Manipur High Court
Ramyang Keishing vs The State Of Manipur Represented ... on 13 December, 2021
KABORA Digitally signed
MBAM byKABORAMBAM
SAPANA SAPANA CHANU
Date: 2021.12.13
15:33:13 +05'30'
CHANU
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
BAIL APPLICATION No. 24 of 2021
Ramyang Keishing, aged about 27 years, s/o Joseph Keishing,
Kangpat Khunou Village, Kamjong District, Manipur.
... Petitioner.
-Versus -
The State of Manipur represented by the Officer-in-Charge, Women
Police Station, P.O.& P.S.Ukhrul, Ukhrul District, Manipur.
........Respondents.
B E F O R E
HON'BLE MR. JUSTICE AHANTHEMBIMOL SINGH
For the petitioner : Mark Khapai, Adv
For the respondent : Y. Ashang, G.A.
Date of Hearing : 03.12.2021 & 06.12.2021.
Date of Order : 13.12.2021
JUDGMENT & ORDER
(CAV)
The present application had been filed under section 439 of the CrPC
with a prayer for granting bail to the petitioner in connection with FIR No. 03
(11) 2018 WPS Ukl u/s 6 of the POCSO Act, 2012.
[2] Mr. Mark Khapai, learned counsel for the petitioner submitted that the
petitioner was arrested by a Combine Team of Women Police Personnel of
Ukhrul Police Station on 05.11.2018 on mere suspicious ground that the
petitioner had forcibly raped and committed sexual assault on 03.11.2018 to
the victim who is a minor girl of Kongkan Vilage, Kamjong District. It has been
B.A. No. 24 of 2021 Page 1
submitted that after his arrest on 05.11.2018, the petitioner has been under
Judicial Custody till today.
The learned counsel further submitted that while the petitioner was in
judicial custody since his arrest, the I.O. of the case submitted the charge
sheet against the petitioner only on 11.11.2019 after more than 1 (one) year
of the arrest of the petitioner and beyond the statutory period, however, the
petitioner could not file any bail application in time before filing charge sheet
for granting statutory bail due to financial constraint and lack of legal
knowledge.
[3] It has also been submitted on behalf of the petitioner that the petitioner
earlier approached the special Judge (POCSO), Ukhrul in 2021 by filing Cril.
Misc. (Bail) No. 5 of 2021 for releasing the petitioner on bail, however, the
learned Special Judge (POCSO), Ukhrul rejected the said bail application by
an order dated 12.04.2021.
[4] It has been strenuously submitted by Mr. Mark Khapai, the learned
counsel appearing for the petitioner that as the I.O. of the case failed to
submit the Charge-Sheet of the case within the statutory period prescribed
under section 167 of the CrPC, the petitioner is entitled to the grant of default
bail as provided under section 167 of the CrPC.
[5] Mr. Y. Ashang, learned PP appearing for the respondent submitted
that the right under section 167 (2) CrPC to release on bail on default if
charge-sheet is not filed within the prescribed period from the date of arrest is
not an absolute or indefeasible right. The said right would be lost if charge-
sheet is filed and would not survived after filing of the charge-sheet. The
B.A. No. 24 of 2021 Page 2
learned PP submitted that even if an application for bail is filed on the ground
that charge-sheet was not filed within the prescribed period, but before
consideration of the bail application and before being released on bail, if
charge-sheet is filed, the said right of the accused to be released on default
bail would be lost. The learned PP further submitted that as the charge-sheet
had already been filed in the present case, the ground raised by the petitioner
for releasing him on default bail has no merit and that as the learned counsel
for the petitioner did not address this Court on the merit of the case for
granting bail, the present bail application deserves to be rejected. In support
of his contentions, the learned PP relied on the judgment rendered by the
Apex Court in the case of "Pragyna Singh Thakur Vs. State of
Maharashtra" reported in (2011) 10 SCC 445, wherein, it has been laid down
at paragraph 54 and 58 as under:-
"54 There is yet another aspect of the matter. The right under Section
167 (2) CrPC to be released on bail on default if charge-sheet is not
filed within 90 days from the date of first remand is not an absolute or
indefeasible right. The said right would be lost if charge-sheet is filed
and would not survive after the filing of the charge-sheet. In other
words, even if an application for bail is filed on the ground that
charge-sheet was not filed within 90 days, but before the
consideration of the same and before being released on bail, if
charge-sheet is filed, the said right to be released on bail would be
lost. After the filing of the charge-sheet, if the accused is to be
released on bail, it can be only on merits. This is quite evident from
the Constitution Bench decision of this Court in Sanjay Dutt (2) v.
