GOVINDA vs STATE OF KARNATAKA

1
R
Reserved on : 23.03.2026
Pronounced on : 10.04.2026


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 10 DAY OF APRIL, 2026

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.5248 OF 2026 (GM - RES)

BETWEEN:

GOVINDA
S/O MUDURANGAPPA
AGED ABOUT 27 YEARS
RESIDING AT: SUCHITHRA’S HOUSE
NEAR ASHWINI SCHOOL, PIPELINE ROAD
MATTHIKERE, BENGALURU – 560 054.

PERMANENT RESIDING ADDRESS:
RESIDING AT: BUDDINNI VILLAGE
JAGATKAL, RAICHUR - 584 126 (IN JC).
... PETITIONER

(BY SRI ABHISHEK A., ADVOCATE)

AND:

1 . STATE OF KARNATAKA
YESHWANTHPURA POLICE STATION
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
BENGALURU.

2
2 . SMT. SHIVAMMA
W/O BHEEMAPPA
AGED ABOUT 34 YEARS
RESIDING AT NO. 41/11
PIPELINE ROAD, D CROSS
NETAJI NAGAR, MATTHIKERE
BENGALURU – 560 054.
... RESPONDENTS

(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R1)


THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF
BNSS, PRAYING TO QUASH THE ORDER DATED 23.12.2025 AND
27.01.2026 PASSED IN SPL.C. NO. 35/2026 ON THE FILE OF
HON’BLE ADDL. CITY CIVIL AND SESSION JUDGE, (FTSC-II) AT
BENGALURU, WHICH IS ARISING OUT OF CRIME NO.337/2025 OF
YESHWANTHPURA POLICE STATION, FOR THE PUNISHABLE
OFFENCES UNDER SECTION 64, 108, OF BNS-2023, SECTION 3(2),
(V-A), 3(1)(W)(II) OF SC/ST ACT AND SECTION AND 3, 4, 5(J)(II),
(I) AND 6 OF POCSO ACT-2012 AND CONSEQUENTLY RELEASE THE
PETITIONER ON STATUTORY BAIL.


THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 23.03.2026, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA


CAV ORDER


The petitioner is at the doors of this Court calling in question
orders dated 23-12-2025 and 27-01-2026 passed in Special Case
No.35 of 2026 by the Additional City Civil and Sessions Judge
(FTSC-II) at Bangalore arising out of crime in Crime No.337 of 2025
registered for offences punishable under Sections 64 and 108 of the
BNS, Sections 3(2)(v-a), 3(1)(w)(ii) of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
Sections 3, 4, 5(j)(ii), (l) and 6 of the Protection of Children from
Sexual Offences Act, 2012 (‘POCSO Act’ for short), which deny
release of the petitioner on grant of statutory bail.


2. Facts, in brief, germane, are as follows: -

nd
2.1. The deceased is the daughter of the 2 respondent, the
informant. She worked as a housing keeping staff in M.S. Ramaiah
Hospital for about a year and thereafter quit her job and began to
work as domestic help in the house of one Shamila. On 10-10-2025

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nd nd
the daughter of the 2 respondent committed suicide. The 2
respondent, informant files a complaint before the jurisdictional
police and an unnatural death report is registered in UDR No.70 of
nd
2025. A crime is registered separately by the 2 respondent
against the petitioner in Crime No.337 of 2025 for offences
punishable under Sections 3, 4 and 5 of the POCSO Act and Section
64 of the BNS. It is the allegation in the complaint that the
petitioner/accused was also a house keeping staff in M.S. Ramaiah
Hospital and he and the deceased were in love. The accused is said
to have had physical relationship with the deceased despite
knowing that she was under-aged. The deceased was found to be
pregnant at the time of her death. This forms the fulcrum of the
crime in Crime No.337 of 2025. On registration of crime, the
petitioner is arrested at 6.30 p.m. on 14-10-2025 after following all
the arrest protocols. On 15-10-2025 the petitioner is remanded to
judicial custody where he remains even today.

2.2. On 17-12-2025 i.e., after two months of his arrest, the
petitioner files an application under Section 187(3)(ii) r/w Section
193 of the BNSS seeking default bail on the ground that charge

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sheet has not been filed within 60 days, as mandated under Section
193 of the BNSS. The concerned Court, in terms of its order dated
23-12-2025, rejects the application of statutory bail on the ground
that the petitioner/accused has no right to seek default bail prior to
the expiry of 90 days in terms of Section 187(3)(i) of the BNSS,
since the offences alleged are the ones punishable with
st
imprisonment of 10 years or more. On 07-01-2026, the 1
respondent/Officer in-charge of the Police Station files the charge
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sheet on the 84 day from the date of arrest of the petitioner. The
charge sheet was laid for the offences afore-mentioned. After laying
down of the charge sheet, the petitioner again files a statutory bail
application under Section 187(3)(i) r/w Section 193 of the BNSS,
seeking default bail, on the ground that charge sheet filed is grossly
incomplete. This also comes to rejected by the concerned Court on
27-01-2026. It is these orders that have driven the petitioner to
this Court in the subject petition.


