Default Bail Cannot Be Denied To Accused Just Because He Filed Application U/S 439 Instead of 167(2) CrPC : Delhi High Court

The court held that in the instant case, 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".

The bench of Justice Vibhu Bakhru further expounded that the Supreme Court too has explained on a number of occasions that the Proviso (a) to Section 167(2) CrPC 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".

Justice Bakhru stated that, "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."

The brief facts of the case were that the bail applicant alongwith his two other accomplices were accused of robbing the complainant of his mobile phone and shooting him in the leg and absconding on being confronted by the complainant. They were booked under Sections 457/380/34 of IPC.

The chargesheet in the case was filed beyond the period of 60 days which the Prosecution submitted was on account of Covid-19.

The petitioner had filed his first bail application before the Trial Court on 27.05.2020 wherein he stated that he was arrested in another case relating to FIR No.10/2020 registered with PS Alipur and had been falsely implicated in the said case, and further stated that he had no concern with the alleged offences, yet the police officials had arrested him. He expressly stated that he is ready to furnish sound surety to the satisfaction of the Trial Court and undertook to produce himself before the Trial Court as and when directed.

However, the Trial Court had rejected the application considering the 'seriousness of allegations'.

The petitioner moved his second bail application on 08.06.2020 which was also dismissed by the Trial Court on 08.06.2020. Thereafter, the petitioner moved a bail application before the High Court which was listed on 17.09.2020, however, the same was withdrawn with liberty to approach the Trial Court as in the meantime, the chargesheet had been filed on 14.09.2020.

The court noted that the petitioner had been in custody for almost eleven months with no recoveries effected 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.

Referring to the decision of the Supreme Court in the case of Rakesh Kumar Paul v. State of Assam: (2017) 15 SCC 67, the Justice Bakhru said that, in that case too, the petitioner had applied for a regular bail before the Gauhati High Court, but had not made any specific application for default bail, however, the court had noted that the accused had mentioned that the statutory period for filing the chargesheet had expired and he had also argued the issue orally. The Supreme Court here had held that the petitioner had made an application for default bail, if not in writing, then orally.