Manas Dasgupta
NEW DELHI, Mar 20: Amidst opposition allegations that the ruling BJP was misusing the Central agencies like the Enforcement Directorate (ED), the Central Bureau of Investigation (CBI) and the Income Tax department to harass the non-BJP leaders particularly before elections to force them to cross-over to the party, the Supreme Court on Wednesday pulled up the ED saying it could not keep on filling supplementary charge-sheets to deny default bail for an accused and to keep such persons in jail for an indefinite period without trial.
The remarks by the top court bench of justices Sanjiv Khanna and Dipankar Datta were made while taking exception to the agency filing four supplementary charge-sheets in a money laundering case arising from alleged illegal mining in Jharkhand.
The apex court was hearing the default bail plea of former Jharkhand chief minister Hemant Soren’s alleged associate Prem Prakash, who was arrested in August 2022. Two AK-47 rifles, 60 live rounds and two magazines were claimed to have been found at Prakash’s residence, and he was booked for offences of money laundering and Arms Act.
“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.
Telling the ED that a person could not be put in custody without the commencement of trial, the SC bench said, “We are putting you (ED) on notice. (Under the law) You cannot arrest a person without the investigation in the case being complete. A person cannot be put in custody without the commencement of trial. It is akin to detention and affects the liberty of an individual. In some cases, we have to settle this issue,” bench told the additional solicitor general SV Raju.
Observing that an accused cannot be denied the benefit of default bail, Justice Khanna said, “The whole object of default bail is that you do not arrest until investigation is complete. You cannot say that a trial will not commence unless the investigation in the case is complete. You cannot keep on filing supplementary charge-sheets and keep the person in jail without trial.”
Noting that the petitioner has been in jail for 18 months and supplementary charge-sheets were being filed by ED one after another, Justice Khanna added, “This is what is bothering us. Trial has to begin when you arrest an accused. You cannot deny the benefit of default bail for delayed commencement of trial. Default bail is a right of the accused and it cannot be denied by filing supplementary charge-sheet.”
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 top court judge also invoked the arrest of former Delhi deputy chief minister Manish Sisodia, who is in jail since 2023 following his arrest by the ED in Delhi excise policy case. “We have held this in the Manish Sisodia case (Delhi excise policy scam case), if there is long incarceration and undue delay in commencement of trial, the court can grant bail. Section 45 does not bar grant of bail because this right flows from Article 21 (protection of life and personal liberty) of the Constitution,” Justice Khanna said.
Raju, while appearing for ED, argued that the accused was an influential person and may influence the witnesses and tamper with evidence if released on bail.
The Supreme Court asked the additional solicitor general to respond to all the questions put forth by the bench in a month and posted April 29 as the next date for hearing.
Advocate Siddharth Agarwal, appearing for Prakash, said when the initial FIR was lodged, his client’s name was not there and no transaction had been found between him and the co-accused. He said the statements of two crucial witnesses do not directly implicate him.
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.
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.”
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 ₹ 338 crore was “tentatively supported” by evidence.
Eventually, though, Prem Prakash was denied interim bail on Wednesday with the court accepting a request to hold proceedings for a month to ascertain progress of the trial, which will now be held daily.