Applying for bail under section 439 Cr.P.C. is not sufficient: Delhi High Court
The Delhi High Court was posed with the question of whether an application for a bail under Section 439 Cr.P.C. would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the Cr.P.C. if the condition stipulated therein were met in the matter of Subhash Bahadur @ Upender v The State (N.C.T. Of Delhi), [BAIL APPLN. 3141/2020].  In the present case, the petitioner and 2 others were accused of trying to snatch a mobile phone from the complainant and in the process shot the complainant in the leg. Out of the 3 accused, the petitioner and another accused refused to participate in the TIP and the one who did participate could not be successfully recognized by the complainant. All 3 of the accused were using a stolen motorcycle for carrying out this crime. The petitioner prayed for bail at the Trial Court which was rejected for the reason that the seriousness of the allegations of the crime committed by the accused do not justify the grant of bail. And the submission of the complainant not being influenced by the petitioner cannot be ruled out. The second bail application by the petitioner was also dismissed by the Trial Court. Therefore, the petitioner moved to the Delhi HC praying for bail. Counsel for the petitioner contended that there is no risk that the petitioner seeking bail would influence any witness; tamper any evidence or; flee from the law and that the petitioner has been falsely implicated without any material witness or evidence of his involvement in the offence. He further shed light on the petitioner being entitled to compulsory bail under Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) but his applications for bail were rejected and the petitioner was not informed of his rights. The learned APP contended that application for bail.it is not sufficient that the petitioner had made and that the accused should have applied bail specifically mentioning the provisions of Section 167(2) of the Cr.P.C. and any application moved under Section 439 of the Cr.P.C. could not be construed as the accused availing of his indefeasible right to default bail. The bench of the Delhi HC consisting of Hon’ble Mr. Justice Vibhu Bakhru  held that, “In the present case, there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind, 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.
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 06th November 2020 BAIL APPLN. 3141 2020 SUBHASH BAHADUR @ UPENDER Through: Mr. Mohd. Perwez Advocate THE STATEbut his applications for bail were rejected and the petitioner was not informed of his rights Ms Chauhan learned APP countered the aforesaid contentions Mr Amit Gupta learned APP had also made submissions on behalf of the State on the question whether the petitioner was entitled to bail under Section 167(2) of the Cr.PC as he stated that the said question is also common to other petitions The FIR in questionwas registered at the instance of one Karamveeropened the door of his vehicle. One of the other boysis the petitioner herein attempted to snatch his mobile phone. The complainant stated that he resisted the same and pulled his mobile phone back. At that stage the boy was trying to snatch the phone and hetold his associatewere arrested in FIR No. 176 2018 under Sections 457 380 34 of the IPC. During the interrogation the said accused disclosed their involvement in the above incident. Thereafter they were also arrested in connection with the present casewhich was listed on 17.09.2020 On that date the learned counsel appearing for the petitioner withdrew the said application with liberty to approach the Trial Court as in the meantime the chargesheet had been filed on 14.09.2020 It is seen that the petitioner has been in custody for almost eleven months. No recoveries have been effected from him. Although it is alleged that he has made a disclosure statement admitting to be involved in the incident along with his two accomplices namely Satpal and Manoj the said disclosure statement appears to be of little value as admittedly the complainant did not identify Manoj as one of the boys who were involved in the incident 15. According to the IO who has joined the proceedings petitioner was riding the motorcycle and the two other accused were sitting behind him on the motorcycle. The petitioner was not the accused who had shot the complainant The investigation in this matter is complete. The principal witness is the complainant and there is little possibility of the appellant being able to influence him this stage is not necessary to evaluate the evidence coalesced by the investigating agency in any detail. However considering the facts in the present case this Court considers it apposite to allow the present petition BAIL APPLN. 