JUDGMENT 1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.) is against the judgment dated 28.04.2017 and order on sentence dated 12.07.2017 passed by the learned ASJ-01, Dwarka Courts, New Delhi, in SC No. 440911/2016, whereby, the appellant/accused has been convicted under Section 6 read with Section 5(n) of Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO'), and sentenced to undergo rigorous imprisonment for 12 years with a fine of Rs. 10,000/- and in default of payment further simple imprisonment for 02 months. 2. Learned counsel for the appellant submits that the judgment of conviction and sentence passed by the learned trial court is bad in law and deserves to be set aside. She submits that the learned trial court did not appreciate the evidence in proper perspective, and there are material contradictions and omissions in the evidence of the prosecution witnesses. There is no direct evidence against the present appellant, and the benefit of doubt ought to have been given to the appellant. 3. She further submits that the testimony of the child victim (PW1), mother of the child victim/Munni (PW2) and sister of the child victim (PW4) differ from each other. According to her, throughout the testimony of the child victim, her sister and her mother is that they are in total five siblings i.e., four sisters including the child victim and a brother, whereas, during cross-examination in court, the mother of the child victim deposed that she has six children i.e., two daughters and four sons. There are discrepancies with regard to who was sleeping in the room when the alleged incident took place. There are contradictory versions regarding the arrest of the appellant. The mother of the victim/PW2 and Head Constable Ishwar Lal (PW3) have given different account of the arrest of the appellant, and the version of PW3 is not corroborated by any other witness. The child victim/PW1, in her testimony, has stated that her mother has told her that they must teach the appellant a lesson as he was a drunkard and used to beat his wife and children. The sister of the child victim, PW2, has deposed that on the day of the incident, the appellant and the mother of the child victim fought and that she has been tutored by her mother. The sister of the child victim, PW2, has deposed that on the day of the incident, the appellant and the mother of the child victim fought and that she has been tutored by her mother. The medical reasons for the presence of worms around the anal area of a child can happen due to various reasons such as constipation, passing hard stool etc., and therefore, even the medical examination of the child doesn't completely establish the commission of unnatural offence on the child. 4. She further argues that the FSL report submitted on 05.04.2017 by PW16/IO has not been put to the accused under Section 313 of the Cr.P.C and non-putting to the accused a vital piece of evidence is fatal to the case of the prosecution. She relies on the judgement of the Hon'ble Supreme Court in the case of Rahul v. State of Delhi CRL.A. No. 611/2022 and the decisions of the High Court in the cases Vishambahar Isiah v. State of Punjab CRL.REV.P 277/2020 vide order dated 24.08.2021, Bal Kishan v. State of NCT 2022 SCC OnLine Del 2820 and Laxman @ Lucky v. State 2022 SCC OnLine Del 663. 5. On the other hand, learned APP on behalf of the respondent-State vehemently opposes the submissions, and submits that the offences committed by the appellant/accused are heinous in nature and, therefore, the trial court has rightly convicted him. He submits that the learned Additional Sessions Judge has considered all the arguments made by the appellant, and there is sufficient evidence to prove his guilt beyond a reasonable doubt. He submits that the statement of Dr. Khushboo Gupta (PW10) establishes the commission of the offence. The FSL report also indicates the presence of semen in the articles seized from the prosecutrix as well as appellant-accused. The prosecutrix has herself given her statement against the appellant/accused. He further submits that no prejudice has been shown to have been caused to the accused as he was given the right to cross-examine IO W-SI Chandra Kanta (PW16) on 05.04.2017, and the ground of defect under Section 313 of the Cr.P.C was not raised at the time of arguments in the trial court. Therefore, the judgment passed by the trial court is sound and does not warrant any interference. 6. I have heard learned counsel for the parties and perused the record. 7. Therefore, the judgment passed by the trial court is sound and does not warrant any interference. 6. I have heard learned counsel for the parties and perused the record. 7. The case of the prosecution is that vide D.D. No. 59-A dated 24.04.2014 at about 7:39 pm, the police were informed by a caller that the husband of the caller had committed rape on her daughter, aged about seven years. The above-said information was assigned to Women Sub-Inspector Chandra Kanta for reconnoitering. Women Sub-Inspector Chandra Kanta, along with Constable Prahlad, reached the spot and found the mother of the child victim, who in her statement, stated that she has been residing at B-30, Sita Puri, Gali No. 4, near Nehru Academy School, along with her family. She hails originally from Post Sarmera, District Patna, Bihar, and her husband hails from Samastipur. She stated that she works as a housemaid; and her husband mostly remains at home and is a habitual drinker. On 24.04.2014, at about 4:30 pm, she left her home for work and when she had returned at about 7:00 pm, her daughter, aged about seven years, had told her that when she had gone to work in the evening, and the child victim had gone to take water, her father had closed the window and door of the room and opened the chain of his pant and put his private part to her mouth and, thereafter, he had forcibly inserted his private part into her vagina. Police endorsed her statement and, thereafter, registered the case under Sections 376/377 IPC and under Section 6 of the POCSO Act. During the course of the investigation, police collected the evidence, both oral and documentary, and arrested the accused. After completion of the investigation, police filed the chargesheet in the court; and offences under Section 6 read with 5 (n) POCSO Act 2012 were framed against the accused, to which he pleaded not guilty and claimed trial. 