On Bail, Supreme Court’s Recent Orders Point to a Distinct Lack of Clarity

While bail under certain sections has proven entirely impossible, different benches of the Supreme Court strike a cord of dissonance in reasoning as well.

The Supreme Court on Friday, May 12, heard senior counsel Mukul Rohatgi vehemently oppose the Union government’s application to recall the recent judgment declaring default bail a fundamental right and the court’s interim order amounting to a stay on it. The court’s decision to entertain the government’s recall application has caused serious misgivings. 

The matter was heard by a three-judge bench comprising the Chief Justice of India, D.Y. Chandrachud and Justices P.S .Narasimha and J.B. Pardiwala. 

In the judgment in question, Ritu Chhabaria vs Union of India, a division bench of the Supreme Court comprising Justices Krishna Murari and C.T. Ravikumar had held that an accused is entitled to default bail if the chargesheet is dummy and required further investigation. 

This view, according to observers, upheld the idea of liberty and the presumption of innocence over the rights of the state to investigate. The mandatory period within which an investigative agency has to file a charge sheet so as to deny the right to default bail of an accused expires in 60 to 90 days depending on the case. 

Rohatgi, while representing the respondents in Ritu Chhabaria vs Union of India, questioned the Union government’s decision to file a recall application instead of invoking the court’s review jurisdiction – as is the usual practice. 

Rohatgi contended that the Union government’s success in getting the recall application listed ex parte before the CJI-led bench was highly improper as it excluded the original division bench that had pronounced the judgment. 

Senior advocate Siddharth Luthra appearing for an intervenor in the matter argued that the interim order seriously curtailed the rights of the accused who are eligible for default bail on account of the prosecution’s failure to file a charge sheet within the stipulated period, an incomplete charge sheet or on the basis of an incomplete investigation. 

 Also read: As Centre Urges SC To Recall Judgment on Default Bail, Three-Judge Bench To Be Constituted

The three judge bench’s interim order, issued on May 1, stated: 

“In the meantime, in the event that any other applications have been filed before any other court on the basis of the judgment of which recall is sought, they shall be presently deferred beyond 4 May 2023.”

 The Campaign for Judicial Accountability and Reforms (CJAR) too urged the Supreme court to recall its order deferring grant of default bails to accused all over the country. The CJAR noted that the judgment in Ritu Chhabaria is indisputably a welcome one, and lays down the correct law consistent with the fundamental rights enshrined in the Constitution. 

The CJAR expressed its concern over the manner in which the recall proceedings were handled by the Supreme Court Registry.

In its view, a recall application against a final judgment of the court is not maintainable. The only remedy for the aggrieved party is to file a review application under Article 137 of the Constitution, which ought to be listed in chambers before the same bench (if it is still available) that passed the original  judgment the CJAR pointed out.  

The CJAR also noted that a recall application should’ve been made, if at all, only before the same bench that delivered the judgment. “Institutional integrity demands that any departure from this convention if at all ought to be done by means of a reasoned order”, the CJAR observed in a resolution. 

Expressing serious concern, the CJAR reminded the court that the CJI’s bench is not an appellate court over the final judgments and orders of other benches of the Supreme court. The CJI’s bench has effectively condoned the brazen act of forum-shopping and bench-hunting by the Union and acted like an appellate court by listing the recall application before a different bench CJAR’s resolution reads. It also urged the recall of the interim orders passed on May 1 and 4 by the CJI-led bench. 

On May 12, in view of the vehement opposition to the above interim order, and its indefinite extension beyond May 4, the three-judge bench clarified: 

“We clarify that the interim order of this court on May 1, 2023 shall not preclude any trial court or high court from the grant of default bail independent of and not relying upon the Ritu Chhabaria judgment on April 26, 2023”. 

 The bench had refused to stay the judgment earlier and only directed courts to defer applications seeking default bail by citing Ritu Chhabaria. On May 12, despite the serious opposition to the recall application, the bench specifically directed the lower courts not to rely upon Ritu Chhabaria while granting default bail. 

With the court set to begin its summer vacation next week, the case may well be listed for hearing after the vacation. Till then, the confusion created by the court’s interim orders as to whether the lower courts can grant default bail, if the application is from the accused Ritu Chhabaria will continue. The confusion pertains to whether the courts can grant default bail if the accused is entitled to bail under the CrPC without specifically citing Ritu Chhabaria. 

The Supreme court has only interpreted the existing case law on default bail in the context of Ritu Chhabaria, and not laid down a new law. Therefore Solicitor General Tushar Mehta’s submission – not all investigations could be finished in 60 to 90 days – may not be a valid ground to recall it.  

Also read: Bail Under UAPA: Different Supreme Court Benches, Vastly Different Rulings

Other orders

Even as the Supreme court has let the confusion over default bail to continue, other benches seemed to be speaking in different voices while deliberating even regular bail. 

In Kadar Nazir Inamdar vs The State of Maharashtra, a division bench comprising Justices B.R. Gavai and Sanjay Karol had found that the Single Judge of the Bombay high court had rejected the bail application of the appellant by a 16-page order last year. 

The bench had recalled that in a recent case, the Supreme court had deprecated the practice of detailed elaboration of evidence in the orders granting/rejecting bail/anticipatory bail. While doing so the court had also deprecated the practice of long delay between reserving the matter for order and pronouncing the order. In that case, the delay was about one and a half months while in the present case, the order was pronounced almost three months after it was reserved. 

In the instance, the bench found that the co-accused had already been granted bail by the Sessions Judge, Pune. As the State has not appealed against this, the bench reasoned that the role of the appellant does not stand on a higher pedestal than that of the co-accused. The bench noted that as the appellant has been incarcerated for about two and a half years, the charges are yet to be framed. 

The bench directed the release of the accused on bail, despite the State submitting that the petitioner is part of a conspiracy hatched to eliminate the deceased. 

Bail denied

In Directorate of Enforcement vs Aditya Tripathi, Justice M.R.Shah, who has just retired from the Supreme Court, set aside the bail of a Prevention of Money Laundering Act accused, which was granted to him by the Telangana high court in March 2021. 

 The high court had concluded that the accused deserved bail because the investigation had been completed and a charge sheet filed. But the Supreme court bench comprising Justices Shah and C.T. Ravikumar agreed with the Enforcement Directorate’s (ED) claim that the investigation was incomplete for the scheduled offences. The ED also submitted that the high court did not consider the rigour of Section 45 of the PMLA.

“Merely because, for the predicated offences the charge sheet might have been filed, it cannot be a ground to release the accused on bail in connection with the scheduled offences under the PMLA”, the Shah-Ravikumar bench observed in its  judgment on Friday. The bench directed the accused-respondent to surrender before the competent court having jurisdiction or before the concerned jail authority within a period of one week, and remitted the matters back to the high court to consider the bail application afresh. 

Bail under PMLA has become near-impossible after the Supreme court’s judgment in Vijay Madanlal Chaudhary vs Union of India last year. The court in Aditya Tripathi, without citing Vijay Madanlal Chaudhary, and a proper discussion of the factors which weighed with the three-bench decision in Vijay Madanlal Chaudhary, has set aside the high court’s grant of bail. The Shah-Ravikumar bench appears to have uncritically accepted the ED’s claim that the high court has not properly appreciated the seriousness of the scheduled offences under the PMLA. 

More importantly, the high court granted the bail in March 2021, well before the Supreme court’s judgment in Vijay Madanlal Chaudhary, which was delivered in July last year. The high court held in its  judgment that mere threat of interference is not sufficient to refuse bail. It had also noted that nowhere it was stated that there were any more records or documents yet to be discovered.