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“Unusual”: Supreme Court on Delhi High Court staying Arvind Kejriwal bail without passing final order

A bench of Justices Manoj Misra and SVN Bhatti was hearing an appeal filed by Kejriwal against the High Court order to grant interim stay on bail while reserving its order.

“In stay matters, judgments are not reserved but passed on the spot. What has happened here is unusual,” the top court said.

However, it said that it will not commit the same mistake the High Court did of passing interim stay.

Hence, it deemed fit to post the case for hearing on June 26, Wednesday.

“Orders on stay application was reserved and till then the lower court order granting bail was stayed. Parties were given the opportunity to file short submissions by June 24. ASG says order on stay application will be passed shortly and this requests for an adjournment. We deem it appropriate that the case be listed day after and if High Court passes an order meanwhile the let that be brought on record,” the apex court ordered.

Senior Advocate Abhishek Manu Singhvi, appearing for Kejriwal, said that that staying bail on very first day of hearing is unprecedented.

“Bail granted and bail reversal is different. Procedure of staying bail on first day is unprecedented. Balance of convenience is in my favour. If the plea is rejected then he goes back to jail and goes to the situation as it was three weeks ago when he surrendered under Supreme Court order,” he argued.

He also pointed out how the High Court had initially halted the order before hearing the Enforcement Directorate’s (ED) appeal against trial court order for stay.

“The procedure is unknown. The stay was granted first and arguments were heard later,” it was contended.

“The lawyers made short submissions and that means the order will come in a day or two,” the Supreme Court remarked.

“I appreciate and order is expected to come but can bail be stayed on mentioning? Why cannot I be free? I am not a flight risk,” Singhvi insisted.

Additional Solicitor General SV Raju appearing for ED, said that the High Court will pass its order on ED’s plea for stay tomorrow.

“If we pass an order we will be pre judging the issue. It is the High Court and not a subordinate court,” the Bench said.

Senior Advocate Vikram Chaudhary, also appearing for Kejriwal, pointed out that Kejriwal does not have any criminal antecedents and is not a flight risk.

“He does not have any criminal antecedent, not a flight risk.. the investigation is on since 2022. Legality and validity of arrest is under challenge before this very court. Once the matter is sub judice, the court noted that a more liberal view was needed of this case. To say that something will break loose if he is freed would be gravest travesty of justice,” he said.

Singhvi pointed out how the High Court’s initial interim stay order was passed even before arguments were heard.

“The 10:30 order by High Court was passed without any reason and it is after the order that arguments were heard. Once bail granted cannot be reversed so easily. That is held by Supreme Court. Mr Raju conceded that he is not a flight risk etc,” Singhvi weighed in.

“That was in a different context,” the ASG said.

“He (ASG) says he is seeking reversal of the order only due to perversity of the lower court order,”

Solicitor General Tushar Mehta, appearing for ED, then rebutted the same.

“The court started by saying it is a high profile question. The court kept saying to Mr Raju that cut short your arguments etc. Court records in order that it is not possible to go through the papers in this case. That is violation of Section 45,” he said.

“Order is perverse. Even on dates the lower court order is wrong,” ASG Raju weighed in.

“It is a strange plea they are taking.. they challenged the bail order when the bail order was not even uploaded,” Chaudhary said.

“Yes you are correct.. but once you look at the order no satisfaction of section 45,” the ASG replied.

“What we propose to do is let the High Court order come on record and we can keep the case next week. Without the order how do we proceed,” the Supreme Court remarked.

“That is a catch 22 situation.. if the High Court can pass an order at 10:30 am without paper book or order. Then why cannot SC also stay the HC order without judgment,” Singhvi asked.

“If High Court did a mistake why should we repeat it,” the Court said.

“It is a liberty issue,” Singhvi said.

Source: Barandbench

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