31420 There is yet another aspect which requires consideration that is whether the petitioner was entitled to bail under the Provisoto Section 167(2) of the Cr.PC. The petitioner was arrested on 10.01.2020 and his detention in custody for a period of sixty days expired on 10.03.2020. Concededly the petitioner became entitled to a bail in default under the Provisoto Section 167(2) of the Cr.PCof the Cr.PC and any application moved under Section 439 of the Cr.PC could not be construed as the accused availing of his indefeasible right to default Thus the question that falls for the consideration of this Court is whether an application for a bail under Section 439 Cr.PC would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the BAIL APPLN. 31420 Cr.PC if the condition stipulated therein were met 21. At the outset it would be relevant to note the obligations of a court towards an under trial prisoner who is entitled to be released on default bail in terms of Provisoto Section 167(2) of the Cr.PC In Hussainara Khatoon and Ors. v. Home Secretary State of Bihar Patna:1 SCC 108 the Supreme Court had considered affidavits filed by the Superintendent of the Patna Central Jail Superintendent of Muzaffarpur Jail and the Superintendent of the Ranchi Central Jail which indicated towards prisoners who were confined in the said jails and who had been produced before Magistrates from time to time in compliance with the requirement of the Provisoof the Cr.PC. In the said context the Supreme Court had observed as under: It is apparent from these charts that some of the petitioners and other undertrial prisoners referred to in these charts have been produced numerous times before the Magistrates and the Magistrates have been continually making orders of remand to judicial custody. It is difficult to believe that on each of the countless occasions on which these undertrial prisoners were produced the Magistrates and the Magistrates made orders of remand they must have applied their mind to the necessity of remanding those undertrial prisoners to judicial custody. We are also very doubtful whether on the expiry of 90 days or 60 days as the case may be from the date of arrest the attention of the undertrial prisoners was drawn to the fact that they were entitled to be released on bail under provisoof sub sectionof Section 167. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days as the case may be the Magistrate must before making BAIL APPLN. 31420 an order of further remand to judicial custody point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enabling him to apply for bail in exercise of his right under provisoof Section 167 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with the guidelines laid down by us in our Order dated February 12 1979. We hope and trust that every Magistrate in the country and every State Government will act accordance with this mandate of the Court. This is the constitutional obligation of the State Government and the Magistrates and we have no doubt that if this is strictly carried out there will be considerable improvement in the situation in regard to undertrial prisoners and there will be proper observance of the rule of law.” underlined for emphasis In Rakesh Kumar Paul v. State of Assam:15 SCC 67 the Supreme Court further held that it would be the responsibility of a court to at least apprise the accused of his or her indefeasible right for default bail. Paragraph nos. 43 and 44 of the said judgment are relevant and are set out below: “43. This Court and other constitutional courts have also taken the view that in the matters concerning personal liberty and penal statutes it is the obligation of the court to inform the accused that he or she is entitled to free legal assistance as a matter of right. In Khatriv. State of Biharv. State of Bihar 1 SCC 627 : 1981 SCC228 the Judicial Magistrate did not provide legal representation to the accused since they did not ask for it. It was held by this Court that this was unacceptable and that the Magistrate or the Sessions Judge before whom an accused appears must be BAIL APPLN. 31420 held under an obligation to inform the accused of his or her entitlement to obtain free legal assistance at the cost of the In Suk Das v. UT of Arunachal Pradesh2 SCC 401 : 1986 SCC166] the accused was tried and convicted without legal representation due to his poverty. He had not applied for legal representation but notwithstanding this this Court held that the trial was vitiated and the sentence awarded was set aside particularly since the accused was not informed of his entitlement to free legal assistance nor was an inquiry made from him whether he wanted a lawyer to be provided at State expense. In Rajoo v. State of M.P.8 SCC 553 :3 SCC984] the High Court dismissedthe appeal of the accused without enquiring whether he required legal assistance at the expense of the State even though he was unrepresented. Relying on Khatriv. State of Bihar 1 SCC 627 : 1981 SCC228] and Suk Das2 SCC 401 : 1986 SCC166] this Court remanded his appeal to the High Court for rehearing after giving an opportunity to the accused to take legal assistance. Finally in Mohd. Ajmal Amir Kasab v. State of Maharashtra9 SCC 1 :3 relied on Khatri481 2) v. State of Bihar 1 SCC 627 : 1981 SCC228 and held in para 474 of the Report as follows:9 SCC 1 :3 SCC481] SCC p. 186 “474. … it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and in case he has no means to engage a lawyer of his choice that one would be provided to him from legal aid at the expense of the State. The right flows BAIL APPLN. 