“Can’t Keep Filing Chargesheets To Keep People In Jail”, Top Court Observes

The Supreme Court has questioned the Enforcement Directorate over filing of supplementary charge sheets to deny default bail for an accused, and to keep such persons in jail for an indefinite period. A bench of Justice Sanjiv Khanna and Justice Dipankar Datta told the central agency this practice – of effectively keeping accused in jail without a trial – troubled the top court.

“The whole object of default bail is that you do not arrest (an accused) till the investigation is complete. You cannot (arrest an accused and) say the trial will not commence till investigation is not complete. You cannot keep filing supplementary charge sheets and then the person is in jail without a trial,” Justice Khanna told Additional Solicitor-General SV Raju, who was appearing for the ED.

“In this case, the person is behind bars for 18 months. This is bothering us. In some case we will take it up and we are putting you to notice in that. Trial has to begin when you arrest an accused,” the court said Wednesday.

Under current laws an arrested individual is eligible for default bail if the authorities are unable to complete the investigation, or file a final charge sheet, within timelines set by the CrPC, or Code of Criminal Procedure. This time period is either 60 or 90 days, depending on case circumstances.

The court made a similar observation in April last year; a bench of Justice Krishna Murari and Justice CT Ravikumar said, “Without completing investigation, a charge sheet cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail…”

READ | Can’t File Charge Sheet Without Finishing Investigation: Top Court

The top court’s crucial observation could go on to impact several high-profile figures, including opposition political leaders who have been arrested by the probe agency and remain in jail, facing multiple charges and charge sheets without either proceeding to a trial.

The court made this observation while hearing a bail plea filed by an accused linked to an illegal mining case from Jharkhand. The accused – Prem Prakash – is an alleged aide of former Chief Minister Hemant Soren, who was arrested by the ED last month on money-laundering charges.

Mr Prakash was denied bail by the Jharkhand High Court in January last year. He had then moved the Supreme Court, which noted he had spent 18 months in jail and called it a “clear case of bail”.

To this Mr Raju raised concerns of evidence or witness tampering if the accused were released, but the court was not convinced. “You come to us if he (Mr Prakash) does any of that…” Justice Khanna told the probe agency’s lawyer, adding, “… but 18 months behind bars?”

The Supreme Court noted that right to bail due to prolonged jail, under Section 45 of the Prevention of Money Laundering Act, or PMLA, could be granted if there is prima facie belief the accused did not commit the offence, and that he is not likely to transgress any laws while out on bail. This, the court held, flowed from Article 21 of the Constitution, which talks about right to personal liberty.

The court referred to the incarceration of senior AAP leader and former Delhi Deputy Chief Minister Manish Sisodia, who was arrested by the ED in the liquor policy case in February 2023.

Last week the court – a bench led by Chief Justice DY Chandrachud and including Justice Khanna – dismissed a curative petition filed by Mr Sisodia after his bail plea was rejected in October. The court held the allegations – of “windfall gains” of Rs 338 crore was “tentatively supported” by evidence.

READ | Supreme Court Rejects Manish Sisodia’s Curative Petition Seeking Bail

Noting the accused in this case had spent 18 months in jail, the court said “constitutional right (under Article 21) is not taken away by Section 45 (of PMLA)… this is very clear”.

“Even in the case of Manish Sisodia, I said default bail is something separate. If there is delay in trial, power of court to grant bail is not taken away,” Justice Khanna said.

The top court’s observations on default bail and supplementary charge sheets come amid allegations by the opposition that central agencies like the ED and the Central Bureau of Investigation target rivals of the ruling BJP, particularly before elections, to force them to cross-over to the party.

The BJP has trashed such allegations, insisting the CBI and ED are independent and are working towards the government’s resolve of rooting out all corruption.

Eventually, though, Prem Prakash was denied interim bail today, with the court accepting a request to hold proceedings for a month to ascertain progress of the trial, which will now be held daily.

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