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In a significant development, a Supreme Court Bench of Justices Abhay S. Oka and Augustine George Masih has said it will lay down parameters on the stay of bail-granting Orders.
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THE Supreme Court has disapproved of the trend of higher courts casually and mechanically staying Orders granting bail saying it would have "disastrous" implications for human liberty.
A division Bench of Justice Abhay S. Oka and Justice Augustine George Masih made these observations while reserving the judgment on a petition filed by one Parvinder Singh Khurana challenging the Delhi High Court's Order of staying bail granted to him without offering any reasons for the stay.
The Bench said it would lay down the parameters on the stay of the Order granting bail.
The Delhi High Court, on an appeal filed by the Directorate of Enforcement (ED) had stayed the Order of the special court on June 13, 2023, without giving any reason for the stay.
“During the hearing, Justice Oka took a grim view of the Delhi High Court mechanically staying the Order granting bail.
This Order continued to remain operative for a year until a vacation Bench of the Supreme Court on June 7, 2024 stayed it.
During the hearing, Justice Oka took a grim view of the Delhi High Court mechanically staying the Order granting bail. The Bench underscored that the Order granting bail can be stayed only in exceptional cases, for example, when somebody is involved in terrorist cases or where the Order is perverse or statutorily requirements for the grant of bail have been bypassed.
During the hearing, counsel for the ED Zoheb Hossain submitted that it was an established practice among several courts to stay bail Orders since the power to cancel bail would include the power to stay such Orders.
Justice Oka was quick to retort that if there is such a practice, then he would say it is a wrong practice.
"Just because some Orders are passed, it does not become the practice of the court. It can't be a practice in matters involving the liberty of individuals," Justice Oka averred.
Solicitor General Tushar Mehta also made some submissions. He stated that there could be some exceptional circumstances requiring the higher court to suspend the Order of bail immediately.
He cited instances where the accused have flown out overnight after getting bail Orders and landed in countries with whom India does not even have extradition agreements.
During the hearing, even the ED gave up defending the Delhi High Court's Order staying the bail Order without reason. It was, however, opposed to the Supreme Court laying down guidelines on the grant of stay of bail Orders.
A timeline of the case shows how the high court threw to the winds what the Supreme Court had held in Arnab Manoranjan Goswami versus the State of Maharashtra, that deprivation of liberty even for a single day is one day too many and that courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens.
“The ED was opposed to the Supreme Court laying down guidelines on the grant of stay of bail Orders.
On June 17, 2013, Khurana was granted bail in connection with a money laundering case.
On June 23, 2023, Justice Amit Mahajan of the Delhi High Court stayed the Order granting bail till the next date of hearing which was fixed for June 26. The interim Order offered no reasons whatsoever for the stay.
On June 28, 2023, the matter was listed before Justice Manoj Jain. The ED sought a passover and it was already 5:20 p.m. Justice Jain directed to list the matter before the roster Bench on July 2023. The interim Order was directed to continue.
On July 3, 2023, the matter was listed before Justice Rajnish Bhatnagar. The ED sought adjournment on the ground that its main counsel was not available due to some personal difficulty. Justice Bhatnagar adjourned the matter to July 14 while continuing the interim Order.
On July 14, 2023, the matter could not be taken up for hearing due to full court reference in the high court. Justice Bhatnagar, however, continued the interim Order. The matter was directed to be listed on August 7, 2023.
On August 7, 2023, the matter was heard again. It was directed to be listed for further arguments on August 17. The interim Order was allowed to operate. On August 17, 2023, the matter was again heard. It was directed to be listed on August 28 for further arguments. The interim Order was allowed to operate.
On August 28, 2023, Justice Bhatnagar directed the listing of the matter on September 5, 2023. The interim Order was allowed to operate.
On September 5, 2023, the matter was listed again before Justice Bhatnagar. On the joint request of both parties, the case was directed to be listed on October 4, 2023. The interim Order was allowed to continue to operate.