31420 from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We accordingly direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings.” 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to “default bail” to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above and also adverted to in Nirala Yadav9 SCC 457 2014) 5 SCC212]” underlined for emphasis In Arvind Kumar Saxena v. State:250 DLT 130 a coordinate Bench of this Court following the observations made by the Supreme Court in paragraph no. 44 of its decision in Rakesh Kumar Paulissued directions to the Registrar General of this Court to explore the possibility of creating a database and software for the District Courts of Delhi in order to provide ready access to data in relation to remand applications during the course of investigation pending before the trial courts including dates of arrest the dates on which the requisite chargesheets are to be filed in terms of Section 167(2) of Cr.PC and the dates on which the chargesheets have been filed. The Court had observed that this would assist the trial courts in BAIL APPLN. 31420 preservation of personal liberties of the accused appearing before them by informing the accused of their entitlement to a default bail under the Provisoto Section 167(2) of the Cr.PC In Rakesh Kumar Paulthe right to apply for default bail in terms of provisoto Section 167(2) of the Cr.PC had accrued to the accusedon 04.01.2017. The chargesheet in that case was filed on 24.01.2017 and on that date his right to secure a default bail stood extinguished. The petitioner had applied for a regular bail on 11.01.2017 before the Gauhati High Court but he had not made any specific application for default bail. The Court noted that in that case the accused had mentioned that the statutory period for filing the chargesheet had expired and he had also argued the issue orally However the same was not accepted In the aforesaid context the Supreme Court held that the petitioner had made an application for default bail if not in writing then orally. The Court further observed as liberty. Consequently whether “40. ….. In our opinion in matters of personal liberty we cannot and should not be too technical and must lean in favour of personal accused makes a written application for “default bail” or an oral application for “default bail” is of no consequence. The court concerned must deal with such an application by considering the statutory requirements namely whether the statutory period for filing a charge sheet or challan has expired whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail BAIL APPLN. 31420 41. We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court 42. In Sunil Batrav. State[Sunil Batra 2) v. State(1980) 3 SCC 488 : 1980 SCC Cri) 777] this Court accepted a letter which was treated as petition written by a prisoner Jail Delhi complaining of inhuman torture inflicted on another prisoner by the Jail Warder. In Hussainara Khatoonv. State of Biharv. State of Bihar 1 SCC 98 : 1980 SCC40] a number of writ petitions some by way of a letter were grouped together and treated as habeas corpus petitions. In Rubabbuddin Sheikhv. State of Gujaratv. State of Gujarat 2007) 4 SCC 318 :2 SCC290] the brother of the deceased wrote a letter to the Chief Justice of India disappearance of his sister in law. This was treated as a Dev v. State Dev v. State of Rajasthan 1 SCC 503 : 1981 SCC Cri) 191] the petitioners sent a telegram to a learned Judge this Court complaining of solitary confinement of prisoners. The telegram was treated as a habeas corpus petition and the persons concerned were directed to be Kaur v. State of Punjab7 SCC 20 : 1996 SCC167] a telegram received at the residential office of a learned Judge of this Court alleging an incident of kidnapping by the police was treated In Bandhua Mukti Morcha v. Union of India3 SCC 161 : 1984 SCC389] a petition BAIL APPLN. 31420 addressed to a learned Judge of this Court relating to the inhumane and intolerable conditions of stone quarry workers in many States and how many of them were bonded labour was treated as a writ petition on the view that the “Constitution makers deliberately did not down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straitjacket formula”.3 SCC 235 : 1982 SCC275 : AIR 1982 SC 1473] a letter addressed to a learned Judge of this Court concerning violation of various construction projects connected to the Asian Games was treated as a writ petition. In Upendra Baxiv. State of U.P.v. State of U.P. 2 SCC 308 1983 SCC430] a letter relating to inhuman conditions in the Agra Protective Home for Women was treated as a writ petition and in Sheela Barse v. State of Maharashtra2 SCC 96 : 1983 SCC Cri) 353] a letter addressed by a journalist complaining of custodial violence against woman prisoners in Bombay was treated as a writ petition. These cases are merely illustrative of the personal liberty jurisprudence of this Court and in matters pertaining to Article 21 of the Constitution of India this Court has consistently taken the view that it is not advisable to be ritualistic and formal. However we must make it clear that we should not be understood to suggest that procedures must always be given a go by — that is certainly not our intention.” underlined for emphasis In Arvind Kumar Saxenathe accused was arrested by the Crime Branch on 03.06.2017 and he was placed in judicial custody BAIL APPLN. 