IMPORTANT POINT
The main legal point established in the judgment is that the right to default bail under section 167 of the CrPC is enforceable only prior to the filing of the charge-sheet and does not survive or remain enforceable after the charge-sheet is filed.

JUDGMENT

1. 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 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 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 4