PETITIONER:
STATE THROUGH CBI
Vs.
RESPONDENT:
MOHD. ASHRAFT BHAT & ANR.
DATE OF JUDGMENT07/12/1995
BENCH:
PUNCHHI, M.M.
VENKATASWAMI K. (J)
CITATION:
1996 SCC (1) 432 1995 SCALE (7)193
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
This is an appeal against the order dated 9.5.94 of the Presiding Officer, Designated Court established under the Terrorists & Disruptive Activities Act, in the State of Jammu and Kashmir, whereby the first respondent was released on bail in terms of section 167 Cr.P.C. in as much as the prosecution failed to submit police report (challan) within the period prescribed. It transpires that the prosecution submitted the police report on 23.12.92, when the period of one year assigned for the purpose stood expired. It is noteworthy that when claim for bail by the respondent was being examined, the police report indeed stood filed. Yet the Designated Court granted bail to the respondent on the mere fact that the police report had been filed belatedly. It apparently considered the right of the respondent to bail indefeasible on the expiry of the period of one year.
Patently, the Designated Court was in error. A Five Member Bench of this Court in Sanjay Dutt v. State reported in 1994 (5) SCC-410 has ruled at page 442 as follows :
"The indefeasible right accruing to the
accused in such a situation is
enforceable only prior to the filing of
the challan and it does not survive or
remain enforceable on the challan being
filed, if already not availed of. Once
the challan has been filed, the question
of grant of bail has to be considered
and decided only with reference to the
merits of the case under the provisions
relating to grant of bail to an accused
after the filing of the challan. The
custody of the accused after the challan
has been filed is not governed by
section 167 but different provisions of
the Code of Criminal Procedure. If that
right had accrued to the accused but it
remained unenforced till the filing of
the challan, then there is no question
of its enforcement thereafter since it
is extinguished the moment challan is
filed because section 167 Cr.P.C. ceases
to apply."
The second error committed by the Designated Court was with regard to computation of period of one year. It appears that the respondent stood arrested earlier in another F.I.R.No.14 of 1991. In the instant F.I.R.No.56 of 1991, his date of arrest, for the purposes of computing the period of limitation, was taken as the date of the original arrest in the earlier F.I.R.No.14 of 1991. In the instant F.I.R.No.56 of 1991 the respondent was arrested later on 17.4.1992. It is from the later date the period of limitation had to be computed.
This Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni reported in 1994 (5) SCC-141 had the occasion to clarify the position of law on the subject referred at pgs, 158 & 159 as follows :
"There cannot be any detention in the
police custody after the expiry of first
fifteen days even in a case where some
more offences either serious or
otherwise committed by him in the same
transaction come to light at a later
stage. But this bar does not apply if
the same arrested accused is involved in
a different case arising out of a
different transaction. Even if he is in
judicial custody in connection with the
investigation of the earlier case he can
formally be arrested regarding his
involvement in the different case and
associate him with the investigation of
that other case and the Magistrate can
act as provided under section 167(2) and
the proviso and can remand him to such
custody as mentioned therein during the
first period of fifteen days and
thereafter in accordance with the
proviso as discussed above. If the
investigation is not complete within the
period of ninety days or sixty days then
the accused has to be released on bail
as provided under the proviso to section
167(2). The period of ninety days or
sixty days has to be computed from the
date of detention as per the orders of
the Magistrate and not from the date of
arrest by the police. Consequently the
first period of fifteen days mentioned
in section 167(2) has to be computed
from the date of such detention and
after the expiry of the period of first
fifteen days it should be only judicial
custody."
These two fatal errors committed by the Designated Court would warrant setting side its order, and cancelling the bail granted to the respondent. He shall be arrested forthwith, but subject to the concession that he may of his own appear before the Designated Court and surrender himself and pray for bail on the merit of the matter if it is due to him. If he approaches the Court for the purpose, the Designated Court may put the Public Prosecutor to notice immediately and thereafter examine whether the respondent is due for bail in the facts and circumstances of the case, subject to the limitations imposed in the statute.
The appeal stands allowed accordingly.