SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Saurabh Bali vs State on 5 July, 2021

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1168/2021 CRL.M.(BAIL) 369/2021
Date of decision: 05th July, 2021
IN THE MATTER OF:
SAURABH BALI ….. Petitioner
Through Mr. N. Hariharan, Senior Advocate
with Mr. Sidhart Yadav, Mr. Akshay
Bhandari, Mr. Varun Deswal, Mr.
Samarth Luthra and Ms. Aakriti
Mittal, Advocates with the petitioner-
in-person
versus
STATE ….. Respondent
Through Ms. Kusum Dhalla, APP for the State.
Mr. Pramod Kumar, Advocate with
Ms. Kanika, Advocate for the
complainant.
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

1. This is a petition under Section 439 Cr.P.C for seeking regular bail in
FIR No. 225/2020, dated 12.09.2020, registered at Police Station
Deshbandhu Gupta Road, for offences under
Sections 376/377/328/ 323/506
IPC.

2. Facts, in brief, leading to the instant petition are as under:

a) On the complaint of the prosecutrix FIR No. 225/2020, dated
12.09.2020 was registered at Police Station Deshbandhu Gupta Road,
for offences under
Sections 376/377/328/ 323/506 IPC. The
prosecutrix stated that she is a student and is doing graduation. She

BAIL APPLN.1168/2021 Page 1 of 29
also stated that she is a professional dancer. It is stated by the
prosecutrix that the petitioner, whom the prosecutrix knows, gave her
a call and told her to meet him at 6:00 AM and said that he will
reconcile the fight between the prosecutrix and one Chandan Chugh.
It is stated that the prosecutrix left her home on the pretext of a
morning walk and met the petitioner who was waiting outside the
house of the prosecutrix in his car. It is stated that the petitioner asked
the prosecutrix to sit in the car. The FIR records that the petitioner
told the prosecutrix that it will take some time to meet the said
Chandan and that they should drive around. It is stated that during this
time the petitioner offered alcohol to the prosecutrix which she
consumed. It is stated that they stopped at a 24×7 shop in Naraina and
bought some chips from there and thereafter had 1-2 drinks more. It is
stated that the prosecutrix do not remember anything after that. It is
stated that about 8:00 AM when the prosecutrix faintly gained
consciousness she found herself in the house of the petitioner. She
stated that the petitioner was committing rape on her, abusing her and
making a video of the act. It is stated by the prosecutrix that she was
not wearing anything. It is stated that the prosecutrix was in a lot of
pain. It is stated that when the prosecutrix regained consciousness she
pleaded the petitioner to leave her and asked him as to why he did this
to her. It is stated that the prosecutrix told the petitioner that she
wanted to go home. It is stated that the mother of the prosecutrix
called her and the prosecutrix informed her mother that some wrong
has been done to her and asked her mother to send her father at the
earliest. It is stated that at that point of time the petitioner snatched the

BAIL APPLN.1168/2021 Page 2 of 29
phone from the prosecutrix and started talking to her mother. It is
stated that the petitioner told the mother of the prosecutrix that the
prosecutrix is tensed about something and he does not know as to
what is the reason for her tension. It is stated that the mother of the
prosecutrix kept on calling her again and again but the petitioner
prevented the prosecutrix from answering the call. It is stated that at
around 10 AM the petitioner asked the father of the prosecutrix to
come near Liberty cinema. It is stated that the petitioner took some
intoxicant. It is stated that the prosecutrix met her father near Liberty
Cinema. It is stated that the prosecutrix went home and told
everything to her family and her father gave a call to the police. The
prosecutrix was then taken for a medical examination at LHMC
hospital. The prosecutrix was examined vide MLC No.3234 dated
12.09.2020. In the MLC report the doctor has mentioned “Pt was
apparently well till 6 AM today morning of 12.09.20 when she went
out with her friend Saurabh, whom she consider her elder brother to
meet another friend Chandan. While in car, Saurabh gave her some
drink (whisky) which she took. However, she felt dizzy and out of her
senses after a few drinks (3) which less than her normal capacity. The
patient fell unconscious after having those drinks. When, she woke up,
she was at Saurabh’s house in his bed room. He was continuously
slapping and hitting the patient. The accused had vaginal intercourse
with the patient. The patient is not aware as to how many times he
had intercourse with her. Also, she is not aware of whether he
ejaculated inside or not. The patient faintly remember that the
accused was filming the entire act on his phone. When she gained her

BAIL APPLN.1168/2021 Page 3 of 29
senses to some extent, she called her father and asked him to rescue
her. Her father arrived in 10-15 minutes and brought her back. Then
they went to Karol Bagh to file a case”. FIR No. 225/2020, dated
12.09.2020, was registered against the petitioner at Police Station
Deshbandhu Gupta Road, for offences punishable under
Sections
376/
377/328/ 323/506 IPC. The petitioner was arrested.

