The Supreme Court Made Default Bail Easier – So Why is ED Challenging It?

A top court ruling was termed crucial for prisoners' rights. But the Enforcement Directorate is now opposing it.

The Supreme Court delivered a verdict last month that legal experts have since hailed as “long overdue.”

But after an urgent plea by the Enforcement Directorate (ED), a bench headed by CJI DY Chandrachud is expected to examine today if the judgment can be recalled. 

The judgment (Ritu Chhabria vs Union of India), which came on 26 April, says that central agencies cannot file chargesheets without completing their investigation, just to stop the accused from getting default bail.

Speaking to The Quint, lawyers pointed out that recalling this crucial verdict will interfere with the fundamental rights of prisoners.

“This verdict was long overdue. What we see often is that the ED or the CBI files an initial, shoddy chargesheet just to deny bail to someone. A chargesheet is meant to mark the culmination of an investigation,” Ishan Khanna, who specialises in white-collar criminal litigation, pointed out.

“So filing an incomplete charge sheet is always a targeted move to keep someone in jail,” he added.

So, why is the top court now hearing a recall application against it? Where did this judgment come from? Why is it important for protecting the rights of the accused? 

The Case in brief

The top court’s judgment came from the case of realty developer Sanjay Chhabria, who was arrested by the CBI in 2022 on grounds of defrauding Yes Bank.

His wife, Ritu Chhabria, filed a writ petition before the top court alleging that even though the CBI admitted that their investigation in the case had been incomplete, it filed multiple supplementary chargesheets just to deny him default bail. 

This is the process when someone is arrested:

"But, in a bid to hold the accused back in jail till the trial begins, investigating agencies often file chargesheets without finishing their investigation," Khanna explained.

The SC Verdict & Why It is Important

A two-judge bench of Justices Krishna Murari and CT Ravikumar did not take too well to the CBI’s action in Chhabria's case.

It, in fact, pointed out in its verdict that it “is essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands.”

Referring to one of its previous judgments (Satendar Kumar Antil vs Central Bureau Of Investigation), the court reiterated that:

The investigating authority is under a constitutional duty to speed up the investigation within the stipulated time, failing which, the accused is entitled to be released on default bail.

In a conversation with The Quint, Delhi-based lawyer Kumar Vaibhaw explained why what the apex court said is crucial. 

“I’m working on a case, where the chargesheet was submitted on the sixtieth day at 4 pm. The investigation was incomplete. They hadn’t traced most of the payments that the accused was alleged to have tampered with and said that they’ll reflect that in further investigation," he said.

“So, default bail, in this case naturally went out of the window even though the investigation was far from over," he added.

“The verdict would make sure that the the accused wouldn't continue to be imprisoned even though the central agency hadn’t done their job properly.”

Kumar Vaibhaw

‘Not Enough Time To Investigate’: What ED Is Saying

Five days after the verdict came, the ED filed an application seeking its recall. 

Solicitor General Tushar Mehta, representing ED, insisted before the CJI that the judgment must be recalled or at least put on hold because multiple petitions seeking default bail had been filed based on the top court’s Ritu Chhabria verdict.

Mehta argued that not all investigations can be finished within 60 or 90 days.

The court agreed to hear the ED’s plea. It also ordered other courts to defer hearing bail petitions based on the judgment, until it decided what to do in the ED’s case.

When the ED approached the top court on 1 May with its recall application, the court first deferred bail petitions till 4 May. When the hearing didn't happen then, the case was finally listed for hearing on 12 May.

But, Do Investigating Agencies Really Need More Time?

They might. But filing chargesheets without finishing their investigation is definitely not the way to go about it.

“But holding someone back in prison under the current law, without finishing your investigation is arbitrary."

Ishan Khanna, White-collar criminal litigation expert

Experts also pointed out procedural inconsistencies with how the apex court chose to hear ED’s urgent petition.

According to what they said, the ED should have filed a review petition instead of a recall plea. And, it shouldn’t have been heard by the CJI-led bench, since they weren’t the ones to deliver the initial verdict.

“It should have been a review petition, you cannot seek recall of final  judgments by the top court., it's settled law." Khanna said.

“One can seek a recall of a judgment only if there has been a patent error such as when the name of the accused is incorrect," he added.