No Section 439 Bail Plea Against Order Refusing Default Bail; Remedy Is Revision: Rajasthan High Court

While the petitioner's first bail application was pending, a period of 60 days was over. He applied to the Additional Sessions Judge under Section 167(2) CrPC, claiming release because the offence alleged was punishable with less than ten years' imprisonment (para 1). That application was rejected on 04.06.2021, and he filed a second bail application under Section 439 CrPC in the High Court (para 2). Asked how it could lie, given that Section 439 grounds are irrelevant to examining a Section 167(2) order (para 3), his counsel replied that a person released under Section 167 furnishes bail and is deemed released under Chapter XXXIII CrPC, so Section 439 is available after a rejection (para 4).

The Court held that its powers under Section 439 CrPC are co-extensive with those of the District and Sessions Judge (para 6). While hearing a Section 439 application, it does not examine the legality of the Sessions Judge’s order; it may take a different view and grant or refuse bail without setting that order aside (para 6). An order allowing or rejecting an application under Section 167(2) is different: the Court must examine the legality of the view taken by the lower court (para 7). Such applications may also be decided by a Magistrate, and a revision then lies to the District Judge, who does not examine the case under Section 439 (para 7). The High Court likewise examines a Section 167(2) order on merits when it is challenged, exercising its inherent or revisional power depending on whether the case comes after a revision or directly to the High Court (para 7). In no circumstance, therefore, is a Section 439 application maintainable against an order passed on a Section 167(2) application (para 7). It did not decide the default-bail claim itself; it held the application not maintainable and directed that it be converted into a criminal revision petition (para 8).