CJI not superior to other SC judges, has same judicial powers: Justice Gavai

A two-judge bench of Justices (retired) Krishna Murari and C T Ravikumar it its 2023 judgment deprecated the “practice” of investigating agencies filing chargesheet in court even before completion of probe so as to deny default bail to accused, and said that even in such cases the right of the accused to default bail will not be extinguished.

As per the law, the chargesheet has to be filed within 60 days from the date of arrest of the accused in cases triable by lower courts and 90 days in cases triable by a sessions court. Failure to file the chargesheet within this period entitles an accused to default bail.

Days after the April 26 ruling, the ED approached the SC and told a bench presided by then CJI D Y Chandrachud that the Delhi High Court had granted bail to the accused in a case probed by it based on the SC judgment in the Ritu Chhabaria case. The agency pointed out that the decision will have nationwide repercussions.

By order dated May 12, 2023, the SC suspended the operation of the April 26 judgment.

On Tuesday, CJI Gavai expressed his displeasure over the one-judge bench, even if that be the CJI-headed bench, hearing appeals against judgements of any other bench of the SC.

“When a bench of two learned judges of this court grants any relief, can another bench, merely because it sits in court number 1, of the same strength, sit in appeal over that judgment,” asked CJI Gavai.

He said, “We believe in adherence to the judicial propriety, judicial discipline. If we go on permitting this, then one bench merely because it does not like an order, will go on interfering with the orders of the other bench.”

“The Chief Justice of India is not superior to the other judges. He is the first among the others. The CJI exercises the same judicial powers as all other judges of this court,” the CJI said.

Appearing for ED, Solicitor General Tushar Mehta told the three-judge bench that the petitioner in the matter in which the April 26 judgment was delivered had “misused” the court’s jurisdiction.

He said initially, a person filed a petition saying her husband was in jail and sought permission to allow her to send him home-cooked food. “Thereafter the petitioner (in the April 26 matter) filed a similar petition that ‘my husband is also in jail, so permit me to serve him home-cooked food’. The petitioner further pointed out that a similar petition (the first petition) is pending before a particular bench… Both matters are listed together. Then first (petition) pales into insignificance. Subsequently, an Interlocutory Application (IA) is filed…in the second petition where the main prayer is home-cooked food. It says the chargesheet is filed with Section 173(8) CrPC, which says that further investigation is going on…”

“The SC (two-judge) bench takes the view that once you file a chargesheet with 173(8), you will get default bail because it is an incomplete chargesheet,” the SG said, adding that this was contrary to multiple larger-bench judgements. “Thereafter all-across India, people started filing default bail applications once chargesheet was filed (with section 173(8)).”

The counsel for the respondents sought to clarify that in the writ petition for allowing home-cooked food, the IA for default bail was filed before the first hearing of the case. On the first hearing, IA was allowed, and notice was issued in the writ petition.

The SG said if the court did not want to look at the recall request, it can still consider the ED’s SLP filed against the Delhi High Court order and settle the law.

The court finally agreed to list it before a three-judge bench.