31420 The statutory period of sixty days from the date of arrest expired on 04.08.2017. Thereafter on 19.09.2017 he filed an application for bail under Section 439 of the Cr.PC. The said application was fixed for hearing on 26.09.2017. The chargesheet in that case was filed on 20.09.2017. Thereafter on 21.09.2017 the applicant filed another application seeking bail under Provisoto Section 167(2) of the Cr.PC which was rejected because prior to the said application the investigation agency had filed the chargesheet. However the petitioner had preferred an application for bail under Section 439 of the Cr.PC prior to filing of the chargesheet and after a period of sixty days from the date of his arrest had expired. In this context this Court observed as “The period of incarceration of the petitioner from the date 19.09.2017 when he sought the grant of bail implicitly also on the ground that he was arrested on 03.06.2017 and was willing to continue to join the investigation indicating thereby that the investigation was not complete and did not the charge sheet on set completed till submission of 20.09.2017 cannot be overlooked and thus extinguish the indefeasible right of “default bail” to the The Supreme Court in a recent decision in M. Ravindran v. The Intelligence Officer Directorate of Revenue Intelligence: Crl. A 699 2020 decided on 26.10.2020 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 BAIL APPLN. 31420 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. The relevant extract of the said decision setting out the legislative history of Section 167 of the Cr.PC and the rationale for its enactment as set out in the said decision is relevant and the Code of Criminal “11.2 Under Section 167 of Procedure 1898which was in force prior to the enactment of the CrPC the maximum period for which an accused could be remanded to custody either police or judicial was 15 days. However since it was often unworkable to conclude complicated investigations within 15 days a practice arose wherein investigative officers would file ‘preliminary chargesheets’ after the expiry of the remand period. The State would then request the magistrate to postpone commencement of the trial and authorize further remand of the accused under Section 344 of the1898 Code till the time the investigation was completed and the final chargesheet was filed. The Law Commission of India in Report No. 14 on Reforms of Administrationpointed out that in many cases the accused were languishing for several months in custody without any final report being filed before the Courts. It was also pointed out that there was conflict in judicial opinion as to whether the magistrate was bound to release the accused if the police report was not filed within 15 days. Hence the Law Commission in Report No. 14 recommended the need for an appropriate provision specifically providing for continued remand after the expiry of 15 days in a manner that “while meeting the needs of a full and proper investigation in cases of serious crime will still safeguard the liberty of the person of the individual.” Further that the legislature should prescribe a maximum time period beyond which no accused could be detained without filing of the police report before the BAIL APPLN. 31420 magistrate. It was pointed out that in England even a person accused of grave offences such as treason could not be indefinitely detained in prison till commencement of the 11.3 The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure 1898an accused person should get a fair trial accordance with the accepted principles of natural ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society and iii) the procedure should not be complicated and should to the utmost extent possible ensure fair deal to the poorer sections of the community.” 11.5 It was in this backdrop that Section 167(2) was enacted within the present day CrPC providing for time limits on the period of remand of the accused proportionate to the seriousness of the offence committed failing which the accused acquires the indefeasible right to bail. As is evident from the recommendations of the Law Commission mentioned supra the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused. Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence so that society at large does not lose faith and develop cynicism towards the criminal justice 11.6 Therefore as mentioned supra Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention and must be interpreted in a manner which serves this purpose In S. Kasi v. State Through The Inspector of Police BAIL APPLN. 