State of Kerala v. Muneer S/O Umer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942** ## **Crl.MC.No.4004 OF 2020(A)** **AGAINST THE ORDER IN CRMC 452/2020 DATED 29-07-2020 OF THE SPECIAL COURT FOR TRIAL OF OFFENCES UNDER POCSO ACT & CHILDREN’S COURT (ADDITIONAL SESSIONS COURT-1) KALPETTA, WAYANAD CRIME NO.186/2020 OF AMBALAVAYAL POLICE STATION, WAYANAD** ## **PETITIONER/COMPLAINANT/RESPONDENT:** **THE STATE OF KERALA REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, SPECIAL MOBILE SQUAD (SMS UNIT), MANNANTHAVADY, WAYANAD.** **BY ADV. DIRECTOR GENERAL OF PROSECUTION** ## **RESPONDENT/ACCUSED/PETITIONER:** **MUNEER S/O.UMMER, AGE 34/20, OORKKOTTU, PARAMBU VEEDU, ARIMUNDA PANIYA COLONY, KALATHUVAYAL P.O., AMBALAVAYAL AMSOM, PIN-673 593.** **R1 BY ADV. SRI.A.V.JAMES** ## **OTHER PRESENT:** ## **SRI.SUMAN CHAKRAVARTHY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4004 OF 2020(A)** **2** ## **(CR)** # **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.4004 of 2020 ---------------------------------------------Dated this the 28[th] day of October, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"…......to quash Annexure-C order dated 29.07.2020 in Crl.M.C. No.452/2020 in Crime No.186/2020 of Ambalavayal Police Station of the Special Court for Trial of offences under PoCSO Act and Children’s Court (Additional Sessions Court-I) Kalpetta, granting bail to the respondent in this case, in the interest of justice.”_ 2. Heard Sri.Suman Chakravarthy, learned Public Prosecutor, appearing for the petitioner-State of Kerala and Sri.A.V.James, learned Advocate appearing for the respondent/accused. 3. The aforecaptioned petition has been filed by the State of Kerala to challenge the impugned Annexure-C order dated 29.07.2020, rendered by the First Additional Sessions **Crl.MC.No.4004 OF 2020(A)** **3** Court (notified to deal with PoCSO cases), Kalpetta, on Crl.M.C. No.452/2020, whereby default bail has been granted to the accused (respondent herein) for his involvement in Crime No.186/2020 of Ambalavayal Police Station. 4. The respondent herein has been arrayed as the sole accused in the instant Crime No.186/2020 of Ambalavayal Police Station, which has been registered for offences punishable under Section 376 AB of the IPC, Sections 5(k) & 5(m) read with Section 6 of the Protection of Children from Sexual Offences (PoCSO) Act, 2012 and Sections 3(I)(w)(i) & (ii), Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2005. 5. The gist of the prosecution case in the abovesaid crime is to the effect that the respondent/accused does not belong to Scheduled Caste community and that the victim in this case is a minor girl aged 10 years, who belongs to Scheduled Caste community and who is suffering from mental and physical disabilities. The allegations are to the effect that the petitioner, who is aged 34 years, fully aware that the minor **Crl.MC.No.4004 OF 2020(A)** **4** victim girl aged 10 years belongs to Scheduled Caste community and is suffering from mental and physical disabilities, had committed the abovesaid offences of penetrative sexual assault on her on 10.04.2020 between 3 pm. and 4.30 pm. and that he had committed the abovesaid offence after trespassing into the Scheduled Caste colony, where the minor victim girl and her family are residents, etc. and thereby the petitioner has committed the abovesaid offences. 6. The respondent/accused was arrested in this case on 11.04.2020 and was remanded on 12.04.2020 for his involvement in the abovesaid crime. Thereafter, the respondent/accused has preferred the abovesaid Crl.M.C. No.452/2020, as an application under Section 439 of the Cr.P.C., seeking for grant of regular bail and consequential reliefs. The Sessions Court concerned had treated the said application filed under Section 439 of the Cr.P.C. for grant of regular bail, as a plea for default bail as envisaged in the second proviso to Section 167(2) of the Cr.P.C. and has noted that as the said bail application has been filed on 17.07.2020 and as the **Crl.MC.No.4004 OF 2020(A)** **5** final report has been filed by the investigating agency only on 21.07.2020, the petitioner has secured the indefeasible right to be released on statutory default bail going by the mandatory provisions contained in the second proviso to Section 167(2) of the Cr.P.C. The said order has been granted in favour of the respondent/accused as per Annexure-C dated 29.07.2020. It is this proceedings at Annexure-C that has been challenged by the State of Kerala, in this proceedings under Section 482 of the Cr.P.C. 7. The main contentions urged by the petitioner-State of Kerala are as follows: That the petitioner/accused has been remanded on 