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TMI Blog2024 (7) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... or short, 'the BNSS') is the corresponding provision of Sub-Section (2) of Section 439 of the CrPC. The same issue arises in other proceedings adopted for challenging an order of grant of bail. FACTUAL ASPECTS 3. On 1st December 2020, the Central Bureau of Investigation registered a crime against two companies and two individuals for the offences punishable under Section 120B read with Sections 420,467,468 and 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The subject matter of offence, inter alia, was the loan account of Jay Polychem India Ltd. On 23rd February 2021, the respondent Enforcement Directorate registered an Enforcement Case Information Report (ECIR) for an offence punishable under Section 4 of the Prevention of Money Laundering Act (for short, 'the PMLA'). Eleven persons were shown as accused in ECIR. However, the appellant was not shown as an accused. On 30th October 2021, the respondent filed a complaint before the Special Court under Section 44(1)(b) of PMLA. Even in the complaint, the appellant was not shown as an accused. From 31st October 2020 to 20th January 2023, the respondent called the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals have been preferred. This Court, by the order dated 7th June 2024, stayed the order of stay dated 23rd June 2023 and clarified that the appellant would be entitled to benefit of the order dated 17th June 2023 passed by the Special Court granting bail. Accordingly, the appellant has been enlarged on bail. SUBMISSIONS 7. The learned counsel appearing for the appellant has taken us through various orders of the High Court. He pointed out that the application for cancellation of bail was listed on 24 to 25 dates from 23rd June 2023 to July 2024. One learned Single Judge, after reserving the judgment, recused himself. After that, two other learned Single Judges recused themselves. His submission is that the order granting bail was casually stayed by the High Court on 23rd June 2023 without examining the merits of the case and without recording any reasons. He submitted that if the benefit of the order granting bail is allowed to be taken away by such a cryptic order of interim stay passed without application of mind, it will violate the liberty guaranteed to the appellant under Article 21 of the Constitution of India. 8. Learned counsel appearing for the respondent has produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted, if he has otherwise misconducted himself, the High Court or Sessions Court can exercise power under Section 439(2) of CrPC to cancel the bail. Bail can be cancelled if the bail order is wholly unjustified, patently illegal, or perverse. Once it is held that there is a power vesting in the High Court or Sessions Court to cancel bail by exercising power under Section 439(2) of CrPC, it follows that the power to stay an order granting bail is implicit in the Court dealing with the applications. The question is about the contours of the exercise of power to grant a stay. POWER TO GRANT INTERIM STAY OF ORDER GRANTING BAIL 10. When a person is arrested, the rights guaranteed by Article 21 of the Constitution of India get substantially curtailed. The law permits arrests of the accused as provided in the CrPC or the BNSS. The effect of the grant of bail under the provisions of Sections 437 and 439 of the CrPC (Sections 480 and 483 of the BNSS) is that the liberty of the undertrial accused is restored pending the trial, subject to the accused complying with the conditions of bail. When the High Court or Sessions Court stays such an order, it amounts to taking away the liberty gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration, we can point out a case where the bail is granted by a very cryptic order without recording any reasons or application of mind. One more illustration can be of a case where material is available on record to prove serious misuse of the liberty made by the accused by tampering with the evidence, such as threatening the prosecution witnesses. 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. 13. An exparte stay of the order granting bail, as a standard rule, should not be granted. The power to grant an exparte interim stay of an order granting bail has to be exercised in very rare and exceptional cases where the situation demands the passing of such an order. While considering the prayer for granting an exparte 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 exparte stay of the order granting bail. Liberty granted to an accused under the order granting bail cannot be lightly and causally interfered with by mechanically granting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enotified for 11th March 2024. On 11th March 2024, the learned Single Judge before whom the case was placed on eight earlier dates recused himself. On 12th March 2024, the case was shifted to another Single Judge who again passed an order of recusal. Incidentally, the same learned Judge had passed the exparte stay order on 23rd June 2023. After that, the case was adjourned on 18th March, 10th April and 2nd May 2024. On 2nd May 2024, the case was again adjourned to 9th July 2024. This compelled the appellant to apply to vacate the interim stay. The application for vacating stay was listed on 22nd May 2024, which was not heard due to paucity of time, and even the said application was adjourned to 9th July 2024, which was a date already fixed. The said order dated 22nd May 2024 does not make a happy reading. The order reads thus : "1. The matter could not be heard due to paucity of time. 2. List the matter on 09.07.2024 at 12:30 PM. 3. In case of any urgency in the matter or on any ground for which the petitioner wants to seek interim bail, it will be well within his right to do so and the same will be decided on merits as per law. 4. Interim order(s), if any, to continue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r without the appellant getting a hearing on the issue of continuation of the interim order. 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. 18. The first application for regular bail filed by the appellant was rejected by the Special Court by the order dated 10th March 2023. At that time, further investigation was in progress following filing the first complaint on 30th October 2021. The appellant was not named as an accused in the FIR of the predicate offence, ECIR, or in the first complaint under the PMLA. Within seven days after the first bail application was rejected, a second complaint was filed in which the appellant was shown as an accused for the first time. In view of the filing of the complaint, it was open for the appellant to file a second bail application based on a change in circumstances brought about by the supplementary complaint. The change was that the investigation against the appellant was completed. 19. We have carefully perused the order dated 17th June 2023 granting regular bail. After a detailed discussion, it records a finding that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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