On October 4, 2023, the matter was listed again before Justice Bhatnagar. On the joint request of both parties, the case was directed to be listed on October 16, 2023. Once again, the interim Order was allowed to continue to operate.
On October 16, 2023, the matter could not be taken up by Justice Bhatnagar due to a hearing of some special Bench matters. He thus directed to list the matter on October 19, 2023. The interim Order continued to operate.
On October 19, 2023, the matter was again listed before Justice Bhatnagar. He adjourned the matter to November 3. The interim Order continued.
On November 3, 2023, the matter was again listed before Justice Bhatnagar. The ED sought adjournment on the ground of the non-availability of its counsel. Justice Bhatnagar directed to list the matter on November 10. The interim Order prevailed.
On November 10, 2023, Justice Bhatnagar concluded the hearing and reserved the judgment.
On December 22, 2023, Justice Bhatnagar who had been hearing the matter since July 3, 2023, instead of delivering the judgment, directed listing of the matter before another judge on January 8, 2024. He, however, continued the interim stay on the bail Order.
On January 8, 2024, the matter was listed before Justice Manoj Kumar Ohri. He directed the listing of the matter on January 25. He also continued the interim Order.
On January 25, 2024, the matter was listed, but Justice Ohri directed to list it on February 7, 2024. The interim Order continued to prevail.
“"Just because some Orders are passed, it does not become the practice of the court. It can't be a practice in matters involving the liberty of individuals," Justice Oka averred.
On February 7, 2024, the matter was listed before Justice Ohri. The ED sought adjournment due to its arguing counsel having been indisposed. Justice Ohri directed to list the matter on February 20. The interim Order was not interfered with.
On February 20, 2024, the matter was listed before Justice Ohri, who directed to list it on February 22 for further submissions. The interim Order was allowed to operate.
On February 22, 2024, the matter was taken up again. It was listed for February 23. The interim Order was allowed to continue.
On February 23, 2024, the matter was taken up again. It was listed for February 27. On February 27, 2024, Justice Ohri directed the matter to be listed on March 5, 2024.
On March 5, 2024, Justice Ohri adjourned the matter to March 11 at the request of the parties. The interim Order was left untouched.
On March 11, 2024, Justice Ohri recused himself from the case for reasons not mentioned in the Order. He had been helming the matter since January 8, 2024.
On March 12, 2024, the matter was listed before Justice Mahajan who had granted the stay on the very day of the hearing on June 23, 2023. This time he also recused himself from the case but he continued the stay of the bail Order.
On March 18, 2024, the matter was listed before Justice Swarana Kanta Sharma. She directed to list the matter for final disposal on April 10, 2024. She allowed the interim Order to continue.
On April 10, 2024, the matter could not be taken up since Justice Sharma was on leave. On May 2, 2024, Justice Sharma adjourned the matter to July 7, 2024. Khurana moved an application seeking to vacate the stay on his bail Order.
On May 6, 2024, Justice Sharma issued notice to the ED on the application seeking to vacate the stay. She directed to list the matter on May 22, 2024.
“A timeline of the case shows how the high court threw to the winds what the Supreme Court had held in Arnab Goswami, that deprivation of liberty even for a single day is one day too many.
On May 22, 2024, Justice Sharma could not hear the matter due to paucity of time. She directed to list the matter on July 7. She allowed the interim Order to continue.
The above timeline shows how Khurana's matter was tossed from one judge to another and how two judges refused to deliver the judgment despite hearing the matter substantially. Faced with this situation, Khurana filed a petition in the Supreme Court challenging the Delhi High Court's stay Order.
A vacation Bench of Justice Arvind Kumar and Sandeep Mehta issued notice to the ED and stayed the Order of the Delhi High Court staying the bail granted to Khurana. Thereafter, the matter was listed before a Bench headed by Justice Oka.
In Khurana's case, the Delhi High Court stayed the bail Order without assigning any reasons. In juxtaposition, the Delhi High Court had stayed the Order granting bail to Delhi Chief Minister Arvind Kejriwal in the Delhi liquor policy case orally, on a mention made by the ED.
