Why is the Bombay High Court staying its own bail orders?

In three instances in the past three months, the Bombay High Court has suspended the operation of its own bail order, despite giving bail to an accused on merits. All of these were matters involving central agencies, which asked for a stay since they want to challenge the order before the Supreme Court.

While these stays are legally valid, several legal experts say that such orders are unfair, given that they curtail a person’s liberty.

Bail given, operation stayed

On December 12, the court granted bail to Nationalist Congress Party leader Anil Deshmukh in a case where he is charged with taking bribes from bars and restaurants. However, while granting bail, the court, on the Central Bureau of Investigation’s request, said that the order should become effective after 10 days. This was done to give the agency the opportunity to appeal the decision before the Supreme Court.

“…considering the nature of the controversy, in my opinion, it would be in the interest of justice to make the order effective after [10 days],” the court said.

On the expiry of the 10-day period, the court further extended the stay on bail by five days.

Previously, on October 4, while giving bail to Deshmukh in a case relating to money laundering, another bench of the Bombay High Court stayed the operation of bail by nine days, giving the Enforcement Directorate a chance to appeal this order.

Since there are questions of law regarding the Prevention of Money Laundering Act, the court said, “the request for stay seems justifiable”. Deshmukh has been in jail since November last year.

Further, on November 18, while granting bail to Bhima Koregaon accused, Anand Teltumbde, a division bench of the Bombay High Court said that its bail order will become effective after a week, to allow the National Investigation Agency to appeal the order.

“...considering the fact that Appellant is in jail for more than two and half years, effect of present Judgment and Order granting bail,” the court noted, the stay was justified.

Then, last year in December, when Sudha Bharadwaj, another accused in the Bhima Koregaon case, got bail on procedural grounds, the National Investigation Agency sought a stay on the execution of this order.

The court, while not granting such a stay explicitly, said that Bharadwaj must be produced before a local court in a week, so that the court can set conditions for her release, effectively granting a stay.

Are such orders common?

Though such orders are not common, lawyers pointed out that these orders are not unheard of.

“In Mumbai, if it is a bail on merits and if a person has been in jail for long time, then at times the court does grant the chance to the other side to appeal,” said Mumbai-based senior advocate Mihir Desai. “It does not always happen but it is also not a rarity.”

However, lawyers believe that the frequency of such orders has increased recently. “Over the last two-three years it has been happening more,” said another Mumbai-based senior advocate Gayatri Singh. “Especially where the government is involved or it is a high-stakes matter.”

Said former Allahabad High Court judge Amar Saran, “Such instances were rare earlier. But now it has increased.”

This practice might also differ based on different jurisdictions. “As far as I know, only the Bombay High Court does this,” said former Supreme Court judge Justice Madan Lokur. “It is not the practice in any other High Court. There may be instances in some other high courts, but those would be stray instances.”

One senior advocate said that the court wanted to show that they have given the government a sufficient number of chances to appeal, which is why it is passing such orders.

Propriety of stay

Despite these orders being legal, several experts believed that such suspension should not take place.

“In bail orders, granting a stay, in my view, is not a correct practice,” said former judge Lokur. “It does not make sense logically.”

Lokur said that, for instance, if a building is getting demolished, then a stay order during an appeal makes sense since such an action cannot be reversed. “But when bail is granted, the worst that can happen is that the person will go free. The police can later catch him,” he said.

Said Saran, “High Courts should have the confidence that if they have given a bail, then it should be enforced immediately,” pointing out that these courts, like Supreme Court, were also constitutional courts.

He said that in certain cases where the law itself specifies suspension of orders. For instance, when a person has appealed a conviction under contempt of court, the law says that a higher court can suspend the sentence till the appeal is pending. “Thus, if there is no explicit power to suspend bail orders, courts should not do it,” he said.

“Courts should not be so willing to give such a long rope to the government to appeal a case,” he added.

Further, Mumbai-based senior advocate Amit Desai said that ultimately bail is a temporary release and a trial will be conducted in the future.

“If the bail order is perverse, then the Supreme Court can reverse it,” he added. For instance, in April this year, the Supreme Court set aside the bail granted to Ashish Mishra, the son of Bharatiya Janata Party leader and Union minister Ajay Mishra, on grounds that the Allahabad High Court gave bail without considering the facts properly.

According to Delhi-based senior advocate Rebecca John, once a court decides to give a person bail then suspending it “is perpetrating an injustice”.

“I think it is not fair,” she said. “This practice should be discouraged.”

Legality of stay

The orders staying the operation of bail are legal. Under Section 482 of the Code of Criminal Procedure, the High Court has inherent powers to pass any order “necessary…to secure the ends of justice”. Using this section, a High Court can pass such a stay order, the Bombay High Court clarified in 2021.
However, there are conflicting judgements on whether lower courts can pass such an order. In the 2021 order, the Bombay High Court held that sessions courts or magistrates courts do not have the power to stay bail orders. But previously, in 1993, the Bombay High Court had held that even a district court can stay its own bail order. Relying on this order, the Gujarat High Court also held in 2017 that a lower court can stay the operation of a bail order.