Guest Post: The Supreme Court, Default Bail, and the Question of 'Incomplete' Chargesheets

(This is a guest post by Kartik Kalra)

The Supreme Court delivered its judgment in Central Bureau of Investigation v. Kapil Wadhawan on January 24 ('Wadhawan'). It held that the Respondent-accused’s previous release on default bail sanctioned by the trial court, and affirmed by the Delhi High Court, was incorrect, as these findings were based on an incorrect appreciation of the “sufficiency” or “completeness” of the police investigation when assessing applications u/s 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”). 

In this post, I propose that the Court’s prohibition on assessing the investigation (through the report commonly called a 'chargesheet') for examining its completion constitutes a breach of the state-citizen compromise underpinning default bail. Given the crucial nature of pre-trial liberty in contemporary criminal procedure, I propose that a high-scrutiny enquiry into a chargesheet's sufficiency (and thereby, an investigation’s completeness) must be undertaken by courts at the stage of assessing default bail, as a bureaucratic assessment of the bare-bone, physical filing of a charge-sheet substantially endangers civil liberties.

I make this argument in the following manner – first, I discuss the facts in Wadhawan, noting similarities with the currently “recalled” judgment of the same Supreme Court in Ritu Chhabaria v. Union of India. Second, I discuss the judgment in Wadhawan, arguing that the Court trivialised aspects of the chargesheet’s “incompleteness” highlighted by courts below, to seemingly doctrinally forbid an enquiry into a chargesheet’s sufficiency. Third, I propose that the present political economy of pre-trial detention – where prolonged incarceration constitutes punishment for pre-trial detainees – necessitates high-scrutiny enquiries into charge-sheets’ contents by courts authorising default bail.

Ritu Chhabaria Analogue: The Problem of Judicial Scrutiny into Chargesheets

Wadhawan arose with filing applications for default bail u/s 167(2) of the CrPC, which mandates the accused’s release from pre-trial detention if the police have not completed investigation within sixty or ninety days of remand. This aspect of completing an investigation is reflected by the investigating agency filing a chargesheet under Section 173 of the Code. 

In Wadhawan, the investigating agency (the CBI) filed a chargesheet within the stipulated time (which, the trial court had held after arguments, was ninety days). The trial court even took cognizance of offences on its basis. After this, the accused filed applications for bail under Section 167(2), arguing that the investigation was incomplete, and the chargesheet was nothing but a means to frustrate the right to default bail.

The issue, therefore, concerned the chargesheet’s contents, and deliberating the completeness or lack thereof of the investigation by the CBI. A materially similar issue arose before the Court in Ritu Chhabaria – there, the police filed a chargesheet, which the Court found incomplete, and held that it did not disentitle the accused from being released. The opinion discouraged other courts from “mechanically accepting incomplete chargesheets”, prompting an enquiry into its contents, which would enable a court to determine the investigation’s completeness (¶33). Of course, the opinion has since been “recalled” by the Supreme Court itself in Directorate of Enforcement v. Manpreet Singh Talwar, forbidding courts from relying on Ritu Chhabaria, but not specifically depriving courts from considering the argument therein (which was not novel at all). 

This enquiry into contents of a chargesheet is important to preserve the moral value of pre-trial detention, for the scheme of sixty/ninety days under section 167(2) is designed with the notion that detention without probative material pointing to the accused’s guilt must be for a limited duration. Disingenuous chargesheets aiming to pin guilt on the accused preliminarily, awaiting (a long) process of trial, must be deeply scrutinised by courts. 

Antony Duff, for example, notes that the legitimacy of pre-trial detention lies in citizens’ obligation to account for the reasonable fears their status as an “accused” generates in others’ minds by agreeing to a degree of social exclusion, especially when the alleged offences are heinous in nature. When, however, no attempt is made to enquire into an accused’s guilt, and probative material pointing thereto is lacking even after the completion of sixty/ninety days, the accused’s obligations to account for social fears must be recognized as having diminished, for they are – overall – presumed innocent of having committed the offence.

