Sessions Court Cannot Stay Own Bail Order Under CrPC - Bombay High Court

"In so far as the power of the learned Sessions Judge to stay his own order of grant of bail is concerned, in my view, the Code of Criminal Procedure does not empower the Sessions Judge to stay the operation of his order of grant of bail," the court observed.

Justice SK Shinde held thus while setting aside the Special NIA court's decision to stay its own order granting bail to Naresh Gaur, a bookie in the Ambani Terror Scare Case.

The Special NIA court stayed the operation of it's own bail order of November 20, 2021 for 25 days, for two reasons:

1. To allow the NIA time to appeal against the grant of bail in the HC.

2. As it is empowered to stay its own order of grant of bail, in terms of the provisions of Section 309(1) of the Criminal Procedure Code.

The special court relied on the judgment of the Bombay High Court in the case of C.P. Nangia, Assistant Collector V/s. Omprakash Agarwal and Ors (1994) Cri.Law Journal 2160.

Gaur had appealed against the special court's order through a petition under Article 227 of the constitution.

On Wednesday, Justice Shinde allowed his petition and quashed the special court's order refusing his immediate release.

The single judge held that while High Courts can stay the operation of a bail order to meet the ends of justice under section 482 of the CrPC, a sessions court cannot take the recourse of section 309(1) of the CrPC to stay it's own order.

"The provision which can be said to be the nearest to meet the situation is Section 439(2) of the Cr.P.C. 1973. However, in it's terms, it only empowers him, to direct any person who has been released on bail to be arrested and committed to the custody. Therefore, in my view, the learned Judge could not have assumed the jurisdiction to stay its own order of grant of bail by taking recourse to Section 309 of the Cr.P.C. This being error in exercise of jurisdiction, the petition was perfectly maintainable," the judge observed.

Holding that there was an error in jurisdiction, the HC rejected the National Investigation Agency's contention that Gaur's petition was not maintainable.

The judge said that, "even otherwise, the learned Sessions Judge has not justified the order by recording the reasons for suspending his own order."

The National Investigation Agency led by Additional Solicitor General Anil Singh had vehemently contended that Gaur's petition was not maintainable as it was filed under Article 227 of the constitution. Only an appeal under section 21 of the NIA Act was maintainable, he argued.

However the court said that even though the Special NIA Court's order can be called "relatable" to bail, section 21(4) of the NIA Act only envisages two kinds of orders, one rejecting and the other, granting bail.

"It does not specify third kind of order i.e. 'orders concerning or relating to bail," the court said.

In the present case, the Special NIA court had suspended its own bail order in the roznama. Therefore the petition was maintainable, the High Court held.

"Herein, the impugned order, not being order granting or refusing the bail, obviously it would not fall under sub-section (4) of Section 21 of the N.I.A. Act. That for these reasons, contention of the respondents that Writ Petition was not maintainable, is rejected," Justice SK Shinde observed.

Gaur was arrested on March 13, 2021 and booked under section 120B(conspiracy) and 403( dishonest misappropriation of property). Unlike Waze and six others, Gaur is not booked under the anti-terror Unlawful Activities (Prevention) Act.

He was accused of supplying dummy sim cards used by his co-accused - dismissed cop Sachin Waze and former encounter specialist Pradeep Sharma.

Senior counsel Shirish Gupte along with Advocates Anikat Nikam and Noorain Patel for Diamondwala & Company appeared for Gaur.

Gupta argued that the Judge could not have taken recourse to Section 309 of the Cr.P.C. to stay his own order as the section relates to general provisions as to 'enquiry' and 'trial'.

Grant of bail is is neither an 'enquiry' nor a 'trial' and therefore the judgment in the case of C.P.

Nangia (supra), could not have been relied upon.

Moreover, the NIA has still not appealed against the order granting bail to Gaur.

Therefore, for want of power and jurisdiction, the order has caused interference with petitioner's right to liberty.