Institute of Legal and Management Studies

The Supreme Court today (August 12) questioned the Union Government over the application filed by it to recall the 2023 judgment in Ritu Chhabaria v. Union of India which held that right of an accused to seek default bail is not extinguished when the investigating agency files an incomplete chargesheet.

A bench comprising Chief Justice of India BR Gavai, Justice K Vinod Chandran and Justice NV Anjaria also observed that the bench of the CJI cannot vary the orders passed by other benches.

The operation of the Ritu Chhabaria judgment, delivered by a bench comprising Justices Krishna Murari and CT Ravikumar, was however effectively suspended by a bench comprising the then Chief Justice of India DY Chandrachud which ordered that default bail applications based on the said judgment must be deferred by the Court. This order was passed while considering a Special Leave Petition filed by the Enforcement Directorate.

Last week, the Supreme Court dismissed the CBI's review petition against the Ritu Chhabaria judgment. Today, the recall application filed by the ED was listed.

At the outset, CJI Gavai asked how the Miscellaneous Application to recall the judgment can be maintained once the review was dismissed.

"If the review is dismissed... we have time and again said that review applications under the garb of MAs (miscellaneous applications) are not to be entertained. That is an abuse of process of law."

CJI further asked if the 1st Court (CJI's bench) can exercise appellate powers over the orders passed by other benches.

"When the bench of two learned judges of this court grants any relief, can another bench, merely because it sits in court no.1 of the same strength, consider a review of that judgment?If we go on permitting this, merely because one doesn't like the order, will go on challenging the order before other benches."

To which, Solicitor General of India Tushar Mehta for the Union said, "I am not saying facts on reviews, independently of that mylords, the Chief Justice of India should know what happened."

The CJI then verbally clarified, "The Chief Justice of India is not superior to other judges; he is only the first amongst the other. The CJI exercises the same judicial power as all other judges of this court."

SG explained that the Ritu Chhabaria decision in question was required to be stayed as thousands of applications came to be filed seeking default bail across the country merely on that basis.

He explained how the issue initially started with the wife of the accused filing a petition seeking permission to send the accused home-cooked food. In that writ petition, an application for default bail is filed. Here, the application sought a default bail on the ground that since further investigation is going on as per S.173(8), the State has to file the chargesheet within 60 or 90 days; otherwise, default bail applies.

The Counsel for the respondents, however, clarified that in the said writ petition for allowing home-cooked food, the IA for default bail was filed before the first hearing of the case. On the first hearing, IA was allowed, and notice was issued in the writ petition.

SG then stressed, that the division bench in Ritu Chhabaria, the Court categorically held that first, the investigation has to be completed, and only then, can a chargesheet or a complaint be filed within the stipulated period, and failure to do so would trigger the statutory right of default bail under Section 167(2) of CrPC. The relevant part of the decision states :

"The question of resorting to a supplementary chargesheet u/s 173(8) of the Cr.PC only arises after the main chargesheet has been filed, and as such, a supplementary chargesheet, wherein it is explicitly stated that the investigation is still pending, cannot under any circumstance, be used to scuttle the right of default bail, for then, the entire purpose of default bail is defeated, and the filing of a chargesheet or a supplementary chargesheet becomes a mere formality, and a tool, to ensue that the right of default bail is scuttled."

The SG said that this is contrary to multiple larger bench judgments. He then emphasised many accused started claiming default bail merely on the ground that the chargesheet mentioned further investigation was going on.

He added that an SLP has also been filed challenging the order of the Delhi High Court granting a default bail based on the decision in Ritu Chhabaria.

" I request that the first SLP on the board ( Directorate of Enforcement Vs. Manpreet Singh Talwar) be decided and the law be settled." He said

He further clarified that the main problem is treating the chargesheet as incomplete due to the mentioning of S.173(8) CrPC and granting default bail. It was not his case to argue on the maintainability of the recall application.

The CJI replied that while this aspect can be examined, "but where is the question of recalling the judgment ?"

The SG urged the bench to list the SLP with the IA to recall. The Court agreed to place the matter before a 3 judge bench.

Case : DIRECTORATE OF ENFORCEMENT Versus MANPREET SINGH TALWAR| SLP(Crl) No. 5724/2023 and connected matter