12.04.2020 and the default bail period in the present case involving the aforesaid offences is 90 days from the date of the remand. That the investigation in this case has been duly completed by the police and the final report/charge sheet was filed by the investigating agency before the abovesaid special court concerned on 08.07.2020 as evident from Annexure-A receipt issued by the competent board and that the completion of 90 days from the date of remand in this case **Crl.MC.No.4004 OF 2020(A)** **6** would fall on 11.07.2020. The accused had filed bail application on 17.07.2020 and that the court below had returned back the abovesaid final report/charge sheet for curing certain defects to the investigating agency only on 17.07.2020. Further that the immediate next 3 days, viz., 18.07.2020, 19.07.2020 & 20.07.2020 were holidays and that the defects in the final report/charge sheet were immediately cured and represented on the first available next working day, viz., 21.07.2020. The instant regular bail application has been filed by the respondent/accused on 21.07.2020. The main point to be decided in this case is as to whether the matter in issue is covered by the dictum laid down by this Court in the order dated 02.09.2019 in Crl.M.C. No.4826/2019. 8. Before dealing with the factual issues it may be useful to refer to certain rudimentary and cardinal aspects of the legal positions regarding the accrual of the indefeasible right of the remanded accused to be released on statutory default bail going by the operation of the mandatory provisions contained in the proviso to Section 167(2) of the Cr.P.C. It is **Crl.MC.No.4004 OF 2020(A)** **7** now well settled that the indefeasible right of a remanded accused to be released on bail by the operation of proviso to Section 167(2) of the Cr.P.C. is on the occurrence of default on the part of the Investigating Agency to complete the investigation and file final report within the time allowed (60 days or 90 days as the case may be), and the said right is enforceable by the remanded accused only from the date of default till the date of filing of final report/charge sheet and it cannot be enforced if the final report/charge sheet has been filed before the remanded accused has made his default bail plea, even though the said final report has been filed after the default period. In other words, even if the Investigating Agency has not filed the final report/charge sheet within the default period prescribed in Section 167 Cr.P.C. (60 days or 90 days as the case may be, from the day of remand) so long as the Investigating Agency, thereafter, files the final report but before the remanded accused has made his plea to be released on statutory default bail, then the said right which would have accrued after the default period, would get extinguished at the **Crl.MC.No.4004 OF 2020(A)** **8** time when the final report is filed, and in view of the said extinguishment, the belated plea of the remanded accused to be released on default bail, which is made after the filing of final report will not be of any benefit to him. See various decisions of the Apex Court as in _**Rakesh Kumar Paul v. State of Assam**_ [(2017) 15 SCC 67 (paragraphs 36 & 39) = AIR 2017 SC 3948], _**Sanjay Dutt v. State Through C.B.I.**_ [(1994) 5 SCC 410]. So, it is by now well settled that if the remanded accused makes a default bail plea at any time when the statutory right for default bail has accrued on account of the non-filing of the final report/charge sheet within the time prescribed in the proviso to Section 167(2) of the Cr.P.C., then the accused is entitled to the benefit of statutory default bail, even if the final report is filed subsequent to the filing of the bail application by the accused. On the other hand if the accused makes his plea for default bail only subsequent to the filing of final report, the indefeasible right which was in existence gets extinguished on the submission of final report/charge sheet before the Criminal Court concerned, even if such filing of final report is after the **Crl.MC.No.4004 OF 2020(A)** **9** default period stipulated as per the proviso to Section 167(2) of the Cr.P.C. So also, it is well settled that the abovesaid period of 60 days or 90 days, as the case may be, as prescribed in Section 167(2) of the Cr.P.C. has to be computed from the day of remand of the accused and not from the day of his arrest under Section 57 of the Cr.P.C. (See _**Ravi Prakash Singh @ Arvind Singh v. State of Bihar**_ [AIR 2015 SC 1294], etc.). So also, the Apex Court in paragraph No.14 of the judgment in _**Achpal @ Ramswaroop & Anr. v. State of Rajasthan**_ [AIR 2018 SC 4647] has noted the