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2019 DIGILAW 719 (KER)

State of Kerala v. Ajin Reji Mathew

2019-09-02

ALEXANDER THOMAS

body2019
ORDER : As per the impugned Anx.C order dated 21.6.2019 rendered by jurisdictional Magistrate Court concerned as affirmed by the impugned Anx.F order passed by the revisional Sessions Court concerned, it has been ordered that the respondent herein (accused) should be released on statutory default bail as the final report/charge sheet filed by the Investigating Agency on the 89th day from the date of remand of the accused was defective, and that the respondent accused has filed the bail application before the curing of defects of the final report/charge sheet, and that therefore the respondent accused has secured indefeasible right to be released on statutory default bail by virtue of operation of proviso to S.167(2) of the Cr.P.C. 2. The State of Kerala represented by the Investigating Agency/Prosecution Agency concerned has filed the afore captioned petition under S.482 of the Cr.P.C., seeking quashment of the above impugned orders. The respondent herein is the accused in Crime No.549/2019 of Thiruvalla Police Station, which has been registered for offences punishable under S.302 of the I.P.C. The brief of the prosecution case is that, on 11.3.2019 at about 9.15 a.m., the accused got annoyed when the lady victim aged 19 years refused to have an affair with him, and then he had poured kerosene over her and set her ablaze on a public road at Chilanka Junction, Thiruvalla, and thereby he has committed the abovesaid offence of S.302 of the I.P.C. The accused has been arrested on 11.3.2019 at about 3 p.m. and he was produced before the jurisdictional Magistrate Court concerned on 12.3.2019, and he was thereupon remanded to custody on the said day. 3. In the instant case, the Investigating Agency has filed the final report/charge sheet before the jurisdictional Magistrate Court concerned on 11.6.2019, i.e., on the 89th day from 12.3.2019 (the day on which the accused has been remanded). It appears that the Magistrate Court has not immediately verified whether the said final report is free from substantive defects. Thereafter the accused has filed Anx.B Application dated 20.6.2019 before the jurisdictional Magistrate Court concerned seeking bail and the said application is styled to be one filed under Ss.437 & 439 of the Cr.P.C. and Anx.B application has been filed before the Magistrate Court on 20.6.2019. Thereafter the accused has filed Anx.B Application dated 20.6.2019 before the jurisdictional Magistrate Court concerned seeking bail and the said application is styled to be one filed under Ss.437 & 439 of the Cr.P.C. and Anx.B application has been filed before the Magistrate Court on 20.6.2019. It further appears that, the Magistrate Court has returned the final report/charge sheet to the Investigating Agency on 21.6.2019 for curing of the defects noted therein. Further the learned Magistrate has treated the abovesaid Anx.B application though stated to be one filed under S.437 of the Cr.P.C. as one under S.167(2) of the Cr.P.C. 4. After hearing both sides, the learned Magistrate has passed the impugned Anx.C order dated 21.6.2019 ordering that the petitioner is entitled for grant of statutory default bail in terms of the provisions contained in the proviso to S.167(2) of the Cr.P.C. on the ground that the final report filed by the Investigating Officer is defective, and hence an incomplete report, and has been returned to the Investigating Officer for curing of defects. The main premise on the basis of which the learned Magistrate has granted statutory default bail as per the impugned Anx.C order appears to be that, as on the date of filing of Anx.B Bail Application on 20.6.2019, there was only an incomplete/defective final report and therefore it cannot be said that defect free final report and complete final report has not been filed before the accused has made his default bail plea on 20.6.2019, and that therefore the accused has secured the indefeasible right to be released on statutory default bail, as per the abovesaid provisions under S.167(2) of the Cr.P.C. 5. The State has challenged Anx.C order by filing Criminal Revision Petition No.4/2019 before the Sessions Court, Pathanamthitta. The revisional Sessions Court, as per the impugned Anx.F order dated 8.7.2019 has affirmed the correctness of impugned Anx.C order passed by the learned Magistrate. It is these orders at Anxs.’C’ and ‘F’ that are under challenge in the above Crl.M.C. 6. Heard Sri.Suman Chankravarthy, learned Public Prosecutor appearing for the petitioner State of Kerala and Sri.Ashok B.Shenoy, learned counsel appearing for the respondent accused. 7. It is these orders at Anxs.’C’ and ‘F’ that are under challenge in the above Crl.M.C. 6. Heard Sri.Suman Chankravarthy, learned Public Prosecutor appearing for the petitioner State of Kerala and Sri.Ashok B.Shenoy, learned counsel appearing for the respondent accused. 7. Before dealing with the factual issues it may be useful to refer to the basic aspects on the legal position regarding the accrual of indefeasible right to the remanded accused to be released on statutory default bail by the operation of proviso to S.167(2) of the Cr.P.C. It is now well settled that the indefeasible right of a remanded accused to be released on bail by the operation of proviso to S.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 S.