In an extraordinary development, a CJI-led Bench plays appellate court over another SC Bench

The Bench headed by CJI Dr Chandrachud was hearing a recall application filed by the Union government against the judgment authored by Justice Murari dated April 27, which had held 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.

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ON Monday, a division Bench of the Supreme Court comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice J.B. Pardiwala directed all courts to defer beyond May 4 the hearing on applications filed before them seeking default bail citing a recent decision by another co-ordinate Bench of the Supreme Court comprising Justices Krishna Murari and C.T. Ravikumar. The latter had held 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).

The Bench headed by CJI Dr Chandrachud was hearing a recall application filed by the Union government against the judgment authored by Justice Murari dated April 27. The CJI-led bench has now directed to list the order before a three-judge Bench.

The CJI-led Bench was also hearing an appeal filed by the Directorate of Enforcement against the Delhi High Court's order on April 28 directing the release of an accused citing Justice Murari's judgment.

Supreme Court advocate Prasanna S. took to Twitter to opine that the CJI-led Bench passing such an order committed extraordinary impropriety, adding that the CJI's bench is not an appellate court over another Supreme Court Bench.

Constitutional law scholar and lawyer Gautam Bhatia has criticised the order, writing that "it creates a precedent where— in the future— if the State is displeased by a judgment, instead of filing a review, or persuading another coordinate bench of its point of view in adversarial proceedings, it can simply approach the Chief Justice ex parte, on an oral mentioning, and secure a hearing before a larger bench to 'recall' the unfavourable order. This effectively puts the precedent of the court entirely at the mercy of the predilections of a particular Chief Justice."

On April 27, the Bench comprising Justices Murari and Ravikumar had further 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.

"If we were to hold that chargesheets can be filed without completing the investigation, and the same can be used for prolonging remand, it would in effect negate the purpose of introducing Section 167(2) of the CrPC and ensure that the fundamental rights guaranteed to accused persons [are] violated," the Bench had noted.