observations of the Law Commission of India that a practice of doubtful legal validity had grown up where police files before the Magistrate a preliminary or incomplete final report/charge sheet and the Magistrate, purporting to act under Section 344 of the Cr.P.C. takes steps to adjourn the proceedings and then to remand the accused to custody. It has been held therein that if such an order could be made under Section 344, as that section is intended to operate only after a Magistrate has taken cognisance of an offence, which can be properly done only after **Crl.MC.No.4004 OF 2020(A)** **10** a final report under Section 173 has been received, and not while the investigation is still going on. Hence, it has been observed that the use of Section 344 of the Cr.P.C. for remand beyond the statutory period of 15 days can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner and therefore, it is necessary that some time limit should be placed on the power of the police to obtain a remand, while the investigation is still going on, etc. It is now well settled that a final report/charge sheet has to be filed by the investigating agency either within the default period or thereafter but before the filing of the default bail application so as to avoid or extinguish the statutory right of the accused to seek default bail and that the prosecution can seek to avoid or distinguish the statutory right for default bail of the remanded accused only if the final report/charge sheet is complete and defect free. So, it has been held if, on the other hand, the final report/charge sheet so filed is incomplete, then the right of the abovesaid remanded accused to be released on statutory default **Crl.MC.No.4004 OF 2020(A)** **11** bail cannot be rejected in such a case, as the final report/charge sheet is incomplete and defective. 9. This Court has held as follows in paragraph Nos.15 to 17 of the final order dated 02.09.2019 in Crl.M.C. No.4826/2019 which reads as follows:- _**“15. In that regard, it will be pertinent to refer to the provisions contained in Rules 67 & 68 of The Criminal Rules of Practice, Kerala, 1982, notified and published in Kerala Gazette No.33 dated 14.8.1984 which has been framed under the enabling powers conferred under Article 227 of the Constitution of India and Sec.440 of the Cr.P.C. and all other enabling powers in that regard. Rules 67 & 68 of the said Rules are appended under Chapter IX of those Rules. Rules 67 & 68 of The Criminal Rules of Practice, Kerala, provides as follows:**_ ## _**“Rule 67: Miscellaneous Cases**_ _Every original petition shall be registered as a miscellaneous case and shall be headed with a cause title setting out the provision of law under which it is filed and the names and full addresses of the parties to it separately numbered and described as petitioners or respondents._ ## _**Rule 68: Return of defective petitions and their representation**_ _Every petition, application, complaint, police report or other proceeding which does not comply with the requirements of Rule 67 or is otherwise defective shall not be numbered and shall be returned to the party or the pleader or the officer concerned for amendment and representation within a specified time.”_ _**16. A reading of the abovesaid Rules, more particularly Rule 68 thereof would make it clear that, a police report (final report/charge sheet), which does not comply either with the requirement of Rule 67 is otherwise defective, shall not be**_ **Crl.MC.No.4004 OF 2020(A)** **12** _**numbered and shall be returned to the officer concerned for amendment and re-presentation within a specified time. It goes without saying that in a case where the remanded accused is likely to claim the benefit of statutory default bail, then the competent court below concerned and its officials concerned are obliged to be diligent so as to ensure that a final report/charge sheet filed in such a case should be examined immediately, and if there are any defects, more particularly significant or substantial defects, then the Court has to immediately note such defects and notify the same to the Investigating Officer so as to cure such defects and to re-present the cured final report/charge sheet. Just as an accused has the right to seek statutory default bail subject to compliance of the mandatory requirements to the proviso to Sec.167(2) of the Cr.P.C., So also the State which is the prosecution agency, and which is representing the entire interest of community at large, has a right to ensure that such default bail plea right does not accrue in the eye of law, or if accrued, to take steps to extinguish it in the manner known to law, subject to the prosecution agency being diligent in their task of not only completing the investigation and filing the final report, but also in curing the defects therein.