b) On 15.09.2020, statement of the prosecutrix was recorded
under
Section 164 Cr.P.C wherein she reiterated her complaint and
added that offence under
Section 377 IPC (oral sex) was also
committed on her. It is stated by her that she does not remember as to
how many times the petitioner had sexual intercourse with her. The
prosecutrix also stated that when her mother gave a call, the petitioner
received the call and told her mother that she is extremely troubled
and that his mother is an astrologer and he would show the horoscope
of the prosecutrix to his mother. The prosecutrix has stated that when
her mother heard that the prosecutrix was crying he disconnected the
call. It is further stated that he told her mother to take the prosecutrix
home. It is stated by the prosecutrix that the petitioner held her hand
and threatened her that if she revealed anything to any person he
would get her father killed. It is stated by the prosecutrix that she
called her father and asked him to come to Hyundai Showroom near
Liberty Cinema and take her back. It is also stated that the prosecutrix
messaged Chandan also stating that the petitioner has raped her. It is
stated that the prosecutrix came back home with her father and got the
FIR registered. The prosecutrix took the Police to the place where the
alleged incident happened. CCTV footages were collected, mobile

BAIL APPLN.1168/2021 Page 4 of 29
phones of the petitioner, the prosecutrix and the said Chandan Chug
were collected, material was collected from the room where the
alleged incident took place and sent to FSL, blood samples of the
petitioner and the prosecutrix were also collected and sent to FSL,
other exhibits of the case i.e. sexual assault kit was also sent to FSL.
Charge-sheet was filed on 09.11.2020.

c) The petitioner filed an application for bail being Bail
Application No.l662/2020 which was dismissed by the learned
Additional Sessions Judge vide order dated 05.11.2020.

d) The petitioner moved this Court by filing an application for bail
being BAIL APPLN. 3462/2020. This Court vide order dated
10.11.2020 directed the State to file a Status Report along with the
CCTV footage in a pendrive and the matter was adjourned to
04.12.2020. On 04.12.2020, the bail application was dismissed as
withdrawn with liberty to the petitioner to seek redressal before the
learned trial Court in accordance with law.

e) The petitioner thereafter filed an application for bail before the
learned Additional Sessions Judge which was dismissed vide order
dated 11.01.2021.

f) The petitioner filed an application for bail being BAIL APPLN.
403/2021 before this Court. On 05.02.2021, it was informed by the
learned APP that the case is coming up for hearing on charge on
17.02.2021. This Court directed the petitioner that if charges are
framed against the petitioner, the learned Trial Court is directed to
examine the prosecutrix by 10.03.2021. Liberty was granted to the
petitioner to approach this Court after 10.03.2021. However, the

BAIL APPLN.1168/2021 Page 5 of 29
petitioner mentioned his matter on 26.02.2021 stating that the Call
Detail Record (CDR) of prosecutrix has not been made available. It
was stated that the chemical analysis report from the chemistry
division of the FSL has also not been made available and in the
absence of these materials it will not be possible for the Trial Court to
proceed ahead with the address on charge and this will have an
adverse impact on trial. Accepting the said argument of the learned
counsel for the petitioner, this Court modified the order dated
05.02.2021 and deleted the earlier direction to the learned Additional
Sessions Judge to complete the examination of the prosecutrix by
10.03.2021.

g) First supplementary chargesheet related to FSL Report
(Bio/DNA) was filed on 20.02.2021.

h) The petitioner approached this Court for grant of interim bail on
the ground that he has to appear for 5 th Semester BA LLB
examination. This Court vide order dated 01.03.2021 granted interim
bail to the petitioner for a period of one week. By another order dated
18.03.2021 the interim bail was extended till 10.04.2021.

i) Second supplementary charge-sheet related to Cyber Forensic
Division Report (Mobile phone) was filed on 26.03.2021.

j) Third supplementary charge-sheet related to chemical analysis
report of blood was filed on 15.04.2021.

k) The instant bail application was filed on 07.04.2021. It was
contended by the learned counsel for the complainant that for
entertaining a bail application under
Section 439 Cr.P.C it is
necessary that the petitioner should be in the judicial custody and

BAIL APPLN.1168/2021 Page 6 of 29
unless the petitioner surrenders the bail application cannot be heard.
Mr. N. Hariharan, learned Senior Counsel appearing for the petitioner
places reliance on the judgment of the Supreme Court in
Sandeep
Kumar Bafna v. State of Maharashtra, 2014 (16) SCC 623, to contend
that the petitioner is in judicial custody and therefore there is no
impediment in hearing the bail application. The case was heard on
07.04.2021, 08.04.2021, 19.04.2021, 07.05.2021, 17.05.2021,
28.05.2021, 01.06.2021 and 03.06.2021. The petitioner has joined the
proceedings virtually. The matter has been listed for orders on
05.07.2021. The petitioner has been directed to join the proceedings
from the concerned Police Station on 05.07.2021.

3. Heard Mr. N. Hariharan, learned Senior Counsel appearing for the
petitioner, Ms. Kusum Dhalla, learned APP for the State and Mr. Pramod
Kumar, learned counsel for the complainant and perused the material on
record.

4. Mr. N. Hariharan, learned Senior Counsel appearing for the petitioner
states that the charge-sheet filed on 09.11.2020 was an incomplete charge-
sheet. He places reliance on the last paragraph of the charge-sheet to contend
that the investigation is still going on and the investigation has not been
concluded. The last paragraph of the Charge-sheet reads as under:

The learned Senior Counsel contends that since the investigation has not

BAIL APPLN.1168/2021 Page 7 of 29
been completed, the petitioner is entitled to default bail under
Section 167(2)
of the Cr.P.C. He places reliance on the judgement of the Madras High
Court in
P.M.C. Mereantile Private Ltd v. State, 2014 SCC OnLine Mad
10242. He places reliance on paragraph No.11 and 16 of the said judgment.
The said paragraph reads as under:

