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5. There are diverse view which require consideration on this point. In the case of Sanjay Dutt v. State through CBI Bombay, (1994) 5 SCC 410 : (1995 Cri LJ 477), Supreme Court has, after considering the various judgments, has concluded in para 53 (2) (b) as under:-

"The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur, (1995 Cri LJ 517), is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at this stage."

6. Question before the Supreme Court in Sanjay Dutt's case, (1995 Cri LJ 477), was whether indefeasible right of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time limit is a right which enures to and is enforceable by the accused only from the time of default till the filing of the challan and does not survive or remain enforceable on the challan being filed? In view of the said question raised before the Supreme Court, the Supreme, referring to the judgment in the case of Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623 : (1995 Cri LJ 517), held that it does not survive or remain enforceable on the challan being filed. It is further held, as quoted above, in para 53(2)(b), that if the accused applied for bail under this provision on expiry of the period of 180 days or the extended date, as the ease may be, then he has to be released on bail forthwith.... The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage. This observation is made placing reliance on the judgment in the case of Hitendra Vishnu Thakur. However, from the conclusion of the Supreme Court in Sanjay Dutt's case, it does not become clear whether the application filed for bail on expiry of the statutory period provided under Section 167(2), the right accrued and enured to the accused still continues after the chargesheet is filed.

7. In Hitendra Vishnu Thakur's case (1995 Cri LJ 517) (supra), Hitendra Thakur surrendered before the Director General of Police, Maharashtra on 5-12-92. On 4-1-93, he was remanded to judicial custody. On 6-7-93, he filed an application for grant of bail under Section 20(4) of TADA Act on the ground that 180 days had expired on 4-6-93 and chargesheet/challan had not been filed. On 12-7-93, Public Prosecutor presented a request of the Investigating Officer dated 29-6-93, to the Designated Court, seeking extension of time to complete the investigation and objections were also filed to the application for bail filed by Thakur. The said application was dismissed by the Designated Court on 31-7-93, and the prosecution was granted extension of time till 3-8-93 to file the chargesheet/challan, treating the application of the Investigating Officer as a report of the Public Prosecutor. Supreme Court held that the Investigating Officer had no authority under the provisions of the Act to apply for extention and further held that the extension granted was erroneously granted on improper exercise of the jurisdiction by the Designated Court and consequently the order refusing to grant bail was set aside and he was ordered to be released on bail. No doubt, pending the decision of the Supreme Court, the chargesheet had been filed on 26-8-93 and supplementary chargesheet had been filed on 13-12-93. Therefore, it can be inferred from Thakur's case that that right which was tried to be availed of by filing an application immediately after the expiry of the period for filing chargesheet continues even after the filing of the chargesheet. This view is not confirmed in Sanjay Dutt's case. In Sanjay Dutt's case, (1994 (5) SCC 410 : 1995 Cri LJ 477), Supreme Court has held as under: - (Para 48 of SCC): (para 50 of Cri LJ) "48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. 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 Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of hebeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody of detention is on the basis of a valid order, (See Niranjan Singh Nathawan v. State of Punjab, (1952 Cri LJ 656), Ram Narayan Singh v. State of Delhi, (1953 Cri LJ 1113), A.K. Gopalan v. Government of India, (1966 Cri LJ 602)."

"4. We may also observe that the High Court's view in entertaining the bail petition after the challan was filed was erroneous. The matter now stands settled in Sanjay Dutt v. State, (1995 Cri LJ 477), in which case Hitendra Vishnu Thakur v. State of Maharashtra, (1995 Cri LJ 517), has aptly been explained away. The Court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of the presentation of the petition for bail. This well settled principle has been noticed in Sanjay Dutt case on the strength of three Constitution Bench cases - Niranjan Singh Nathawan v. State of Punjab, (1952 Cri LJ 656), Ram Narayan Singh v. State of Delhi, (1953 Cri LJ 1113), and A.K. Gopalan v. Government of India, (1966 Cri LJ 602). On the dates when the High Court entertained the petition for bail and granted it to the accused-respondents, undeniably the challan stood filed in Court, and then the right as such was not available".