New Delhi: The Supreme Court Tuesday ruled that no high court or sessions court should ex-parte stay a bail order unless it was an exceptional case.
And, if a court decides to stay bail after hearing the accused, then it must be done in rare circumstances, the apex court emphasised in a judgment that established contours of the exercise of judicial power to stay a bail order.
Delivered by a bench of Justices Abhay S. Oka and Augustine George Masih, the verdict underscored the constitutional ethos of the right to liberty, affirming the safeguards available to citizens to protect their freedom. It said a bail order should be stayed only when a strong prima facie case is made out to cancel it.
A bail order is normally put on hold when either the prosecution or victim in a criminal case moves a higher court to cancel the bail granted to an accused. Stay orders are usually interim in nature and remain in force until the court gives its final opinion on the cancellation petition.
The top court’s judgement stressed on the need to protect the liberty of those granted bail and said these orders should not normally be put on hold. Arrests, it said, substantially curtailed a person’s liberty, which was restored when bail was granted. Such freedom, it added, could not be taken away mechanically or casually.
‘Only in exceptional cases’
The significant verdict came while the apex court set aside more than a year-old Delhi High Court verdict that had stayed bail to a person facing anti-money laundering charges. In this case, the order was kept in abeyance on an appeal filed by the Enforcement Directorate that sought cancellation of the bail granted by a trial court.
Justices Oka and Masih said: “When an application for cancellation of bail is filed, the high court or sessions court should be very slow in granting drastic interim relief of stay of the order granting bail.”
A stay must be given only in “exceptional cases”, when a very strong prima facie case on grounds of cancellation was made out, the court said. The prima facie view, it stressed, must be of a very “high standard”.
The 16-page verdict highlighted the importance of liberty, pointing out that when an accused was released on bail, his or her liberty was restored. This, it added, could not be easily taken away or casually interfered with by mechanically granting a stay of the bail order.
The court specifically deprecated the practice of ex-parte stay of bail orders. Since an ex-parte stay is given without hearing the accused, the bench warned against making such orders a norm. A stay without hearing the other side, it explained, must be given in rare instances, where the situation demands passing of such an order.
“While considering the prayer for granting an ex-parte stay, the concerned court must apply its mind and decide whether the case is very exceptional, warranting the exercise of drastic power to grant an ex-parte stay of the order granting bail,” the judges held.
Specific reasons must be recorded by the court when it believed that a case warranted a drastic interim measure of an ex-parte stay order. And, in case the court decides to put an order on hold without hearing the accused, it must issue notice to the latter and hold an immediate hearing on further continuation of the stay.
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What was this case?
The case before the top court was related to money-laundering proceedings lodged against one Parvinder Singh who wanted it to set aside the Delhi High Court’s June 2023 order that imposed a stay on his release on bail. Though the high court order was meant to be temporary, it continued from time to time.
For close to a year, Singh’s case was heard multiple times by different judges. Even though his lawyer was present in the high court on 23 June, 2023 – when the latter heard ED’s appeal and stayed his bail – the court never heard Singh.
Thereafter, between 23 June 2023 and 9 May this year, the matter was listed 22 times. During one of the dates, arguments in his case were concluded and the matter was reserved for final judgement.
However, for reasons not recorded in the order sheets of the high court, all judges recused themselves from hearing Singh’s case, including the one who had stayed the bail. This prompted Singh to approach the top court.
‘Bail stores curtailed rights’
“When a person is arrested, the rights guaranteed by Article 21 of the Constitution of India get substantially curtailed,” the court said, adding the liberty of an undertrial accused was restored pending the trial with bail.
It, however, clarified that if required courts can impose additional bail conditions on the accused, which would ensure the accused did not flee.
By way of illustrations, the top court defined the exceptional circumstances warranting stay of bail orders. It said drastic action to put someone’s release on hold must be taken if the bail was granted by a very cryptic order or without recording any reason or application of mind. Bail can also be stalled in a case where material was available on record to prove serious misuse of the liberty by the accused such as tampering of evidence or threatening the prosecution witness.
“If the high court or sessions court concludes that an exceptional case is made out for the grant of stay, the court must record brief reasons and set out the grounds for coming to such a conclusion,” the top court said.
Bail granted to a person can only be set aside on the “limited grounds” available under the law that deals with its cancellation. Therefore, once bail is granted to someone, that person cannot be deprived of his or her right to liberty under the Constitution.
Grant of bail does not mean that the accused cannot be taken back into custody, the court further clarified. In case the court finally cancelled the bail, the accused can always be sent back to jail, it said.
In Singh’s case, the court added, failure of the high court to hear his advocate and record reasons for staying his bail vitiated the stay order of June 2023. According to the top court, the high court’s interim order “indicates that without even applying mind to the merits of the prayer for a grant of stay, the ex-parte stay was granted”.
Taking note of the delay in hearing the case in Delhi High Court, and also the issue of judges recusing themselves, the top court said, “There may be good reasons for three learned judges to have recused themselves. But surely, the ex-parte order staying the order of bail passed without considering merits cannot continue to operate for one year without the appellant getting a hearing on the issue of continuation of the interim order.”
(Edited by Tikli Basu)
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