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 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. It will be pertinent to refer to the recent three Judge Bench decision of the Apex Court in the celebrated case in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 = AIR 2017 SC 3948 , wherein the Apex Court, after placing reliance on the earlier Constitutional Bench of the Apex Court in Sanjay Dutt v. State Through C.B.I., (1994) 5 SCC 410 has held in paragraphs 36 & 39 thereof as follows. “36. While dealing with this common stance, the Constitution Bench in Sanjay Dutt made it clear in para 48 of the Report that the indefeasible right accruing to the accused is enforceable only prior to the filing of the charge-sheet and it does not survive or remain enforceable thereafter, if already not availed of. In other words, the Constitution Bench took the view that the indefeasible right of “default bail” continues till the charge-sheet or challan is filed and it gets extinguished thereafter. This is clear from the conclusion stated by the Constitution Bench in para 53(2)(b) of the Report. This reads as follows: “53.(2)(b) The “indefeasible right” of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.” xxxxx xxxxx 39. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.” xxxxx xxxxx 39. This Court also noted that apart from the possibility of the prosecution frustrating the indefeasible right, there are occasions when even the court frustrates the indefeasible right. Reference was made to Mohd. Iqbal Madar Sheikh v. State of Maharashtra wherein it was observed that some courts keep the application for “default bail” pending for some days so that in the meantime a charge-sheet is submitted. While such a practice both on the part of the prosecution as well as some courts must be very strongly and vehemently discouraged, we reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for “default bail” during the interregnum when the statutory period for filing the charge-sheet or challan expires and the submission of the charge-sheet or challan in court.” 8. The ratio decidendi of the abovesaid three Judge Bench decision of the Apex Court in Rakesh Kumar Paul’s case supra has been relied on by the Apex Court in the decisions as in Achpal @ Ramswaroop and Anr v. State of Rajasthan ( AIR 2018 SC 4647 ) which reads as follows: “14. A few years later in 1978, a need was felt to amend Section 167 Cr.P.C. by not only extending the period for completing investigation but also relating that period to the offence. Therefore, a shift was proposed to grant an aggregate period of 90 days for completing the investigation in cases relating to offences punishable with death, imprisonment for life or “imprisonment for not less than ten years or more” and up to 60 days in any other case, as stated in the Notes on Clauses accompanying the Statement of Objects and Reasons dated 9-5-1978 for amending the statute. What is of significance (for our purposes) is the use of the words “imprisonment for not less than ten years or more”. What is of significance (for our purposes) is the use of the words “imprisonment for not less than ten years or more”. In our opinion, the use of the words “or more” gives a clear indication that the period of 90 days was relatable to an offence punishable with a minimum imprisonment for a period of not less than ten years, if not more. The Notes on Clauses reads as follows: “Clause 13.- Section 167 is being amended to empower the Magistrate to authorise detention, pending investigation, for an aggregate period of 90 days in cases where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for not less than ten years or more and up to 60 days in any other case. These amendments are intended to remove difficulties which have been actually experienced in relation to the investigation of offences of a serious nature. A new sub-section is being inserted empowering an Executive Magistrate….”(emphasis supplied)” 9. So if the remanded accused makes the default bail plea at a time when the statutory right for default bail has accrued on account of the non filing of final report/charge sheet within the time prescribed by the proviso to S.167(2) of the Cr.P.C., then he is entitled to the benefit of statutory default bail, even if the final report is filed subsequent to the filing of 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 as mentioned herein above, 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 default period stipulated as per the proviso to S.167(2) of the Cr.P.C. 10. Further it is also well settled that the abovesaid period of 60 days or 90 days as the case may be as prescribed in S.167(2) of the Cr.P.C. has to be computed from the date of remand of the accused and not from the date of his arrest under S.57 of the Cr.P.C., as has been held in various decisions as in Ravi Prakash Singh @ Arvind Singh v. State of Bihar, AIR 2015 SC 1294 ). It is stipulated in the latter part of Clause (a) of the proviso to S.167(2) of the Cr.P.C. that, subject to fulfilment of other conditions therein, the accused person shall be released on bail if he is prepared to and thus furnished bail, etc., and that every person released on bail under S.167(2) shall be deemed to be so released under the provisions of Chapter XXXIII of the Cr.P.C. for the purpose of that Chapter. There could be cases where the statutory default bail order is granted by the competent Criminal Court and bail bond may not be executed immediately after that due to various reasons. In that regard, the Apex Court has held that the persons so released under the proviso to S.167(2) of the Cr.P.C. for default of the Investigating Agency is statutorily deemed to be released under the provisions of Chapter XXXIII of the Cr.P.C., and that this means that the provisions relating to bonds and sureties are attracted and S.441 of the Cr.P.C. provides for execution of bonds, with or without sureties, by persons ordered to be released on bail, etc. In that context the Apex Court has held in the case