8. Before the trial court, the prosecution examined 18 witnesses in support of the charges, namely- the mother of the child victim/Munni (PW2), child victim (PW1), sister of the child victim (PW4), Principal Amar Singh (PW6), Dr. Khushboo Gupta (PW10), Dr. Manjeet Kumar (PW5), Dr. Bobo Singh (PW7), MM Ms. 8. Before the trial court, the prosecution examined 18 witnesses in support of the charges, namely- the mother of the child victim/Munni (PW2), child victim (PW1), sister of the child victim (PW4), Principal Amar Singh (PW6), Dr. Khushboo Gupta (PW10), Dr. Manjeet Kumar (PW5), Dr. Bobo Singh (PW7), MM Ms. Mann Goel Kharb (PW8), HC Ishwari Lal (PW3), Head constable Raj Singh (PW9), Constable Ajeet Singh (PW11), Constable Satish (PW14), Women Constable Manju (PW12), Constable Prahlad (PW13), Constable Ravinder (PW15), ASI Khazan Singh (PW18), Constable Anil (PW17) and Women Sub-Inspector Chandra Kanta (PW16) and, thereafter, the appellant made his statement under Section 313 of Cr.P.C, wherein, he claimed innocence and stated that the child victim had deposed before the court at the instance of her mother who did not want to live with him. 9. After evaluating all the evidence adduced by the parties, the trial court found the appellant/accused guilty of the offences under Section 6 read with Section 5(n) of the POCSO Act and accordingly, the appellant has been convicted and sentenced as mentioned above. 10. On perusal of the impugned judgment, it appears that the trial court considered the case under the anvil of the following facts:- a. Firstly, whether in the present case the victim was below the age of majority. The prosecution proved the same through the school admission record, according to which the date of birth of the child victim was 10.02.2008 and the date of the incident was 24.04.2014. b. Secondly, whether the child victim was subjected to penetrative sexual assault. The prosecution examined Dr. Manjeet Singh (PW5), Dr. Naorem Bobo Singh (PW7) and Dr. Khushboo Gupta (PW10). The testimonies of all these witnesses remained unchallenged, unrebutted and uncontroverted. Dr. Khushboo Gupta (PW10) deposed that one girl aged about 7 years, was referred to the Department of OBS and Gynae by CMO. She examined the child victim and found the vaginal introitus healthy. She also found a small superficial cut around 05 cm at the lower margin of the anal orifice, and there was a cut around 2 mm at the right lateral margin of the anus. There were two-three small worms (trichuris) around the anus. The examination was painful. Samples were taken. She also found a small superficial cut around 05 cm at the lower margin of the anal orifice, and there was a cut around 2 mm at the right lateral margin of the anus. There were two-three small worms (trichuris) around the anus. The examination was painful. Samples were taken. As the gynaecologist found an injury on the anus region of the child victim and the examination was painful, the prosecution proved the fact that the child victim was subjected to sexual assault. c. Thirdly, whether the penetrative sexual assault was by the child victim's father, for which the trial court relied on the testimony of the child victim, the sister of the child victim, the mother of the child victim and the FSL report. The Forensic Science Laboratory/Ex. PX examined the exhibits collected by the doctor from the child victim and the accused on 24.04.2014 and 25.04.2014. The Ex. PX is reproduced as under- 'The exhibits were subjected to DNA examination. Blood was found on exhibits 2', 3', 4', 5', 8', 12' and 13', i.e., microslide as anal smear of the child victim, cotton wool swab on a wooden stick described as a perineal swab, one underwear having the brown stain of the child victim, cotton wool swab on a wooden stick, anal swab of the child victim, brown gauze cloth piece of accused, gauze cloth piece of the victim and dark brown foul-smelling liquid as blood sample EDTA vial from the victim. Human semen was found on the exhibit 2', 3', 4' and 5'. Sh. Indresh Kumar Mishra, Assistant Director (Biology), Forensic Science Laboratory, Rohini, concluded that alleles from the source of exhibit 8' (blood in gauze from accused) and 13' (blood sample EDTA vial from the victim) were accounted in the mix alleles from the source of exhibit 2' (anal smear from, prosecutrix), 3' (i.e., a perineal swab from prosecutrix), 4' (underwear from prosecutrix) & 5' (i.e., an anal swab from prosecutrix).' 11. The age of the prosecutrix has not been questioned by either of the parties, so point 'a' is unchallenged. The challenge herein is with regard to points  'b' and  'c'. The age of the prosecutrix has not been questioned by either of the parties, so point 'a' is unchallenged. The challenge herein is with regard to points  'b' and  'c'. To substantiate the same, the appellant alleges that there are certain contradictions and inconsistencies in the testimonies of the witnesses which discredit them, and the FSL cannot be taken as cogent evidence due to not putting the same to the appellant-accused under Section 313 of the Cr.P.C. 12. With respect to the argument of the learned counsel for the appellant under Section 313 of the Cr.P.C, it can be seen that on 7.10.2016, evidence of PW16, namely IO Women Sub Inspector Chandra Kanta, was completed, and she was discharged. On 07.01.2017, the statement of the accused under Section 313 of the Cr.P.C was recorded. On 08.03.2017, the trial court directed the production of the FSL report and a notice to the director (FSL) was issued. On 05.04.2017, the results of the FSL were produced by PW16. The copy thereof