3. Heard Sri Abhishek A, learned counsel appearing for
petitioner and Sri B N Jagadeesha, learned Additional State Public
Prosecutor appearing for respondent No.1.

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SUBMISSIONS:
PETITIONER:
4. The learned counsel appearing for the petitioner would
vehemently contend that Section 193(2) of the BNSS mandates
that the charge sheet should be filed within 60 days for offences
punishable under Section 64 of the BNS or for offences under the
POCSO Act. In terms of Sections 187(3)(ii) and 193(2) of the BNSS
the concerned Court ought to have set the petitioner at liberty on
grant of statutory bail. The learned counsel would further submit
that the charge sheet filed by the Officer in-charge of the Police
Station is incomplete. It is without FSL report, DNA report, CDRs or
retrieval of mobile phone contents. He would highlight that FSL
report is required to be filed before the Court within one month
from the date of collection of samples, which is not done. On these
scores, he would submit that incomplete charge sheet cannot mean
that the accused would be denied default bail. It is his further
contention that grant of statutory bail is a limb of Article 21 of the
Constitution of India and if the charge sheet is not filed within the
time stipulated, the accused would be entitled to the grant of
statutory bail. He would also touch upon merit of the matter stating

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that there is no evidence against him in the suicide note or in any
other material linking him to the alleged offences.

STATE:
5. Per contra, the learned Additional State Public Prosecutor
Sri B.N.Jagadeesha would contend that a defective charge sheet or
an incomplete charge sheet being filed would not mean that the
petitioner becomes entitled to grant of statutory/default bail.
Section 193(2) of the BNSS does not mandate that non-filing of
charge sheet within 60 days would lead to statutory bail. He would
contend that the time limit to file charge sheet in POCSO cases is a
mandate that is beneficial to the victim and not the accused. The
petitioner can claim statutory bail only under Section 187(3) of the
BNSS and not by invoking Section 193. The petitioner cannot be
granted statutory bail solely on the ground that the charge sheet is
not filed within 60 days as obtaining under Section 193(2) of the
BNSS.

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REJOINDER – PETITIONER:

6. The learned counsel for the petitioner would join issue in
contending that a coordinate Bench of this Court in Criminal
Revision Petition has considered the purport of Section 193(2) and
has granted the relief to the petitioner therein. He would also seek
to place reliance upon two other judgments – one of the Division
Bench of this Court and the other, of the Apex Court all of which
would bear consideration qua their relevance in the course of the
order.

7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record. In furtherance whereof, the following issues
would arise for my consideration:

(i) Whether non-completion of investigation within
60 days under Section 193(2) of the BNSS entitles
an accused to statutory bail?

(ii) Whether the filing of an allegedly incomplete
charge sheet can clothe the accused with such a
right – grant of statutory bail?

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CONSIDERATION:


ISSUE NO.1:


Whether non-completion of investigation within 60
days under Section 193(2) of the BNSS entitles an accused
to statutory bail?



8. The afore-narrated facts and link in the chain of events are
all a matter of record. The petitioner is remanded to judicial custody
on 15-10-2025. On 17-12-2025 the petitioner files an application
seeking default bail, on the score that the charge sheet has not
been filed within 60 days as mandated under Section 193 of the
BNSS. This comes to be rejected on 23-12-2025 by the following
order:

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3) Heard the arguments and perused the materials before
the court.

4) The order sheet reveals that after arresting the
accused he was produced before this court on 15.10.2025,
accordingly he was remanded to J.C since then accused is in J.C.
Further record reveals that I.O has not Charge sheet.

5) As already stated above this application is filed
U/sec. 187(3)(iii) of BNSS bail/statutory bail as required
U/Sec. 187(3)(ii) of BNSS the counsel for the accused
has to convince the court that already 90 days expired
from the date of detention of the accused. Because, it is
alleged that accused has committed the offences U/sec. 3
of POCSO Act which is punishable U/sec. 4 of POCSO Act
and the offence U/sec. 5(j) of POCSO which is punishable
U/sec. 6 of POCSO Act and Sec. 64 of BNS. The
punishment prescribed U/sec. 4 of POCSO Act is
"imprisonment for a term which shall not be less than 20
but which may extend to imprisonment of life, which shall
mean imprisonment for the reminder of natural life of
that person and shall also be liable to fine ". The
punishment prescribed for offence punishable U/Sec. 6 of
POCSO Act is: " Rigorous imprisonment for a term which
shall not be less than 20 years, but which may extend to
imprisonment for life, which shall mean imprisonment for
the reminder of natural life of that person and shall also
be liable to fine or with death ". The punishment provided
to Sec. 64 of BNS is " rigorous imprisonment of either
description for a term which shall not be less than 10
years, but which may extend to imprisonment for life and
shall also be liable to fine ".