“11. Apart from the said mistake, as rightly pointed out
by the learned Senior Counsel, the Report based on
which the learned Special Judge took cognizance of the
offences by passing the impugned Order, cannot be
construed to be a Final Report as envisaged under
Section 173(2), Cr.P.C. In this regard, the other
Judgments cited supra and relied on by the learned
Senior Counsel for the Petitioners will make it clear
that when the Report of the Police itself contains a
statement that the investigation has not been
completed and evidence are yet to be collected, such a
Report cannot be termed a Final Report and taking
cognizance of the offences based on such Report
shall not be in accordance with law……

*****

16. The Hon’ble Supreme Court also in T.V. Sarma v.
Turgakamala Devi, 1976 Cri.LJ 1247, made a similar
observation, which has been extracted by the learned
Judge of the Allahabad High Court sitting in Lucknow
Bench in the above cited case. The said observations
made by the Hon’ble Supreme Court are reproduced
here under:

“15. In the case on hand only a Preliminary
Charge-sheet has been filed and it is specifically
stated therein that the investigation is not yet
completed. Therefore it cannot be treated as a
police report within the meaning of sub-section
(2) of
Section 173, Code of Criminal Procedure

BAIL APPLN.1168/2021 Page 8 of 29
and so the Magistrate could not take cognizance
of the offence in the present case and remand the
Accused under
Section 309, Code of Criminal
Procedure.

16. The learned Public Prosecutor has argued
that in this case there is a charge-sheet though
styled preliminary and so the Proviso to
Section
167, sub-section (2) does not apply. The Code of
Criminal Procedure does not contemplate a
Preliminary Charge-sheet and a Final Charge-
sheet. What is contemplated is only a Police
Report within the meaning of sub-section (2) of
Section 173, Code of Criminal Procedure.
Admittedly in this case, there is no such Report.
The so-called Preliminary Charge-sheet filed in
this case is not a Police Report because the
investigation is not yet completed, and so the
Proviso to
Section 167, sub-section (2) is
attracted. In this connection, the learned Public
Prosecutor has relied upon sub-section (8) of
Section 173, Code of Criminal Procedure. In
order to contend that even a Preliminary Charge-
sheet is a Police Report within the meaning of
sub-section (2) of that Section. But a reading of
sub-section (8) of
Section 173, Code of Criminal
Procedure shows that after a Police Report under
sub-section (2) is sent to the Magistrate, further
investigation is not precluded and if upon such
investigation further evidence is obtained a
further report should be sent to a Magistrate.
Therefore sub-section (8) of
Section 173, Code of
Criminal Procedure comes into play only after a
report under sub-section (2) is sent and not
before. In this case since no Report under sub-
section (2) is sent, sub-section (8) does not come
into operation at all. Since the Preliminary Report
is not the one sent to the Court after a Report

BAIL APPLN.1168/2021 Page 9 of 29
under sub-section (2) was sent, the learned Public
Prosecutor cannot invoke the provisions of sub-

section (8) of Section 173, Criminal Procedure
Code……”” (emphasis supplied)

It is to be noted that in para 16 of P.M.C. Mereantile(supra) the learned
Court noted that
T.V. Sarma v. Turgakamala Devi, 1976 Cri.LJ 1247, is a
judgment of the Supreme Court while it is a judgment of the Andhra Pradesh
High Court. The learned Senior Counsel also places reliance on a judgment
dated 19.03.2017, passed by this Court in Bail Application No.215/2017
titled
Tunde Gbaja v. Central Bureau of Investigation. The learned Senior
Counsel also places reliance on the judgment of the Supreme Court dated
15.03.2021, in Criminal Appeal No.319/2021, titled Fakhrey Alam v. State
of U.P.

5. The learned Senior Counsel has taken this Court through various
CCTV footages to show that prosecutrix had alighted from the car at a shop
in Narayana, at about 6:10 AM for buying chips. It is stated that she was not
under the influence of liquor at that time. He states that at about 7:00 AM
the petitioner and the prosecutrix can be seen going in the car to Greenpark.
He points out that the prosecutrix was perfectly normal and there is no sign
that she was intoxicated and the footage also shows that the prosecutrix and
the petitioner were in close proximity while going into a house at about 7:00
AM and while coming out of the house also the prosecutrix does not look
like she was intoxicated. The learned Senior Counsel has also shown the
CCTV footage taken at about 10:00 AM somewhere near Liberty Cinema
where the petitioner and the prosecutrix can be seen taking selfies and the
prosecutrix is walking behind the petitioner fully conscious showing no

BAIL APPLN.1168/2021 Page 10 of 29
signs of any intoxication. The learned Senior Counsel states that these
CCTV footages completely belies the story of the prosecution that the
prosecutrix was intoxicated and raped. The learned Senior Counsel also
places reliance on the second charge-sheet and the report of the Cyber
Forensic Division showing that the mobile of the petitioner does not have
any kind of video of the incident as alleged by the prosecutrix. The learned
Senior Counsel has also taken this Court through the first supplementary
charge-sheet related to FSL Report (Bio/DNA) to contend that that report
does not indicate the presence of semen or blood of the petitioner on the
exhibits sent to the FSL. He states that the FSL report also belies the case of
the prosecution. The learned Senior Counsel has also taken this Court
through the third supplementary charge-sheet which shows that the
prosecutrix had “Ethyl Alcohol 14 mg/100ml of blood” to contend that even
for an offence under MACT the percentage of alcohol should be above
20mg/100ml of blood. He states that the alcohol content was so low that it
cannot be said that the prosecutrix could have lost her senses and therefore
the entire case of the prosecution cannot be believed. He contends that the
petitioner is in custody since 12.09.2020, he is a youngster and is a student
of law. He states that due to the present pandemic there is no possibility of
the trial commencing in the near future. He states that the investigation is
complete, all the charge-sheets have been filed and therefore the petitioner is
entitled to be released on bail.