**_ _**17. There could be very many cases where the offences alleged against the remanded accused are very serious and grave, and regular bail pleas have been denied by the competent courts and public interest might really require the continued detention of the accused, and in such a case certainly the State has the right to ensure that either the statutory default bail right is not accrued to the remanded accused, or if accrued, is extinguished in the manner known to law, and by the due performance of the duties and obligations. It is a well known aspect that a police machinery and prosecution agency are overloaded and are facing tremendous strain, and on account of various reasons like the police officials in the local station house being invested with duties of not only relating**_ **Crl.MC.No.4004 OF 2020(A)** **13** _**to crime, but also in law and order routine issues and public order issues, may be hard pressed for time. It is true that such aspects by itself cannot be the basis to deny the precious right of a remanded accused to seek statutory default bail provided the mandatory conditions as per Sec.167(2) proviso are strictly fulfilled. But at the same breath it has to be held that the prosecution agency should be immediately alerted by the Criminal Court about any defects in the final report/charge sheet, especially in cases where the remanded accused is likely to seeking the claim of statutory default bail. The Criminal Courts may also be faced with problems of personnel shortage, overload, etc, but the Court should give top priority to alert the prosecution agency/investigation agency about clearance of defects, if any, in final reports, files in cases where the remanded accused is likely to stake up the claim for default bail, so that the prosecution agency immediately gets reasonable opportunity to clear such defects.”**_ 10. In paragraph Nos.22 to 24 of the final order dated 02.09.2019 in Crl.M.C. No.4826/2019, this Court has held that the court below has its duty and obligation to examine the final report immediately after its filing and to note the defects and to return the same to the Investigating Officer for curing the defects and for re-submission, especially in those cases where the remanded accused is likely to put up a claim for default bail plea and that such a statutory duty is cast on the court going by the statutory provisions contained in the aforementioned Rules **Crl.MC.No.4004 OF 2020(A)** **14** 67 & 68 of the Criminal Rules of Practice, Kerala, 1982, which has been dealt with in paragraph No.15 of the order in Crl.M.C. 4826/2019. This Court held therein that in a case where the final report/charge sheet is filed either within the default period or immediately thereafter, but before filing of the statutory default bail plea by the accused, is defective as on the date of filing of the said bail plea, then the accused could put up the plea for statutory bail plea. But in a case where the investigating agency has diligently completed the investigation and has filed the final report/charge sheet within the default period or thereafter, but before the filing of the statutory bail plea by the remanded accused, then the court is also having a duty to alert the investigating agency to cure the defects and still if the investigating agency has not cured the subsisting defects as on the date of filing of the statutory bail plea, then the right of the accused has to be respected. But, at the same time, if the investigating agency has been able to diligently cure the defects and resubmit the final reports before the abovesaid bail plea made by the accused, then certainly the earlier accrued right, if **Crl.MC.No.4004 OF 2020(A)** **15** any, will get extinguished and the omission on the part of the court to immediately notify the investigating agency in a case like that to cure the defects, cannot be the substantial basis to hold that the accused in such a case will still get the indefeasible right to be released on default bail and if such an approach is made, it would be rather too hypertechnical and without upholding and due regard to the public interest. 