in Raghubir Singh & Ors. v. State of Bihar ( AIR 1987 SC 149 ), that very often the accused persons may find it difficult to furnish bail soon after making an order of release on bail, and this frequently happens because of the poverty and various other disabilities of the accused persons and it would also happen for various reasons that if the sureties produced on behalf of the accused persons may not be acceptable to the competent Criminal Court concerned, fresh sureties will have to be produced in such an event, and that the accused persons are not been deprived for the benefit of order of release on bail in their favour on account of their ability to immediately furnish bail straight away, etc. It will be profitable to refer to the decision of the Apex Court in Raghubir Singh & Ors. v. State of Bihar ( AIR 1987 SC 149 ) paragraph 20 which reads as follows: “20. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days. v. State of Bihar ( AIR 1987 SC 149 ) paragraph 20 which reads as follows: “20. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days. A person released on bail under the proviso to S.167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chap.33 of the Code for the purposes of that Chapter. That is provided by the proviso to S.167(2) itself. This means first, the provisions relating to bonds and sureties are attracted. S.441 provides for the execution of bonds, with or without sureties, by persons ordered to be released on bail. One of the provisions relating to bonds is S.445 which enable the court to accept the deposit of a sum of money in lieu of execution of a bond by the person required to execute it with or without sureties if the bond is executed (or the deposit of cash is accepted), the court admitting an accused person to bail is required by S.442(1) to issue an order of release to the officer in charge of the jail in which such accused person is incarcerated. S.441 and 442, to borrow the language of the Criminal Procedure Code, are in the nature of provisions for the execution of orders for the release on bail of accused persons. What is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made. Very often accused persons find it difficult to furnish bail soon after the making of an order for release on bail. This frequently happens because of the poverty of the accused person. It also happens frequently that for various reasons the sureties produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be produced in such an event. The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straight away. Orders for release on bail are effective until an order is made under S.437(5) or S.439(2). The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straight away. Orders for release on bail are effective until an order is made under S.437(5) or S.439(2). These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to S.167(2) is deemed to be the release on bail under the provisions of Chap.33, an order for release under the proviso to S.167(2) is also subject to the provisions of S.437(5) and 439(2) and may be extinguished by an order under either of these provisions. It may happen that a person who has been accepted as a surety may later desire not to continue as a surety. S.444 enables such a person, at any time, to apply to a Magistrate to discharge a bond either wholly or so far as it relates to the surety. On such an application being made, the Magistrate is required to issue a warrant of arrest directing the person released on bail to be brought before him. On the appearance of such person or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as it relates to the surety, and shall call upon such person to find other sufficient surety and if he fails to do so, he may commit him to jail (S.444). On the discharge of the bond, the responsibility of the surety ceases and the accused person is put back in the position where he was immediately before the execution of the bond. The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straight away produce a fresh surety. The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety. The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straight away produce a fresh surety. The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety. The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under S.309(2) of the Code of Criminal Procedure. There is no substance whatever in this submission. S.309(2) merely enables the Court to ‘remand the accused if in custody’. It does not empower the Court to remand the accused if he is on bail. It does not enable the Court to ‘cancel bail’ as it were. That can only be done under S.437(5) and S.439(2). When an accused person is granted bail, whether under the proviso to S.167(2) or under the provisions of Chap.33 the only way the bail may be cancelled is to proceed under S.437(5) or S.439(2).” Hence it is clear that even if delay occurs in execution of bail bond immediately after the grant of statutory default bail order, that would not nullify an order of statutory default bail passed under S.167(2) of the Cr.P.C. 11. The Apex Court in paragraph 14 of the judgment in Achpal @ Ramswaroop & Anr. v. State of Rajasthan, reported in ( AIR 2018 SC 4647 ), has noted the observations of the Law Commission that a practice of doubtful legal validity had grown up where Police files before a Magistrate a preliminary or incomplete report and the Magistrate, purporting to act under S.344 of the Cr.P.C. to adjourn the proceeding and then to remand the accused to custody. If such an order could be made under S.344, as that section is intended to operate only after a Magistrate has taken cognizance of an offence, which can be properly done only after a final report under S.173 has