was supplied to counsel for the accused, and on the same date, the statement of PW16 was recorded. The counsel for the accused was given the opportunity to cross-examine, which was not availed, and the FSL report was exhibited as Ex.PX. The order dated 08.03.2017 is reproduced under:- 'State v. Ram Guru FIR No. 294/14 P.S. Dabri 08-03-2017 Present: Sh. Pramod Kumar, Ld. (Substitute) Addl. P.P. for state Accused produced from J.C. Report has not been filed from the FSL Director FSL is directed to file the report. Issue notice to the Director (FSL) in this regard for the next date of hearing. Put up on 05.04.2017 sd/- (Atul Kumar Garg) Ld. ASJ-01, South-West District Dwarka Courts, New Delhi 08.03.2017' Statement of PW16/IO W-SI Chandra Kanta dated 05.04.2017 is reproduced as under:- 'State v. Ram Guru FIR No. 294/14 P.S. Dabri Statement of the IO W-SI Chandra Kanta No. 4768-D, SW, P.S. Dabri ON S.A. I have completed the FSL result in the present case. I hereby tender FSL result. At this stage, one sealed envelope duly sealed with the seal of FSL, Delhi is opened and same is found contained FSL result dt. 15.03.2017. The FSL result is now Ex. PX. XXXXX by Sh. L.S. Gautam, Ld. Counsel for the accused Nil. Opportunity given. I hereby tender FSL result. At this stage, one sealed envelope duly sealed with the seal of FSL, Delhi is opened and same is found contained FSL result dt. 15.03.2017. The FSL result is now Ex. PX. XXXXX by Sh. L.S. Gautam, Ld. Counsel for the accused Nil. Opportunity given. RO&AC sd/- (ATUL KUMAR GARG) SPECIAL JUDGE (POCSO), SOUTH-WEST DISTRICT DWARKA COURTS, NEW DELHI 05.04.2017' On 15.04.2017 and on 25.04.2017, arguments were heard and on 28.04.2017, the judgement of conviction was passed. 13. Section 313 of the Cr.P.C confers valuable rights upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, as has been held in the decision of Reena Hazarika v. State of Assam (2019) 13 SCC 289 This Section empowers the court to examine the accused after the evidence for the prosecution has been taken. The object of empowering the court to examine the accused is to give him an opportunity of explaining any circumstances which may tend to incriminate him and thus to enable the court, in a case where the accused is undefended, to examine the witnesses in his interest. The examination of the accused under Section 313 of Cr.P.C is not a mere formality. The accused must be given the opportunity to explain each and every circumstance appearing in the evidence against him. Section 313 of the Cr.P.C. prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him. The accused are to be specifically questioned about as to what their defense is against the incriminating material brought before him or her. 14. In the decision of Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 , with the same being reiterated in State (Delhi Administration) v. Dharampal (2001) 10 SCC 372 , The Hon'ble Supreme Court has stated that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. The accused must show that failure of justice was occasioned by such omission. Further, in the event of inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has with regard to the circumstances established against him but not put to him. 15. The Hon'ble Supreme Court, in its decision in Nar Singh v. State of Haryana (2015) 1 SCC 496 , has considered the recourse with the appellate court regarding the scope of Section 313 of the Cr.P.C under the facts where the appellant/accused had raised a plea that material evidence in the form of Ex. P-12, i.e., the information of the ballistic expert, was not put to him while recording his statement under Section 313 of the Cr.P.C. The court has held that- '30. Whenever a plea of omission to put a question to the accused on a vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:- (i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused, and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer; (ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits. (iii) If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage 6 (2015) 1 SCC 496 of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh; (iv) The appellate court may decline to remit the matter to the trial court for retrial on account of the long-time already spent in the trial of the case and the period of sentence already undergone by the convict, and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused..' 16. In the case at hand, admittedly, the statement under Section 313 of the Cr.P.C was recorded much before the production of the FSL report, and therefore the incriminating evidence was not put before the accused. In view of the aforesaid, the substantial right of the appellant stands violated while not putting entire incriminating material before him; therefore, instead of taking any of the recourse suggested in the case of Nar Singh (supra), this court finds it appropriate to ignore FSL report Ex.PX to be read in evidence against the appellant and proceeds to decide the matter on merits. 17. While perusing the records, PW1/ the child witness, after she was found competent to depose, testified that on the day of the incident, the mother of the child victim had gone to work, her younger brother and sister were present in the house and the appellant/father of the victim who was sleeping inside the house, called the victim on the bed. Thereafter, the appellant put his penis into the mouth of the victim and inserted his penis into her anus. She felt severe pain at that time, and when she went to attend the call of nature, she noticed blood. She apprised her mother of the same, who then called the police. Thereafter, the appellant put his penis into the mouth of the victim and inserted his penis into her anus. She felt severe pain at that time, and when she went to attend the call of nature, she noticed blood. She apprised her mother of the same, who then called the police. On cross-examination, she further stated that she had not narrated the alleged incident at the