ORDER S.P. Khare, J. 1. This is a petition under Section 439 read with proviso to Section 167 (2) Cr.P.C. for releasing the petitioner on bail. 2. The petitioner was arrested on 23.3.1998 in Crime No. 92 of 1998 under Sections 147, 148, 294 and 302/149 Indian Penal Code and produced before the Additional chief Judicial Magistrate, Katni. He was remanded to judicial custody on the same date. The charge-sheet was filed on 22.6.1998 before Shri R.K Shrivastava, Judicial Magistrate First Class, Katni as the Chief Judicial Magistrate was on leave. The petitioner submitted his application under proviso to Section 167 (2) Cr P.C for bail on the same date before Shri R.P. Soni, Judicial Magistrate First Class, Katni. This application was fixed for hearing on 24.6.1998. It was rejected by order dated 25.6.1998 by Shri R.K. Shrivastava, JMFC, He has mentioned in his order that as per distribution memo he was looking after the work of the Court of Chief Judicial Magistrate on 22.6.1998 and therefore, the application under Section 167 (2) proviso could not be submitted before Shri R.P. Soni, JMFC. 3. It is argued on behalf of the petitioner that the charge-sheet was not filed within 90 days of his initial remand to judicial custody but it was filed on 92nd day and therefore he is entitled to be released on bail as per proviso to Section 167 (2) Cr.P.C Reliance is placed on the decision of this Court in Kamlesh Kumar Vs. State of M.P. 1996 (II) MPWN 75. In this connection reference must be made to the judgment of the Constitution Bench of the Supreme Court in Sanjay Dutt Vs. State through C.B.I., Bombay (1994) 5 SCC 410 in which it has been held that 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 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. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits on 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 accured 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 the challan is filed because Section 167 Cr.P.C. ceases to apply. The ratio of this judgment has been considered by the Supreme Court in the subsequent case of State Vs. Mohd. Ashraft Bhatt 1996 SCC (Crl.) 117. In that case the charge-sheet was filed on 23.12.1992. The period prescribed for the filing of the charge-sheet had already expired. When claim for bail by the accused was "being examined" the charge-sheet stood filed. Yet the Designated Court granted bail to the accused on the mere fact that the police report had been filed belatedly. The Supreme Court relying upon the dictum in Sanjay Dutt's case (supra) held that the Designated Court was in error. 4. The submission of the application for bail before the filing of the charge-sheet is not of much significance if no order has been passed on that application till the time of filing of the charge-sheet. In this case it cannot be said that there was any inaction on the part of the Magistrate who was competent to deal with the application as it was not submitted before him. By the time it could come up for consideration by him the charge-sheet had been filed. The right which had accrued to the accused remained unenforced till the filing of the challan and therefore it was extinguished the moment the challan was filed and Section 167 Cr.P.C. ceased to apply. By the time it could come up for consideration by him the charge-sheet had been filed. The right which had accrued to the accused remained unenforced till the filing of the challan and therefore it was extinguished the moment the challan was filed and Section 167 Cr.P.C. ceased to apply. The lawyer appearing on behalf of the accused must assert that the accused is entitled to be released "forthwith" and the Magistrate should also see that the right which has been conferred upon the accused is not defeated by his failure or inaction as that right comes to an end when the charge-sheet is filed. In the present case the application was filed before the Magistrate who was not competent to deal with it and therefore no order could be passed on it before the filing of the challan. 5. The petitioner is not entitled to be released on bail under the proviso to Section 167 (2) Cr.P.C. His application under Section 439 Cr.P.C. has already been rejected on merits. The present petition is dismissed. Petition dismissed