- (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 Criminal Procedure Code inasmuch as the prosecution failed to submit police report (challan) within the period prescribed. It transpires that the prosecution submitted the police report on 23/12/1982, 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 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 Criminal Procedure Code ceases to apply. ";