instance of her mother, and it is wrong to suggest that no such incident took place with her. 18. PW4/the sister of the child witness, after she was found competent to depose, testified that on the day of the incident, when her mother left the house for work, she went to fetch water from the mosque. When she returned, her younger sister, the child victim, told her that the appellant had inserted his penis into her anus, and the child victim started bleeding and crying. Once her mother returned, she apprised the entire incident to her, who in turn then called the police. On cross-examination, she stated that she had been tutored by her mother to depose against the accused and that a fight took place between the accused/appellant and her mother, but it was wrong to suggest that the appellant did not commit any wrong act with her sister. So far as the testimony of this witness is concerned, she did support the allegation of sexual assault. 19. PW2/mother of the child victim, Munni, testified that when she returned from work, she found 10-12 persons gathered in front of the house, as PW4 had already told some persons about the incident. PW4 told her that the appellant had committed a wrong act with the child victim. She inquired from the child victim, who told her that the appellant had put his penis into her mouth and inserted his penis into her anus. She called the police thereafter. The appellant was not at the house and he called to ask for money; and on the pretext of giving him the money, he was apprehended by the police officials. She, on cross-examination, testified that it was wrong to suggest that she did not want to stay with the accused due to frequent fights and that she had falsely implicated him pursuant to a conspiracy with the child victim. 20. The Hon'ble Supreme Court, in the matter of State of Punjab v. Gurmit Singh & Ors. She, on cross-examination, testified that it was wrong to suggest that she did not want to stay with the accused due to frequent fights and that she had falsely implicated him pursuant to a conspiracy with the child victim. 20. The Hon'ble Supreme Court, in the matter of State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384 , illustrating the reliability of the statement of the prosecutrix, stated that minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and does not require corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. 21. The same has been reiterated in multiple judgments of the Hon'ble Supreme Court in the cases of Sham Singh v. State of Haryana (2018) 18 SCC 34 , Vijay @ Chinee v. State of Madhya Pradesh (2010) 8 SCC 191 , Mukesh & Anr. v. State (NCT of Delhi) & Ors. (2017) 6 SCC 1 , State represented by Inspector of Police v. Saravanan & Anr. (2008) 17 SCC 587 , State of Himachal Pradesh v. Manga Singh (2019) 16 SCC 759 and in the recent judgment of Pappu v. State of Uttar Pradesh 2022 SCC OnLine SC 176 22. The Hon'ble Supreme Court, in its decision in Phool Singh v. State of Madhya Pradesh (2022) 2 SCC 74 , wherein the appellant was convicted, and the ground for defence raised was that the medical evidence did not support the prosecution and the entire case of the prosecution rests on the sole deposition of the prosecutrix, while relying on multiple judgements, observed that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration and that the sole testimony of prosecutrix should not be doubted by court merely based on assumptions and surmises. Further, this court, in Vijay v. State 2019 SCC OnLine Del 1048 , also dismissed the appeal against conviction on the ground that the child victim's testimony had been consistent and no contradictions were found in the victim's testimony. 23. Further, this court, in Vijay v. State 2019 SCC OnLine Del 1048 , also dismissed the appeal against conviction on the ground that the child victim's testimony had been consistent and no contradictions were found in the victim's testimony. 23. A similar stance was taken by the High Court of Calcutta in Prabir Bhuian v. State of West Bengal 2021 SCC OnLine Cal 3063, wherein the appeal of the accused, who was the stepfather of the victim, against conviction under Section 8 of POCSO was being heard, it was observed that minor contradictions in the testimony of the witness are no ground to reject the whole of the testimony of the witness:- 'Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of human conduct would be that while narrating the particular incident, there may occur minor discrepancies, such discrepancies may render credential to the depositions. Parrot like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and the environment in which such witness was making the statement.' 24. In the present matter, the testimonies of the child victim (PW1), mother of the child victim (PW2) and sister of the child victim (PW4), so far as the incident in question is concerned, are consistent and do not suffer from any apparent material inconsistencies. 25. Under such circumstances, the conviction cannot be interfered with on the ground of inconsistencies in the evidence of the prosecutrix. Therefore, this argument of the learned counsel for the appellant is hereby rejected. 26. So far as the argument that the victim was tutored by the mother of the victim/wife of the appellant as she did not wish to reside with the accused anymore is concerned, non-cordial relations between the mother of the victim and the accused cannot lead to a presumption of tutoring when the account of the victim in regard to the offence does not suffer from any inconsistencies. In Subash Chandra Rai v. The state of Sikkim 2018 SCC OnLine Sikk 29, the same was cemented with- 'Merely because P.W. 4 was presumably not in a cordial relationship with her husband did not mean that she would have made the victim a bait to bail out of the marriage by accusing him of depraved and degenerate acts. Such accusations could not have assured her of an escape from her marriage without recourse to legal procedure.' 