The above, of course, is without prejudice to one’s release prior to the completion of these sixty/ninety days, which is done through ordinary bail. The extent of one’s obligation to account for social fears reduces if it can be demonstrated that they would dissociate from, and enable the peaceful completion of the fact-finding process, for it has been shown that they pose no great social risk to warrant pre-trial detention. In case, however, one has been unable to obtain bail due to, for example, the court’s assessment of the accused’s likely involvement in the offence, the sixty/ninety duration is the maximum period – without additional probative material pointing to their guilt in the form of the charge-sheet – for which they can be detained. The completion of these days is deemed a sufficient discharge of one’s obligation to account for social fears, which would be trumped by their presumption of innocence.

Courts must, therefore, enquire deeply into the police’s fact-finding process, represented through the charge-sheet, to determine whether the guilt being preliminarily pinned on the accused has been arrived at through a genuine fact-finding process, or it is merely a disingenuous attempt to “scuttle” – as noted in Ritu Chhabaria – the accused’s release.

The Instant Case: Trivialising “Incompleteness” to Forbid Sufficiency Enquiries

The allegations in Wadhawan were of bank fraud — alleged misappropriation of loans taken from banks by diverting proceeds for various purposes into various companies. The charge-sheet filed within ninety days – the accused claimed – was nothing but “a subterfuge or ruse to defeat the indefeasible right…u/s 167(2)”. The trial court agreed, holding that the investigation, both into allegations against the accused as well as other persons and companies, was incomplete, and such a chargesheet could not defeat default bail (¶40-42). The Delhi High Court concurred, holding that this assessment was correct, and “substantial investigation even qua the present accused persons [was] incomplete” (¶31). It also analysed the chargesheet’s contents independently, holding that the “material collected by the investigating agency so far… falls too short” (¶31). Its remarks align with the underlying purposes of pre-trial detention discussed above, emphasising on the wrongfulness of authorising detention without probative material pointing to the accused’s guilt:

33. …[I]n the report filed by the investigating agency there should be sufficient evidence to bring home the guilt of the accused. The purpose should not be merely to detain the accused…The detention during investigation or trial cannot be turned into a punitive detention. It is also a settled proposition that further investigation can be conducted only after the investigation is complete.

Given the insufficient probative material pointing to the accused’s guilt, which was reflected in an incomplete chargesheet, the High Court refused to authorise further pre-trial detention.

This entire line of enquiry into a chargesheet’s contents, however, has been disagreed with by the Supreme Court, which appears to place greater emphasis on the ritualistic filing of a chargesheet as against a deeper enquiry into its contents to decide the issue of default bail. The Court, I argue, does this in two ways – first, it modifies the flaws of the instant chargesheet, trivialising them to justify default bail’s general legal unavailability after any chargesheet has been filed; second, it holds that a flawed or incomplete chargesheet (especially where the alleged incompleteness is minimal, like the instant case) is – for all purposes – a chargesheet, which is all the responsibility that Section 167(2) envisions placing on the investigating agency’s part.

The instant chargesheet, it holds – contrary to the Special Judge (CBI) and the High Court – did not suffer from any major flaw, having only two minor errors – first, investigation was pending against a few co-accused but complete against the accused; and second, only a few documents were missing in the chargesheet (¶19-20; 23). These observations, it must be noted, deviate from the factors cited by both lower courts to conclude the investigation’s incompleteness, which noted the investigation’s substantive incompleteness against the accused in the instant case, as well as many aspects of the CBI’s allegations being uninvestigated. The Supreme Court, by departing from factors causing the chargesheets to be incomplete, trivialises the factors causing incompleteness, which it subsequently invokes to bar an enquiry into charge-sheets’ contents as a matter of law:

22. …The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 173 (5). As settled in the afore-stated case, it is not necessary that all the details of the offence must be stated.

23. The benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to the offender only when a chargesheet is not filed and the investigation is kept pending against him. Once however, a chargesheet is filed, the said right ceases…

In this way, the Court’s trivialisation of the instant chargesheet’s flaws transforms into a general legal prohibition on enquiring into its contents. Though I cannot comment on whether the charge-sheet in the instant case was, in fact, complete, it must be noted that the Supreme Court – leave offering reasons to depart from concurrent findings of fact of two lower courts – does not even acknowledge this departure: both courts below held the chargesheet disclosed an incomplete investigation into the accused, while the Supreme Court held the same investigation was complete, with only allegations against the co-accused remaining pending. Further, the Supreme Court did not engage with the High Court’s reasoning proposing the necessity of substantial probative material in the chargesheet pointing to one’s guilt, holding the physical act of filing a document titled “chargesheet” sufficient to defeat the accused’s release. This unfortunate conceptualisation of state-protective criminal procedure is exacerbated in the contemporary economy of pre-trial detention, where bail adjudication acquires centrality.