6) So, in case of offences which are punishable with
death, imprisonment for life or imprisonment for a term
of not less than 10 years or more there is no bar to detain
for 90 days.

7) In this background, considering the date of
remand i.e. 15.10.2025 it can't be said that accused was
in custody for more than 90 days. So in view of Sec.
187(3)(i) of BNSS accused is not entitled for default bail.

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8) During the course of arguments, the counsel for the
accused submitted that as per Sec. 193 (2) of BNSS I.O has to
file the Charge sheet within 60 days though the offences are
heinous in nature punishable U/sec, 4, 6, 8 or 10 of POCSO Act.
When I.O has not filed the Charge Sheet within 2 months from
the date of registration of the crime the accused is entitled for
default bail/statutory bail.

9) It is true, I.O has to submit the charges sheet for
the offences punishable U/Sec. 4, 6, 8 or 10 of POCSO Act
also Sec. 64 of BNS within 2 months from the date of
registration.

10) But on that ground accused has no right to seek
default bail/statutory bail in view of Sec. 187(3) (i) of
BNSS. Only after 90 days of detention right accrued to the
accused to seek default bail/statutory bail since the
offences alleged against the accused are punishable with
not less than 10 years imprisonment for the offence
punishable U/Sec. 4, 6, 8 or 10 of POCSO Act and also
Sec, 64 of BNS

11) So Sec. 187(3)(ii) of BNSS no applicable to the
accused. The section is applicable to the offences other
than the offences which provided U/sec. 187(3)(1) of
BNSS.

12) Further, during the course of arguments, the counsel
for the accused relied the reportable judgment of Hon'ble High
Court of Karnataka. Bengaluru passed in Crl. R.P NO.
100051/2025 stating that as I.O has not filed the charge sheet
within 60 days as per Sec. 197(2) of BNSS accused is entitled
for defualt bail in view of the principle laid down in the above
said judgment.

13) I have gone through the above said judgment, first of
all the facts and circumstances of the said judgment and case
on hand or not one and the same. In the said judgment the I.O
has already filed the Charge sheet within 60 days, further in the
said judgment para No. 14 it is stated that " On conjoint reading
of the Sec. 193 and 187 of BNSS, it is incumbent on the part of
investigating agency to file final report within a period of 60
days from the date of receipt of information (complaint) as

12
could be seen from Sec, 193 (2) of Cr.P.C." Considering the said
fact the learned counsel for the accused submitted that when
I.O failed to file the charge sheet within 60 days accused is
entitle for default bail. There is no specified provision in
BNSS to release the accused IO failed to file the charge-
sheet within 6 days from the date of information in case
of offences punishable U/Sec. 4, 6, 8, 10 of POCSO Act, as
specifically stated U/Sec. 187(3) to release the accused
after expiry of statutory period of 90 days where
investigation relates to an offence punishable with death,
imprisonment for life or for imprisonment for a term of
ten years or more and 60 days where investigation
relates to any other offence.

14) Further the learned counsel for the accused relied the
judgment reported in (2001) 5 SCC 453. I have gone through
the said report. The principle laid down in the said judgment not
helpful to the accused. Because, in the said judgment also the
Hon'ble Supreme Court of India held the " Accused has an
indefeasible right to be released on bail when investigation is
not complete within the specify period. IN order to avail of such
accused is only required to file an application before the
Magistrate seeking release on ball alleging that no challan has
been filed within the period prescribed and he is prepared to
offered to bail on being directed by the Magistrate".

15) Further, he relied the judgment reported in (1992)3
SCC 141. I have gone through the same. In the said Judgment,
it is held that: " Proviso to Sec. 167(2) of Cr.P.C clearly laid
down that, total period of detention should not exceed ninety
days in cases where the investigation relates to serious offences
mentioned therein and sixty days in other cases". Further, it is
held that , "Period of ninety days or sixty days has to be
computed from the date of detention and not from the date of
arrest" .

So, the principles laid-down in the above-said judgments
not helpful to the accused. In the above-said two judgments, it
is held that: " In case of heinous offence, where the punishment
is not less than 10 years, only after expiry of 90 days from the
date of detention, right accrues to the accused for statutory
bail/ default bail".

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16) Though U/Sec. 193(2) of BNSS, it is stated that,
the IO has to file the charge-sheet within two months
from the date on which information was received by the
officer in-charge of the Police Station, but in view of Sec.
187(3) (i) of BNSS, right accrued to the accused only
after 90 days from date of detention.

17) For the afore-said reasons, in view of Sec.
187(3) (ii) of BNSS and in absence specific provision in
respect of failure file to charge sheet within stipulated
period by the I.O. the application filed by the learned
counsel for the accused U/Sec. 187(3)(iii) of BNSS. 2023
is not sustainable in the eyes of law. Accordingly, it is
dismissed.

18) Further, the IO has filed requisition to permit him for
taking the voice sample of the accused stating that, the mother
of the victim girl in her statement stated that, on 10.10.2025, at
about 9.30 a.m.. at the time of committing suicide by the victim
girl, the victim girl has talked with the accused through her
mobile. So. it is just and necessary to collect the voice sample
of the accused to send the same for FSL.

