The three-judge Bench has also modified its May 1 Order to the effect that high courts and trial courts are not precluded from deciding applications seeking default bail. However, they have been directed to do so independently of the April 27 judgment by the coordinate Bench of the Supreme Court comprising Justices Krishna Murari and C.T. Ravikumar.
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ON Friday, the Central Bureau of Investigation(CBI) informed the Supreme Court that it would be filing a review petition against a two-judge Bench decision of April 27, 2023, holding that an investigation agency could not file a chargesheet or a prosecution complaint without completing its investigation, only to deprive an accused of their right to get default bail under Section 167(2) of the Code of Criminal Procedure (CrPC).
A submission to this effect was made by Solicitor General of India Tushar Mehta before a three-judge Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala, which was hearing a petition styled as 'recall application' against the April 27 judgment passed by a Bench comprising Justices Krishna Murari and C.T. Ravikumar.
The three-judge Bench has also modified its May 1 Order to the effect that high courts and trial courts are not precluded from deciding applications seeking default bail. However, they have been directed to do so independently of the April 27 judgment. In its May 1 Order, the CJI-led division Bench had directed all courts to defer beyond May 4 the hearing on applications filed before them seeking default bail citing the decision by the coordinate Bench of the Supreme Court comprising Justices Murari and Ravikumar.
Senior advocate Mukul Rohatgi, appearing for the petitioner in the April 27 judgment, argued that the recall application filed by the CBI was not maintainable. He also questioned the alacrity with which Solicitor General Mehta had mentioned the matter on May 1 behind the back of the petitioner adding that the Chief Justice's court is not an appellate court.
The three-judge Bench has now listed the matter in July 2023.
On April 27, the Bench comprising Justices Murari and Ravikumar had held that a chargesheet, if filed by an investigating agency without first completing the investigation, would not extinguish the right of the accused to default bail. The Bench had reiterated that the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 (right to life and liberty) of the Constitution.
Recently, the Campaign for Judicial Accountability and Reforms (CJAR) questioned the propriety and lack of jurisdiction of the Order passed by a two-judge Bench led by CJI Chandrachud. In a statement, the CJAR said that the Chief Justice's Bench is not an appellate court over the final judgments and Orders of other Benches of the Supreme Court. It thus sought recall of the order passed by the CJI-led Bench on May 1 and May 4.
The CJAR claimed that the recall application against a final judgment of the Supreme Court was not maintainable and ought not to have been registered by the registry of the Supreme Court.
"The only remedy for the Union of India, if it was aggrieved by this final judgment, is filing a review application under Article 137 of the Constitution. Such a review application under the Supreme Court Rules, if the Bench is still available (with none of the judges having retired, etc.), ought to be listed in the chambers before that same Bench that passed the judgment sought to be reviewed," the statement said.