6. Per contra, Ms. Kusum Dhalla, learned APP for the State contends
that the charge-sheet filed on 09.11.2020 is a complete charge-sheet and it
cannot be said that the investigation is not complete. She would rely on the
judgment of a Division Bench of this Court in Taj Singh vs State (Delhi

BAIL APPLN.1168/2021 Page 11 of 29
Admn.), 1988 CriLJ 1634, wherein this Court has observed that even if the
Investigating Officer had not received the report of the FSL, so far as his job
of collecting the evidence is concerned, that is the moment he collects the
material exhibits and dispatches the same for the opinion of the FSL. In this
view of the matter it will not be correct to say that the police report which
does not include the FSL report, would not be a complete police report as
envisaged in
Section 173(2) Cr.P.C. The learned APP also relies on a
judgment of this Court in
Kishan Lal vs State, 39 (1989) DLT 392, which
states that there is no mandate that a police report must enclose the
document purporting to be a report under the hand of a Government
scientific expert. Ms. Kusum Dhalla, learned APP also places reliance on the
judgment of this Court dated 25.09.2020 in Bail Application No.2075/2020,
titled
Babu v. The State, which follows Kishan Lal (supra). She contends
that the charge-sheet was complete in itself. She states that it had the FIR,
the statement of the prosecutrix under
Section 164 Cr.P.C. and details of the
investigation conducted by the police. She states that the report only
mentions that certain reports are awaited from the FSL and if need be
supplementary charge-sheet will be filed. She states that the offences alleged
against the petitioner is a heinous one and bail should not be granted to him.

7. Mr. Pramod Kumar, learned counsel for the complainant reiterates the
contentions of the State contending that the charge-sheet is complete and it
cannot be stated that the investigation was still going on when the charge-
sheet was filed and therefore the charge-sheet filed on 09.11.2020 is not a
complete charge-sheet. He also state that the contention of the learned
counsel for the petitioner that the FIR is an afterthought is also not true
because the moment the prosecutrix met her father they gave a call to the

BAIL APPLN.1168/2021 Page 12 of 29
police and the FIR was registered. He also states that the accused and his
family members are threatening and defaming the prosecutrix.

8. The first issue which has to be answered is as to whether the police
had filed an incomplete charge-sheet and whether the Magistrate take
cognizance on the basis of the report filed on 09.11.2020?

9. Section 173 Cr.P.C mandates that the police must file a report on the
completion of the investigation.
Section 173(1), 173(1)(A), 173(2) and
173(5) reads as under:

Section 173 – Report of police officer on completion
of investigation

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

1A. The investigation in relation to an offence
under
sections 376, 376A, 376AB, 376B, 376C,
376D, 376DA, 376DB or 376E of the Indian
Penal Code shall be completed within two
months1 from the date on which the information
was recorded by the officer in charge of the police
station.

2. As soon as it is completed, the officer in charge
of the police station shall forward to a Magistrate
empowered to take cognizance of the offence on a
police report, a report in the form prescribed by the
State Government, stating-

a) the names of the parties;
b) the nature of the information;
c) the names of the persons who appear to

be acquainted with the circumstances of the case;

d) whether any offence appears to have been
committed and, if so, by whom;
e) whether the accused has been arrested;

BAIL APPLN.1168/2021 Page 13 of 29

f)whether he has been released on his bond and, if
so, whether with or without sureties;

g) whether he has been forwarded in custody
under
section 170.
h) whether the report of medical
examination of the woman has been attached

where investigation relates to an offence under
sections 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB, or 376E of the Indian Penal
Code.

*****

5. 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-

a) all documents or relevant extracts thereof
on which the prosecution proposes to rely other
than those already sent to the Magistrate during
investigation;

b) the statements recorded under section 161
of all the persons whom the prosecution proposes
to examine as its witnesses.”

10. A perusal of the charge-sheet would show that all the requirements of
Section 173(2) have been met. The FIR, the statement of the prosecutrix
under
Section 164 Cr.P.C, the medical report and the statement of the
witnesses under
Section 161 Cr.P.C have all been filed along with the
charge-sheet dated 09.11.2020. Only on the basis of the statement of the
prosecutrix and her medical report the Magistrate can take cognizance of the
offence. The last paragraph of the translated version of the charge-sheet, as
provided by the petitioner, reads as under:

“That investigation of the case is continuing and upon
receiving the FSL result, Mobile Phone CDR/CAF with
certificate u/s 65 B and other facts coming forth would
be presented before the’ Hon’ble Court through filing

BAIL APPLN.1168/2021 Page 14 of 29
of supplementary charge sheet. That in ;this case from
the investigation conducted till now, statement of the
witnesses against; accused Saurabh Bali S/o Sushil
Bali above named enough evidence has been collected
for charge-sheeting him therefore, charge-sheet u/s
376/377/328/323/506
IPC is being issued and
presented before the court. The witnesses be summoned
thought issue of summon and accused be summoned
through issue conducted.”

