Meghalaya High Court
Date Of Decision: 30.04.2026 vs State Of Meghalaya on 30 April, 2026
Author: W. Diengdoh
Bench: W. Diengdoh
2026:MLHC:417
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
AB. No. 12 of 2026
Date of Decision: 30.04.2026
Shri. Balwan Bhama
Director of M/s Vaishno Devi Traders Pvt. Ltd,
S/o Late ML Bhama
R/o House No. 35-A, Ground Floor,
Near Income Tax Colony,
Bangaon, Beltola,
Guwahati, Assam - 781028.
.... Petitioner
Vs.
State of Meghalaya,
Represented by Secretary, Home Department
Government of Meghalaya
.... Respondent
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Appearance:
For the Petitioner/Appellant(s) : Mr. A. Ahmed, Adv.
Mr. M. Sarkar, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Mr. E.R. Chyne, GA.
JUDGEMENT AND ORDER
1. Heard Mr. A. Ahmed, learned counsel for the petitioner, who has
submitted that this is an application under Section 482 of the BNSS, 2023,
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2026:MLHC:417seeking grant of pre-arrest bail on behalf of the petitioner, who is apprehending
arrest in connection with Gasuapara P.S Case No. 04 (07) 2023, under Section
21(1) of the Mines and Minerals (Development and Regulation) Act, 1957
(MMDR).
2. The learned counsel has submitted that an FIR dated 03.07.2023,
has been lodged by the Additional Deputy Commissioner, South Garo Hills,
Baghmara, the same addressed to the Superintendent of Police, South Garo Hills,
wherein, it was informed that on a Joint Magisterial Team, deputed to conduct
raids, it was found out that around 5711 MT of coal was dump illegally in and
around Gasuapara Land and Customs Station. The said coal was then seized by
the Magistrate from one firm named Vaishno Devi Traders Pvt. Ltd., which
belongs to the petitioner herein. The said seizure was allegedly made during the
said raid conducted on 27.06.2023 and 30.06.2023.
3. The learned counsel also submits that the fact of the matter is that,
the petitioner has deposited or unloaded the said coal at the Gasuapara Land and
Customs Station, which coal has been legally procured through e-Auction and
documentary evidence of the same, including the Tax Invoice, the order to
transport the said coal, such order dated 17.04.2023 was issued by the Deputy
Commissioner, South Garo Hills, wherein the approved route for transport of
such coal is from Madan Kyor Pailiang-Nongstoin to Bangladesh via Gasuapara.
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The relevant authority for such transport is also evident from the certificate
issued by the Director of Mineral Resources, Meghalaya, Shillong, being No.
DMR/R/CIL/A/3296/2023/22 dated (illegible) 2023 (Annexure-7 of this
petition).
4. It is the further submission of the learned counsel that the petitioner
has approached this Court, by way of a Criminal Petition with a prayer to quash
the said FIR, however, this Court vide order dated 13.02.2025 in Crl. Petn. No.27
of 2024 has rejected the same. The petitioner has then preferred a Special Leave
Petition before the Hon’ble Supreme Court and the same was dismissed and
disposed of vide order dated 15.04.2025 passed in Special Leave Petition
(Criminal) Diary No(s). 16772/2025. However, the petitioner was granted liberty
to produce all materials along with representation before the Investigating
Officer (I/O). Accordingly, on 28.05.2025, the petitioner has submitted a number
of documents before the I/O.
5. Inspite of this, the I/O has completed his investigation and has filed
the charge sheet on 15.09.2025 with a remark that the petitioner herein has failed
to respond to the notices issued against him and has not appeared before him,
thereby, he was declared to be an absconding accused. In fact, the petitioner has
never received any notices issued on him. It was only when the learned Special
Judge, MMDR has taken cognizance of the case and issued summons on the
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petitioner that he has entered appearance through his counsel. However, being
apprehensive of arrest, in the event, he appeared before the Trial Court, the
prayer for grant of pre-arrest bail is made herein, further submits the learned
counsel.
6. The learned counsel has also referred to the case of Bharat
Choudhary and Anr. v. State of Bihar, reported in (2003) 8 SCC 77, wherein
it was held that a court has either taken cognizance of the complaint or the
investigating agency has filed a charge sheet, would not by itself, prevent the
courts concerned from granting anticipatory bail in appropriate cases. If allowed
to go on pre-arrest bail, the petitioner would comply with any conditions that
this Court may imposed, submits the learned counsel.
