9911796707
TMI Blog2024 (7) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... under the order of bail. 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 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. 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. 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 - Liberty granted to an accused under the order granting bail cannot be lightly and causally interfered with by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 appellant for investigation several times. Though the appellant cooperated, on 20th January 2023, the appellant was arrested. 4. The first bail application made by the appellant was rejected by the Special Court by the order dated 10th March 2023. On 17th March 2023, the respondent filed a supplementary complaint under the PMLA in which the appellant was shown as an accused. On 29th April 2023, the appellant filed two separate applications seeking bail. In the first application, a prayer was made to grant a default bail under Section 167 (2) of the CrPC. The second application was for a grant of regular bail under Section 439 of the CrPC. By the order dated 17th June 2023, though the Special Court declined to grant bail under Section 167(2) of the CrPC, granted reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 produced a compilation of documents. He stated that in several cases, even this Court had stayed the order granting bail while issuing notice on prayer for cancellation of bail without recording any reasons. Relying upon two decisions of this Court in the case of Gulabrao Baburao Deokar v. State of Maharashtra (2013) 16 SCC 190 and Narendra Kumar Amin v. CBI (2015) 3 SCC 417 , he submitted that the power to cancel the bail is not confined to the ground of breach of terms and conditions on which bail was granted. If the order granting bail is unjustified, illegal or perverse, an order of cancellation of bail can be passed. He also relied on this Court's decision in the case of Puran v. Rambilas (2001) 6 SCC 338 . He submitted that when there is a power to set aside or cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 granted under the order of bail. 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 Sub-Section (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. 11. While issuing notice on an application for cancellation of bail, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing 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 an exparte order of stay of the bail order. Moreover, the Court must record specific reasons why it concluded that it was a very rare and exceptional case where a very drastic order of exparte interim stay was warranted. 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. ON FACTS OF THE CASE 14. Now, we come to the facts of the case. The order dated 23rd June 2023 records the presence of the advocate representing the accused. Therefore, the High Court ought to have heard the Advocate before granting the stay. But that was not done. Thus, it was an exparte order of stay. The failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppy 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, till the next date of hearing. 5. Copy of this order be given dasti under the signature Court Master. 6. The order be uploaded on the website forthwith. The application moved before the Court was for vacating the stay. It is very difficult to understand the propriety of granting liberty to the appellant to apply for interim bail without even touching the application for vacating interim relief. The High Court ignored the extreme urgency of hearing the application for vacating the stay. The Court ignored that the drastic order of stay of bail order had continued for 11 months which was passed without considering the merits. The appellant got no solace by the direction of the High Court that a copy of the said order be given dasti and that the same shall be uploaded forthwith. 16. In this case, it is so app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has made out a case in terms of Section 45(1)(ii) of the PMLA on the power to grant bail. We have perused the application made by the respondent before the High Court for cancellation of bail. We find no allegation of the misuse of liberty granted under the bail order in the said application. All the grounds are on merits. The order dated 17th June 2023 granting bail is a detailed order running into more than 50 pages, which considers the material on record from both complaints under the PMLA. After having perused the said order, we find that the case was not the one that could have been termed a rare and exceptional case where an order granting bail ought to be stayed. 20. Our conclusions are as under : a. In an application made under Section 439(2) of the CrPC or Section 483(3) of the BNSS or other proceedings filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