The original version has been relied upon by the learned counsel for the
petitioner and has been reproduced in para No. 4 of this judgement. A
reading of the Charge-sheet in toto only shows that what was being awaited
was only the FSL result and the Mobile Phone CDR/CAF with certificate
under Section 65 B.

11. A Division Bench of this Court in Taj Singh vs State (Delhi Admn.),
1988 CriLJ 1634, after reproducing
Section 173 Cr.P.C has observed as
under:

“6. Reading together sub-sections (1) and (2) of S. 173
of the Code the stage and the point of tine at which the
police report or the challan is to be filed before a
Magistrate by the police officer is clearly made out in
the sense that the police report or the challan is to be
filed before a Magistrate as soon as the investigation
of the offence is concluded. Sub-section (2)(i)(a) to (g)
of
S. 173 further details the requirements by way of
particulars to be mentioned in police report. It would,
thus, mean that when a police officer is able to
complete his report by filling up therein the above
mentioned particulars as required under sub-section
(2)(i)(a) to (g), the investigation of the offence can be
said to be complete because if the investigation is not
complete he would not be able to make his report with
the of aforesaid requisite particulars, and so that

BAIL APPLN.1168/2021 Page 15 of 29
supplies to us the acid test for determining whether the
investigation of the offence is complete or not. The
relevant requirements would be the ones
contemplated in Clauses (c) and (d) of Sub-section
(2)(i) of
Section 173 which pertain to the names of
the persons who appear to be acquainted with the
circumstances of the case and whether any offence
appears to have been committed and, if so, by whom.
When the Investigating Officer is ready with these
requirements, the other requirements being not very
difficult to know, the police report is complete as per
its definition given in
S. 2(r) as per sub-section (2) of
S. 173 of the Code. The persons contemplated in
Clause (c) of sub-section (2)(i) of
S. 173 appear to be
the witnesses of the occurrence or who are otherwise
in the know of the facts of the case but do not appear
to include an expert of CFSL or any other
Government Scientific Expert mentioned in sub-
section (4) of
Section 293 of the Code whose reports
have been made admissible under
S. 293 by tendering
the same in evidence without any formal proof
thereof…….

7. Even if the Investigating Officer had not received
the report of the CFSL, so far as his job of collecting
the evidence is concerned, that is over the moment he
collects the material exhibits and dispatches the same
for the opinion of the CFSL and this position remains
unaltered even though he relies upon the CFSL
report in his own report. In this view of the matter it
will not be correct to say that the police report which
did not include the CFSL report, would not be a
complete police report as envisaged in sub-section (2)
of
S. 173 of the Code which is prepared and
forwarded to the Magistrate only after the conclusion
of the investigation.

8. For this view we find complete support from the

BAIL APPLN.1168/2021 Page 16 of 29
Full Bench decision of the Punjab Haryana High
Court reported as
State of Haryana v. Mehal Singh.
AIR 1978 Punj Har 341 at p. 347 : (1978 Cri LJ
1810 at p. 1816). No authority to the contrary was
available nor cited by the learned counsel for the
petitioner and whatever authorities were relied upon
by the learned counsel for the petitioner had not
decided this question. The authorities relied upon by
him are Noor Mohd. v. State ILR, (1978) 2 Delhi 442
: (1980 Cri LJ NOC 27),
Raghubir Singh v. State of
Bihar ,
Natabar Parida v. State of Orissa, , and Hari
Chand v. State 2nd (1977) 2 Delhi 367 : (1977 Cri LJ
NOC 262). Much stress was, however, laid by the
learned counsel for the petitioner on the last
mentioned authority but the perusal thereof shows
that even though there was mention of ‘incomplete
Challan’ filed in the court, it was not pointed out in
terms as to what was actually lacking therein and so
even this authority is of no help in determining the
question before us.” (emphasis supplied)

12. Similarly, this Court in Kishan Lal vs State, 39 (1989) DLT 392, has
observed as under:

7. It has been held by the Supreme Court that although
the police are not permitted to send an incomplete
report under
Section 173(2) of the Code, yet the
investigation except for the report of an expert like the
Serologist or Scientific Officer and Chemical Examiner
is complete and, therefore, the Magistrate is
empowered to take cognizance of the offence on a
police report which docs not include the expert’s
opinion.
In Tara Singh v. State. , the Police had infact
filed a report dated the 2nd October, 1949 terming it
an “incomplete challan” and on the 5th October they
filed a report which they called a “complete challan”.
Thereafter on the 19th October they filed yet another
report which was termed as “Supplementary challan”.

BAIL APPLN.1168/2021 Page 17 of 29

The objection taken at the trial was that the Magistrate
had no power to take cognizance of the case on 3rd
October when the incomplete challan dated 2nd
October, 1949 was placed before him. It was
contended that the Police are not permitted to file an
incomplete report under
Section 173(2) of the Code.

