“Sorry state of affairs”, says SC while quashing Delhi HC interim Orders staying bail for more than a year

The Supreme Court has reasoned that granting someone bail does not hit the merits of the petition seeking cancellation of bail. Therefore, in such cases, there is no reason to deny a person the right to life and liberty by staying bail.

—

ON Tuesday, the Supreme Court called for restraint in staying bail Orders that are under challenge. The court reasoned that granting someone bail does not hit the merits of the petition seeking cancellation of bail. Therefore, there is no reason to deny a person the right to life and liberty in such cases.

A Bench comprising Justice Abhay S. Oka and Justice Augustine George Masih delivered the ruling to this effect while quashing the series of interim Orders passed by the Delhi High Court, staying the bail granted to one Parvinder Singh Khurana under the Prevention of Money Laundering Act, 2002 (PMLA) for over a year.

Application of mind and recording of reasons

The Bench observed that when an undertrial is ordered to be released on bail, their liberty is restored and the same cannot be easily taken away for the asking. The Bench reiterated that an undertrial is not a convict.

Highlighting the nature of interim relief, the Bench pointed out that interim relief can be granted in the aid of the final relief that could be given in a case. Explaining further, the Bench said it cannot be said that if the stay on bail 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," the Bench held.

The Bench said that high courts or sessions courts, instead of taking a drastic step of staying bail Orders, can impose additional bail conditions on the accused to ensure that they do not flee.

Also read: Casual and mechanical staying of bail Orders disastrous for human liberty, says SC

Pertinent to recall that recently the Supreme Court has also held that imposing bail conditions that enable the police or any other investigation agency to track every movement of the accused enlarged on bail by using any technology or otherwise is a violation of the right to privacy.

In its judgment in that case, involving a Nigerian national, Frank Vitus, being prosecuted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), the Bench, also comprising Justice Oka along with Justice Ujjal Bhuyan, had remarked, "If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy."

On Tuesday, in the Parvinder Singh Khurana case, the Bench further averred that a stay of the bail Order can be granted in exceptional cases when a strong prima facie case of the existence of the grounds for cancellation of bail is made out, adding that the prima facie case must be of a very high standard.

Elaborating its reasoning with an illustration, the Bench said that a cryptic bail Order without recording any reasons or application of mind could be stayed.

Giving yet another illustration, the Bench added that where the material available on record proves serious misuse of liberty by the accused by tampering with the evidence or threatening prosecution witnesses, the bail Order could be stayed.

The Bench made it clear that a stay of bail Order must contain reasons, even if brief, and set out the grounds for coming to such a conclusion.

The Bench also observed that an ex parte stay of a bail Order, as a standard rule, should not be granted, except in rare and exceptional circumstances.

The Bench added that the court must apply its mind and record specific reasons 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 ex ­parte Order of stay of the bail Order," the Bench observed.

Also read: Explained: The Supreme Court's judgment against 24/7 surveillance as a bail condition

The Bench also observed that if an ex parte stay of the bail Order is granted, the court must hear the matter immediately after issuing short notice to the accused, on the continuation of the stay.

On Khurana's case

On the facts of Khurana's case, the Bench noted that the Order passed by the high court on June 23, 2023 recorded the presence of the advocate representing Khurana yet the high court did not hear the advocate. The Bench thus concluded that the Order staying the bail was an ex parte Order.

"The failure to hear the advocate for the accused and the failure to record reasons vitiates the Order of stay," the Bench held.

The timeline showing 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 can be read here.

The Bench highlighted that from June 23, 2023 to June 2024, the ED's application seeking to cancel bail granted to Khurana was listed on 28 different dates. And there were three recusals. One recusal was made more than one month after the judgment was reserved.

"The result of all this is that the ex­ parte Order of stay granted on June 23, 2023, without considering the merits of the case continued to operate for one year," the Bench lamented.

The Bench termed the conduct of the Delhi High Court a sorry state of affairs, adding that it was exercising restraints not saying anything further.

"All courts have to be sensitive about the most important fundamental right conferred under our Constitution, which is the right to liberty under Article 21," the Bench noted.

A monsoon of justice?

The ruling follows a string of strong Orders and commentary by the Supreme Court on matters of life and liberty— in particular, bail— in recent weeks.

Also read: In a case involving fake currency, Supreme Court gets real about the right to speedy trial

In the Frank Vitus case, the court held, "The object of the bail condition cannot be to keep a constant vigil on the movements of the accused enlarged on bail. The investigating agency cannot be permitted to continuously peep into the private life of the accused enlarged on bail, by imposing arbitrary conditions since that will violate the right of privacy of the accused, as guaranteed by Article 21."

In another case involving fake currency, where the accused had been languishing in jail as an undertrial for four years, a Bench of Justices J.B. Pardiwala and Ujjal Bhuyan remarked that "if the prosecuting agency and the court concerned have no wherewithal to protect the fundamental right to a speedy trial, then they should not oppose the bail petitions on the ground that the crime committed is serious."

In that case, the Bench also noted with dismay that over a period, trial courts and high courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment.

The Bench also noted, "Article 21 of the Constitution applies irrespective of the nature of the crime. We may hasten to add that the petitioner is still an accused; not a convict. The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be."

While granting interim bail to Delhi Chief Minister Arvind Kejriwal a second time, a Bench comprising Justices Sanjiv Khanna and Dipankar Datta had held, "We are concerned with the violation of personal liberty, and the exercise of the power to arrest in accordance with law. Scrutiny of the action to arrest, whether in accordance with law, is amenable to judicial review. It follows that the 'reasons to believe' should be furnished to the arrestee to enable him to exercise his right to challenge the validity of the arrest."

Click here to read the judgment.