Delhi High Court
Qing Shi vs The State on 28 July, 2021
Equivalent citations: AIRONLINE 2021 DEL 1110
Author: Yogesh Khanna
Bench: Yogesh Khanna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 06th July, 2021
Decided on : 28th July, 2021
+ CRL.REV. P. No. 82/2021 and CRL.M.(BAIL) 172/2021
QING SHI ..... Petitioner
Through : Mr.Anil Sapra, Sr. Advocate with
Ms.Varuna Thakur and Mr.Bhaskar
Tripathi, Advocates.
versus
STATE ..... Respondent
Through : Mr.M.S.Oberoi, APP for the State
with SI Bhagwan Singh, Special
Cell.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Through Video Conferencing)
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
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LAKSHMI DOBHAL
Signing Date:28.07.2021 16:50
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
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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
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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.
25. xxx
"40. ..... In our opinion, in matters of
personal liberty, we cannot and should not
be too technical and must lean in favour of
personal liberty. Consequently, whether the
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.
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.
26. In Arvind Kumar Saxena (supra), the accused was
arrested by the Crime Branch on 03.06.2017 and he was
placed in judicial custody. 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
Proviso (a) to 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
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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 under:
"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 set completed till submission of the
charge-sheet on 20.09.2017 cannot be
overlooked and thus cannot extinguish the
indefeasible right of "default bail" to the
petitioner."
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.
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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.
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 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.
36. The Supreme Court in the case of Uday Mohanlal
Acharya v. State of Maharashtra: (2001) 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
right, the moment he files an application for
being released on bail and offers to abide by
the terms and conditions of bail."
37. 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.
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
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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.
8. No doubt, the petitioner herein moved an application for grant of bail
under Section 439 Cr P C on 26.11.2020 i.e. prior to the expiry of statutory
period of sixty days for filing of the charge sheet and admittedly, the charge
sheet was filed beyond the period of sixty days i.e. on 28.11.2020, hence, it
cannot be said the petitioner was not ready to furnish her bail bond after the
expiry of statutory period of sixty days and thus would be entitled to be
released on bail, though the said application was not specifically under
Section 167(2) Cr PC.
9. In the circumstances, the petition is allowed. Consequently, the
impugned order dated 16.12.2020 passed by the learned Appellate Court in
Criminal Revision No.65/2020 is set aside. The petitioner be released from
Prison on her furnishing a personal bond in the sum of Rs.1.00 lac with one
surety of the like amount to the satisfaction of the learned Trial Court /
Duty Magistrate. She shall not leave the country without permission of the
learned Trial Court; shall also surrender her passport to the Investigating
Officer. The petitioner is directed to furnish her contact details/address to
the Investigating Officer and shall make video call to the Investigating
Officer in the first week of every month and shall keep her mobile location
app open at all time.
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10. The petition stands disposed of in above terms. Pending application,
if any, also stands disposed of.
11. Nothing observed herein shall have any bearing on merits of the case
pending trial before the leaned Trial Court.
12. Copy of this order be communicated electronically to the learned
Trial Court /Jail Superintendent for information and compliance.
YOGESH KHANNA, J.
JULY 28, 2021 M Crl Rev. P. No.82/2021 Page 8 of 8 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:28.07.2021 16:50