8. It appears from paragraph 14 of the reported
judgment that the witnesses named by the police in the
second report, i.e. the report of 5th October, 1949 were
not the witnesses who were “Acquainted with the
circumstances of the case” but merely formal witnesses
who had either examined the injured or recorded the
dying declaration. It further appears that vide the
report dated 19th October, 1949 which was termed as
“supplementary challan”, the report of the Imperial
Serologist and the drawing of a sketch map of the
occurrence were sought to be placed on the record-
Negativing the contention that the Magistrate had not
taken prop?” cognizance, it was held that the police
report dated 2nd October. 1949 was a complete report
within the meaning of
Section 190(1)(b) of the Code as
trie investigation. was complete. Thus the challan
dated the 5th October, 1949 and the supplementary
challan dated the 19th October, 1949 did not vitiate the
first report which had been termed as an “incomplete
challan”. It is useful to quote paragraph 14 of the
reported judgment :

“WHEN the police drew up their challan of 2-10-
1949 and submitted to the court on the 3rd, they
had in (act completed their investigation except
for the report of the Imperial Serologist and the
drawing of a sketch map of the occurrence. It is
always permissible for the Magistrate to take
additional evidence not set out in the challan.

Therefore, the mere fact that a second challan
was put in on 5th October would not necessarily

BAIL APPLN.1168/2021 Page 18 of 29
vitiate the first. All that
Section 173(1)(a) requires
is that as soon as the police investigation under
Chapter 14
of the Code is complete, there should
be forwarded to the Magistrate a report in the
prescribed form : “Setting forth the names of the
parties, the nature of the information and the
names of the persons who appear to be
acquainted with the circumstances of the case”

All that appears to have been done in the report of
2nd October which the police called their
incomplete challan. The witnesses named in the
second challan of 5th October were not witnesses
who were ‘acquainted with the circumstances of
the case. They were merely formal witnesses on
other matters. So also in the supplementary
challan of the l9th. The witnesses named are the
1st Class Magistrate, Amritsar, who recorded the
dying declaration, and the Assistant Civil
Surgeon. They are not witnesses who were
“acquainted with the circumstances of the case.”
Accordingly, the challan which the police called
an incomplete challan was in fact a completed
report of the kind which
Section 173(1)(a) of the
Code contemplates. There is no force in this
argument and we hold that the Magistrate took
proper cognizance of the matter.”

13. These two judgments have been followed in the judgment of this
Court dated 25.09.2020 in Bail Application No.2075/2020, titled Babu v.

The State. This Court after quoting the judgment in Taj Singh (supra) has
observed as under:

“17. As noted above, the Division Bench of this Court
relied upon the decision of the Supreme Court in
(1951) 2 SCR 729 Tara Singh Vs. State which did not
relate to an offence punishable under
NDPS Act. A

BAIL APPLN.1168/2021 Page 19 of 29
distinction can clearly be drawn between the cases
relating to offences under
the Indian Penal Code and
offences under
NDPS Act, for the reason, in a charge
sheet filed without a FSL report, say for example, for
an offence punishable under
Section 302 IPC, the
prosecution cites witnesses who may be the eye
witnesses or of circumstantial evidence besides the
post-mortem report, MLC etc. which material in itself
is sufficient to constitute the ingredients of the
offence(s) alleged by the prosecution. The FSL report
in the said charge sheet only supplements the material
already filed by the prosecution. This is in
contradistinction to an offence punishable under
NDPS
Act where the possession of the contraband itself is an
offence and if the prosecution in the charge sheet is not
able to show that the alleged recovery from the
accused was prohibited under the provisions of the
NDPS Act, the basic ingredient of the offence would be
missing, therefore, the cognizance on such a charge
sheet would suffer from total non-application of mind
and would be non-est. It is trite law that Court takes
cognizance of the offence and not the offender. Thus
unless the ingredients which constitute the offence are
established in the charge sheet, the cognizance of the
offence alleged in the charge sheet by the
Magistrate/Special Court would be illegal.”

(emphasis supplied)

14. The judgments relied on by the learned counsel for the petitioner in
P.M.C. Mereantile Private Ltd v. State, 2014 SCC OnLine Mad 10242;

Bail Application No.215/2017 titled Tunde Gbaja v. Central Bureau of
Investigation and Hari Chand and Ran Pal v. State, ILR 1997 Delhi 367, are
not applicable to the facts of this case. In none of these cases did the Courts
have to consider whether the absence of FSL report in the charge-sheet
would make the charge-sheet an incomplete charge-sheet or not. As rightly

BAIL APPLN.1168/2021 Page 20 of 29
pointed out by this Court in Bail Application No.2075/2020, titled
Babu v.
The State, an offence under
IPC and offence under NDPS are two distinct
categories. The present case is one of an offence under
Section 376 IPC. A
charge-sheet for an offence of rape would be complete on the statement
made by the prosecutrix under
Sections 161 and 164 Cr.P.C. In this case,
apart from the FSL report, every document has been filed with the charge-
sheet dated 09.11.2020 including statement of the prosecutrix, the MLC
report, the statement of other persons. The charge-sheet filed on 09.11.2020
was within the stipulated time and is a complete charge-sheet and the fact
that the FSL report is not part of the charge-sheet does not make the charge-
sheet an incomplete one. Though one line in the charge-sheet states that the
investigation is going on but that one statement does not make the charge-
sheet an incomplete one. A complete reading of the charge-sheet would
show that only the report from the FSL are awaited and the same were to be
filed once they are available. The FSL report would be used only to
corroborate the version of the prosecution and the prosecutrix. Even if the
FSL had not been filed, the Magistrate, on the basis of the Charge-sheet filed
on 11.09.2020 could take the cognizance of the offence. The petitioner is
therefore not entitled to default bail under
Section 167(2) Cr.P.C and the
order dated 15.03.2021 of the Supreme Court in Fakhrey Alam v. State of
U.P.( Criminal Appeal No.319/2021) would not be applicable to this case.