27. On the basis of the aforesaid, there are no major inconsistencies between the witness testimonies of the prosecution being the mother of the victim, the sister of the victim and the victim herself, and therefore, this court does not find any justification to take a contrary view. 28. Accordingly, the conviction and sentence is upheld. The appeal is hereby dismissed and pending application(s), if any, are accordingly disposed of. 29. This court appreciates the assistance provided by the learned counsel for the parties DELHI HIGH COURT ANU MALHOTRA Bail Appln. No.2208/2022  D/d. 14.11.2022 Sher Singh @ Raj Bohara Versus State (Nct of Delhi) For the Petitioner : Mr. Venamra Mahaseth, Mr. Bhaskar Tripathi & Mr. Abhishek Singh, Advocates. For the Respondent : Mr. Shoaib Haider, APP for State with SI Bhagwan Singh, Special Cell/SWR. Actsreferred: Indian Penal Code -- Section 120B Code of Criminal Procedure -- Section 173, 167(2), 161 & 164, 167(2), 439 Official Secrets Act -- Section 3, 4 & 5 Cases Referred: Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 [Para 17] JUDGMENT Anu Malhotra, J.:-- 1. The applicant vide the present application seeks the grant of bail in relation to FIR No. 230/2020 Police Station Special Cell registered under Section 3,4 &5 of the Official Secrets Act, 1983 &, submitting inter alia to the effect that he has been falsely implicated in the instant case and that he is uneducated, illiterate, is a citizen of Nepal and has been residing in India for a substantial period and had come to India to find a suitable job to cater to the needs of his family which is totally dependent on him. 2. 2. The applicant submits that he worked as a Taxi Driver in the Delhi NCR for his livelihood and found an opportunity to join a company at Mahipalpur named MZ Mall Private Limited for the position of an office peon-cum-driver at a monthly salary of Rs.10,000/- and his role in the said company was limited to strict and specific instructions of the Management of the company comprising of Mr. Zhang Zheng @ Suraj and Ms. Zhang Lixia @Usha. Inter alia, the applicant submits that his role was to clean the office, drive a vehicle and to work as per the directions of the Director of the Company Mr. Zhang Zheng @ Suraj and that the applicant used to deliver/pick any packages as per the specific directions of the management. 3. The applicant further submits that he was not aware of the business of the company and his role was limited and to his understanding the company was involved in the pharmaceutical Sector. 4. Inter alia, the applicant submits that towards the end of January, 2020 Mr. Zhang Zheng @ Suraj and Ms. Zhang Lixia @Usha departed to China for a short visit on personal reasons and after their departure all the flights from and to China were suspended during the Covid-19 situation and they could not return back to India, and handled the business of the company from China through internet and calls and in the meantime, India also declared a nationwide strict lockdown from 24th of March 2020 suspending all the movements in the entire country. 5. The applicant submits that he has been behind bars since 19.9.2020 in relation to the FIR No. 230/2020 Police Station Special Cell registered under Sections 3, 4 & 5 of the Official Secrets Act and further Section 120B of the Indian Penal Code, 1860 was added alleging that the applicant was the part of the alleged conspiracy though the applicant was not named in the FIR and was arrested on the lead provided by Rajeev Sharma, Accused No.1, during interrogation. Inter alia the applicant submits that he was in police custody for a period of 9 days and thereafter sent to Judicial custody from 27.9.2020 and that the final report under Section 173 of the Cr.P.C., 1973, was filed on 28.11.2020 with a delay of 10 days. 6. Inter alia the applicant submits that he was in police custody for a period of 9 days and thereafter sent to Judicial custody from 27.9.2020 and that the final report under Section 173 of the Cr.P.C., 1973, was filed on 28.11.2020 with a delay of 10 days. 6. Inter alia, the applicant submits that the other co-accused availed of the default bail under Section 167(2) of the Cr.P.C., 1973, and that the main accused was released vide order dated 4.12.2020 of the Co-ordinate Bench of this Court in Crl. Rev. Petition No. 363/2020 and the other co-accused Qing Shi was granted bail by the Co-ordinate Bench of this Court vide order dated 28.7.2021 in Crl. Rev.P. No. 82/2021. Inter alia the applicant submits that in the absence of legal aid he could not avail of the default bail before filing of the charge sheet as he could not afford to hire any advocate for his defence. 7. The applicant has further submitted that the Directorate of Enforcement recorded an ECIR at the instance of the present matter being a predicate offence and arrested the main accused Rajeev Sharma who was out on bail on 1.7.2021 and arrested the co-accused Qing Shi from the Central Jail No.-06, Tihar Prisons in connection with the ECIR/05/STF/2021 but the Enforcement Directorate did not choose to arrest the applicant and filed the final complaint/chargesheet. 8. The applicant further submits that the accused persons arrested by the Enforcement Directorate under the PMLA, 2002 on the same facts of this matter have already been released on regular bail on merits in ECIR/05/STF/2021 in as much as the main accused Rajeev Sharma was enlarged on regular bail vide order dated 7.1.2022 in Bail Appln. No. 3156/2021 and the co-accused Ms. Qing Shi was released on regular bail by the Special Court PMLA, Patiala House Courts, New Delhi vide order dated 18.1.2022. 9. Vide the status report submitted on 24.8.2022 by the State it has been submitted that a secret input from the Intelligence Agency was received that Mr. No. 3156/2021 and the co-accused Ms. Qing Shi was released on regular bail by the Special Court PMLA, Patiala House Courts, New Delhi vide order dated 18.1.2022. 