State [paras 48 and 53(2)(b)]. The reasoning is to be found in paras
33 to 49.
"58 From the discussion made above, it is quite clear that even if an
application for bail is filed on the ground that charge-sheet was not
B.A. No. 24 of 2021 Page 3
filed within 90 days, before the consideration of the same and before
being released on bail if charge-sheet is filed, the said right to be
released on bail, can be only on merits. So far as merits are
concerned the learned counsel for the appellant has not addressed
this Court at all and in fact bail is not claimed on merits in the present
appeal at all."
[6] The above principle at paragraph 54 and 58 of "Pragyna Singh
Thakur's" case (Supra) had been declared as not the correct principle of law
and the same has been treated to be not a good law and had been impliedly
overruled by the Apex Court in a subsequent judgment rendered in the case
of "Union of India Vs. Nirala Yadav" reported in (2014) 9 SCC 457. The
relevant portions of the judgments are as under:-
"45 The opinion expressed in paras 54 and 58 in Pragyna Singh
Thakur which we have emphasised as it seems to us, runs counter to
the principles stated in Uday Mohanlal Acharya which has been
followed in Hassan Ali Khan and Sayed Mohd. Ahmad Kazmi. The
decision in Sayed Mohd. Ahmad Kazmi case has been rendered by a
three-Judge Bench. We may hasten to state, though in Pragyna
Singh Thakur case the learned Judges have referred to Uday
Mohanlal Acharya case but have stated the principle that even if an
application for bail is filed on the ground that the charge-sheet was
not filed within 90 days, but before the consideration of the same and
before being released on bail, if the charge-sheet is filed the said right
to be enlarged on bail is lost. This opinion is contrary to the earlier
larger Bench decisions and also runs counter to the subsequent
three-Judge Bench decision in Mustaq Ahmed Mohammed Isak case.
We are disposed to think so, as the two-Judge Bench has used the
words "before consideration of the same and before being released
on bail", the said principle specifically strikes a discordant note with
the proposition stated in the decisions rendered by the larger
Benches.
B.A. No. 24 of 2021 Page 4
"46 At this juncture, it will be appropriate to refer to the dissenting
opinion by B.N. Agarwal, J. in Uday Mohanlal Acharya case. The
learned Judge dissented with the majority as far as interpretation of
the expression "if not already availed of" by stating so: (SCC p. 481,
paras 29-30)
"29. My learned Brother has referred to the expressing 'if not
already availed of' referred to in the judgment in Sajay Dutt
case for arriving at Conclusion 6. According to me, the
expression "availed of" does not mean mere filing of
application for bail expressing therein willingness of the
accused to furnish the bail bond. What will happen if on the
61st day an application for bail is filed for being released on
bail on the ground of default by not filing the challan by the
60th day and on the 61st day the challan is also filed by the
time the Magistrate is called upon to apply his mind to the
challan as well as the petition for grant of bail? In view of the
several decisions referred to above and the requirements
prescribed by clause (a) (ii) of the proviso read with
Explanation I to Section 167 (2) of the Code, as no bail bond
has been furnished, such an application for bail has to be
dismissed because the stage of proviso to Section 167 (2) is
over, as such right is extinguished the moment the challan is
filed.
"30 In this background, the expression 'availed of' does not
mean mere filing of the application for bail expressing
thereunder willingness to furnish bail bond, but the stage for
actual furnishing of bail bond must reach. If the challan is filed
before that, then there is no question of enforcing the right,
howsoever valuable or indefeasible it may be, after filing of the
challan because thereafter the right under default clause
cannot be exercised."
On a careful reading of the aforesaid two paragraphs, we
think, the two-Judge Bench in Pragyna Singh Thakur case has
somewhat in a similar matter stated the same. As long as the majority
view occupies the field it is binding precedent. That apart, it has been
B.A. No. 24 of 2021 Page 5
followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi
case. Keeping in view the principle stated in Sayed Mohd. Ahmad
Kazmi case which is based on three-Judge Bench decision in Uday
Mohanlal Acharya case, we are obliged to conclude and hold that the
principle laid down in para 54 and 58 of Pragyna Singh Thakur case
(which has been emphasized by us: see paras 42 and 43 above)
does not state the correct principle of law. It can clearly be stated that
in view of the subsequent decision of a larger Bench that cannot be
treated to be good law. Our view finds support from the decision in
Union of India v. Arviva Industries India Ltd.
