In a significant order, the Bombay High Court has said that a special court cannot stay its own order after granting bail to an accused.
Justice SK Shinde, on Wednesday, set aside special National Investigation Agency (NIA) court’s decision to stay its own order granting bail to Naresh Gaur, accused in Antilia bomb scare and Mansukh Hiran murder case.
“In so, far as 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 (CrPC) does not empower the Sessions Judge to stay the operation of his order of grant of bail,” observed Justice Shinde.
Following this, decks are clear for Gaur to be released from prison.
Gaur, a cricket bookie, is the first accused to be granted bail by the NIA court on November 20 after observing that prima facie he did not seem to be aware of the conspiracy. However, the special court stayed its own order for 25 days after the prosecution requested, saying it wished to challenge the bail before an appellate court.
Gaur is accused of providing a SIM card that was subsequently used by dismissed police officer Sachin Vaze in the said cases. He said he had no idea of the larger conspiracy and he had never been directly contacted by Vaze.
Gaur’s lawyers, counsel Shirish Gupte and Advocate Aniket Nikam, had contended that the NIA court was wrong in staying the order by applying Section 309 of the CrPC which grants power to postpone or adjourn proceedings.
Gupte further argued that NIA had sought stay on his bail contending that wants to file an appeal. However, till date, the investigating agency has not preferred an appeal. Thus, it has interfered with Gaur’s right to liberty.
Additional Solicitor General Anil Singh and Advocate Sandesh Patil, appearing for the NIA, had contended that as per the NIA Act, every order passed by the NIA Court can be challenged in appeal only before a Division Bench of the High Court and not before a single judge bench.
The HC rejected the contention observing: “Contention of the respondents that Writ Petition was not maintainable is rejected.”
The court also observed that the special judge “has not justified the order by recording the reasons in suspending his own order”.
NIA sought stay on this order, which was rejected by justice Shinde.