11. As can be seen from paragraph No.12 of the order in Crl.M.C. No.4826/2019, the case was one involved in the offence as per Section 302 of the I.P.C. and the accused was arrested on 11.03.2019 and was remanded on 12.03.2019 and the final report/charge sheet was filed by the Investigating Officer before the jurisdictional Magistrate, concerned on 11.06.2019, which is 90[th] day from 12.03.2019 (day of remand of the accused therein). Further the accused therein had filed bail application dated 20.062019 styled to be one filed under Section 437 of the Cr.P.C. on 20.06.2019. The final report/charge sheet was returned back by the court below to the investigating agency only on 21.06.2019, eventhough the final **Crl.MC.No.4004 OF 2020(A)** **16** report was filed on 11.06.2019, which was before the filing of the bail application by the accused therein. The defects noted therein were all minor and the investigating agency had immediately cured the same and represented the final report/charge sheet as a defect free one on the next day itself, viz.,22.06.2019. 12. This Court held in paragraph No.22 of the order in Crl.M.C. No.4826/2019, that since the court concerned had the duty and obligation to return back the final report/charge sheet to the investigating agency for curing of defects, especially in a case where the remanded accused is likely to put up the plea of default bail plea, and as the court had returned back the final report for curing the defect only on 21.06.2019 and as the investigating agency would cure all the defects immediately and represent it on 22.06.2019, it could be thus seen that if the court had immediately returned back the final report for curing of the defects on receiving it on 11.06.2019. Then the investigating agency would have been able to cure the defects immediately within a day or two thereafter and at any rate, a **Crl.MC.No.4004 OF 2020(A)** **17** defect free charge sheet could have been filed before the filing of the bail application by the accused on 20.06.2019, and therefore, in such a case, it cannot be held that the delay, inaction or omission on the part of the court concerned in returning back the final report/charge sheet for curing of such defects cannot be the substantial basis to enable the accused to claim the benefit of default bail plea. It would be pertinent to refer to paragraphs 22 to 24 of the order dated 02.09.2019 in Crl.M.C. No.4826/2019, which reads as follows:- _**“22. After hearing both sides this Court is of the considered view that, the abovesaid contention of the Prosecutor merits acceptance. The Court below has the duty and obligation to examine the final report immediately after its filing and to note the defects and to return the same to the Investigating Officer for curing and re-submission, especially in cases where the remanded accused is likely to stake the default bail plea. This is all the more so in cases where the remanded accused is likely to put up the claim for statutory default bail, and such a duty would also certainly flow from the statutory provisions contained in the above referred Criminal Rules of Practice. The 3 out of 4 noted defects cannot be said to be the defects of any substance, and there was only one subsisting defect, which has been duly cured by the Prosecution within hardly a day's time, and it is only to be held that if the Court below had in fact noted the defects and returned the same immediately within a day or two after its filing on 11.6.2019, then the Investigating Agency in this case could have been able to resubmit the cured final report by 12.6.2019**_ **Crl.MC.No.4004 OF 2020(A)** **18** _**or atleast well before 20.6.2019, the day on which the respondent accused has filed the bail application. In view of the said aspect, the respondent accused herein cannot be said to have secured the indefeasible right to be released on statutory default bail in terms of the proviso to Sec.167(2) of the Cr.P.C., in the facts and circumstances of this case.**_ _**23. True that in a case where the final report/charge sheet is filed either within the default period or immediately thereafter, but before the filing of statutory default bail plea by the accused, is defective, as on the day of filing of said bail plea, then the accused could rightly put up the plea for statutory default bail. But in a case like the instant one, where the Investigating Agency has diligently completed the investigation and has filed the final report/charge sheet within the default period or thereafter, but before filing of the statutory default bail, then the Court is also having a duty to alert the Investigating Agency to cure the defects and still if the Investigating Agency has not cured the subsisting defects as on the date of filing of statutory bail plea, then the right of the accused has to be respected. But at the same time, if the Investigating Agency has been able to diligently cure the defects and resubmit the final report before the abovesaid plea made by the accused, then certainly the earlier accrued right if any will get extinguished. The omission on the part of the Court to immediately notify the Investigating Agency in a case like this to cure the defects, cannot be the substantial basis to hold that the accused in the instant case has got the indefeasible right to be released on default bail, and if such an approach is made,it would be rather too hypertechnical and without upholding and without due regard to the public interest.