31420 Samaynallur Police Station Madurai District: Crl. A. 452 2020 decided on 19.06.2020 the Supreme Court set aside the order of the Madurai Bench of the Madras High Court holding that the order dated 23.03.2020 passed by the Supreme Court in Suo Moto W.P.No. 20 extending the period of limitation in wake of the outbreak of COVID 19 which also eclipsed the time prescribed for completion of investigation. The Supreme Court held that its order dated 23.03.2020 could not be held to have eclipsed the time prescribed for completion of investigation under Section 167of the Cr.P.C. nor the restrictions which have been imposed by the Government during the lockdown could operate as any restriction on the rights of an accused person as protected under Section 167of the Cr.PC regarding his indefeasible right to get a default bail on non submission of a chargesheet within the time period prescribed. It is important to note that the Supreme Court founded its decision on the inalienable right to life and liberty which has been recognised under Article 21 of the Constitution of India. The Supreme Court also referred to paragraph no. 136 of the decision of the Supreme Court in K. S. Puttaswamy and another v. Union of India and others:10 SCC 1 wherein D.Y. Chandrachud. J speaking for the court had formally overruled the decision in Additional District Magistrate Jabalpur v. Shivakant Shukla:2 SCC 521 as under the four Judges “136. The judgments rendered by all Jabalpur2 SCC 521 : AIR 1976 SC 1207] are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are in Kesavananda Bharati4 SCC 225] primordial rights. They constitute rights under Natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the State nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the State without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Khanna J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona namely life liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the Rule of Law which imposes restraints upon the powers vested in the modern State when it deals with the liberties of the individual. The power of the Court to issue a writ of habeas corpus is a precious and undeniable feature of the Rule of Law.” In Bikramjt Singh v. State of Punjab: Crl. A. No. 6620 decided on 12.10.2020 the Supreme Court observed as under “We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail as has been correctly held by the judgments of this Court are not mere statutory BAIL APPLN. 31420 rights under the first proviso to Section 167(2) of the Code but is part of the procedure established by law under Article 21 of the Constitution of India which is therefore a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.” It is important to bear the aforesaid principles enunciated by the Supreme Court in the aforementioned decision while addressing the controversy as to whether the petitioner was entitled for default bail 31. At this stage it would be relevant to refer to Sub sectionof Section 167 of the Cr.PC. The same is set out below “167. Procedure when investigation cannot be completed in twenty four hours. — 2) The Magistrate to whom an accused person is forwarded this section may whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding — i) ninety days where the investigation relates to an offence imprisonment for a term of not less than ten years BAIL APPLN. 31420 sixty days where the investigation relates to any other offence and on the expiry of the said period of ninety days or sixty days as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this sub section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video c) no Magistrate of the second class not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police.” 32. A plain reading of the Provisoto 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”. Thus 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 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 lawSupp SCR 137 and Union of India vs Thamsharasi:4 BAIL APPLN. 31420 SCC 190]. As is apparent from the language of Provisoto 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 It is also necessary to bear in mind that courts have consistently leaned to resolve the tension between form and substance in favour of substance and have used the interpretative tools to address the substance of the matter. In Ajay Hasia Etc v Khalid Mujib Sehravardi Ors:1981SCR(2) 79 had in an altogether different context observed that “where the constitution fundamentals vital to 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”. Thus if in substance the essential conditions as set out under the Provisoto Section 167(2) of the Cr.PC are met and complied with that isif 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 andif the accused is prepared to offer bail then there would be no justifiable reason to detain the accused 35. As noticed above the petitioner had unequivocally stated that he was ready to furnish bail and provide a sound surety. He had further indicated that he would ready and willing to comply with any condition that may be imposed by the Trial Court and had also undertaken to appear before the Trial Court as and when required. Clearly the Proviso BAIL APPLN. 