19) For that, the learned counsel for accused filed
objections in length contending that, extraction of a voice
sample is an intrusive violation of his right to privacy and
compelling the accused to provide a voice sample violates his
fundamental right against self-incrimination guaranteed under
Article 20(3) of the Constitution of India.

20) But, as already stated above, the IO intends to collect
the voice samples of the accused since at the time of
committing suicide, the victim girl talked with the accused
through the mobile of her mother, which was recorded in the
mobile of the mother of the victim girl. During the course of
investigation, the IO has right to collect the voice sample for
collecting the evidence. Though the learned counsel for the
accused contended that, collecting of voice sample violates the
fundamental right of the accused against self-incrimination
guaranteed under Article 20(3) of the Constitution of India. But,
the same cannot be accepted. Because, they are considered
non-testimonial identification data and they have not violated
the right against self-incrimination. Primarily for comparison

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with evidence like recorded conversations or for scientific
analysis, though there is no specific provision, but when the
samples are necessary for investigation, it is just and necessary
to permit the IO collect the voice sample of the accused.

21) Giving a voice sample is seen as providing basic
characteristic, not revealing personal knowledge, similar to
providing finger print or hand-writing samples, though not
compelling self-incrimination So, the court has power to direct
the accused to give voice sample. Primary accused to goal is
identification, comparing the samples of voice recording or for
scientific voice spectrography. So, for proving the guilt or
innocence, it is just and necessary to permit the IO to collect
the voice samples of the accused. Even the court has power to
direct the accused persons to provide voice samples for the
purpose of investigation, even without his consent So, providing
voice samples does not violate the Article 20(3) of the
Constitution of India, as contended by the learned counsel for
the accused. Because, voice sample is considered material
evidence for comparison rather than testimonial evidence where
the accused is forced to speak his personal knowledge. So, the
objections raised by the learned counsel for the accused has no
substance in the eyes of law.

22) Hence by setting-aside the objections of the learned
counsel for the accused, the IO is permitted to collect the voice
samples of the accused.

Office to issue intimation to the Jail Authorities to produce
the accused on 06.01.2026.”



The concerned Court rejects the claim of the petitioner on the score
that the offences alleged against the petitioner were all punishable
with imprisonment of 10 years or more and merely because charge
sheet is not filed within 60 days, he was not entitled to statutory
bail. The charge sheet is filed on 07-01-2026 for the afore-quoted

15
offences. On filing of the charge sheet springs the second
application. The second application also comes to be rejected by the
following order:

16
Satendar Kumar Antil Vs CBI @ Anr, Ritu Chhabaria Vs Union of
India and Ors.

10. It is true. As already stated above IO has filed the
charge sheet against the accused alleging that accused has
committed the offenses punishable U/sec.3, 4, 5, (J)(ii), (I), 6
of POCSO Act and sec. 3(2)(v-a), 3(1)(w)(ii) of SC/ST POA Act.
Further, the foot note of charge sheet revels that IO has not
produced FSL report, DNA report, CDR, CAF, SDR and mobile
phone retrieve.

11. In view of foot note appearing in the charge
sheet, the counsel for the accused contended that still
investigation is going on, the charge sheet already
submitted by the IO is not the final report but it is a
preliminary report, hence the petitioner is entitled for
statutory bail and relied the above said judgments.

12. But, the said contention of the counsel for the
accused can not be accepted. Because, for production of
some documents not available at the time of filing of
chargesheet neither vitiate the chargesheet, nor it entitle
the accused to claim right to get default bail on the
ground that the chargesheet was incomplete chargesheet
or that the chargesheet was not final report.

13. In number of cases, the Hon'ble Supreme Court
of India, more particularly in the case of Central Bureau
of Investigation vs Kapil Wadhawan reported " pendency
of the further investigation qua the other ascused 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 charge sheet or that the
chargesheet was not filed in terms of Sec. 173(2) of
Cr.P.C."

Further it is held that " 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

17
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."

So, in view of the principles laid down in the above
said judgment the grounds urged by the counsel for the
accused for statutory bail can not b accepted.

14. In the above said judgments relied by the counsel for
the accused, the Hon'ble Supreme Court of India after elaborate
discussion in respect of provisions of bail, default bail U/Sec.167
of Cr.P.C. Article 21 of the Constitution of India, stated the
object and reasons for statutory bail when the investigation
officer failed to submit the charge-sheet or final report within
the stipulated period as provided U/sec. 167 of Cr.P.C., that,
“without completion of investigation of a case, the charge sheet
or prosecution complaint can not be filed by the investigation
agency only to deprive a arrested accused of his right to default
bail U/sec.167(2) of Cr.P.C. If such a charge-sheet is filed by an
investigating authority without first completing the
investigation, would not distinguish the right to default bail
U.Sec 167(2) of Cr.P.C and in such cases the court cannot
continue to remand an arrested person beyond the maximum
stipulated time without offering the arrested person default
bail".

