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.

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