31420 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 The Supreme Court in the case of Uday Mohanlal Acharya v State of Maharashtra:5 SCC 453 had observed as under “13. …. In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail.” In the present case there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind 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 38. Mr Amit Gupta the learned APP had also referred to the decision of the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra:4 SCC 602 and had drawn the attention of this Court to paragraph no. 21 of the said decision. He contended that a court cannot release an accused on bail on its own motion without any application on his behalf and it would be necessary for the accused to make an application to be released on bail on account of default on the part of the investigation agency. It was submitted that since no such application had been made the petitioner could not have been released BAIL APPLN. 31420 on default bail. The relevant extract of paragraph no. 21 of the said decision referred to by Mr Gupta is set out below “21…. We are not impressed with the argument of the learned counsel for the appellant that on the expiry of the period during which investigation is required to be completed under Section 20(4) TADA read with Section 167 of the Code the court must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail. In our opinion an accused is required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating prosecuting agency and once such an application is made the court should issue a notice to the public prosecutor who may either show that the prosecution has obtained the order for extension for completion of investigation from the court under clauseor that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and thus resist the grant of bail on the alleged ground of ‘default’. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the ‘default’ clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings It would therefore serve the ends of justice if both sides are heard on a petition for grant of bail on account of prosecution s ‘default’....” The two principles that emerge from the above ruling in Hitendra Vishnu Thakurare thatthe Court cannot release an accused on bail on its own motion without any application from the accused offering to furnish bail andthat the investigating prosecuting agency must be put to notice There is no dispute that an accused cannot be released on bail by BAIL APPLN. 31420 a court on its own motion and it is necessary for the accused to apply and offer to furnish bail. As noticed above the language of Provisoof the Cr.PC also requires an accused to indicate that he is prepared to furnish bail before he can be released on bail. In substance the said condition is met. In Rakesh Kumar Paulthe Supreme Court had 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 provisoto 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 Pauleven 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 stipulated period of filing chargesheet as an application for bail under the provisio to Section 167since it does indicate that the accused is prepared to furnish bail The second requirement is that the prosecution agency must be put to notice of the ground on which the bail is being granted in order for the prosecution agency to point out if there is any reasons why the accused is not entitled to such bail. By virtue of certain special acts BAIL APPLN. 31420 such as the Unlawful ActivitiesAct 1967 and the Narcotic Drugs and Psychotropic Substances Act 1985 certain provisions of the Cr.PC including Section 167 of the Cr.PC stand amended in regard to application to offences under the said statutes. In cases pertaining to these enactments the court is expressly empowered to extend the period for completion of investigation and if an application for the same is pending the investigating prosecuting agency can also point out the same as the decision in that application would have a bearing on the question whether an accused can be released on bail 42. As explained by the Supreme Court in a number of decisions 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. This is also considering the fact that the petitioner had indicated in unequivocal terms that he desires to be released on bail and he is ready to furnish surety for the same In view of the above this Court considers it apposite to allow the The petitioner is directed to be released on bail on his furnishing BAIL APPLN. 31420 a personal bond in the sum of ₹10 000 with one surety of an equivalent to the satisfaction of the concerned Trial Court Duty Magistrate. This is also subject to following further conditions a) the petitioner shall provide a mobile number to the concerned SHO IO and ensure that he is reachable at all b) the petitioner shall not leave the National Capital Territory of Delhi without prior intimation to the SHO IO and without informing him the address of his destination c) the petitioner shall mark his presence before the Duty Officeron the first Monday of each calendar month and the petitioner shall not contact the victim his family members or any of the witnesses The petition is allowed in the aforesaid terms NOVEMBER 06 2020 VIBHU BAKHRU J BAIL APPLN. 31420 Page 2