15. But, in the instant case. I.O has already filed
final report alleging that accused has committed the
offences punishable U/sec.3, 4, 5. (J)(ii), (I), 6 of POCSO
Act and sec. 3(2)(v-a), 3(1)(w)(ii) of SC/ST POA Act. The
said report purports to be an opinion of the investigating

18
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 statement of witnesses as required
U/sec.175(5) of Cr.P.C. accordingly I.O has submitted
charge-sheet/Final report for the above as said alleged
offenses, stated in the case of Central Bureau of
Investigation v/s Kapil Wadhawan reported, 2024 INSC
58.

16. The learned PP during the course of arguments relied
the Judgment of the Hon'ble High Court of Delhi passed in Bail
Application No. 1713/2025 dated 25.6.2025 stating that, in the
said case, IO has filed the charge-sheet without obtaining the
sanction as required under Sec. 39 of Arms Act. But the Hon'ble
Court after elaborate discussion and the Judgment of the
Hon'ble Supreme Court of India held that "Charge sheet filed
without sanction under Sec.39 of the Arms Act, does not render
the charge sheet as an incomplete charge-sheet as required
under Sec. 193 (3) of BNSS, hence default bail petition rejected.

17. I have gone through the same. The principle
laid down in the above-said judgment aptly applicable to
the case in hand. Further more, when FSL report DNA
report, CDR, CAF, SDR and mobile phone retrieve are not
available to produce the same along with charge sheet, it
is inevitable for the investigating officer to submit the
charge-sheet within the stipulated period, permitting him
to produce the said FSL report. DNA report, CDR, CAF,
SDR and mobile phone retrieve, later When the final
report submitted by the investigating officer prima facie
shows the allegations made by the investigating officer
against the accused the said report can be said final
report. Mere on the ground that investigating officer
submitted charge-sheet without FSL report, DNA report,
CDR, CAF, SDR and mobile phone retrieve it cannot be
said this it is an incomplete c/s Further in another
judgment relied by the learned pp, Hon'ble High Court of
Delhi stated that charge-sheet submitted by the
investigating officer without sanction U/sec.39 of Arms
Act, does not render the and said charge sheet, is an
incomplete U/sec.193(3) of BNSS". So the above said

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citation relied by the learned council by Hon'ble Apex
Court will not helpful to entertain his application.

15. Further the records reveals that, before filing of
the charge-sheet also the learned counsel for the accused
has filed similar application to grant statutory bail, the
same got dismissed on merits by order dated 23.12.202.
Now after filing of the charge-sheet, this second
application has been filed by the counsel for the accused
on the ground that the charge-sheet without competition
of investigation. But he has failed to convince the court.
On the contrary the entire materials placed by the
prosecution is sufficient to show that it is a final
report/chargesheet. Mere on the ground that
investigating officer has not produced FSL report, DNA
report, CDR, CAF, SDR and mobile phone retrieve it can
not be said that it is incomplete charge sheet/final report
as contended by the counsel for the accused. Hence I
answer point No.1 in Negative and proceed to pass the
following:
ORDER

Application filed by the counsel for the accused
U/sec. 187(3)(i) r/w Sec. 193 of The BNSS-2023 is
hereby dismissed.”

(Emphasis added at each instance)


The first of the application comes to be rejected on the score that
the offences alleged against the petitioner are punishable with
imprisonment of 10 years or more. Therefore, the time to complete
investigation was 90 days and not 60 days. The second application
comes to be rejected on the score that mere filing of an incomplete
charge sheet by the prosecution would not lead to grant of

20
statutory bail. It, therefore, becomes necessary to consider the
interplay between Section 187(3) and 193(2) of the BNSS.

21

22

23

the BNSS delineates the contours of default bail drawing a
distinction based on gravity of offences, 60 days for lesser
offences which are punishable up to 10 years and 90 days
for those punishable with 10 years or more. In the present
case, the offence alleged is the one punishable under Section
64 of the BNS – rape and provisions of the POCSO Act, both
of which carry punishments extending to life imprisonment.

24
th
Therefore, the charge sheet filed on the 84 day, falls well
within the statutory window as delineated in 187(3).

10. The other provision is Section 193 of BNSS, it reads as
follows:

25

26

27

28

1
Crl.R.P.No.100051 of 2025 decided on 04-03-2025

29

30
of doubt in the principles enunciated by the Hon’ble Apex
Court in the case of Udaya Mohanlal Acharya and Anupam
J. Kulkarni supra, that accused enjoys indefeasible right
to seek for grant of statutory bail if there is no filing of
the charge sheet within the prescribed period. It is also
to be noted that filing of Charge Sheet subsequently
would not take away the right already accrued.

31. As already observed supra, filing of the charge
sheet as is contemplated under Section 193(2) of Cr.P.C.
could be treated as mandatory even in case where the
accused is not arrested is to be discussed in an
appropriate case.

