State through
CBI Vs. Mohd. Ashraft Bhat & Anr [1995] INSC 807 (7 December 1995)
Punchhi,
M.M.Punchhi, M.M.Venkataswami K. (J)
CITATION:
1996 SCC (1) 432 1995 SCALE (7)193
ACT:
HEAD NOTE:
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 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.
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