On June 20, a special judge granted bail to Kejriwal in the PMLA matter linked to Delhi's excise policy case. On the next very day, the ED mentioned the matter before Justice Dr Sudhir Kumar Jain of the Delhi High Court who orally stayed the Order granting bail to Kejriwal.
He heard the arguments on the ED's application seeking to stay the bail Order later in the day. Even while reserving the Order on the ED's application, Justice Jain offered no reason to continue with the stay Order.
When Kejriwal approached the Supreme Court challenging the stay Order, the court had also observed that generally Orders staying bail are pronounced in open court on the same day.
“The Supreme Court itself has been guilty of staying bail Orders without reason.
But the Supreme Court eventually granted no relief to Kejriwal. It observed that it would wait for the reasoned Order of the high court before considering the case further.
On June 25, Justice Jain confirmed the stay Order. Kejriwal chose to withdraw his petition from the Supreme Court with the liberty to mount a fresh challenge against the stay Order.
The Supreme Court itself has been guilty of staying bail Orders without reason. For instance, Bhima Koregaon accused Gautam Navlakha was granted regular bail by the Bombay High Court Bench on December 19, 2023, after observing that it could not be said, based on the material produced by the National Investigation Agency (NIA), that there exist reasonable grounds for believing that the accusation against Navlakha was prima facie true to attract Sections 16, 18, 20 and 39 of the Unlawful Activities (Prevention) Act.
The high court, however, stayed its Order for three weeks as sought by the NIA to enable it to appeal against it in the Supreme Court.
In the Supreme Court, the NIA's appeal against the high court was listed for the first time on January 5, 2024, when a Bench comprising Justice M.M. Sundresh and S.V.N. Bhatti took note of different matters arising from the Bhima Koregaon case pending before different Benches.
The Bench, thus, directed the registry to place the matter before the Chief Justice of India to facilitate the feasibility of either posting these matters with any other matter or clubbing all such matters together before an appropriate Bench. The Bench, at the same time, also continued the stay on the high court's Order.
The stay on the bail granted to Navlakha was lifted only on March 14, 2024. The case of another co-accused in the Bhima Koregaon case, Mahesh Raut, shows an even more grim view of the situation. On September 21, 2023, a Bombay High Court Order granted him bail on merit.
At that time, the high court had granted a stay of one week on the Order to enable the National Investigation Agency (NIA) to appeal against the bail Order in the Supreme Court.
Subsequently, on September 27, 2023, a division Bench of the Supreme Court comprising Justices Aniruddha Bose and Justice Bela M. Trivedi decided to hear the matter on the next date and extended the stay on the high court's Order without hearing arguments in opposition to the stay.
Since then, the Supreme Court has continued to stay the bail Order of Raut, delaying his release. The matter is pending before a Bench comprising Justice Bela M. Trivedi and Justice Pankaj Mithal.
In February 2020, the Karnataka High Court had granted bail to 21 anti-Citizenship (Amendment) Act, 2019-National Population Register-National Register of Citizens (CAA-NPR-NRC) protesters from Karnataka's Mangaluru.
“There is a fine distinction between setting aside an Order granting bail and cancelling bail already granted.
However, a Supreme Court Bench headed by the then CJI S.A. Bobde stayed the high court Order on March 7, 2020, without assigning any reasons. The stay was lifted only on September 9, 2020, when the accused persons moved an application to vacate the stay.
There is a fine distinction between setting aside an Order granting bail and cancelling bail already granted. In Abdul Basit alias Raju And Others versus Mohd. Abdul Kadir Chaudhary And Another, the Supreme Court observed that the concept of setting aside an 'unjustified', 'illegal' or 'perverse' Order is different from the concept of cancellation of a bail on the ground of the accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation.
What follows from it is that for cancelling bail once granted, the court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to allow the accused to be free on bail.
But to set aside an Order granting bail, the superior court has to conclude that the Order granting bail is illegal or perverse or premised on irrelevant material.
