Default Bail under Section 167(2) CrPC can’t be Denied to an Accused Merely because he Filed Application under Section 439

Default bail under Section 167(2) CrPC can’t be denied to an accused merely because he filed application under Section 439.

The Delhi High Court has observed that the indefeasible right of default bail under Section 167 (2) (a) of the CrPC can’t completely demand upon an accused expressly invoking the provision in his application for bail. The Court made this observation while granting bail to the accused where he prepared to furnish bail and comply with the conditions under Section 167(2) of CrPC but had submitted his application under Section 439 CrPC.

“In cases where the statutory period of sixty days or ninety days has expired, the accused would be entitled to be released on bail provided he meets the condition as set out therein – that is, he is prepared to furnish and does furnish bail. It is important to note that there is no provision requiring him to make any formal application.

Brief facts of the case

  • The petitioner was arrested for allegedly having taken part in a mobile phone robbery, during which the complainant was also shot on his leg. Hence, the petitioner was arrested in January 2020.
  • The charge sheet was filed on 14, September 2020.
  • The period of 60 days stipulated in Section 167 (2) (a), CrPC had expired in March.
  • Bail applications moved by the petitioner in the month of May and June were rejected by the trial court.

Important Observations made by the Court

  • The Court held that although the accused had submitted his application for bail under Section 439 CrPC, he had ‘indicated’ as required under the Proviso (a) to Section 167(2) of CrPC that he was prepared to furnish bail, and therefore “in substance, the said condition is met”.
  • “Clearly, the Proviso to Section 167(2) (a) of the Cr.PC did not require the petitioner to do anything more except to indicate that he is prepared to furnish bail. Of course, he would be released on bail only if he did so…it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in his application,” the bench added.
  • Referring to the verdict of the Supreme Court in the case of Rakesh Kumar Paul v. State of Assam: (2017) 15 SCC 67, in which it was noted that there may be rare cases where the accused may not be wanted to be released on bail on account of concerns of personal safety or for other reasons. It is also in this context that the accused must apply for bail. Thus, there is no controversy that it is necessary that the accused offers to furnish bail in order to avail of his right to default bail. If the accused offers to furnish bail he would comply with the condition as set out in proviso (a) to section 167 (2) Cr.PC. In this case, the said condition has been met. Undisputedly, the petitioner had made an application, albeit under Section 439 of the Cr PC, offering to furnish bail. In view of the decision in Rakesh Kumar Paul (supra), even an oral plea for default bail is compliant with the proviso (a) to Section 167(2) Cr.PC. Thus, it would be apposite to consider an application for bail filed on expiry of the stipulated period of filing charge sheet, as an application for bail under the proviso to Section 167 (2), since it does indicate that the accused is prepared to furnish bail.
  • The Court further referred that the Supreme Court recent decision in M. Ravindran v. The Intelligence Officer, Directorate of Revenue Intelligence: Crl. A. 699/2020, that explained the provision of Section 167(2) of the Cr.PC in the context of Article 21 of the Constitution of India and held that “the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law”. The Supreme Court noted the legislative history of Section 167 of the Cr.PC and the rationale for its amendment.
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  • In Ajay Hasia Etc v Khalid Mujib Sehravardi & Ors, wherein the Supreme Court noted that” where the constitution fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form.”
  • The bench held that the Apex Court has clarified in numerous cases that the Proviso to Section 167(2) of the Cr.PC is intrinsically linked to the right under Article 21 of the Constitution of India that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law.’ It embodies a safeguard that circumscribes the power to detain an accused pending investigation. Keeping this principle in mind and the consistent view of the Supreme Court that in matters of personal liberties, it would not be apposite to curtail the same on technicalities, this Court is of this view that the petitioner would be entitled to default bail and default bail under Section 167(2) CrPC can’t be denied to an accused merely because he filed an application under Section 439.

“Since the Section embodies a safeguard that circumscribes the power to detain an accused pending investigation, it would not be apposite to curtail the same on technicalities.”- Justice Bakhru

  • It is also trite law that there is no inherent power in a court to remand an accused to custody. Such power must be traced to an express provision of law. As is apparent from the language of Proviso (a) to Section 167(2) of the Cr.PC, the power of a Court to remand an accused to custody pending investigation is circumscribed and stands denuded if the period of sixty days or ninety days, as the case may be, has expired and the accused is ready and willing to furnish bail.
  •  If in substance the essential conditions as set out under the Proviso (a) to Section 167(2) of the Cr.PC are met and complied with – that is (i) if the investigation has not been completed within the period of sixty or ninety days, as the case may be, from the date of arrest of the accused; and (ii) if the accused is prepared to offer bail – then there would be no justifiable reason to detain the accused, the bench observed.
  • The Court added that a plain reading of the Proviso (a) to Section 167(2) of the Cr.PC indicates that an accused would necessarily have to be released on bail ‘if he is prepared to and does furnish bail.
  • The court in the present case observed that the petitioner had been in custody for almost eleven months with no recoveries affected from him. Further the petitioner’s disclosure statement admitting to be involved in the incident along with his two accomplices was also held to be of little value as the complainant had not identified one of the named accomplices as an accused involved in the incident.
  • The court further noted that, according to the Investigation Officer, who had joined the proceedings, the petitioner was riding the motorcycle and the two other accused were sitting behind him on the motorcycle and the petitioner was not the accused who had shot the complainant. Further, the investigation in the matter was complete.

Case Name: SUBHASH BAHADUR @ UPENDER v. THE STATE (N.C.T. OF DELHI)

Citation: BAIL APPLN. 3141/2020

Coram: HON’BLE MR. JUSTICE VIBHU BAKHRU

Default bail under Section 167(2) CrPC can’t be denied to an accused merely because he filed application under Section 439

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