been received, and not while the investigation is still going on. If such an order could be made under S.344, as that section is intended to operate only after a Magistrate has taken cognizance of an offence, which can be properly done only after a final report under S.173 has been received, and not while the investigation is still going on. Further the Law Commission has observed that the use of S.344 for a 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 that therefore, it is desirable, as observed in the 14th Report of the Law Commission 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. Further the Apex Court has held in paragraph 15 of Achpal’s case (supra) as observed by the Law Commission in the 14th Report that a practice of doubtful legal validity had grown up where Police files before a Magistrate a preliminary or incomplete report and the Magistrate, purporting to act under S.344 of the Cr.P.C. to adjourn the proceeding and then to remand the accused to custody and that such an order could be made beyond the statutory period of 15 days, would lead to serious abuse, etc. In the light of these aspects, it is only to be held that in the Final Report/Charge Sheet 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 for default bail of the remanded accused can be pressed into service only if the Final Report/Charge Sheet is complete and defect free. If on the other hand, the Final Report/Charge Sheet so filed is incomplete itself, then the right of the abovesaid accused to be released on statutory default bail cannot be rejected in such a case. 12. Coming to the facts of this case, there does not appear to be any dispute to the following factual aspects. If on the other hand, the Final Report/Charge Sheet so filed is incomplete itself, then the right of the abovesaid accused to be released on statutory default bail cannot be rejected in such a case. 12. Coming to the facts of this case, there does not appear to be any dispute to the following factual aspects. The incident in relation to the abovesaid crime for the offence as per S.302 of the IPC has occurred on 11.3.2019 and the accused has been arrested on the same day (11.3.2019) at about 3 p.m. and he was produced before the Magistrate Court on the next day (12.3.2019) and has been remanded to custody on that day. Consequent to the completion of investigation, the final report/charge sheet has been filed by the Investigating Officer before the jurisdictional Magistrate Court concerned on 11.6.2019, which is 90th day from 12.3.2019 (day of remand of the accused). Further the respondent herein (accused) has filed Anx.B Bail Application dated 20.6.2019 styled to be one filed under S.437 of the Cr.P.C. On 20.6.2019. It is clearly averred and asserted by the State through the Investigating Agency in this petition that, it is only at that time the Magistrate Court have taken up the final report for examination and 4 defects were noted therein by the Court, which are as follows: (i) Mahazar marked as Sl.No.18 was not available along with the final report. (ii) Document shown as Sl.No.15 was not available along with the final report. (iii) Post Mortem report marked as document No.3 was not available along with the final report. (iv) Section 161 statement of CWs 5 & 6 who are mahazar witnesses were not available along with the final report. 13. Further the State has clearly averred in paragraph 3 of this petition that the abovesaid final report with the defects noted therein was returned back by the Court to the Investigating Agency on 21.6.2019, and that immediately on getting it, it is pointed out that 3 of the so called defects are in fact no defects at all, and that the 4th defect was cured with all expedition and the final report was represented clearing the only actually subsisting defect on the next day itself, viz, 22.6.2019. The prime contention raised by the State is that though the final report/charge sheet has been filed as early as on 11.6.2019, for the first time the court below has notified the prosecution agency about defect on 20.6.2019/21.6.2019, which was returned to them on 21.6.2019, and the same was resubmitted on 22.6.2019, and that if the Court had immediately notified about any defects in the final report after its filing on 11.6.2019, then the State Prosecution Agency would have been able to convince the Court that 3 of the 4 items noted therein are not defects at all, and that the only subsisting defect would have been cured immediately or on the next day, and if that be so, they could have taken back the defective final report and resubmit the same after curing the only defect atleast by 12.6.2019 or 13.6.2019, if the court officials had immediately examined the final report and notified the defects atleast one or two days after its presentation on 11.6.2019, and if that be so the defect free final report would have been filed long before the petitioner has infact filed Anx.B bail application on 20.6.2019, etc. The determination of this issue will be dealt with hereinafter. 