State Of Punjab in Criminal Appeal No. 667 of 2020 arising out of SLP(Crl.) No. 2293 of 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 Vinayak dongre 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 appearing for the respondent-State submits that the challan has been presented within the specified time and the present petition is not maintainable in the present form, as bail before the trial court was filed only under Section 167(2) Cr.P.C. Since, the application was for default bail, and the same was dismissed, therefore, a revision petition would be maintainable. Further, the order of dismissal under Section 167(2) Cr.P.C cannot be challenged under Section 439 Cr.P.C. by filing a petition for a regular bail. It is submitted that the challan has been submitted with all the necessary details under Section 173(2) Cr.P.C. and in case certain documents are not accompanied with it, it will not be considered an inco