9. Vide the status report submitted on 24.8.2022 by the State it has been submitted that a secret input from the Intelligence Agency was received that Mr. Rajeev Sharma, the co-accused had links with a Foreign Intelligence Officer and had been receiving funds from his handler through illegal means & Western Union money transfers platforms for conveying sensitive information (having a bearing on National Security & Foreign relations) through electronic means to his handler based abroad and an FIR 230/2020 Police Station Special Cell, dated 13.9.2020 under Sections 3, 4 & 5 of the Official Secrets Act 1983 was registered and during investigation the accused Rajeev Sharma S/o Late Sh. Rattan Lal Sharma, the co-accused, aged 61 years was arrested on 14.9.2020 and during the search of the house of the co-accused Rajeev Sharma several articles including some sensitive/ confidential documents related to the Indian Defence Department were recovered at the instance of the accused Rajeev Sharma and during further investigation it was revealed that the accused Rajeev Sharma was indulging in procurement of secret/ confidential/ sensitive documents/material information conveying the same to his handlers (Chinese Intelligence Officers) based in China and in lieu of the same he was receiving remuneration through illegal means i.e. hawala transactions/funds through shell companies being operated through the Chinese persons in India. 10. Inter alia, it was submitted through the status report that during further investigation it was revealed that the accused Rajeev Sharma was in contact with Chinese Intelligence Officers through emails and social media platform i.e. Telegram etc. and the accused Rajeev Sharma was conveying the information to these Chinese Intelligence Officers and was receiving the illegal funds through illegal means/shell companies being operated in Mahipalpur, Delhi, by the Chinese people on the direction of the Chinese Intelligence Officers. 11. It was further submitted through the status report that during the course of the further investigation the co-accused Qing Shi @ Queen Shi D/o Shi Chaoqun, a Chinese National and Sher Singh, the applicant herein, a Napalese citizen were arrested on 19.9.2020 and during investigation it was revealed that MZ Mall Private Limited and MZ Pharmacy Private Limited were being operated at L-382B, First .Floor, Mahipalpur Extn., New Delhi and Mr. Jhang Cheng @ Suraj, a Chinese national was the Director of these companies and Sher Singh, the applicant herein, was a co-director of one of these companies and Ms. Qing Shi and Sher Singh were operating these companies on behalf of Mr. Jhang Cheng and his wife/partner Ms . Zhang Lixia as both of them were present in China. Inter alia through the status report it was averred that the accused Rajeev Sharma was being funded through these shell companies on the directions of Chinese Intelligence Officers as remuneration for the information provided to them by him and the remuneration to the accused Rajiv Sharma has also been confirmed by the seudo witnesses during the investigation in their statements u/s 161 and 164 of the Cr.P.C., 1973. 12. Inter alia, the State submits that a report from the Defence Department of India was sought regarding the sensitive/confidential documents recovered from the house of accused Rajeev Sharma whereby a reply was received as 'Yes' and that the documents are classified as "CONFIDENTIAL" vide Para 9 of Classification & Handling of Classified Documents (CHCD)-2001 as issued vide Military Intelligence - 11 letter Number. A/38020/MI-11 dated July 2001, and the person i.e., the accused Rajeev Sharma had unauthorized possession of the said documents. Inter alia it was submitted through the status report that it was also mentioned by the DGMI that any unauthorized disclosure of content of these documents could be expected to cause damage to National Security or could be prejudicial to the National Interests or would embarrass the Government in its functioning and the contents contained in the documents are directly or indirectly connected with security matters of the country. 13. The State submits that the accused Rajeev Sharma granted bail by the Co-ordinate Bench of this Court on 4.12.2020 under Section 167(2) of the Cr.P.C., 1973 and the co-accused Qing Shi was also granted bail by the Co-ordinate Bench of this Court under Section 167(2) of the Cr.P.C., 1973 on 28.7.2021. 14. Undoubtedly, the applicant in the instant case was arrested on the same date as the co-accused Qing Shi both having been taken into police custody on 19.9.2020 and put into judicial custody on 27.9.2020. The co-accused Qing Shi in terms of order dated 28.7.2021 of the Co-ordinate Bench of this Court Crl.Rev. Petition No. 82/2021 has been allowed to be released on default bail. The co-accused Qing Shi in terms of order dated 28.7.2021 of the Co-ordinate Bench of this Court Crl.Rev. Petition No. 82/2021 has been allowed to be released on default bail. The other main accused in the instant case Rajeev Sharma vide order dated 4.12.2020 also in Crl.Rev. Petition No. 363/2020 had been allowed to be released on default bail in terms of Section 167(2) of the Cr.P.C., 1973. 15. As has been submitted by the applicant that he did not seek redressal in terms of Section 167(2) of the Cr.P.C., 1973, in terms of Section 167(2) of the Cr.P.C., 1973, the provision for grant of default bail becomes applicable only if the accused person falls within the parameters of Section 167(2)(a)(ii) falls within the category of a person  'who is prepared to and does furnish bail.' 16. In the instant case, admittedly, the applicant had not chosen to seek the grant of default bail through provisions of Section 167(2) of the Cr.P.C., 1973 and it is rightly held vide order dated 20.5.2022 of the Court of the Additional Sessions Judge-05, New Delhi declining the prayer made by the applicant seeking the grant of bail observing to the effect that there is no parity between the applicant and the co-accused Rajeev Sharma and Qing Shi granted default bail under Section 167(2) of the Cr.P.C., 1973. 