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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.

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 stipulated period of filing chargesheet, as an application for bail under the provisio to Section 167 (2), since 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”.

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