15. Coming to the second question as to whether the petitioner is entitled
to bail on the facts of the present case, the learned Senior Counsel for the
petitioner has relied on CCTV footages to show that at about 7:00 AM the
petitioner and the prosecutrix can be seen going to Greenpark. He points out
that the prosecutrix was perfectly normal and there is no sign that she was

BAIL APPLN.1168/2021 Page 21 of 29
intoxicated. He states that the footage also shows that the prosecutrix and the
petitioner were in close proximity while going into the House at about 7:00
AM. The learned Senior Counsel has also shown the CCTV footage taken at
about 10:00 AM, somewhere near Liberty Cinema, where the petitioner and
the prosecutrix can be seen taking selfies and the prosecutrix is walking
behind the petitioner fully conscious showing no signs of any intoxication.
He states that the conduct of the prosecutrix does not indicate that she has
been raped by the petitioner.

16. The prosecutrix has alleged that she has been raped by the accused.
This is not a case of promise of marriage or one where the petitioner and the
prosecutrix were in any form of relationship with each other and the
relationship going sour. There is nothing to suggest that there is any reason
for the prosecutrix to make false allegation against the petitioner or to
falsely implicate him and that too for an offence of rape. The statement of
the prosecutrix alone is sufficient for the trial to go on. The learned Senior
Counsel has taken this Court through the FSL report to contend that the
conclusion of the report demonstrates that rape has not been committed on
the prosecutrix and the prosecutrix is levelling false allegations against the
petitioner. It is well settled law that at the stage of granting bail the Court is
not expected to conduct a mini trial to ascertain as to whether the petitioner
is guilty or not. The Court should not even comment on the conduct of the
prosecutrix. It is well settled that a person can be convicted only on the
statement of the prosecutrix and normally it does not require corroboration.

17. The Supreme Court in Om Prakash v. State of U.P., (2006) 9 SCC
787, has observed as under:

13. It is settled law that the victim of sexual assault is

BAIL APPLN.1168/2021 Page 22 of 29
not treated as accomplice and as such, her evidence
does not require corroboration from any other
evidence including the evidence of a doctor. In a given
case even if the doctor who examined the victim does
not find sign of rape, it is no ground to disbelieve the
sole testimony of the prosecutrix. In normal course a
victim of sexual assault does not like to disclose such
offence even before her family members much less
before public or before the police. The Indian woman
has a tendency to conceal such offence because it
involves her prestige as well as prestige of her family.
Only in few cases, the victim girl or the family
members have courage to go before the police station
and lodge a case. In the instant case the suggestion
given on behalf of the defence that the victim has
falsely implicated the accused does not appeal to
reasoning. There was no apparent reason for a
married woman to falsely implicate the accused after
scatting (sic scathing) her own prestige and honour.

14. ….. It is a sad reflection on the attitude of
indifference of the society towards the violation of
human dignity of the victims of sex crimes. We must
remember that a rapist not only violates the victim’s
privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the
process. Rape is not merely a physical assault–it is
often destructive of the whole personality of the
victim. A murderer destroys the physical body of his
victim, a rapist degrades the very soul of the helpless
female. The courts, therefore, shoulder a great
responsibility while trying an accused on charges of
rape. They must deal with such cases with utmost
sensitivity. The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution

BAIL APPLN.1168/2021 Page 23 of 29
case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material
particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony, it
may look for evidence which may lend assurance to her
testimony, short of corroboration required in the case
of an accomplice. The testimony of the prosecutrix
must be appreciated in the background of the entire
case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases
involving sexual molestation. This position was
highlighted in
State of Punjab v. Gurmit Singh [(1996)
2 SCC 384 : 1996 SCC (Cri) 316].”

Similarly in State of Maharashtra v. Chandraprakash Kewalchand Jain,
(1990) 1 SCC 550, the Supreme Court has observed as under:

“16…… If the totality of the circumstances appearing
on the record of the case disclose that the prosecutrix
does not have a strong motive to falsely involve the
person charged, the court should ordinarily have no
hesitation in accepting her evidence. We have,
therefore, no doubt in our minds that ordinarily the
evidence of a prosecutrix who does not lack
understanding must be accepted. The degree of proof
required must not be higher than is expected of an
injured witness. For the above reasons we think that
exception has rightly been taken to the approach of the
High Court as is reflected in the following passage:

“It is only in the rarest of rare cases if the court
finds that the testimony of the prosecutrix is so
trustworthy, truthful and reliable that other
corroboration may not be necessary.”

With respect, the law is not correctly stated. If we may
say so, it is just the reverse. Ordinarily the evidence of

BAIL APPLN.1168/2021 Page 24 of 29
a prosecutrix must carry the same weight as is
attached to an injured person who is a victim of
violence, unless there are special circumstances
which call for greater caution, in which case it would
be safe to act on her testimony if there is independent
evidence lending assurance to her accusation.

