Bail Order Shouldn't Be Normally Stayed During Pendency Of Application To Cancel Bail : Supreme Court

In an important judgment, the Supreme Court on Tuesday (July 23) held that bail orders should not be normally stayed. 

Setting aside an order of the Delhi High Court which stayed the bail granted in a money laundering case, the Court stated that bail orders can be stayed only in exceptional circumstances.

The Court's conclusions are :

a. In an application made under Section 439(2) of the CrPC or Section 483(3) of the BNSS or other proceedings filed seeking cancellation of bail, the power to grant an interim stay of operation of order to bail can be exercised only in exceptional cases when a very strong prima facie case of the existence of the grounds for cancellation of bail is made out. While granting a stay of an order of grant of bail, the Court must record brief reasons for coming to a conclusion that the case was an exceptional one and a strong prima facie case is made out;

b. As a normal rule, the ex­parte stay of the bail order should not be granted. The said power can be exercised only in rare and very exceptional cases where the situation demands the passing of such drastic order. Where such a drastic ex­parte order of stay is passed, it is the duty of the Court to immediately hear the accused on the prayer for continuation of the interim relief. When the Court exercises the power of granting ex­parte ad interim stay of an order granting bail, the Court is duty bound to record reasons why it came to the conclusion that it was a very rare and exceptional case where a drastic order of ex­parte interim stay was warranted.

The bench comprising Justice Abhay S Oka and Justice Agustine George Masih pronounced the verdict in a petition filed by Parvinder Singh Khurana, an accused in a money laundering case.

HC/Sessions Court must be slow to stay bail orders

The Supreme Court delved into the grounds for cancelling bail under Section 439(2) of the CrPC and observed that bail could be cancelled if the order granting bail was unjustified, illegal, or perverse. However, the court, highlighting that the rights guaranteed under Article 21 of the Constitution are curtailed when a person is arrested, held -

"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. The reason is when a Court competent to grant bail finds the accused entitled to be enlarged on bail unless the said order is set aside on the limited grounds of cancellation available under subsection (2) of Section 439 of CrPC or any other proceedings, the accused who has been granted bail cannot be normally deprived of his right to liberty guaranteed under Article 21 of the Constitution. Even if the order granting bail is not stayed, the accused can always be taken into custody if the bail is finally cancelled."

The Court held that the power to stay bail order should be exercised sparingly and only in exceptional cases where a strong prima facie case for cancellation exists, such as cases where bail is granted without recording reasons or where there is evidence of the accused misusing liberty, such as tampering with evidence or threatening witnesses. Further, the courts must record reasons for granting the stay, the court held.

Order staying bail order should be passed in very rare cases

Instead of staying the bail order, courts can impose additional conditions on the accused to ensure they do not abscond, the court opined, highlighting that without a stay, the accused can still be taken into custody if bail is eventually cancelled. The court said that the release of the accused during pendency of bail cancellation application does not make the application infructuous.

"However, an order granting a stay to the operation of the order granting bail during the pendency of the application for cancellation of bail should be passed in very rare cases. The reason is that when an undertrial is ordered to be released on bail, his liberty is restored, which cannot be easily taken away for the asking. The undertrial is not a convict. An interim relief can be granted in the aid of the final relief, which could be finally granted in proceedings", the court observed.

The court dealing with the application for cancellation of bail can always ensure that notice is served on the accused as soon as possible and the application is heard expeditiously, the Supreme Court highlighted.

Interim stay of bail order not in the aid of final relief of cancellation of bail

"An interim relief can be granted in the aid of the final relief, which could be finally granted in proceedings. After cancellation of bail, the accused has to be taken into custody. Hence, it cannot be said that if the stay is not granted, the final order of cancellation of bail, if passed, cannot be implemented. If the accused is released on bail before the application for stay is heard, the application/proceedings filed for cancellation of bail do not become infructuous. The interim relief of the stay of the order granting bail is not necessarily in the aid of final relief."

Ex-parte stay of bail order should not be granted normally

The court emphasized that as a rule, ex-parte interim stays should not be granted. It can be granted only in rare and exceptional circumstances, with the Court required to record specific reasons as to why it concluded that it was a very rare and exceptional case where a very drastic order of ex-parte interim stay was warranted.

"Liberty granted to an accused under the order granting bail cannot be lightly and causally interfered with by mechanically granting an exparte order of stay of the bail order... Moreover, since the issue involved is of the accused's right to liberty guaranteed by Article 21 of the Constitution, if an exparte stay is granted, by issuing a short notice to the accused, the Court must immediately hear him on the continuation of the stay", the court held.   

Background -

In a previous hearing on July 11, the Court expressed shock at the Delhi High Court's decision to stay a regular bail order without providing any reasons.

During the hearing, on July 11, Justice Abhay S Oka questioned the Directorate of Enforcement (ED) for defending the prolonged interim stay on the bail order granted by the trial court in June 2023.

The case arose when the trial court granted bail to Khurana, which the ED challenged, seeking its cancellation.

The ED's counsel, Advocate Zoheb Hossain, argued that the trial court had not considered all factors in its decision and highlighted that several judges recused themselves from the case, including one after reserving the order. Hossain said that the accused is involved in laundering large amount of money.

The court questioned how the ED could defend a single-line order of the Delhi High Court staying a reasoned bail order by the trial court. Justice Oka emphasized concerns about violation of liberty in this case.

On July 12, Solicitor General Tushar Mehta highlighted the possibility of accused absconding from the country if released on bail. Once the accused is out of the jurisdiction, the bail conditions have no meaning, Mehta said.

However, the court reiterated its concern regarding liberty of the accused, highlighting that bail can be stayed only in very rare cases if the accused is a terrorist, involved in multiple cases under NIA Act, an anti-nationalist etc. or if the bail order is perverse. 

Case no. – SLP(Crl) No. 8007-8010/2024

Case Title – Parvinder Singh Khurana v. Directorate of Enforcement

Citation : 2024 LiveLaw (SC) 502

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