32. For the purpose of disposing of the present
case, since the accused-petitioner is arrested on the very
next day on 26.11.2024, filing of the charge sheet on
24.01.2025 is well within the ambit of Section 193(2)of
the BNSS in the case on hand which is sufficient
compliance of the said provision.

33. It is needless to emphasise that once the
charge sheet is filed ticking of the clock with regarding to
statutory right which is carved out in the Statute would
automatically stop. As could be seen from the material on
records, in the charge sheet dated 24.01.2025 and actual
cognizance has been taken on 29.01.2025 as referred
supra and thereafter necessary endorsements has been
carried out in the relevant registers wherein, the pending
FIR is culminated in filing a charge sheet and a special
case came to be registered.

34. In view of the principles of law enunciated in
the case of Suresh Kumar Bhikamchand Jain supra, this
Court is of the considered opinion that rejection of the
petitioner seeking grant of statutory bail is justified
though not the order of the learned Special Judge is not
happily worded.

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2
ILR 2021 KAR 3469

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evidence of the child has not been recorded within a period of
thirty days of taking cognizance of the offence or if the Special
Court does not complete the trial within a period of one year
from the date of taking cognizance. Such an interpretation
would be an additional clause under the said provision and
giving an additional right to the accused. Even under Section
309 of Cr.P.C., the trial of the proceedings has to be continued
from day-to-day until all the witnesses in attendance have been
examined, unless the Court finds the adjournment of the same
beyond the following day to be necessary for the reasons to be
recorded. The proviso thereto has been amended with effect
from 03.02.2013 and the proviso thereto deals with trial relating
to offence under Section 376 and related Sections of the Penal
Code, 1860, wherein the trial has to be completed within a
period of two months from the date of filing of the charge-sheet,
as far as possible. Thus, the expression ‘as far as possible’ is
also found in proviso to sub-Section (1) of Section 309 of
Cr.P.C. Section 309 of Cr.P.C., also speaks about the
circumstances under which no adjournment could be granted.
The use of the expression “as far as possible” is also on account
of the fact that under Section 37 of the POCSO Act, the trial has
to be conducted in camera and in the presence of the parents of
the child or any other person in whom the child has trust or
confidence. But, if the Special Court is of the opinion that the
child needs to be examined at the place other than the Court, it
shall proceed to issue a commission in accordance with the
provisions of Section 284 of Cr.P.C. In such a case, the
circumstances under which commission for examination of
witness is issued under Section 284 of Cr.P.C., would apply,
namely that if the child cannot be procured without an amount
of delay, expense or inconvenience, but in the circumstances of
the case, would be unreasonable, then the Special Court may
dispense with such attendance and may issue a commission for
the examination of witness in a place other than the Court. The
provisions dealing with Commission for the examination
of witness mutatis mutandis apply when the Special
Court orders examination of the child at a place other
than the Court. Therefore, in such circumstances, there
may be delay in recording the evidence of the child within
a period of thirty days of taking cognizance of the offence
by the Special Court or even delay in completion of trial
within a period of one year from the date of taking
cognizance of the offence. In such an event, it cannot be

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Section 193(2). The jurisprudence consistently underscores
that timelines under special statutes like the POCSO Act, are
victim centric, intended to ensure swift justice, not to
furnish escape routes for the accused. Thus, the issue must be
answered in the negative. The petitioner cannot draw
sustenance from Section 193(2) of the BNSS to claim
statutory bail.


ISSUE NO.2:

Whether the filing of an allegedly incomplete charge
sheet can clothe the accused with such a right – grant of
statutory bail?



15. The second contention, though ingeniously
advanced, cannot withstand the weight of settled law. The
Apex Court interpreting sub-section (2) of Section 167 of the
Cr.P.C. which is now Section 187(3) of the BNSS, has in CENTRAL
3
BUREAU OF INVESTIGATION v. KAPIL WADHAWAN held as
follows:

3
(2024) 3 SCC 734

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22. In view of the above settled legal position, there
remains no shadow of doubt 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. The
report under Section 173 is an intimation to the court
that upon investigation into the 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. The
report is complete if it is accompanied with all the
documents and statements of witnesses as required by
Section 175(5). As settled in the aforestated case, it is
not necessary that all the details of the offence must be
stated.