[7] As the principle of law laid down in paragraph 54 & 58 of "Pragyna
Singh Thakur's" case (Supra) had been impliedly overruled by the
subsequent judgment of the Hon'ble Apex Court in the case of "Nirala
Yadav" (Supra), this Court cannot accept the contention made by the learned
PP and the present bail application cannot be rejected on the basis of such
submission.
[8] In the case of "Sanjay Dutt Vs. State through CBI, Bombay (II)"
reported in (1994) 5 SCC 410, a constitution bench of 5 (five) Judges of the
Hon'ble Apex Court has laid down that the indefeasible right accruing to the
accused for availing default bail by virtue of section 167 CrPC is enforceable
only prior to the filing of the charge-sheet and it does not survive or remain
enforceable on the charge-sheet being filed if already not avail off, and that
once the charge-sheet has been filed, the question of grant of bail has to be
considered and decided only with reference to the merit of the case under the
provisions relating to grant of bail to an accuse after the filing of the charge-
sheet/challan and as the custody of the accused after the challan/charge-
sheet has been filed is not governed by section 167 but by different provisions
B.A. No. 24 of 2021 Page 6
of the CrPC. The Hon'ble Apex Court further held that if the right for availing
default bail had accrued to the accused but if remain unenforced till the filing
of the charge sheet/challan, then there is no question of its enforcement
thereafter, since it is extinguished the moment when the charge sheet/challan
is filed because section 167 CrPC ceased to apply. The relevant paragraph of
the Judgment are as under:-
"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 filling
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 CrPC 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
B.A. No. 24 of 2021 Page 7
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 habeas 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 or detention is on the
basis of a valid order. (See Naranjan Singh Nathawan v. State of
Punjab; Ram Narayan Singh v. State of Delhi and A.K. Gopalan v.
Government of India.)
"53 As a result of the above discussion, or answer to the three
questions of law referred for our decision are as under:
"2)(a) Section 20 (4) (bb) of the TADA Act only requires
production of the accused before the court in accordance with
Section 167 (1)of the Code of Criminal Procedure and this is
how the requirement of notice to the accused before granting
extension beyond the prescribed period of 180 days in
accordance with the further proviso to clause (bb) of sub-
section (4) of Section 20 of the TADA Act has to be
understood in the judgment of the Division Bench of this Court
in Hitendra Vishnu Thakur. The requirement of such notice to
the accused before granting the extension for completing the
Investigation is not a written notice to the accused giving
reasons therein. Production of the accused at that time in the
court informing him that the question of extension of the period
for completing the investigation is being considered, is alone
sufficient for the purpose
"2)(b) The "indefeasible right" of the accused to be released
on bail in accordance with Section 20 (4) 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 filling of the
challan and it does not survive or remain enforceable on the
challan being filed. If the accused applies for bail under this
B.A. No. 24 of 2021 Page 8
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 by the provisions relating to the
grant of bail applicable at that stage."
[9] The aforesaid principle of law laid down by the Apex Court in the case
of Sanjay Dutt (Supra) has been followed by the Apex Court in many
subsequent judgments including the case of "Sayed Mohd. Ahmad Kazmi
Vs. State (Govt. of NCT of Delhi)" reported in (2012) 12 SCC 1 wherein, the
Hon'ble Apex Court has in paragraph 25 of the Judgment held that it is well
established that if an accuse does not exercise his right to grant statutory bail
before the charge-sheet is filed, he loses his right to such benefit once such
charge sheet is filed and can, thereafter, only apply for regular bail.
[10] In the present case, the accused was arrested on 05.11.2018 and he
remains in custody till today. The I.O. submitted the charge-sheet on
11.11.2009 after about 1 (one) year from the date of arrest of the petitioner.
Even though, the petitioner is entitled to the grant of statutory bail as provided
under section 167 of the CrPC on account of default of submitting charge-
sheet within the prescribed period, however, as the petitioner did not file any
application for releasing him on statutory bail before filing of the charge-sheet
and as the petitioner filed such application only after the charge-sheet has
been filed, I am of the considered view that the petitioner is not at all entitled
to grant of default bail in view of the well settled principle of law laid down by
B.A. No. 24 of 2021 Page 9
the Apex Court in the aforesaid case of "Sanjay Dutt (Supra)" and "Mohd.
Ahmad Kazmi (Supra)."
In the result, this Court find no merit in the present application and
accordingly, the same is hereby dismissed.
JUDGE
FR/NRF
Sapana
B.A. No. 24 of 2021 Page 10
