Case Note & Summary
This appeal arose from an order of the Presiding Officer, Designated Court established under the Terrorist and Disruptive Activities (Prevention) Act, 1987 in Jammu and Kashmir, granting bail to the first respondent under Section 167 of the Code of Criminal Procedure, 1973. The State through CBI challenged the bail order contending that the respondent was not entitled to default bail because the police report had already been filed and the period of limitation was erroneously computed. The respondent stood accused in FIR No.56 of 1991 and had earlier been arrested in another FIR No.14 of 1991. In the present FIR, his date of arrest was 17 April 1992, but the Designated Court computed the one-year period from the date of the original arrest in the earlier FIR, leading to an earlier expiry of the limitation period. The prosecution submitted the police report (challan) on 23 December 1992, after the one-year period had expired but before the bail application was heard. The Designated Court granted bail on 9 May 1994 on the sole ground that the police report had been filed belatedly, treating the right to bail as indefeasible on expiry of the period. The Supreme Court identified two fatal errors in the Designated Court's reasoning. First, relying on the five-judge bench decision in Sanjay Dutt v. State, the Court held that the indefeasible right to default bail under Section 167(2) CrPC accrues and is enforceable only prior to the filing of the challan; once the challan is filed, the right does not survive if not already availed of. After challan, bail must be considered on the merits of the case under the provisions relating to post-challan bail, and custody is governed not by Section 167 but by different provisions of the Code. Second, relying on CBI v. Anupam J. Kulkarni, the Court clarified that the period of ninety or sixty days under Section 167(2) 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. Separate transactions permit formal arrest in a different case even while the accused is in judicial custody in an earlier case, but the limitation period runs only from the date of arrest in the present FIR. The Designated Court had wrongly taken the date of arrest in FIR No.14 of 1991, whereas the correct date was 17 April 1992 in FIR No.56 of 1991. The Supreme Court accordingly set aside the order dated 9 May 1994 and cancelled the bail granted to the respondent. It directed that the respondent be arrested forthwith, subject to the concession that he could appear before the Designated Court, surrender himself, and pray for bail on the merits if due. If he approached the court, the Designated Court was required to put the Public Prosecutor to notice immediately and then examine whether the respondent was entitled to bail in the facts and circumstances, subject to the limitations imposed in the statute. The appeal was allowed.
Headnote
A) Criminal Procedure - Default Bail Under Section 167 CrPC - Indefeasible right to bail under proviso to Section 167(2) CrPC is enforceable only before filing of challan and extinguishes once challan is filed if not already availed - Code of Criminal Procedure, 1973, Section 167(2) - The Designated Court granted bail solely because the police report was filed after expiry of the prescribed period even though the challan stood filed at the time of consideration. Held that Section 167 CrPC ceases to apply after challan is filed and bail must be considered on merits under provisions for post-challan bail, relying on Sanjay Dutt v. State. (Paras 1-3) B) Criminal Procedure - Computation of Period of Detention for Default Bail - Limitation under Section 167(2) CrPC runs from date of arrest/detention in the present FIR, not from earlier arrest in a different FIR or transaction - Code of Criminal Procedure, 1973, Section 167(2) - The Designated Court erroneously computed the one-year period from the respondent's arrest in FIR No.14 of 1991 instead of his arrest on 17.4.1992 in the present FIR No.56 of 1991. Held that period must be computed from date of detention per Magistrate's orders, not from earlier police arrest, and separate transactions permit formal arrest and fresh remand, relying on CBI v. Anupam J. Kulkarni. (Paras 1-3) C) Criminal Procedure - Custody After Filing Challan - Once challan filed, custody of accused is governed not by Section 167 CrPC but by different provisions of the Code - Code of Criminal Procedure, 1973, Section 167 - The right to default bail does not remain enforceable after challan is filed and custody ceases to be governed by Section 167. Held that bail must be decided with reference to merits under post-challan bail provisions. (Paras 1-3)
Issue of Consideration
Whether the accused was entitled to bail under Section 167(2) CrPC after expiry of the prescribed period when the challan had already been filed, and whether the period of limitation for default bail was to be computed from the date of arrest in a prior FIR or from the date of arrest in the present FIR No.56 of 1991
Final Decision
Appeal allowed; order dated 9.5.1994 setting aside bail granted to respondent set aside; bail granted to respondent cancelled; respondent directed to be arrested forthwith subject to liberty to appear and surrender before Designated Court and pray for bail on merits; if approached, Designated Court to give notice to Public Prosecutor and examine bail on facts subject to statutory limitations
Law Points
- Default bail right under Section 167(2) CrPC is enforceable only prior to filing of challan and extinguishes once challan is filed
- bail after challan must be decided on merits under post-challan provisions
- custody after challan is not governed by Section 167
- period of 90/60 days under Section 167(2) is computed from date of detention as per Magistrate orders not from date of arrest by police
- separate FIRs arising from different transactions permit formal arrest and fresh remand
