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State Through Cbi v. Mohd. Ashraft Bhat And Another
Factual and Procedural Background
This appeal challenged the order dated 9-5-1994 passed by the Presiding Officer of a Designated Court constituted under the Terrorist and Disruptive Activities Act in the State of Jammu and Kashmir. By that order, the first respondent was released on bail “in terms of Section 167 CrPC” on the basis that the prosecution failed to submit the police report (challan) within the prescribed period of one year.
The opinion records that the prosecution submitted the police report on 23-12-1992, after expiry of the one-year period as computed by the Designated Court. However, when the respondent’s bail claim was examined, the police report had already been filed; nonetheless, bail was granted solely because the filing was belated, the Designated Court treating the respondent’s right to bail as “indefeasible” upon expiry of the period.
The Designated Court also computed the one-year period by taking the respondent’s arrest date from an earlier FIR No. 14 of 1991, even though in the instant FIR No. 56 of 1991 the respondent was arrested later on 17-4-1992.
Legal Issues Presented
- Whether an accused’s “indefeasible right” to bail under Section 167 CrPC for non-filing of the challan within the prescribed period can be enforced after the challan has already been filed.
- From which arrest/detention date the limitation period (treated in this case as one year) should be computed where the accused was earlier arrested in another FIR but is later arrested in the present FIR.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sanjay Dutt v. State Through C.B.I, Bombay (Ii) (1994) 5 SCC 410 | The “indefeasible right” to default bail is enforceable only prior to filing of the challan; it does not survive once the challan is filed if not already availed of, and post-challan custody is not governed by Section 167 CrPC. | Used to hold that the Designated Court erred in granting bail merely because the challan was filed belatedly, despite it having been filed before bail was considered; after filing, bail must be decided on merits under the post-challan bail provisions. |
| Central Bureau of Investigation, Special Investigation Cell-I v. Anupam J. Kulkarni (1992) 3 SCC 141 | Clarifies principles on custody under Section 167(2) CrPC, including that an accused in judicial custody in one case can be formally arrested in a different case arising out of a different transaction, and that computation of statutory periods is linked to detention pursuant to the Magistrate’s orders (as discussed in the cited passage). | Cited in connection with the computation issue, supporting the view that the relevant date for computing limitation in the instant FIR was tied to the later arrest in FIR No. 56 of 1991 (17-4-1992), not the earlier arrest in FIR No. 14 of 1991. |
Court's Reasoning and Analysis
The Court found the Designated Court committed two “fatal errors.”
First, relying on the five-member Bench ruling in Sanjay Dutt v. State Through C.B.I, Bombay (Ii), the Court held that the right to default bail under Section 167 CrPC is enforceable only before the filing of the challan, and it is extinguished once the challan is filed if the accused has not already availed of it. Since the police report had been filed when the respondent’s bail claim was considered, the Designated Court could not grant bail solely on the ground of belated filing; after filing, bail had to be considered with reference to the merits under the provisions governing bail post-challan.
Second, the Court held that the Designated Court erred in computing the one-year period by using the respondent’s arrest date from a different FIR (No. 14 of 1991). In the instant FIR No. 56 of 1991, the respondent was arrested later (17-4-1992), and the limitation period had to be computed from that later date. The Court referred to CBI v. Anupam J. Kulkarni as clarifying the legal position relevant to custody and computation in such contexts.
Holding and Implications
ALLOWED; BAIL CANCELLED AND IMPUGNED ORDER SET ASIDE.
The Court set aside the Designated Court’s order and cancelled the bail granted to the respondent, directing that he be arrested forthwith. However, it granted the concession that the respondent may appear before the Designated Court, surrender, and seek bail on the merits. If he applies, the Designated Court was directed to notify the Public Prosecutor immediately and then examine the bail request on the facts and circumstances of the case, subject to statutory limitations. The opinion does not indicate any broader implications beyond these directions and the application of the cited principles.
Order
1. Leave granted.
2. This is an appeal against the order dated 9-5-1994 of the Presiding Officer, Designated Court established under the Terrorist and Disruptive Activities Act, in the State of Jammu and Kashmir, whereby the first respondent was released on bail in terms of Section 167 CrPC inasmuch 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. State (1994) 5 SCC 410 has ruled at page 442 as follows: (SCC para 48)
“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 CrPC 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 FIR No. 14 of 1991. In the instant FIR 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 FIR No. 14 of 1991. In the instant FIR 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 v. Anupam J. Kulkarni (1992) 3 SCC 141 had the occasion to clarify the position of law on the subject referred at pp. 158 and 159 as follows: (SCC para 13)
“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 completed 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.
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