7. Mr. N.D. Chullai, learned AAG assisted by Mr. E.R. Chyne, learned
GA appearing for the State respondent, has raised a preliminary issue on
maintainability of this application by submitting that the petitioner ought not to
have approached this Court in the first instance, but should have gone before the
Sessions Court for the prayer made herein. This contention is supported by the
authority in the case of Jagdeo Prasad v. State of Bihar and Ors, 2025 SCC
Online 2108, para 6, wherein the Apex Court has observed that while the scheme
of Criminal Procedure Code, 1973 (now Bharatiya Nagarik Suraksha Sanhita,
2023) provides concurrent jurisdiction to the High Court and Sessions Court for
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entertaining application for anticipatory bail, the High Court should always
encourage exhausting an alternative/concurrent remedy before directly
interfering itself. In this view of the matter, the learned AAG has submitted that
the petitioner herein ought to have filed such petition before the Sessions Court
before approaching this Court.
8. On the merits of the case, the learned AAG has submitted that from
the papers produced by the petitioner in this petition, at page 136 (Annexure-20)
is seen the order of the Hon’ble Supreme Court dated 15.04.2025, directing the
petitioner herein to produce whatever documents he wishes to rely upon to the
I/O. At page 137 (Annexure-21) is found the copy of a letter dated 28.05.2025
addressed to the I/O, with a list of documents said to have been submitted before
him. However, on perusal of the said annexure, it is seen that there is no signatory
of the person who has addressed such communication, as such, it can be inferred
that no such documents have been produced or filed before the I/O. This fact,
have been confirmed by the I/O himself, who has observed in his charge sheet
(page 143 of this petition) that “… the accused neither appeared nor produced
any such documents before the Investigating Officer…”. This according to the
learned AAG reflects the callous attitude of the petitioner, as such, he is not
entitled to be given any relief in this case.
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9. In reply, the learned counsel for the petitioner has submitted that as
regard the issue of maintainability on the grounds as relied upon by the learned
AAG, this issue has also been received the notice of the Hon’ble Supreme Court
in a case emanating from the Gauhati High Court, wherein in the case of Sri
Kwmta Gwra Brahma v. State of Assam, the Court vide order dated
10.04.2015 in BA 3024/2014 at para 19 of the court has made the observation
“… that normally a person/accused should exhaust his remedy u/s 438 or 439 of
the CrPC before the Sessions Judge before making an application before the
High Court u/s 438 or 439 of the CrPC…”. This order was taken up on appeal
before the Hon’ble Supreme Court by the Gauhati High Court Bar Association
and at the outset, the Hon’ble Supreme Court vide order dated 01.09.2017 in
Petition(s) for Special Leave to Appeal (Crl.) No(s). 6457/2015 has kept the
operation of the impugned order in abeyance.
10. The Hon’ble Supreme Court in the case of Mohammed Rasal. C
and Anr. v. State of Kerela and Anr., vide order dated 08.09.2025 in Petition(s)
for Special Leave to Appeal (Crl.) No(s). 6588/2025, at para 8 of the same, had
expressed the opinion that for a prayer of grant of pre-arrest bail, the parties are
required to first approach the Sessions Court. However, perhaps on the court
being made aware of a similar matter pending before the co-ordinate bench,
wherein an order of stay has been passed, vide order dated 12.11.2025, the matter
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was referred to a three-judge bench to consider the issue in question. Since it was
the same bench which has passed the said order in the case of Jagdeo Prasad
(supra), therefore the order dated 12.11.2025 would hold the field till the matter
is finally decided by the three-judge bench, submits the learned counsel for the
petitioner.
11. In this context, the learned counsel has submitted that since the
order dated 01.09.2017, passed in the Gauhati High Court Bar Association case
has set a precedent, the Hon’ble Supreme Court in the case of National
Insurance Company Ltd. v. Pranay Sethi & Ors, (2017) 16 SCC 680, at para
21 and 28 of the same has observed as follows:
“21. In Chandra Prakash v. State of U.P. (2002) 4 SCC 234, another
Constitution Bench dealing with the concept of precedents stated
thus: (SCC p. 245, para 22)
“22. …The doctrine of binding precedent is of utmost
importance in the administration of our judicial system. It
promotes certainty and consistency in judicial decisions.
Judicial consistency promotes confidence in the system,
therefore, there is this need for consistency in the
enunciation of legal principles in the decisions of this Court.
It is in the above context, this Court in Raghubir Singh,
(1989) 2 SCC 754 held that a pronouncement of law by a
Division Bench of this Court is binding on a Division Bench
of the same or smaller number of Judges. …”
Be it noted, Chandra Prakash, (2002) 4 SCC 234 concurred with
the view expressed in Raghubir Singh Singh (1989)2 SCC 754 and
Pradip Chandra Parija, (2002) 1 SCC 1.
28. In this context, we may also refer to Sundeep Kumar Bafna v.
State of Maharashtra, (2014) 16 SCC 623 which correctly lays
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down the principle that discipline demanded by a precedent or the
disqualification or diminution of a decision on the application of the
per incuriam rule is of great importance, since without it, certainty
of law, consistency of rulings and comity of courts would become a
costly casualty. A decision or judgment can be per incuriam any
provision in a statute, rule or regulation, which was not brought to
the notice of the court. A decision or judgment can also be per
incuriam if it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a co-equal or larger Bench.
