ORDER :

S. Pujahari, J.

1. Heard the learned counsel for the petitioner and the learned counsel for the State.

2. The petitioner in the criminal revision, challenges the order dated 17.07.2015 passed by the learned Sessions Judge-cum-Special Judge, Nabarangpur in C.T. Case No. 61 of 2015 to be illegal and arbitrary.

3. It appears that the prayer of the petitioner for his release on bail under Section 167(2) Cr.P.C. was allowed by the learned Sessions Judge-cum-Special Judge, Nabarangpur vide order dated 10.07.2015 passed in C.T. Case No. 61 of 2015. However; on the next date i.e. on 17.07.2015, the learned Sessions Judge-cum-Special Judge vide the impugned order refused to accept the bail bond placing reliance on the law laid down in the case of Sanjay Dutt v. State, (1994) 5 SCC 410 and also the case of State of M.P. vs. Rustam & Ors., reported in 1995 Supp. (3) SCC 221.

4. In the case of Sanjay Dutt (Supra) the Constitution Bench of the Hon'ble Apex Court have held that "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 filing of the challan".

5. In the case of State of M.P. vs. Rustam & Ors. (supra), it has been observed that the right to compulsive bail under Section 167(2) of Cr.P.C. does not survive after filing of the challan. The court must examine the availability of the right to compulsive bail on the date it considered the question of bail and not barely on the date of presentation of the petition for bail.

6. According to the trial court the aforesaid is also the view of the Hon'ble Apex Court in the case of Bipin Shantilal Panchai vs. State of Gujarat, reported in (1996) 1 SCC 718, Dinesh Dalmia vs. C.B.I. reported in (2007) 8 SCC 770 and Mustaq Ahmed Mohammed Isak vs. State of Maharashtra, reported in (2009) 7 SCC 480.

7. Learned counsel appearing for the petitioner submits that the impugned order of the trial court is contrary to the law laid down by, the Hon'ble Apex Court in the case of Union of India through C.B.I., Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, reported in(2014) 59 OCR (SC) 226. He further submits that the Hon'ble Apex Court in the case of Nirala Yadav (supra) having held that the law laid down in the case of Uday Mohanlal Acharya vs. State of Maharashtra, reported in (2001) 5 SCC 453 having elaborated to highlight the ratio laid down in the case of Sanjay Dutt (supra) and in the case of Uday Mohanlal Acharya, (supra) does not express the correct position of law in the expression "if already availed of used by the constitution Bench in the case of Sanjay Dutt (supra), the trial court could not have refused to release the petitioner on bail who was already directed to be released on bail before filing of challan but had not filed the bail bond. Therefore, he submits that the impugned order cannot be sustained.

8. Learned counsel for the State, on the other hand, submits that since before filing of the bail bond, the challan was already filed, the right in favour of the petitioner said to have extinguished and as such the impugned order cannot be found fault with.

9. It appears that in the case of Nirala Yadav, (supra), the Apex Court taking note the case of Uday Mohanlal Acharya (supra) in paragraph 19, 20, 21, 28 and 32 have held as follows:

"19. In Uday Mohanlal Acharya (supra) the majority, after referring to the Constitution Bench decision in Sanjay Dutt's case, posed the question about the true meaning of the expression of the following lines:

"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 chall