An accused entitled to default bail under Section 167(2) is not required to explicitly state this in their application, provided they demonstrate readiness to furnish bail bonds after the statutory period without a charge sheet has expired.

Headnote:(A) Official Secrets Act - Sections 3, 4, 5 - Criminal Procedure Code - Section 167(2) - Bail application - Petitioner was arrested and remained in judicial custody for over 60 days without charge sheet - Court held that entitlement to default bail arises when charge sheet is not filed within statutory time - The petitioner entitled to bail as she indicated preparedness to furnish bail, despite application under different section - The Appellate Court's order setting aside the Trial Court's bail grant was improper. (Paras 6, 8, 9, 42)

(B) Right to Personal Liberty - The court emphasized the importance of personal liberty and asserted that formalities should not impede the right to bail under certain conditions. (Paras 40, 42)

Facts of the case:
The petitioner was arrested on 19.09.2020 and remained in custody while awaiting charges, with the charge sheet finally being filed after 60 days.

Findings of Court:
The petitioner's bail application was granted under the entitlement of default bail due to the elapsed period without a charge sheet - The previous order of the Appellate Court was set aside.

Issues: Whether bail was due under Section 167(2) after the charge sheet deadline expired, and if the bail application was valid despite being filed under Section 439 instead of 167(2).

Ratio Decidendi: The right to default bail as per Section 167(2) must be upheld; an application made for bail demonstrating preparedness to furnish bonds satisfies the requirement despite the lack of a specific mention of the section.

Result: Petition allowed, with conditions.

Table of Content
1. challenge to bail order based on arrest timeline. (Para 1 , 2 , 3)
2. arguments regarding the validity of bail application. (Para 4 , 5)
3. court addresses the maintainability of bail application. (Para 6 , 7 , 8)
4. final order granting bail under specific conditions. (Para 9 , 10 , 11 , 12)

JUDGMENT

Yogesh Khanna, J.(Through Video Conferencing)--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 4 39 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