There can be no scintilla of doubt that an earlier decision of co-equal
Bench binds the Bench of same strength. Though the judgment in
Rajesh v. Rajbir Singh, (2013) 9 SCC 54 was delivered on a later
date, it had not apprised itself of the law stated in Reshma Kumari
v. Madan Mohan, (2013) 9 SCC 65, but had been guided by Santosh
Devi v. National Insurance Co. Ltd. (2012) 6 SCC 421. We have no
hesitation that it is not a binding precedent on the co-equal Bench.”
12. It is reiterated that under such circumstances, the order passed in the
case of Jagdeo Prasad (supra) as well as that passed in Mohammed Rasal. C
(supra) being delivered on a later date, such order will not be a binding precedent,
on the co-equal Bench.
13. On consideration of the contention and submission made by the
learned counsels for the parties, this Court is called upon to firstly decide on the
issue of maintainability, that is, if the petitioner has to be called upon to first
exhaust his remedy before the Sessions Court for his prayer for grant of pre-
arrest bail and in failure to get favourable result, to then approach the High Court.
14. As has been pointed out by the learned AAG, in the case of Jagdeo
Prasad as well as in the case of Mohammed Rasal. C (supra), the Supreme Court
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has expressed its opinion that the petitioner in an application for grant of pre-
arrest bail, should first approach the Sessions Court, then the High Court.
Though in the case of Mohammed Rasal. C, the matter was referred to a three-
judge bench.
15. However, in the case of Gauhati High Court Bar Association
(supra), when the High Court has expressed the same opinion as the one set out
in the case of Jagdeo Prasad and Mohammed Rasal. C, the Supreme Court has
stayed the operation of such order. This order was passed in the year 2017,
whereas the order in the two other cases referred to herein are of the year 2025
and 2024.
16. On this issue, the reference to the case of Pranay Sethi (supra) is
relevant as far as the approach of a court as regard consideration of binding
precedent is concerned, coupled with the fact that there is reference made to a
larger bench when conflicting views taken by the Supreme Court was noticed.
However, as far as the High Court is concerned, the decision in the case of State
(UT of Ladakh) v. J&K National Conference, (2024) 18 SCC 643, is
applicable when reference to binding precedent and conflicting decisions is
made. Paragraph 35 of the said judgment reads as follows:
“35. We are seeing before us judgments and orders by High Courts
not deciding cases on the ground that the leading judgment of this
Court on this subject is either referred to a larger Bench or a review
petition relating thereto is pending. We have also come across9
2026:MLHC:417examples of High Courts refusing deference to judgments of this
Court on the score that a later coordinate Bench has doubted its
correctness. In this regard, we lay down the position in law. We
make it absolutely clear that the High Courts will proceed to decide
matters on the basis of the law as it stands. It is not open, unless
specifically directed by this Court, to await an outcome of a
reference or a review petition, as the case may be. It is also not open
to a High Court to refuse to follow a judgment by stating that it has
been doubted by a later coordinate Bench. In any case, when faced
with conflicting judgments by Benches of equal strength of this
Court, it is the earlier one which is to be followed by the High
Courts, as held by a 5-Judge Bench in National Insurance Co. Ltd.
v. Pranay Sethi, (2017) 16 SCC 680. The High Courts, of course,
will do so with careful regard to the facts and circumstances of the
case before it.”
17. In view of the above, this Court need not go any further, but to agree
with the learned counsel for the petitioner that the law as its stands today does
not bar any petitioner to prefer any application for grant of pre-arrest bail, either
before the Sessions Court or before the High Court. The approach being left to
the discretion of the parties concerned.
18. Accordingly, this petition is found maintainable. As to the argument
on merits, the fact that the case wherein the petitioner herein is involved has
reached the stage of trial, the investigation having been completed and the charge
sheet also filed, there appears to be no further requirement of custodial
questioning of the petitioner. The fact that the petitioner is to ensure appearance
before the court in course of such trial, the same could be enforced by imposition
of certain conditions on grant of bail.
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19. Accordingly, the prayer made in this petition is allowed, in the event
the petitioner is arrested, he is to be immediately released on bail, on the
following conditions:
i) That he shall not abscond or tamper with the evidence or
witnesses;
ii) That he shall cooperate with the Investigating Officer;
iii) That he shall not leave the jurisdiction of India during
pendency of the trial. If he requires to travel outside India, he
should seek due permission from the Trial Court; and
iv) That he shall bind himself on a personal bond of ₹ 50,000/-
(Rupees fifty thousand) only with one surety of like amount
to the satisfaction of the Trial Court.
20. Petition disposed of. No costs.
Judge
Signature Not Verified 11
Digitally signed by
DARIKORDOR NARY
Date: 2026.04.30 16:32:38 IST