**_ _**24. In the present case this Court is constrained to hold that the accused cannot be said to have secured the statutory right to be released on default bail in the facts of this case. The contra view taken by both the Courts below is illegal and**_ **Crl.MC.No.4004 OF 2020(A)** **19** _**improper and is liable to be interdicted. Hence the State is entitled to succeed in this case and accordingly it is ordered that the impugned Anx.C order passed by the learned Magistrate and the impugned Anx.F revisional order passed by the Sessions Court will stand set aside. However it is to be noted that Anx.B is an application filed under Sec.437 of the Cr.P.C. and since Sec.167(2) is not invocable in the instant case, it will be open to the accused to seek regular bail which has to be evaluated and decided on merits by the competent court. If the petitioner accused makes application fro grant of regular bail under Sec.439 of the Cr.P.C. before the Sessions Court concerned, the said Court will consider the said plea on merits after affording opportunity of being heard on both sides so as to take a considered decision thereof without much delay preferably within a period of 10 days from the date of filing of such application.”**_ 13. After hearing both sides, this Court is of the considered view that the facts of the present case is almost identical or substantially similar to the one in Crl.M.C. No.4826/2019. The accused in this case has been remanded on 12.04.2020. 90 days from the day of remand of the accused was to fall on 11.07.2020. This Court had called for a report from the Sessions court, concerned and wherein it is revealed that the final report/charge sheet was filed by the police on 08.07.2020. The accused has filed the instant regular bail application under Section 439 of the Cr.P.C. before the court **Crl.MC.No.4004 OF 2020(A)** **20** below concerned on 17.07.2020 and the said court had returned back the final report to the investigating agency for curing of defects on 17.07.2020. The next three days were holidays and the investigating agency has immediately cured all the defects and represented it on the next working day, i.e. 21.07.2020, itself. The correctness of the averments of the Crl. M.C. filed by the State regarding the nature of the defects has been confirmed in the report dated 05.10.2020 given by the Sessions court concerned, to the Registry of this Court. The defects were rather minor and the police has diligently done their duties and cleared all the defects and represented the final report as a defect free one on the next available working day itself, i.e.,21.07.2020. 14. Going by the dictum laid down by this Court in the final order dated 02.09.2019 in Crl.M.C. No.4826/2019 [ _**State of Kerala v. Ajin Reji Mathew**_ ], in cases involving serious and grave offences, there may be strong public interest element which may require the continued incarceration of the accused and in such cases the police owe a duty to diligently conduct the **Crl.MC.No.4004 OF 2020(A)** **21** complete investigation and then to take all necessary and _bona fide_ steps, in the manner known to law, to ensure that the option of the accused to seek for default bail is nodal operation by the diligent and lawful actions of police in thfgtre timely filing of final report/charge sheet. So also, the court is also under an obligation, going by the mandatory provisions contained in the Criminal Rules of Practice, to examine the final reports, especially in cases where the remanded accused is likely to put up the plea for default bail in serious and grave offences and to ensure that in such cases, the defects are immediately pointed out by the investigating agency to represent a defect free final report/charge sheet. Still, if the police does not take a diligent action to cure the defects and represent the final report, before the filing of the default bail plea by the remanded accused and if in such a case, if the mandatory conditions in the proviso to Section 167(2) of the Cr.P.C. is fulfilled, then there cannot be any doubt that the accused will then get the indefeasible right to seek the benefit of default bail. But, in a case like this, where the police has diligently taken all **Crl.MC.No.4004 OF 2020(A)** **22** necessary action to ensure the filing of the final report