STATE THROUGH CBIversusMOHD. ASHRAFT BHAT AND ANR.

A                            STATE THROUGH CBI
                                           v.
                     MOHD. ASHRAFf BHAT AND ANR.

                                DECEMBER 7, 1995

B              [M.M. PUNCHHI AND K. VENKATASWAMI, JJ.]

          Code of Criminal Procedure, 1973/Tmorist and Disruptive Activities
    (Prevention) Act, 1987:

c tigationS.167120(4)-Right to bail on failure of prosecution to complete inves-
            within period prescribed-Held, does not survive on cha/Ian being
    filed-Period of limitation-To be computed from date of a"est in connection
    with relevant case.

           The respondent was arrested under the Terrorists and Disrnptive Ac·
D   tivities (Prevention) Act, 1987 in connection with F.I.R. No. 14 of 1991 and
    F.I.R. No. 56 of 1991. The date of arrest in respect of the latter case was
    17.4.1992 and the prosecution submitted the challan in respect thereof on
    23.12.1992. The Designated Court by its order dated 9.5.1994 released the
    respondent on bail in terms of s.167, Cr.P.C. accepting the case of the
E   respondent that the prosecution failed to submit the cballan within the
    period prescribed. Aggrieved, the State filed the appeal.

          Allowing the appeal, this Court

           HELD: 1. The Designated Court erred in releasing the respondent on
    bail. The right of the respondent to bail indefeasible on the expiry of the
F   period of one year is enforceable only prior to filing of the challan and it does
    not survive or remain enforceable on the challan being filed. Once the chal·
    Ian has been filed, the question of grant of bail has to be considered and
    decided on merits. [301-G-H,302-A]

G         Sanjay Dutt v.State, reported in [1994] 5 SCC 410, followed.

          2. The Designated Court also erred in computing the period of one
    year. In the instant F.I.R. No. 56 of 1991 the respondent was arrested on
    17.4.1992, but his date of arrest for the purpose of computing the period of
    limitation was taken as the date of the original arrest in the earlier F.I.R. No.
H   14 of1991. The limitation has to be computed from the later date. [302-D]
                                          300
               STATEIBROUGHCBI v.ASHRAFfBHAT                              301

    . Central Bureau of lllvestigation, Special Investigation Cell-I, Nev< DeU1i A
v. Anupam !. Kulkarni, [1994] 5 SCC 141, relied on.

      3. In the circumstances, the bail granted to the respondent is can-
celled. He shall be arrested, but subject to the condition that he may of his
own appear before the Designated Court and surrender himself and pray            B
for bail on merits. [303-C]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1708 of 1995.

     From the Judgment and Order dated 9.5.94 of the Pr~siding Officer,          C
Designated Court Jammu & Kashmir in F.No. 336 of 1993.

     K.T.S. Tulsi, Additional Solicitor General, A.S. Bhasme, V. Pahwa
and P. Parmeswaran for the Appellant.

     S.K. Bhattacharya for Respondent No. 1. R.C. Pathak for Respon-             D
dent No. 2.

      The following. Order of the Court was delivered :

      Leave granted.
                                                                                 E
      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   F
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     G
had been filed belatedly. It apparently considered the right of the respon-
dent 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 :                                                         H
    302                   SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.

A           '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
B           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 Pro·
             cedure. If that right had accrued to the accused but it remained
             unenforced till the filing of the challan, then there is no question
c            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
D   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.
E
           This Court in Central Bureau of Investigation, Special Investigation
    Cell-I New Delhi v. Anupam /. Kulkami 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 :
F
             "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 trans·
             action 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
G            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
H            proviso and can remand him to such custody as mentioned therein




                                                                                        J
               S1'ATE1HROUGHCBI v.ASHRAFl'BHAT                         303

         during the first period of fifteen days and thereafter in accordance A
         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 B
         Magistrate and not from the date of arrest by the police. Conse-
         quently 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 fifte~ll days it should be only judicial
         custody.'

       These two fatal errors committed by the Designated Coutt would
                                                                             c
warrant 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 D
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.
                                                                             E
R.P.                                                      Appeal allowed.