1995 JTR(SC) 1296
1996 1 AICLR 56 ; 1996 AIR(SCW) 237 ; 1996 1 CCR(SC) 61 ; 1996 CriLR 1 ; 1995 4 Crimes(SC) 787 ; 1996 1 EastCrC(SC) 174 ; 1996 Supp JT 687 ; 1995 7 Scale 193 ; 1996 1 SCC 432 ; 1996 SCC(Cri) 117 ; 1996 1 SCC(Cri) 117 ; 1996 1 SCJ 45 ; 1995 Supp6 SCR 300 ; 1996 1 Supreme 77
1996(1) Supreme 77
SUPREME COURT OF INDIA
M.M. Punchhi and K. Venkataswami, JJ.
State through CBI -Appellant
versus
Mohd. Ashraft Bhat & Anr. -Respondents
Criminal Appeal No. 1708 of 1995
Decided on 7-12-1995
IMPORTANT POINT
Section 167 Cr.P.C. ceases to apply for bail once the challan is filed in court though belatedly.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.167
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT : S.20(4)(b)(b)
A) Relevant laws and sections are not explicitly cited in the judgment.
B) The accused has no indefeasible right to bail after the challan is filed; bail under section 167 Cr.P.C. is contingent on merits post-filing. The period of limitation must be computed from the date of arrest relevant to the F.I.R., with earlier arrest dates considered only if consistent across F.I.R.s.
Facts of the case:
The respondent was arrested, and a prosecution challan was filed after the one-year period under the Terrorists & Disruptive Activities Act had expired. The Designated Court granted bail solely due to the belated filing of the challan.
Findings of Court:
The Designated Court erred by treating the right to bail as indefeasible post-challan and miscalculated the limitation period by relying on an earlier arrest date.
Issues:
Whether bail can be granted after the expiry of one year merely because the challan was filed late, and whether the limitation period should be computed from the date of original arrest.
Ratio Decidendi:
Bail under section 167 Cr.P.C. is not enforceable after the challan is filed; the right, if any, accrues only prior to filing. The period of limitation must be computed from the date of arrest pertinent to the specific F.I.R.
Result:
The appeal is allowed, bail is cancelled, and the respondent is to be arrested, subject to surrendering and seeking bail on merit.
A) Relevant laws and sections are not explicitly cited in the judgment.
B) The accused has no indefeasible right to bail after the challan is filed; bail under section 167 Cr.P.C. is contingent on merits post-filing. The period of limitation must be computed from the date of arrest relevant to the F.I.R., with earlier arrest dates considered only if consistent across F.I.R.s.
Facts of the case:
The respondent was arrested, and a prosecution challan was filed after the one-year period under the Terrorists & Disruptive Activities Act had expired. The Designated Court granted bail solely due to the belated filing of the challan.
Findings of Court:
The Designated Court erred by treating the right to bail as indefeasible post-challan and miscalculated the limitation period by relying on an earlier arrest date.
Issues:
Whether bail can be granted after the expiry of one year merely because the challan was filed late, and whether the limitation period should be computed from the date of original arrest.
Ratio Decidendi:
Bail under section 167 Cr.P.C. is not enforceable after the challan is filed; the right, if any, accrues only prior to filing. The period of limitation must be computed from the date of arrest pertinent to the specific F.I.R.
Result:
The appeal is allowed, bail is cancelled, and the respondent is to be arrested, subject to surrendering and seeking bail on merit.
Bail - The judgment discusses the indefeasible right to bail under section 167 Cr.P.C. and how it is extinguished once the challan is filed, referencing the ruling in Sanjay Dutt v. State regarding the timing and enforcement of bail rights.
Judicial Custody - Referenced to clarify the computation of the limitation period and the distinction between police and judicial custody under section 167, particularly when the accused is involved in different cases or transactions.
ORDER
M.M. Punchhi, J.- Leave granted.
2. This is an appeal against the order dated 9.5.1994 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 23.12.1992, 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.
3. Patently, the Designated Court was in error. A Five Member Bench of this Court in Sanjay Dutt v. State1, 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."
4. 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.
5. This Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni2, had the occasion to clarify the position of law on the subject referred at pages, 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."
6. These two fatal errors committed by the Designated Court would warrant setting aside 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.
7. The appeal stands allowed accordingly.
Appeal allowed accordingly.
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