Point of Law: Criminal Conspiracy - Grant of Bail - Petitioner was not ready to furnish her bail bond after expiry of statutory period of sixty days and thus would be entitled to be released on bail, though said application was not specifically under Section 167(2) Cr PC.

JUDGMENT :

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 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 defaul