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PETITIONER: STATE THROUGH CBI

       Vs.

RESPONDENT: MOHD. ASHRAFT BHAT & ANR.

DATE OF JUDGMENT07/12/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. VENKATASWAMI K. (J)

CITATION:  1996 SCC  (1) 432        1995 SCALE  (7)193

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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

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    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

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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.