in a time bound manner and the final report is filed either within the mandatory period of 60 days or 90 days, as the case may be, or immediately thereafter, but before the filing of the default bail plea by the remanded accused, and if the court below concerned does not immediately return back the final report for curing the defects and if the accused files a default bail plea before the investigating agency gets an opportunity to cure the defects, then the omission on the part of the criminal court to return back the final report for curing of defects by the investigating agency cannot be the substantial basis for considering the grant of default bail to the remanded accused. Of course, there could be few cases, where the materials in the final report may be very voluminous and it may not be possible for the limited number of staff in the criminal court to immediately ascertain as to whether the entire materials are defect-free or whether there are defects, and therefore, the dictum laid down by this Court hereinabove may not apply in such cases and would apply only depending upon the facts and circumstances of each case. **Crl.MC.No.4004 OF 2020(A)** **23** Of course, the approach should be dependent upon the facts of each case and in a case like this, where the defects were rather minor and the court below had omitted to immediately return back the final report for curing of defects and if the investigating agency has been able to cure the defects and represent the same immediately on its return, etc., then the omission on the part of the court to return back the final report for curing of defects, cannot be the basis for claim of default bail. 15. In the instant case, if the criminal court had immediately returned back the final report/charge sheet for curing of defects for filing on 08.07.2020, the investigating agency would have been able to re-present the defect cured final report within a day or two and, at any rate, well before the filing of the bail application by the accused on 17.07.2020. 16. Hence, this Court is of the view that the facts of this case is broadly similar to the one in Crl.M.C. No.4826/2019 and so the dictum laid down therein would apply with equal force and vigour in the facts and circumstances of this case, as well. **Crl.MC.No.4004 OF 2020(A)** **24** The fats and circumstances of cases of this nature will have to be evaluated with meticulous care and caution to ascertain as to the _bona-fides_ of the pleas of the prosecution agency. In the facts and circumstances, this Court is fully satisfied that if the Sessions Court had returned back the final report immediately on the filing of the final report or thereafter, then the investigating agency could have certainly been able to represent the defect cured final report well before the accused had made a bail plea on 17.07.2020. 17. In the light of these aspects, this Court is of the considered view that the Sessions Court, concerned has committed a grave illegality in taking the view that the accused should be released on statutory bail in terms of the proviso to Section 167(2) of the Cr.P.C. Accordingly the following directions and orders are passed:- (i) The impugned Annexure-C order dated 29.07.2017, rendered by the First Additional Sessions Court (notified to deal with PoCSO cases), Kalpetta, Wayanad, granting default bail to the accused under the proviso to Section 167(2) of the Cr.P.C. **Crl.MC.No.4004 OF 2020(A)** **25** will stand set aside and quashed. (ii) Since the impugned Annexure-C order dated 29.07.2020, granting bail to the respondent in this case has been quashed, the bail executed by the petitioner in pursuance thereon also will stand cancelled and the respondent herein/the accused will immediately surrender before the investigating officer who may take steps to ensure that the petitioner continues the remand as per the situation prevailing before the issuance of the impugned Annexure-C order dated 29.07.2020. (iii) The abovesaid Crl.M.C. No.452/2020, filed by the accused as an application under Section 439 of the Cr.P.C., will stand remitted to the abovesaid Sessions Court, for consideration and decision, afresh and the plea of the accused for grant of regular bail under Section 439 of the Cr.P.C. as sought for in that petition should be considered by the said court on merits. (iv) After the surrender of the accused, the Sessions court, concerned will afford reasonable opportunity of being heard to the accused through his learned Advocate as well as the learned Public Prosecutor appearing for the prosecution agency and **Crl.MC.No.4004 OF 2020(A)** **26** then should take a considered decision on merits on the plea of the