17. This is so in as much as vide a verdict of the Hon'ble Supreme Court in Rakesh Kumar Paul V. State of Assam, (2017) 15 SCC 67 a verdict dated 16.8.2017 in SLP(Crl.) 2009/2017 with SLP (Crl.) No. 2176/2017, the question in para 98.2(ii) thereof which reads to the effect: '98. The three main questions that arise in these appeals for our consideration are as under: 98.1 (i) 98.2 (ii) Whether the appellant is entitled to default bail under Section 167(2) of the Code though he has not made any application (oral or written) under Section 167(2) of the code before the Magistrate (or Special Judge), but has instead argued orally without pleadings in a pending regular bail application filed under Section 439 of the Code before the High Court? 98.3 (iii) .?' It has been expressly laid down vide paragraph 108 to 113 of the said verdict to the effect: ''108. 98.3 (iii) .?' It has been expressly laid down vide paragraph 108 to 113 of the said verdict to the effect: ''108. The second issue which requires to be addressed is whether the Appellant is entitled to statutory bail Under Section 167(2) of the Code though he has not made any application Under Section 167(2) of the Code before the Magistrate(or Special Judge) prior to the filing of the charge sheet. The record of the case reveals that the Appellant was arrested on 4.11.2016 and produced before the Magistrate on 5.11.2016 and he was remanded to custody for the first time. The period of sixty days for filing charge sheet expired on 04.01.2017. The charge sheet came to be filed on 24.1.2017. Initially the Appellant had applied for regular bail before the Sessions Court which came to be rejected on 20.12.2016. Thereafter he moved bail application No. 23/2017 for bail Under Section 439 of the Code before the High Court of Guwahati. This bail application was disposed on 11.01.2017 which was after sixty days of arrest, but prior to filing of charge sheet. A perusal of this bail application shows that this bail application was moved Under Section 439 of the Code for regular bail on merits and not as a bail claiming the statutory right Under Section 167 of the Code. In none of the grounds taken in the bail application, the Appellant has pleaded for default bail as a result of non filing of the charge sheet. All the grounds urged are on merits. The prayer is also for regular bail. It appears that, prior to the time of hearing, the counsel for the Appellant has realised that the Accused was entitled for default bail Under Section 167(2)and has taken the plea in the oral arguments in the High Court that since sixty days for filing charge sheet has expired, he is entitled to bail as matter of right Under Section 167(2) of the Code. The question thus arises, whether such application on merits can be equated to be an application seeking enforcement of statutory right Under Section 167(2) of the Code and whether such practice of taking such oral arguments directly before the High Court in a pending regular bail application without having taken such grounds in the application or having approached the Magistrate(or Special Court) should be entertained. 109. 109. The legal position regarding bail Under Section 167(2) of the Code was cemented by a Constitution Bench of this Court which has inter alia held in the case of Sanjay Dutt v. State through C.B.I., Bombay that: ... '53.(2) (b)The "'indefeasible right" of the Accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur v. State of Maharashtra, is a right which enures to, and is enforceable by the Accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the Accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the Accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage...' 110. In Uday Mohanlal Acharya v. State of Maharashtra three Judge Bench of this Court had the occasion to determine when an Accused can be said to have availed of his indefeasible right for being released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure, if a challan is not filed within the period stipulated thereunder. The Court held in a majority of 2:1 that the indefeasible right is said to be availed at the time when an application is made for enforcement of the right Under Section 167(2) of the Code and the Accused offers to abide by the terms and conditions of bail. While holding so, the court, in para 11, interpreted the decision in Dr. Bipin Shantilal Panchal v. State of Gujarat, a three Judge Bench decision of this Court, as under: '11. In this case (Dr. While holding so, the court, in para 11, interpreted the decision in Dr. Bipin Shantilal Panchal v. State of Gujarat, a three Judge Bench decision of this Court, as under: '11. In this case (Dr. Bipin Shantilal Panchal), the Accused had not made application for enforcement of his right accruing under proviso to Section 167(2) of the Code. But raised the contention only in the Supreme Court. This Court, therefore, formulated the question thus-Whether the Accused who was entitled to be released on bail under proviso to Sub-section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, and answered in the negative.' 