Whether court must hear victim while releasing accused on default bail U/S 167 of CRPC in a Rape case?

Coming to the bail under Section 167(2) of the Code,

it is fundamentally different from the bail under Sections 437, 438

and 439 of the Code. The contrast is particularly stark since Section

167(2) grants an indefeasible right to an accused, whereas Sections

437, 438 and 439 do not grant any such right to the accused and

grant of bail under those provisions is only a matter of judicial

discretion. The right of an accused to seek bail under Section 167(2)

accrues upon the default of the investigating officer in concluding the

investigation within the requisite time specified in the provision.

While considering an application for bail under Section 167(2), a

court does not consider the merits of the case, but only considers the

question as to whether there is default on the part of the

investigating agency in completing the investigation in the case

within the prescribed period. If the investigating agency fails to file

the final report in the case within the time prescribed, the accused in

custody gets an absolute right to bail.

There is no hard and fast rule also regarding grant or refusal to

grant bail under those provisions and the case has to be considered on the facts and circumstances of each case and on its own merits.

15. Section 439(1A) of the Code reads thus:

“The presence of the informant or any person authorised

by him shall be obligatory at the time of hearing of the

application for bail to the person under sub-section (3) of

section 376 or section 376AB or section 376DA or section

376DB of the Indian Penal Code(45 of 1860).”

It brooks no argument that Section 439(1A) is mandatory vis-à-vis applications for bail are concerned other than the applications under Section 167(2) of the Code. True, the phraseology of Section 439(1A) favours the section being considered as mandatory for applications for bail under Section 167(2) also. But the phraseology alone cannot be the decisive factor for resolving the question as to whether

Section 439(1A) of the Code applies to an application for bail under Section 167(2) of the Code. The question is whether the legislature intended that provision to be applied for grant of bail under Section 167(2) of the Code. The purpose of Section 439(1A) of the Code is to ensure that a victim or a person acting in the interest of the victim shall also be heard before a decision on a bail application is made. No doubt, such an opportunity is vital as regards applications under Sections 437,438 and 439 of the Code, for the same would certainly aid the court while exercising its discretionary jurisdiction to grant or

refuse bail to the accused under those provisions. However, a

decision on the application for bail under Section 167(2) of the Code being one taken by the court on the basis of the period of custody undergone by the accused, compliance of the provision contained in Section 439(1A) of the Code does not make any difference. Even if it is held placing reliance on the phraseology used in Section 439(1A) of

the Code that the provision therein is to be followed while granting

bail under Section 167(2) of the Code, it would be an empty formality.

The purpose of Section 167(2) is to protect the liberty of an individual

who has been detained and continues to be detained pending

investigation in a case. It is trite that in matters relating to personal

liberty of an individual, the court must lean in favour of personal

liberty [See Rakesh Kumar Paul v. State of Assam, 2017(4) KLT

284 (SC)]. In the aforesaid circumstances, I am inclined to hold that

the provision contained in Section 439(1A) of the Code does not

apply to an application for bail under Section 167(2) of the Code.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

Crl.MC.No.3463 OF 2020(C)

X  Vs  STATE OF KERALA

Coram: P.B.SURESH KUMAR, J.

Dated this the 9th day of September, 2020.
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