New Delhi: The Enforcement Directorate (ED) has questioned a Supreme Court judgment, which held that an incomplete chargesheet filed by an investigating agency without completing the probe would not defeat the right of the accused for default bail.
The federal probe agency said Monday that the judgment, titled Ritu Chhabaria, is per incuriam (meaning a judgment that ignores an earlier ruling cannot be cited) because it ignored earlier rulings on the law of default bail. Delivered last week by a bench led by Justice Krishna Murari, the judgment according to the ED was contrary to, and passed in ignorance of, at least three earlier judgments delivered by a larger bench, as well as coordinate benches of co-equal strength, on the subject.
The ED’s assertion came in an appeal challenging a Delhi High Court order that gave bail to an accused facing money laundering charges under the Prevention of Money Laundering Act (PMLA), relying on the Ritu Chhabaria verdict.
The ED’s appeal said that according to the Ritu Chhabaria ruling, filing of a supplementary chargesheet with further investigation would mean that the probe on the accused in jail remains incomplete. Hence, the right of default bail would accrue in favour of the accused.
“It (SC judgment) presumes that merely because further investigation u/s 173(8) of the CrPc (Criminal Procedure Code) is undertaken, it becomes a tool to scuttle the right of default bail, is ex-facie contrary to binding decisions of this court,” read the ED’s appeal filed by advocate Zoeb Hossain. The power of the police to conduct further investigation in a case is recognised under section 173(8) of the CrPc.
Taking note of the ED’s appeal, a bench led by Chief Justice of India D.Y. Chandrachud which was hearing the matter said courts below dealing with applications for default bail based on the Ritu Chhabaria judgment should defer their decision till a three-judge bench looks into the issue raised by the ED. The court then listed the ED’s appeal before a three-judge bench for a hearing on 8 May.
This is the first time a government probe agency has spoken against the Ritu Chhabaria verdict. But it has been done through an appeal and not a review petition, which is the requirement for a judgment to be revisited under the Supreme Court rules. In case a party wants the top court to reconsider an earlier judgment, the rules require for a review petition to be filed, which has to be considered by the same bench that delivered the verdict under question.
Also read: ‘Impossible to implement’ — SC order relaxing regulation of activities in eco-sensitive zones
‘Applications already come for default bail based on judgment’
Solicitor General Tushar Mehta mentioned the ED’s appeal in Supreme Court and spoke of the difficulties faced by central agencies owing to the Ritu Chhabaria judgment. Mehta argued that various judgments by larger benches of the Supreme Court have “unequivocally stated” that it was the duty of an investigative agency to file a chargesheet within 90 days or 60 days as the case may be. Mehta added that the agencies had the right to seek further probe under section 173(8) of CrPc and that every investigation cannot be completed within 60 or 90 days.
When the CJI informed the solicitor that his bench had pronounced a judgment Monday where it has elaborated the issue dealt with in the Ritu Chhabaria case, Mehta said the verdict lays down an absolute proposition on default bail. “Applications have already come for default bail based on this judgment before various courts in the country,” Mehta said, asking the court to have a relook at it in a three-judge bench.
According to the ED’s appeal, an identical issue, as decided in the Ritu Chhabaria judgment, had arisen before a top court bench in 2007. This bench too was a two-judge bench, which held that though right of bail is a valuable right, but the same is a conditional one. And the condition precedent being pendency of investigation. But the right does not revive only because a further investigation is pending.
Even a larger bench of the top court had declared in the past that mere undertaking of a further investigation by an investigating officer does not mean that the final report submitted by him or her is abandoned or rejected, Mehta said.
In 2014, another SC bench of two judges had rejected the argument that the accused would be entitled to default bail because further investigation was pending with respect to certain aspects of the investigation, the ED informed the court.
“A two-judge bench cannot overlook or ignore a binding precedent of a co-equal bench, which would render such a judgment per incuriam,” it said.
Moreover, the ED further added, that the Ritu Chhabaria judgment would not be applicable to a special enactment, namely the PMLA. It is also in conflict with the observation made by the top court in the Vijay Madanlal Chaudhary judgment of last year, which had upheld the stringent provisions of the PMLA and the law, added the ED petition.
According to the ED, under PMLA it is open to the authority to file a fresh complaint against a person who has not been named as accused in the original complaint, already filed in respect of some offence of money laundering.
(Edited by Poulomi Banerjee)
Also read: Why CJI has again advocated ending ‘sealed cover’ practice in SC: ‘There can’t be secrecy in court’