On the Necessity of High-Scrutiny Enquiries into Charge-Sheets at the 167(2) Stage

The centrality acquired by bail adjudication in contemporary criminal procedure, as has been noted, arises from the extraordinary duration taken by full-fledged criminal trials, which take, on average, between three and nine years (91). In such a situation, for accused persons whose guilt has not been conclusively established through procedurally-sound processes of trial, liberty at the pre-trial stage is crucial. Such liberty, however, is determined based on a court’s weighing of likelihoods: bail adjudication generally involves factual enquiries into the likelihood with which one committed the alleged offence. This line of questioning, which aims to enquire into the factual guilt of the accused to adjudicate on bail, has become the norm, likely to result in skewed rejections of bail whenever a court deciphers a semblance of one’s involvement.

Given the uncertainty involved in bail adjudication that is likely to play against the accused, default bail – where the accused possesses an assured release in the absence of probative material pointing to their guilt – must be held to this basic minimum standard, where this material is, in fact, shown to be in existence at the moment of assessing default bail’s availability. Despite Chhabaria having been “recalled” by the Supreme Court, many courts do seek to uphold this basic minimum: in Fakhrey Alam v. State of Uttar Pradesh, for example, the Supreme Court released an accused on default bail in an alleged UAPA offence, as chargesheets were “preliminary” or “supplementary” in character (¶11); and in Chitra Ramkrishna v. CBI, the Delhi High Court found that filing of “incomplete/piece-meal charge sheet[s]” could not defeat default bail (¶43).

In case the enquiry at this stage is confined solely to the timely filing of a physical document titled “chargesheet”, without a deeper scrutiny into its contents that aims to decipher the genuine collection of probative material, it would tilt the already skewed balance of criminal procedure further towards the state. It would mean that an unsubstantiated semblance of guilt is sufficient to warrant pre-trial detention by rejecting regular bail, and that a chargesheet premised on an “incomplete” investigation – that has not sought to, or been unable to genuinely determine the accused’s involvement – also enables the same, lengthy pre-trial detention. This constitutes a large normative hole in pre-trial detention’s underpinnings.

The pre-trial detention stage, as noted above, can be conceived of as a conscientious citizen’s accommodation of reasonable social fears emanating from the fact of an allegation having been made against them – especially when the alleged offence is heinous in character – to separate from society for a duration that enables a proper fact-finding. This compromise, however, becomes unreasonably stretched when one is expected to undergo pre-trial detention despite the demonstration of tangible reasons why such social fears are unwarranted (in regular bail, for example, where one shows that they would peacefully dissociate from an investigation), and a breach on the state’s part to genuinely undertake fact-finding into the accused’s involvement with the offence. In case the state alleges one’s involvement for the sole purpose of preventing release, without possessing a genuine, objective belief in their guilt, it would be difficult to justify the accused’s corresponding obligation to undergo pre-trial detention. When the state’s propensity to breach the compromise underpinning pre-trial detention becomes codified into law by the Supreme Court – which authorises it to defeat accused persons’ release without having fulfilled its end of the bargain – pre-trial detention becomes an avenue of untrammelled state power, wholly unreflective of the state-citizen compromise.

Conclusion

On this basis, therefore, I submit that the Supreme Court’s judgment in Wadhawan constitutes a breach of the pre-trial detention compromise, seemingly forbidding enquiries into the state’s fulfilment of its duty to investigate, and to genuinely express its belief in the accused’s guilt. The Court, instead of assessing the tasks to be fulfilled by the police that are expressed through the chargesheet, prizes the mere filing of the document, finding it sufficient for denying release. The Court does this by trivialising the flaws of the chargesheet, holding them insufficient to warrant the release, meshed with suggesting a general prohibition from enquiring into a chargesheet's contents.