petitioner for grant of regular bail in terms of Section 439 of the Cr.P.C., without much delay, preferably within a period of one week from the date of surrender of the respondent herein (accused). (v) It is made clear that this Court has not made any opinion on the merits of the controversy regarding the entitlement or otherwise of the accused for grant of regular bail in terms of Section 439 of the Cr.P.C. and that would fall exclusively within the province of the Sessions Court, concerned and the observations made by this Court in this order are only pertaining to the entitlement of the petitioner for grant of default bail in terms of the second proviso to Section 167(2) of Cr.P.C. and those findings herein have no bearing on the claim of the petitioner for grant of regular bail. 18. Before parting with this case, this Court would also refer to the specific submission made by Sri.Suman Chakravarthy, learned Public Prosecutor, appearing for State of Kerala. **Crl.MC.No.4004 OF 2020(A)** **27** 19. The learned Public Prosecutor would submit that since the issues raised in cases as in the present one, as well as in Crl.M.C.No.4826/2019 are rather subtle and nuanced, this Court may issue necessary directions to the prosecution agency as well as to the criminal courts, concerned, to take diligent action in order to ensure that cases of this nature are averted to the extent possible. 20. Accordingly, it is ordered that the State Police Chief/Director General of Police, after getting necessary advice from the Director General of Prosecutions, Kerala, may consider issuing circular to deal with cases of this nature and it may be ordered therein that in cases where the final report is filed, wherein the remanded accused is likely to put up the claim for default bail in terms of the second proviso to Section 167 of the Cr.P.C., the investigating agency may immediately alert the officials of the criminal court concerned where the final report is so filed, that the accused is likely to raise the claim for default bail and that the top priority should be accorded to ensure that the officials of the court examines the **Crl.MC.No.4004 OF 2020(A)** **28** final report so filed to ascertain as to whether it is defect free or whether it contains any defects, etc. and to return the defective final report to the Investigating agency for curing of defects. Such a plea may be specifically made by the investigating agency by submitting a specific letter in that regard addressed to the criminal court concerned. Thereupon the officials of the criminal court concerned should take expeditious and diligent steps to ascertain as to whether the final report/charge sheet is defective or defect-free and defects, if any, should be immediately notified to the investigating agency for curing it. Of course, there could be few cases where the materials contained in the final report may be too voluminous and it may not be physically possible to the limited number of staff in the court to immediately notify all the defects. The abovesaid directions have been issued to take care of situations where it may be really possible to ascertain the defects and notify the same to the investigating agency, immediately. 21. The Registrar General of this Court may also consider, after due concurrence of the competent authority of **Crl.MC.No.4004 OF 2020(A)** **29** this Court, to examine whether appropriate circular could be issued for the guidance of the subordinate criminal courts concerned to avoid cases of this nature, by taking into account the various aspects dealt with by this Court in the order dated 02.09.2019 in Crl.M.C. No.4826/2019 as well as this case, so that earnest steps could be taken by the staff of the criminal court to avoid cases of this nature, as far as possible. The Registry of this Court may ensure that copies of this order are made available to the Registrar General of this Court as well as to the State Police Chief for necessary information. With these observations and directions the above criminal miscellaneous case will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//14092020 **Crl.MC.No.4004 OF 2020(A)** **30** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A THE TRUE COPY OF THE RECEIPT DATED 08.07.2020 ISSUED BY THE ADDITIONAL DISTRICT AND SESSIONS COURT-1, KALPETTA, (SPECIAL COURT FOR POCSO CASES). ANNEXURE B TRUE COPY OF THE BAIL APPLICATION DATED 17.07.2020 FILED BY THE ACCUSED/RESPONDENT. ANNEXURE C A TRUE COPY OF THE ORDER DATED 29.07.2020 IN CRL.MC NO.452/2020 OF ADDITIONAL DISTRICT AND SESSIONS COURT, 1 KALPETTA (SPECIAL COURT FOR POCSO CASES), IN CRIME NO.186/2020 OF AMABALAVAYAL POLICE STATION.** **RESPONDENTS’ EXHIBITS: NIL**