The main legal point established in the judgment is the requirement to exhaust the remedy under Section 497 Cr.P.C before seeking bail from the High Court or the Court of Session, and the interpretation of the time frame provided by Section 167 of Cr.P.C read with Section 43 (d) of the Act. The judgment also emphasizes the right to bail as a matter of right despite the restrictions contained in Section 497 Cr.P.C read with Section 43(D) of the Act.

This Order will govern the bai petition under Section 498 Code of Criminal Procedure (for short Cr.P.C) for grant of bail in favour of the petitioner on the grounds taken in the memo of petition.

2. Respondents have filed the objections and resisted the same.

3. The following are the grounds urged by the petitioner in support for grant of bail:

i) that he is innocent, came to be involved in a false, frivolous, baseless, managed and manipulated F.I.R in order to avoid his release after revocation of the first detention order and even after quashment of second detention order;

ii) that there is no material collected by the Investigating Officer which would indicate that he is involved in any illegal activity/activities;

iii) that the grounds urged in the F.I.R were also taken in the memo of petition filed by State in opposition to the Habeas Corpus petition-petition filed by petitioner;

iv) petitioner has moved a petition under Section 561-A Cr.P.C which is pending and along side had filed an application for grant of bail, came to be rejected on the ground that on the said date the petitioner was not in custody in the said F.I.R.

4. Respondents have resisted the petition on the following grounds:-

i) that petitioner has to seek bail from the Court of first instance, but has not exhausted the said remedy, which amounts to taking away the revisional/appellate forum;

ii) petition in hand is second application, is not maintainable because the first application came to be dismissed and new facts/circumstances have not been pleaded;

iii) that petitioner is involved in commission of heinous and serious offences punishable under Sections 13 of Unlawful Activities (Prevention) Act, 1967 (for short the `Act’); 121/120-B and 124-A of Ranbir Penal Code (for short R.P.C);

iv) that period of ninety days has not expired, thus, petitioner cannot claim bail in default.

5. Petitioner has remedy in terms of Section 497 Cr.P.C to seek bail by laying motion before the Court of first instance. The Apex Court in case titled Gurcharan Singh and others v. State (Delhi Administration) reported in (1978) 1 SCC 118 observed that it is proper to exhaust first remedy. It is apt to reproduce para 24 of the said judgment herein:-

"24. Section 439 (1), Cr.P.C of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437 (1) there is no ban imposed under Section 439 (1), Cr.P.C against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1), Cr.P.C of the new Code. The over-riding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439 (1), Cr.P.C of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."

No doubt the remedy in terms of Section 498 Cr.P.C can be availed but it would amount to depriving the party a forum against whom the order would be passed by the Court of first instance.

In this backdrop, it i