CRR No.782 of 2021 (O&M)

-1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

CRR No.782 of 2021 (O&M)

Date of Decision.3.09.2021

Reserved on 24.08.2021.

(Heard through VC)

Rakesh @ Moni

...Petitioner

Vs

State of Haryana

...Respondent

CORAM:HON'BLE MS. JUSTICE JAISHREE THAKUR

Present:

Mr. Rajesh Khandelwal, Advocate

for the petitioner.

Mr. Dhruv Sihag, AAG, Haryana.

-.-

JAISHREE THAKUR J.

1.

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

PANKAJ KUMAR

2021.09.03 17:19

I attest to the accuracy and

integrity of this document

CRR No.782 of 2021 (O&M)

-2-

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

CRR No.782 of 2021 (O&M)

-3-

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 co