14. A reading of the impugned Anxs.’C’ & ‘F’ orders passed by the court below will mainly disclose that the Investigating Agency has filed the final report in this case on 11.6.2019, which is the 90th day from the day of remand of the accused, but the said impugned orders does not clearly indicate as to when the Magistrate Court has noted the defects and had notified the prosecution agency to clear such defects immediately thereafter. All what is stated in the said orders is that, there was defect in the final report which was returned for curing defects. Further it is stated in Anx.C order by the learned Magistrate that, as on the day the bail plea was taken up for consideration on 21.6.2019 (which led to the passing of the impugned Anx.C order dated 21.6.2019) the Investigating Officer has sought an extension of time for curing of defects, etc. Further it is stated in Anx.C order by the learned Magistrate that, as on the day the bail plea was taken up for consideration on 21.6.2019 (which led to the passing of the impugned Anx.C order dated 21.6.2019) the Investigating Officer has sought an extension of time for curing of defects, etc. However the State has asserted in their averments in this petition, that Anx.B Bail Application has been filed on 20.6.2019 (about which there is no dispute), and that at that point of time the final report was taken up and above mentioned defects were noted, and further that the final report was returned on 21.6.2019 and it was resubmitted on 22.6.2019 as per Anx.A. The fact that the defects were cured and final report was resubmitted on 22.6.2019 is clearly stated in Anx.F revisional order. From the abovesaid aspects it is clear that since the abovesaid averments of the State in the abovesaid petition has not been denied or rebutted by the respondent, it has to be taken that the Court below has noted the defects either on 20.6.2019 or on 21.6.2019, and further that the final report/charge sheet was returned to the Investigating Agency on 21.6.2019 which was later resubmitted after curing the defects on 22.6.2019. If as a matter of fact the final report filed was by the Investigating Agency either within the default period or thereafter, before the remanded accused has made his plea for default bail, and as on the day of filing of default bail application, the Investigating Agency has not diligently cured the defects and then it has been treated that there was only an incomplete/defective final report as on the day of filing of default bail application, and in which case the remanded accused is entitled to succeed in his plea for such release. But in a case where the Investigating Agency has diligently completed the investigation and has filed the final report either within the abovesaid default period of 60 days or 90 days as the case may be from the day of remand of the accused or immediately thereafter, but before the filing of the default bail plea and the Court has not notified the defects to be cured by the Investigating Agency and the Investigating Agency has not got any reasonable time for curing such defects, then such omission or mistake on the part of the Court in not promptly notifying the defects in the final report for being cured, cannot be the basis to hold that the Investigating Agency has not diligently filed the defect free final report within the requisite deadline so as to avoid the accrual of default bail right. This crucial aspect assumes great importance in the determination of vital issues in the facts of this case. 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 S.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. 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 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 S.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. 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 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 S.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, filed 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. 18. It is to be noted that the first item of the aforementioned defects is that the mahazar marked as Sl.No.18 was not available along with final report. In that regard, it is pointed out by the prosecution that the document marked as Sl.No.18 was already made available along with the final report as Sl.No.16, and the documents marked as Sl. Nos.16 and 18 in the final report are one and the same, and hence there is no defect in non availability of Sl.No.18 document. In that regard, it is pointed out by the prosecution that the document marked as Sl.No.18 was already made available along with the final report as Sl.No.16, and the documents marked as Sl. Nos.16 and 18 in the final report are one and the same, and hence there is no defect in non availability of Sl.No.18 document. Since the said factual aspect is not disputed by the respondent, it is only to be taken that the above plea of the prosecution is to be accepted and the said item cannot be treated as a defect. The second item is regarding non availability of document shown was Sl.No.15 along with final report. As regards that, it is stated by the prosecution that document marked as Sl.No.15 was already forwarded to the Forensic Sciences Laboratory and hence not a defect. It has been held by this Court in many rulings as in Kamalaksha v. S.I.of Police ( 2007 (1) KLT 299 ) etc., that the Criminal Court concerned cannot treat a final report as incomplete on the ground that expert report of the chemical examiner is not filed, etc. The third item of the aforementioned defects regarding non availability of Post Mortem report marked as document No.53 along with final report. As regards these matters, it is stated by the prosecution agency that expert reports like Post Mortem certificates issued by the Forensic Sciences Department of the Government Medical College Hospital, Kottayam, and expert scientific reports like Chemical Examination Report, Hand Writing Expert Report, Thumb Impression Analysis Report, Signature Analysis Report, etc., are forwarded by the Forensic Laboratory of the Government directly to the Court, and copy of the same will be issued to the Investigating Officer. 