Page No.# 1/6 GAHC010274662024 2025:GAU-AS:4207 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3913/2024 PRASANTA SAIKIA S/O SRI KRISHNARAM SAIKIA, RESIDENT OF KUHIARBARI GAON, PS JENGRAIMUKH, DIST MAJULI, ASSAM VERSUS THE ASSAM AND ANR REP BY PP ASSAM 2:SRI KUSHA CHUTIA S/O LATE THANESWAR CHUTIA RESIDENT OF MOLONG GAON PS JENGRAIMUKH DIST MAJULI ASSA Advocate for the Petitioner : MR. R CHETRI, MR N MILI Advocate for the Respondent : PP, ASSAM, MR SARFRAZ NAWAZ (AMICUS CURIAE, R2) Page No.# 2/6 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 05.04.2025 Heard Mr. R. Chetri, learned counsel of the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor representing the State respondent No.1 and Mr. A. W. Aman, learned counsel appearing on behalf of Mr. S. Nawaz, learned Amicus Curiae for the respondent No.2. 2. This application is filed under Section 483 of BNSS, praying for releasing the accused/petitioner on regular bail in connection with Jengraimukh P. S. Case No. 33/2024, registered under Section 64 of BNS. 3. A scanned copy of the case record has already been received, and I have perused the same. 4. It is submitted by the learned counsel for the petitioner, Mr. Chetri, that the accused/petitioner is innocent and he is no way connected to the alleged offence. However, he was arrested in connection with this case on 28.10.2024 and has been in custody for 160 days. He further submits that the victim was more than 17 years old at the relevant time of the alleged incident, and her date of birth is 14.07.2007, as per her Birth Certificate. He further submits that the Gaon Burah of the concerned village also issued a certificate from which it is seen that the victim married another person two years prior to the date of the incident. 5. Mr. Chetri, further raised the issue that the charge-sheet in this case was filed on 22.12.2024, but the said charge-sheet was found to be incomplete. Page No.# 3/6 There was a request from the I.O to file a subsequent charge-sheet. Thus, he submitted that, on the basis of such an incomplete charge-sheet filed by the IO without completing the investigation, the right to default bail under Section 167(2) of Cr.P.C. should not be denied. In this context, he relied on a decision passed by the Hon’ble Supreme Court in Ritu Chhabaria vs. Union of India and others, reported in 2023 SCC OnLine SC 502 [WP(Crl) No.60/2023 dated 26.04.2023], and specifically referred to paragraph 33 of the said judgment, which reads as follows: “33. In view of the above mentioned discussions, the issues framed by us stand answered as under:- I. Without completing the investigation of a case, a charge-sheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under Section 167(2) of the CrPC. II. Such a charge-sheet, if filed by an investigating authority without first completing the investigation, would not extinguish the right to default bail under Section 167(2) CrPC. III. The trial court, in such cases, cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person default bail.” 6. Mr. Chetri further submitted that at the time of lodging the FIR, the victim was found to be pregnant, and the I.O took the DNA sample, which was sent to the FSL. However, at the time of filing the charge sheet, the FSL report had not been collected by the IO. Thus, an incomplete charge sheet was filed, allegedly to harass the petitioner, so that he could not avail of the benefit of Section 167(2) of the Cr.P.C. He further submitted that considering the period of detention already undergone by the accused/petitioner, his petition may be considered, and being a permanent resident of his address locality, there is no Page No.# 4/6 chance of absconding. Rather, he will appear before the learned Trial Court to contest the case on each and every date fixed by the Court, if he is enlarged on bail. 7. On the other hand, Mr. Baruah, the learned Additional Public Prosecutor, has submitted that there is sufficient incriminating material available in the statement made by the victim under Section 164 of Cr.P.C. There can be no bar to filing the additional charge-sheet, as the investigation is still ongoing, and it is mentioned in the charge-sheet that an additional charge sheet may be filed if the FSL report is found to be positive. He further submitted that there is also a possibility of hampering or tampering with the evidence of P.W.s, and hence, till the recording of the victim's evidence, the bail prayer may not be considered. 8. Mr. Aman, the learned counsel appearing on behalf of respondent No. 2 as Amicus Curiae, has submitted that in Special Leave to Appeal (Crl) No. 5724/2023 (Directorate of Enforcement vs. Manpreet Singh Talwal) [arising out of impugned final judgment and order dated 28.04.2023 in BA No. 879/2023 passed by the High Court of Delhi at New Delhi], the Three-Judge Bench clarified that the said order shall not preclude any trial court or, as the case may be, High Court from considering an application for the grant of default bail under Section 167 of Cr.P.C. independent of, and without relying on, the judgment dated 26th April 2023 in Writ Petition (Criminal) No. 60 of 2023. 9. He further submitted that a recent judgment passed by the Hon’ble Supreme Court in the case of Central Bureau of Investigation vs. Kapil Wadhawan & Anr., reported in 2024 LiveLaw (SC) 58 [Criminal Appeal No. 391/2024 @ SLP (Crl) No. 11775/2023], has held that the accused cannot claim for default bail on the ground of incomplete charge-sheet. He emphasized paragraph 23 of the said judgment, which reads as follows: Page No.# 5/6 “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 chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet 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 chargesheet is filed under sub- section (2) thereof against the accused. Though ordinarily all documents relied upon by the prosecution should accompany the chargesheet, nonetheless for some reasons, if all the documents are not filed along with the chargesheet, that reason by itself would not invalidate or vitiate the chargesheet. 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 chargesheet, 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 chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C.” 9. Mr. Aman, further submitted that there is a probability of hampering and tampering with the witnesses, especially the victim, which cannot be denied at this stage. Therefore, he raised an objection and submitted that this is not a fit case to grant the privilege of regular bail to the accused/petitioner. 10. Considering the entire submissions of the learned counsels for both sides, the materials available in the case record, and the entire aspect of the case, it is seen that cognizance has already been taken against the accused/petitioner based on the charge sheet filed by the IO. It is also evident that the prayer for an additional charge sheet was made by the IO solely on the basis that if the FSL report is positive, then only may the additional charge sheet may be Page No.# 6/6 submitted by the IO. Further, the non-submission of the additional charge sheet will not cause any prejudice to the accused/petitioner, and he may present his defence at the time of examining the P.W.s or by adducing evidence through the D.W.s. However, considering the statement made by the victim under Section 164 of Cr.P.C., I do not find it a fit case to enlarge the accused/petitioner on bail till the completion of the evidence of the vital witnesses for the prosecution, especially the victim. Accordingly, the petition stands rejected. 11. In terms of above, this Bail Application stands disposed of. JUDGE Comparing Assistant