JUDGMENT

G. B. PATTANAIK, J. (for himself and Banerjee, J.) — Leave granted.

2. In this appeal by grant of special leave the question that arises for consideration is when can an accused be said to have availed of his indefeasible right for being released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure, if a challan is not filed within the period stipulated thereunder. In the case in hand, the accused after surrendering himself in the Court was remanded to judicial custody by order of the Magistrate on 17.6.2000. A case has been instituted against him under Sections 406 and 420 of the Indian Penal Code read with the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 (for short “MPID Act”). The period of 60 days for filing of charge-sheet was completed on 16-8-2000. On the next day i.e. 17.8.2000, an application for being released on bail was filed before the Magistrate alleging that non-filing of challan within 60 days entitles the accused to be released on bail under proviso to Section 167(2) of the Code of Criminal Procedure. The Magistrate rejected the prayer on the same day on a conclusion that the provisions of Section 167(2), Cr.P.C. have no application to cases pertaining to the MPID Act. The accused, therefore, preferred a criminal application before the Bombay High Court. A learned Single Judge after hearing the contentions raised by the accused and by the State referred the matter to the Division Bench on 23.8.2000 and the matter was listed before a Division Bench on 29.8.2000. On that date the Division Bench adjourned the matter for argument to 31.8.2000 and in the meanwhile a charge-sheet was filed before the trial Judge on 30.8.2000. The Division Bench of the Bombay High Court, on examination of the relevant provisions of the MPID Act, more particularly, Sections 13 and 14 thereof, and relying upon the judgment of this Court in Union of India v. Thamisharasi : (1995) 4 SCC 190 : 1995 SCC (Cri.) 665, Hitendra Vishnu Thakur v. State of Maharashtra : (1994) 4 SCC 602 : 1994 SCC (Cri.) 1087, as well as the Constitution Bench decision in Sanjay Dutt v. State through CBI : (1994) 5 SCC 410 : 1994 SCC (Cri.) 1433, came to hold that there is no interdiction in the Maharashtra Act of 1999 against the applicability of Section 167(2) proviso of the Criminal Procedure Code and, therefore, an accused arrested for commission of an offence under Section 3 of the MPID Act is entitled to claim release on bail on expiry of total period specified in Section 167 if the challan is not filed within that period. Having held so, on the entertainability of the claim of the accused invoking provisions of Section 167 of the Criminal Procedure Code the High Court ultimately refused to grant relief on the ground that by the time the application for bail before the Division Bench came to be considered on 31.8.2000, a charge-sheet had been filed before the Magistrate on 30.8.2000 and, therefore, the so-called enforceable right did not survive or remain enforceable. In coming to the aforesaid conclusion, the High Court relied upon the Constitution Bench decision of this Court in Sanjay Dutt case as well as the case of State of M.P. v. Rustam : 1995 Supp (3) SCC 221 : 1994 SCC (Cri.) 830, and further held that the Full Bench decision of the Gujarat High Court in Babubhai Parshottamdas Patel v. State of Gujarat : 1982 Cri.L.J.284 : 22 Guj.LR 1232 (Guj.)FB, is contrary to the decision of the Supreme Court in Rustam case. On dismissal of an application filed by the accused the present appeal has been preferred to this Court.

3. Mr K.T.S. Tulsi, learned Senior Counsel appearing for the accused appellant contended that the legislative mandate conferring right on the accused to be released on bail on the expiry of the period contemplated under the proviso to Sub-section (2) of Section 167, if the accused is prepared to furnish bail, cannot be nullified by taking recourse to sub