17. We think it proper, having regard to the increase in
the number of sex violation cases in the recent past,
particularly cases of molestation and rape in custody,
to remove the notion, if it persists, that the testimony of
a woman who is a victim of sexual violence must
ordinarily be corroborated in material particulars
except in the rarest of rare cases. To insist on
corroboration except in the rarest of rare cases is to
equate a woman who is a victim of the lust of another
with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell
a woman that her story of woe will not be believed
unless it is corroborated in material particulars as in
the case of an accomplice to a crime. Ours is a
conservative society where it concerns sexual
behaviour. Ours is not a permissive society as in some
of the western and European countries. Our standard
of decency and morality in public life is not the same
as in those countries. It is, however, unfortunate that
respect for womanhood in our country is on the decline
and cases of molestation and rape are steadily
growing. An Indian woman is now required to suffer
indignities in different forms, from lewd remarks to
eve-teasing, from molestation to rape. Decency and
morality in public life can be promoted and protected
only if we deal strictly with those who violate the
societal norms. The standard of proof to be expected by
the court in such cases must take into account the fact
that such crimes are generally committed on the sly
and very rarely direct evidence of a person other than
the prosecutrix is available. Courts must also realise

BAIL APPLN.1168/2021 Page 25 of 29
that ordinarily a woman, more so a young girl, will
not stake her reputation by levelling a false charge
concerning her chastity.” (emphasis supplied)

18. In view of the judgments of the Supreme Court, this Court, at the
moment, is not going on the conclusions in the FSL report at this juncture as
they are all matters of trial.

19. The parameters of granting bail have been laid down by the Supreme
Court in a number of cases.
In Ram Govind Upadhyay v. Sudarshan Singh,
(2002) 3 SCC 598, the Supreme Court laid down the factors that must guide
the exercise of the power to grant bail in the following terms :

“3. Grant of bail though being a discretionary order —
but, however, calls for exercise of such a discretion in
a judicious manner and not as a matter of course.
Order for bail bereft of any cogent reason cannot be
sustained. Needless to record, however, that the grant
of bail is dependent upon the contextual facts of the
matter being dealt with by the court and facts,
however, do always vary from case to case. While
placement of the accused in the society, though may be
considered but that by itself cannot be a guiding factor
in the matter of grant of bail and the same should and
ought always to be coupled with other circumstances
warranting the grant of bail. The nature of the offence
is one of the basic considerations for the grant of bail

— more heinous is the crime, the greater is the chance
of rejection of the bail, though, however, dependent on
the factual matrix of the matter.

4. Apart from the above, certain other which may be
attributed to be relevant considerations may also be
noticed at this juncture, though however, the same are
only illustrative and not exhaustive, neither there can
be any. The considerations being:

BAIL APPLN.1168/2021 Page 26 of 29

(a) While granting bail the court has to keep in
mind not only the nature of the accusations, but the
severity of the punishment, if the accusation entails a
conviction and the nature of evidence in support of
the accusations.

(b) Reasonable apprehensions of the witnesses
being tampered with or the apprehension of there
being a threat for the complainant should also weigh
with the court in the matter of grant of bail.

(c) While it is not expected to have the entire
evidence establishing the guilt of the accused beyond
reasonable doubt but there ought always to be a
prima facie satisfaction of the court in support of the
charge.

(d) Frivolity in prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of
grant of bail, and in the event of there being some
doubt as to the genuineness of the prosecution, in
the normal course of events, the accused is entitled
to an order of bail.”

In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the
Supreme Court observed as under:

―9. We are of the opinion that the impugned order is
clearly unsustainable. It is trite that this Court does
not, normally, interfere with an order passed by the
High Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High Court
to exercise its discretion judiciously, cautiously and
strictly in compliance with the basic principles laid
down in a plethora of decisions of this Court on the

BAIL APPLN.1168/2021 Page 27 of 29
point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:

i. whether there is any prima facie or reasonable
ground to believe that the accused had
committed the offence;

ii. nature and gravity of the accusation;

iii. severity of the punishment in the event of
conviction;

iv. danger of the accused absconding or fleeing, if
released on bail;

v. character, behaviour, means, position and
standing of the accused;

vi. likelihood of the offence being repeated;
vii. reasonable apprehension of the witnesses being
influenced; and
viii. danger, of course, of justice being thwarted by
grant of bail.

10. It is manifest that if the High Court does not advert
to these relevant considerations and mechanically
grants bail, the said order would suffer from the vice of
non-application of mind, rendering it to be illegal.”

20. Rape is an extremely heinous offence which stipulates minimum
punishment of 7 years and can go up to life. The prosecutrix has alleged that
she has been raped by the petitioner. As stated earlier, it is not a case of
promise to marry or that the petitioner and the prosecutrix were in any kind
of relationship and the relationship has gone sour. At this juncture, there is
no reason to disbelieve the prosecutrix. As stated above, it has been stated
by the learned counsel for the prosecutrix that the prosecutrix is being
threatened. The prosecutrix is a young student. The accused is aged 28 years
and is a man of means. He states that he is studying law. Considering the

BAIL APPLN.1168/2021 Page 28 of 29
facts of the case, this Court feels that the petitioner is not entitled to be
released on bail till the prosecutrix is examined. The investigation is
complete, supplementary charge-sheets have been filed. In the facts and
circumstances of this case, the Trial Court is directed to hear the arguments
on charge within two months from today and if charges are framed the
prosecutrix be examined within two months thereafter.

21. Be it noted that the observations made in the order are only for the
purposes of the present bail application and are not on the merits of the case.

22. Accordingly, the application is dismissed with the abovementioned
observations along with the pending application. The petitioner who is on
interim bail is directed to surrender on 06.07.2021 before the concerned Jail.

SUBRAMONIUM PRASAD, J.

JULY 05, 2021
Rahul

BAIL APPLN.1168/2021 Page 29 of 29

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link
MyNation Times Magzine


All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation