Read Order: Kulwinder Singh v. State of Punjab

Monika Rahar

Chandigarh, April 28, 2022: While dealing with case a under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Punjab and Haryana High Court was considering if the non-submission of a report from a chemical examiner/FSL report will result in filing of an incomplete charge sheet entitling an accused to exercise the right to seek default bail under Section 167 (2) of the Cr.P.C., particularly in cases relating to sexual exploitation of women.

Answering the above stated question in negative, the Court held that for an offence of sexual assault, the final report would be complete on the statement of the prosecutrix under Sections 161 and 164 of the Code and FSL report can be used only to corroborate the version of the prosecution.

The Bench of Justice Suvir Sehgal added, “In view of the above, non-filing of the FSL report with the challan does not make the challan an incomplete one.”

In this case an FIR was registered for offences under Section 376 IPC and Section 4 of the POCSO Act. Later o Section 376 IPC and Section 4 of POCSO Act were deleted while Sections 376-AB and 506 IPC and Section 06 POCSO Act were added in the FIR. The FIR was lodged at the instance of the informant (grandmother of prosecutrix) who alleged that when she went to bring her six years old grand-daughter back from the petitioner’s house, she heard her screams and saw that her grand-daughter was bleeding from her private part and on seeing the informant, the petitioner ran away. 

The matter however was not reported for some time owing to the fear of social stigma.  The petitioner approached the High Court by a petition filed under Section 401 of the Cr.P.C., assailing the order dismissing his application seeking default bail under Section 167 (2) of the Code. 

The case of the petitioner’s counsel essentially was that he was falsely implicated in this matter and that the petitioner was not even present on the spot. It was further argued that there was an unexplained delay of five days in lodging the FIR. The Counsel also contended that the charge-sheet was presented before the trial Court on November 25, 2021 without the FSL report and hence was defective. It was further his argument that the charge-sheet could not be taken to have been submitted in compliance with the statutory provisions and that the petitioner was entitled to grant of default bail under Section 167 (2) of the Code. 

On the contrary, the State Counsel opposed the petition and supported the order passed by the trial Court. He argued that mere non-filing of the FSL report with the final report would not make the challan incomplete and the petitioner was not entitled to be released on default bail keeping in view the nature of allegations and the gravity of offence allegedly committed by him. 

In order to address this question, the Court made reference to a full bench decision of the High Court in State of Haryana vs. Mehal Singh and Others wherein it was held that in  investigation of an offence cannot be considered to be inconclusive merely for the reason that the investigating officer, when he submitted his report in terms of sub-section (2) of Section 173 of the Code to the Magistrate, still awaited the reports of the experts or by some chance, either inadvertently or by design, he failed to append to the police report such documents or the statements under Section 161 of the Code, although these were available with him when he submitted the police report to the Magistrate. 

In light of the above, the Court adverted to the facts of the present matter and observed that  the final report submitted by the investigating agency was accompanied by the statements of the prosecutrix, her mother, birth certificate, clothes, medical reports of the accused and the victim and other incriminating material, except the FSL which was yet to be received. 

The Court further noted that undisputedly the charge-sheet was presented within the stipulated period against the petitioner for the offence under Section 376-AB, 506, IPC and Section 6 of the POCSO Act. 

Thus, against this backdrop, the Court opined that fan offence of sexual assault, the final report would be complete on the statement of the prosecutrix under Sections 161 and 164 of the Code and FSL report can be used only to corroborate the version of the prosecution. 

On the basis of the charge-sheet filed by the Investigating Agency, the Court was of the opinion that it could take cognizance of the offence. In view of the above, the Court held that the non-filing of FSL report with the challan did not make the challan an incomplete one. 

Also, Justice Sehgal asserted that the argument of the counsel regarding the falsity of the accusation, the alleged delay in lodging of the FIR or his plea of alibi, are not germane to the adjudication of the application seeking grant of default bail. 

Accordingly, finding no merit in the petition, the petition was dismissed.

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