111. The requirement for making the application for seeking enforcement of the right Under Section 167(2) has been recognised in several cases. In the case of Mohamed Iqbal Madar Sheikh v. State of Maharashtra, this Court rejected the claim for statutory bail under Section 167(2) of the Code on the ground that no application was made on that ground. In para 11 of the judgment the Court held as under: '11.So far the facts of the present case are concerned, the Appellant Nos. 1 to 6 were taken into custody on 16.1.1993. The chargesheet was submitted on 30.8.1993; obviously beyond the statutory period Under Section 20(4)(b). There is nothing on record to show that provisions of Section 20(4)(bb) were applied in respect of Appellants. They had become entitled to be released on bail under proviso (a) to Section 167(2) of the Code read with Section 20(4)(b) of the TADA. But it is an admitted position that no application for bail on the said ground was made on behalf of the Appellants. Unless applications had been made on behalf of the Appellants, there was no question of their being released on ground of default in completion of the investigation within the statutory period. It is now settled that this right cannot be exercised after the charge-sheet has been submitted and cognizance has been taken, because in that event the remand of the Accused concerned including one who is alleged to have committed an offence under TADA, is not Under Section 167(2) but under other provisions of the Code.' 112. In Hitendra Vishnu Thakur and Ors. In Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Others, it was held in para 30 that: 'In conclusion, we may (even at the cost of repetition) say that an Accused person seeking bail under Section 20(4) has to make an application to the court for grant of bail on grounds of the 'default' of the prosecution and the court shall release the Accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail Under Section 20(4) of TADA and both the provisions operate in separate and independent fields. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under Clause(bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an Accused to have his say regarding the prayer for grant of extension under Clause(bb). In this view of the matter, it is immaterial whether the application for bail on ground of' default' Under Section 20(4) is filed first or the report as envisaged by Clause(bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail.' 113. The law laid down as above shows that the requirement of an application claiming the statutory right Under Section 167(2) of the Code is a prerequisite for the grant of bail on default. In my opinion, such application has to be made before the Magistrate for enforcement of the statutory right. In the cases under the Prevention of Corruption Act or other Acts where Special Courts are constituted by excluding the jurisdiction of the Magistrate, it has to be made before such Special Court. In the present case, for the reasons discussed, since the Appellant never sought default bail before the court concerned, as such not entitled to the same.' (emphasis supplied), having thus been held categorically vide paragraph 113 adverted to herein above that since the applicant therein had not sought the default bail before the Court concerned , as such he was not entitled to the same. 18. 18. In the instant case, admittedly, the applicant did not seek the grant of default bail though it was stated that it was not sought because the applicant was not adequately, legally represented. It is essential to observe that vide observations in para 11 in the verdict titled Kavita @ Laxmi V. State of NCT of Delhi; Bail Appln. No. 3062/2021, a verdict dated 15.9.2021 it was observed by this Court as under: '11. In the instant case too, there is nothing on the record to indicate that the applicant had sought grant of any default bail. It is however the submission raised on behalf of the applicant by learned counsel for the applicant that the applicant was not legally represented and it was the bounden duty of the Court to ensure that there was a compliance of the provisions of Section 167(2) of the Cr.P.C., 1973 as had been made even on the date 2.6.2017 in relation to the application of the co-accused named Satbir. In relation to this aspect, it is essential to observe that vide a verdict dated 14.3.2018 of this Court in Bail Appln. No. 2238/2017 titled Arvind Kumar Saxena V. State, there are observations in para 21 of the said verdict whereby it has inter alia been observed to the effect that the Registrar General of this Court was requested to explore the possibility of creation of a database and software for the District Courts of Delhi for updation of the date in relation to the pending remand applications during the course of investigation pending before the Trial Courts with the dates of arrest and dates by when the requisite chare-sheet is to be filed in terms of Section 167(2) of the Code of Criminal Procedure, 1973 and the date when the said charge-sheet has been filed which would assist the learned Trial Courts in preservation of the rights of personal liberties of the accused appearing before them by informing the accused on coming to know that an accused person before them is entitled to the indefeasible right of default bail and may thus exercise the same if he / she is willing to furnish bail.', 19. Apparently, in the instant case as observed herein above, the applicant is not entitled to the grant of default bail in as much as the prayer seeking the grant of default bail or bail even in terms of Section 439 of the Cr.P.C., 1973 had not been made by the applicant prior to the impugned order declining bail. CONCLUSION 20. Taking into account, thus the allegations levelled against the applicant of his being involved allegedly as a co-director of one of the Chinese companies through whom the information falling within the ambit of secret/confidential/sensitive documents material information was being conveyed by the co- accused Rajeev Sharma to Chinese Intelligence Officers allegedly and that there was a conveyance of documents classified as 'Confidential' being conveyed by the company of which the petitioner/applicant herein was one of the co-directors for which funding was received by the co-accused Rajeev Sharma through the Shell company of which the applicant herein was allegedly a co-director, in view of the gravity of the offence affecting the national security of the country, there is no ground for grant of bail and the bail application is declined. 21. It is, however, expected by this Court that the observations of this Court in Arvind Kumar Saxena V. State; a verdict dated 14.3.2018 in Bail Appln. No. 2238/2017 referred to herein above vide paragraph 18 are expeditiously explored to be implemented by the Registrar General of this Court.