Supreme Court: The court should pass order of stay to bail order in application for cancellation of bail in rare cases

 15. In the case of Parvinder Singh Khurana   MANU/SC/0739/2024 : 2024:INSC:546, this Court dealt with the power of the Court to stay the order granting bail pending final disposal of the proceedings filed for cancellation of bail. In paragraphs 11 to 13 of the said decision, this Court held thus:

11. While issuing notice on an application for cancellation of bail, without passing a drastic order of stay, if the facts so warrant, the High Court can, by way of an interim order, impose additional bail conditions on the Accused, which will ensure that the Accused does not flee. 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. 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.

12. 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 that the application is heard expeditiously. An order granting bail can be stayed by the Court only in exceptional cases when a very strong prima facie case of the existence of the grounds for cancellation of bail is made out. The prima facie case must be of a very high standard. By way of illustration, 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 ex-parte stay of the order granting bail, as a standard rule, should not be granted. The power to grant an ex-parte 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 ex-parte 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 ex-parte stay of the order granting bail. Liberty granted to an Accused under the order granting bail cannot be lightly and casually interfered with by mechanically granting an ex-parte 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 ex- parte 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 ex- parte stay is granted, by issuing a short notice to the Accused, the Court must immediately hear him on the continuation of the stay.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 536-537 of 2025

Decided On: 28.02.2025

Sudershan Singh Wazir Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2025 INSC 281,MANU/SC/0293/2025.

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Whether the court should stay bail granted to accused to ensure fair trial to victim of an offence Under the Pocso Act?

Having considered the submissions and perused the

material on record, we are prima facie of the view

that in order to ensure a fair trial not only to the

accused but also to the victims, it would be in the

interest of justice that the respondent no. 3 may

remain in custody during the time the witnesses of

fact are examined.

In view of the above facts and circumstances as

recorded and considering the submissions advanced by

the parties the petition is disposed of with the

following directions :-

1. The impugned order granting bail to the

respondent no. 3 shall remain in

abeyance or, in other words, the effect

and operation of the impugned order

shall remain stayed. The period of stay

will be initially for a period of four

months from today, which may be

extended for a further period of two

months if required.

2. Respondent no. 3 will surrender within

a week from today before the Trial

Court.

3. The Trial Court forthwith will frame

the charges afresh in the light of the

order dated 11th March, 2024 passed by

the High Court referred to above within

a week from the date the Regular

Officer joins the Special Court at

Chitradurga.

4. Prosecution will submit the list of 12-

13 witnesses of fact forthwith before

the Trial Court, in any case, at the

time of framing of charges.

5. The Trial Court, after framing the

charges, will proceed to conduct the

trial as expeditiously as possible and

if necessary, on day to day basis and

ensure that the witnesses of fact which

the prosecution wishes to produce are

examined within four months.

6. Prosecution will make sure that it will

not seek any adjournments and will

produce its witnesses on the dates

given by the Trial Court.

7. Respondent no. 3 and other accused will

extend all cooperation in the trial and

not seek any adjournments except for

very exceptional reasons.

8. Trial Court will observe the conduct of

the parties and if it finds that if any

of the parties are unnecessarily trying

to delay the trial, it shall make a

note of the same and forward it to this

Court.

9. If for no reason attributable to the

accused or to the prosecution, the

examination of the aforesaid 12 to 13

witnesses of fact is not completed

within a period of four months, the

Trial Court will send a report to this

Court seeking extension of time for two

months and the Registry will list the

matter accordingly.

10. If the 12-13 witnesses, list of which

is provided by the Public Prosecutor

are examined within four months, the

respondent no. 3 would be released on

the completion of four months. However,

if the time is extended for two months

further then respondent no. 3 would be

released on completion of period of six

months.

11.Further, the general direction is

issued to Trial Court to conclude the

trial at the earliest within the

aforesaid period or within a period of

one year.

With the aforesaid directions, the Special Leave

Petition is disposed of.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 13943/2023

H. EKANTHAIAH Vs THE STATE OF KARNATAKA & ANR. 

CORAM :

HON'BLE MR. JUSTICE VIKRAM NATH

HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA

Date : 23-04-2024.

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