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

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4
(2024) 6 SCC 758

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43

“…. …. …

7. The afore-narrated facts are not in dispute. They, in
fact, lie in a narrow compass. What requires consideration is,
whether the petitioner/accused No.1 could be enlarged on bail,
when an application is filed under sub-section (2) of Section 167
of the Cr.P.C. Section 167 of the Cr.P.C. reads as follows:


5
Crl.P.No.102126 of 2023 decided on 20-12-2023

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9. Section 173 of the Cr.P.C. (supra) deals with filing of
final report by the Police after investigation. Section 173(2) of
the Cr.P.C. mandates that once investigation is completed the
officer in-charge of a Police Station shall forward the report to
the Magistrate empowered to take cognizance of the offence on
the final report, indicating the factors that are narrated in sub-
Section (2) of Section 173. Section 173(5) mandates that when
such report is in respect of a case to which Section 170 applies,
the Police Officer shall forward to the Magistrate along with the
report all documents or relevant extract thereof on which the
prosecution proposes to rely on, other than those already sent
to the Magistrate during investigation and the statements
recorded under Section 161 of all the persons whom the
prosecution proposes to examine as its witnesses.
Section 173(8) of the Cr.P.C. deals with power of the Magistrate
to direct further investigation to be conducted in a given case.
Therefore, it is open for the Police to conduct further
investigation in terms of Section 173(8) of the Cr.P.C. This is
the frame work on which release on bail of an accused and filing
of charge sheet are dealt with. It is these that are germane to
be noticed in the case at hand.

10. It is an admitted fact that FSL report was not
accompanying with the charge sheet when the prosecution filed
its final report before the Court on 08-01-2023. The issue
whether the petitioner would get a right to get himself enlarged
on bail in the absence of a FSL report in the charge sheet need
not detain this Court for long or delve deep into the matter. A
Division Bench of Bombay High Court in the case of MANAS
6
KRISHNA T.K. v. STATE was answering a reference to the
Division Bench in view of conflicting views of two Learned Single
Judges on the very issue of an accused becoming entitled to
enlargement on default bail on the ground that FSL report did
not accompany the final report. The Division Bench answering
the question holds as follows:

“2. The main issue which falls for determination in this
reference is whether, in a case under the NDPS Act, the
investigation can be said to be complete within the period
prescribed under Section 167 (2) of the Criminal Procedure
Code (Cr.PC), when a police report under Section 173 (2)

6
2021 SCC OnLine Bom.2955

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(d) The accused had applied for bail before this Court on
07.07.2020 but withdrew this application on 07.08.2020
with liberty to apply before the Special Court. Such bail
application was filed on 22.09.2020 but was rejected on
21.11.2020. The accused then applied for bail before
this Court vide Criminal Misc. Application (Bail) (Filing)
no. 88 of 2021 (the present application).

(e) Mr. Poulekar relied on the following set of decisions
which according to him, support the aforesaid position
urged by him: (i) Sunil Vasantrao Phulbande v. State of
Maharashtra, (2002) 3 Mah LJ 689,
(ii) Punjaram v. State of Maharashtra, 2005 Cri LJ 4658,
(iii) Ranjeet Manohar Machrekar v. State of
Maharashtra, Criminal Bail Application No. 509/2014
(Bombay), (iv) Manik Sahebrao Chaugule v. State of
Maharashtra, Criminal Bail Application No. 241/2017
(Bombay), (v) Seema Raju Panchariya v. State of
Maharashtra, Criminal Bail Application No. 65/2018
(Aurangabad), (vi) SagarParshuram Joshi v. State of
Maharashtra, Bail Application (ST) No. 4761/2020
(Bombay).

(f) On the other hand, the Learned Public Prosecutor (PP)
pointed out to the Learned Single Judge, a set of
judgments that might invite a finding that the decisions
relied on by Mr. Poulekar are either ‘per incuriam ‘or at
any rate, in direct conflict. The decisions relied on by the
learned Public Prosecutor included the following :
(i) Balaji Vasantrao Suwarnkar v. State of Maharashtra,
1992 Mah LJ 159, (ii) State of
Maharashtra v. Sharadchandra Vinayak Dongre, (1995)
1 SCC 42, (iii) Babu s/o Rakhmanji Khamkar v. State of
Maharashtra, (1995) 4 Bom CR 335, (iv) Rohini Mahavir
Godse v. State of Maharashtra, (1996) 2 Mah LJ 492,
(v) Rafael Palafox Garcia v. Union of India, 2008 All M.R.
(Cri) 3031, (vi) Sheikh Shabbirs/o Mohd Shafi v. State
of Maharashtra, Criminal Application no. 143/2011
(Nagpur Bench), (vii) Srihari Mahadu Valse v. State of
Maharashtra, Criminal Bail Application No. 3284/2018,
(viii) Dheeraj Wadhawan v. C.B.I. - 2020 SCC OnLine
Bom 9461.

(g) Confronted with the rival sets of judgments, the Learned
Single Judge, by her order dated 07.07.2021 opined that
the following questions arise and can be more

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61. In the precise context of cases under the NDPS Act,
there is a long line of decisions delivered by the learned Single
Judges of our Court in Suwarnkar (supra), Rafael Palafox
Garcia (supra), Aleksander Kurganov (supra), Shrihari
Valse (supra), and Sheikh Shabbir (supra) that have taken the
view that a charge-sheet unaccompanied by a CA/FSL report is
not incomplete and therefore, where the same is filed within
the prescribed period, the accused, cannot insist on default bail.
These decisions according to us, reflect the legal position
correctly, and therefore, we endorse them.