19. In the instant case, Anx.D is the relevant extract of the despatch register of the Forensic Sciences Department of the Government Medical College Hospital, Kottayam, and Sl.No.848 of Anx.D would show that abovesaid Post Mortem certificate was duly forwarded by the Forensic Sciences Department of the Government Medical College Hospital, Kottayam, to the Judicial First Class Magistrate Court, Thiruvalla, as early as on 21.5.2019. Anx.E is the certificate issued by the Professor and Head of the Forensic Sciences Department of the Government Medical College Hospital, Kottayam, wherein it is certified that Anx.D is the authenticated copy of the relevant page of the despatch register of the said department. Anx.E is the certificate issued by the Professor and Head of the Forensic Sciences Department of the Government Medical College Hospital, Kottayam, wherein it is certified that Anx.D is the authenticated copy of the relevant page of the despatch register of the said department. Accordingly it is pointed out that the abovesaid noted items cannot be treated as defects of any substance, and the said defects are to be over ruled. After hearing both sides, this Court is constrained to hold that the abovesaid items cannot be held to be defects in the final report. 20. As regards the 4th item mentioned herein above is regarding the non production of S.161 statement of CW5 and CW6 along with final report. As regards that it is asserted by the prosecution that the final report was actually returned by the Court to the Investigating Officer only on 21.6.2019 and that immediately thereafter they have cured the defects, and that S.161 statements of CW5 and CW6 who were mahazar witnesses were thus duly produced along with the final report which was resubmitted to the Court on the next day (22.6.2019). Thus it is seen that 3 out of abovesaid 4 items noted by the Court below cannot be said to be any defects at all and there was only one defect, which was duly cured within a day after the return of defective final report. So in the facts of this case it is clearly established that the Investigating Agency has been duly diligent in curing the said sole defect with all expedition and that too within a limited period of less than 24 hours immediately after the defectively charge sheet was returned to them by the Court. As stated herein above, it appears that the Magistrate Court has noted the defects only on 20.6.2019/21.6.2019 and the final report has been returned to the Investigating Officer on 21.6.2019, and in substance there was only one defect which has been cured and resubmitted on the next day itself, viz, 22.6.2019. 21. Sri.Suman Chakravarthy, learned Prosecutor would urge and assert that the Court below was having the duty and obligation to immediately examine the final report and then to notify the defects if any to the Investigating Officer in a case like this, more so particularly when the remanded accused is very likely to raise the claim for default bail immediately thereafter. Sri.Suman Chakravarthy, learned Prosecutor would urge and assert that the Court below was having the duty and obligation to immediately examine the final report and then to notify the defects if any to the Investigating Officer in a case like this, more so particularly when the remanded accused is very likely to raise the claim for default bail immediately thereafter. Further the learned Prosecutor would point out that the Investigating Agency has been duly diligent and have cleared the defects within hardly a day’s time and that is as a matter of fact the Magistrate Court has noted the defects and returned the defective final report to the Investigating Officer atleast within a day or two after its initial filing on 11.6.2019. Then certainly, the Investigating Agency would have been able to show that 3 out of 4 defects are not defects in substance and that the only defect could have cleared within a day’s time, and that in these circumstances if the Court below had been diligent to note the defects and return the same immediately after its filing, then the Investigating Agency could have been able to cure the defects and re-present the same before the Court atleast by 13.6.2019, or so. At any rate, they would have been certainly able to clear the defects and resubmit the same well before 20.6.2019, the day on which the accused has filed the bail application, and since that is the position, there is no question of the accused securing indefeasible right of statutory default bail in the facts and circumstances of the case. 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. 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 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 S.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. 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 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 S.437 of the Cr.P.C. and since S.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 for grant of regular bail under S.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. 25. Though the learned Magistrate has mentioned in paragraph 2 of the impugned Anx.C order that after returning of the Final Report for curing defects, the Investigating Officer has not sought for extension of time for curing of defect, etc. 25. Though the learned Magistrate has mentioned in paragraph 2 of the impugned Anx.C order that after returning of the Final Report for curing defects, the Investigating Officer has not sought for extension of time for curing of defect, etc. the said aspect cannot be the basis to over rule the abovesaid contention of the State, as the court below has not promptly noted the defects and returned the same to the Investigating Officer concerned for curing defects immediately after filing of final report on 11.6.2019. For the aforestated reasons, the State/Prosecution agency is entitled to succeed in this case and hence the impugned Anx.C and Anx.F orders will stand quashed. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of.