Qing Shi v. State

1. The petition is filed against the impugned order dated 16.12.2020 passed by the learned Additional Session’s Judge-02, Patiala House Courts New Delhi (hereinafter referred learned Appellate Court) in Criminal Revision No.65/2020 filed by the State in case FIR No.230/2020 under Section 3/4/5 of the Official Secrets Act and Section 120B IPC registered at police station Special Cell thereby reversing the order 08.12.2020 passed by the learned Chief Metropolitan Magistrate, New Delhi District, Patiala House Courts, New Delhi (hereinafter referred learned Trial Court)

2. The petitioner herein was shown to have been arrested in the above case and was in judicial custody since 27.09.2020. She was admitted to bail vide bail application under Section 167 (2) Criminal Procedure Code (Cr P 2021:DHC:2215 C) vide order dated 08.12.2020 passed by the learned Trial Court. However, in the revision filed by the State, learned Appellate Court vide impugned order dated 16.12.2020 set aside the impugned order dated 08.12.2020 passed by the learned Trial Court. The order passed by the learned Appellate Court is challenged by petitioner in this Court.

3. Admittedly, the petitioner was arrested in this case on 19.09.2020 and the period of 60 days for filing the charge sheet expired on 20.11.2020. The application under Section 439 Cr.P.C. for grant of bail was moved by the petitioner on 26.11.2020 and it was only thereafter the charge sheet was filed on 28.11.2020. Later another application under Section 167(2) Cr.P.C. was also filed on 04.12.2020, but it was dismissed.

4. The learned senior counsel for the petitioner submits since the application under Section 439 Cr P C was moved on 26.11.2020 for grant of bail, prior to the filing of the charge sheet on 28.11.2020 and since the petitioner was prepared to furnish the bail bonds, she ought to have been admitted to bail per Section 167(2) Cr.P.C despite the fact no formal application was filed under such provision. It is submitted as per law the only requirement is on expiry of period of 60 days from the date of arrest, where no charge sheet is filed, if the petitioner is prepared to furnish the bail bonds, she/he ought to be admitted to bail. Reliance is made to the decision of this Court in Subhash Bahadur @ Upender vs State (NCT of Delhi) Bail Application No.3141/2020 dated 06.11.2020.

5. On the other hand, the learned APP for the State argues the application moved on 26.11.2020 was never under Section 167(2) Cr.P.C and as such no default bail is to be granted. It is argued when an act need to be performed in a manner prescribed under the law it has to be performed in such manner only and if it is not done in such prescribed manner, such act shall have no existence in the eyes of law. It is also submitted if the petitioner had a right to file an application under Section 167(2) Cr.P.C. she ought to have moved an application only under such Section and not otherwise and moving of an application under Section 439 Cr.P.C. would not serve any purpose.

6. Thus, the issue before me is whether an application under Section 439 Cr.P.C. for grant of bail filed on 26.11.2020 i.e. after the expiry of 60 days from the date of arrest and before filing of the charge sheet, would be maintainable and if on such an application, default bail can be granted to the petitioner on principles enshrined under Section 167(2) Cr.P.C.

7. I need not to dwell much in the matter since this issue is squarely covered by the decision of the Coordinate Bench of this Court in Shubhash Bahadur @ Upender (supra). The following paragraphs are relevant:-

18. There is yet another aspect which requires consideration – that is whether the petitioner was entitled to bail under the Proviso (a) to 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 Proviso (a) to Section 167(2) of the Cr.PC (hereafter also referred to as „default bail‟). Although the petitioner had moved bail applications twice, the same were rejected. Concededly, an indefeasible right had accrued to the petitioner for being released on default bail and there is no dispute that if an application mentioning the said provision was made, the petitioner would necessarily have to be released on bail. However, the learned APP submits that since the petitioner did not avail of his indefeasible right for default bail, the same was lost on the chargesheet being filed on 14.09.2020.

19. According to Ms Chauhan, learned APP, it is not sufficient that the petitioner had made an application for bail. According to her, it would be necessary for an accused to apply for bail specifically mentioning the provisions of Section 167(2) of 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 bail.

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29. In Bikramjt Singh v. State of Punjab: Crl. A. No. 667 of 2020, 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 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.”

32. 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”. 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.

34. 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 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.