62. The contention similar to what is now raised was
rejected in Rafael Palafox Garcia (supra). Besides , there can
be no general rule that the Magistrate or the Special
Court can never take cognizance of any offense under
the NDPS Act in the absence of a CA/FSL report.
Ultimately, that will be a matter which will have to be
decided on the facts of each case by the Magistrate or
the Special Court as the case may be.

63. Further, the contention that a Magistrate or
the Special Court, in any NDPS case, is not even
competent to take cognizance of any offense based only
on a field testing report as reflected in the Panchanama
or otherwise in the absence of CA/FSL report is again,
too wide a proposition to commend acceptance.
Ultimately a Magistrate or the Special Court will have to
assess the charge sheet and, if necessary, the documents
and the statements produced under Section 173(5) and
thereafter decide whether any case is made out for
taking cognizance of the offense.

64. For example, in Jagdish Purohit v. State of
Maharashtra, (1998) 7 SCC 270, the Hon ’ble Supreme
Court after rejecting the CA/FSL report sustained the
conviction by accepting the evidence of the members of
the raiding party to prove that the powder which was
found from the factory was methaqualone. The witnesses
had stated that they had carried a kit to the field and had
received sufficient training and had sufficient knowledge
of narcotic substances and methods of testing them. This
evidence was found sufficient to sustain a conviction
even after ignoring CA/FSL report. Therefore, if a
conviction could be sustained on such evidence, surely,
cognizance of the offense can also be taken based on
such material produced along with the charge sheet. All
this will have to be assessed on a case-to-case basis and

53
therefore, the general proposition as urged on behalf of
the accused cannot be accepted.

65. There is and there can perhaps never be any dispute
with the proposition that the right of a default bail in terms of
Section 167(2) is a very valuable right that is now even
elevated to the status of a fundamental right under Article 21 of
the Constitution of India. The several decisions like M.
Ravindran (supra), Rakesh Paul (supra), relied on behalf of the
accused, in this regard, therefore, need not even be discussed
because there is and there can be no quarrel with the
proposition laid down therein. However, as was explained by
the Hon ‘ble Supreme Court itself in Dinesh Dalmiya (supra),
such a right of default bail, although is a valuable right, the
same is a conditional one. The condition precedent being
pendency of the investigation. Therefore, once the investigation
is complete with the filing of a police report containing the
details specified under Section 173(2), the question of a claim
or grant for default bail does not arise.

66 . For all the aforesaid reasons, we hold that the
presentation of a police report under Section 173(2)
unaccompanied by a CA/FSL report does not amount to
any incomplete police report or any incomplete charge
sheet/challan even in the absence of an extension of
time under Section 36-A(4) of the NDPS Act. Based
thereon therefore the accused cannot insist upon a
default bail.

67. Similarly, we hold that a police report under
Section 173(2) or a charge sheet/challan accompanied
by field testing reports as reflected in the Panchanama
or otherwise also cannot be labeled as an incomplete
police report/charge sheet/challan simply because the
same was not accompanied by a CA/FSL report.

68 . Question no. (i) and (ii) in this reference are
answered accordingly.
…. …. ….

80. For all the aforesaid reasons we hold that the Drug
Law Enforcement Field Officers’ Handbook issued by the NCB
has no legal efficacy, in the sense that the handbook has no
statutory flavor or the handbook is not a set of executive
instructions issued by the Central Government as contended by
Mr. Gaonkar. Question No. (iii) is answered accordingly.

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the stream of law that is laid down is that mere non-filing
of FSL report would not vitiate the final report nor the
accused would get entitlement of seeking enlargement on
statutory/default bail. To the charge sheet in the case at
hand, except the FSL report, every other trait has
accompanied. It has accompanied the statement of
prosecutrix, her father, the birth certificate, clothes,
other medical reports of the victim as well as other
incriminating material. Though FSL report is not yet
received it would not lead to the petitioner becoming
entitled to seek and be granted default bail under Section
167 of the Cr.P.C., The FSL report can be used only to
corroborate the version of the prosecution. The Court can
take cognizance of the offence on the final report filed by
the Police. Therefore, there is no gainsaying that non-
filing of FSL report has resulted in defective charge sheet
and the defective charge sheet is no charge sheet in the
eye of law and, therefore, he would become entitled to
default bail. No fault can be found with the well reasoned
order passed by the learned Sessions Judge browsing
through entire spectrum of law laid down by the Apex
Court and several other High Courts. The order does not
warrant any interference, as the petitioner does not have
any right to get himself enlarged on default bail for the
reason of non-filing of FSL report.”


18. In the light of the judgment of the Apex Court and this
Bench as quoted supra , mere filing of an incomplete charge sheet
or the post-script in a charge sheet by reserving a right to file
supplementary charge sheet, cannot mean that the accused can be
released on grant of statutory bail. The High Court of Delhi, in a
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later judgment, in YASH MISHRA v. STATE OF NCT OF DELHI

7
2025 SCC OnLine Del.5684

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Sd/-
(M.NAGAPRASANNA)
JUDGE



bkp
CT:MJ