Case Note & Summary
The petitioner, Naresh Ramniklal Gaur, was granted bail on 20th November 2021 by the Special Court at Greater Bombay in NIA Special Case No. 1090/2021 for offences under various sections of the Indian Penal Code, Arms Act, Explosive Substances Act, and Unlawful Activities (Prevention) Act. Immediately after granting bail, the Special Judge, on a request by the National Investigating Agency (NIA), stayed the operation of the bail order for 25 days on two grounds: (i) the NIA intended to appeal before the High Court, and (ii) the court was empowered to stay its own order under Section 309(1) of the Criminal Procedure Code (CrPC), relying on the Bombay High Court judgment in C.P. Nangia v. Omprakash Agarwal. The petitioner challenged this stay order under Article 227 of the Constitution of India. The High Court held that the Special Judge had no power to stay his own order of grant of bail. The power to grant bail does not include an incidental power to stay the bail order. Section 309(1) CrPC only deals with postponement of inquiry or trial and does not confer any power to stay a bail order. The reliance on C.P. Nangia was misplaced as that case dealt with a different context. Consequently, the impugned order was quashed and set aside, and the petitioner was directed to be released on bail forthwith in terms of the original bail order.
Headnote
A) Criminal Procedure - Bail - Stay of Bail Order - Power of Special Judge - The Special Judge under the NIA Act has no power to stay the operation of his own order granting bail. The power to grant bail does not include the incidental power to stay the bail order. Section 309(1) of the Code of Criminal Procedure, 1973 does not confer any power to stay a bail order. The impugned order staying bail for 25 days was set aside. (Paras 5-9)
B) Criminal Procedure - Section 309(1) CrPC - Scope - Section 309(1) CrPC deals with postponement of inquiry or trial and does not empower a court to stay its own order of bail. The reliance on C.P. Nangia case was misplaced as that case dealt with different circumstances. (Paras 6-8)
Issue of Consideration
Whether a Special Judge under the NIA Act has the power to stay the operation of his own order granting bail, and whether Section 309(1) of the CrPC can be invoked for such purpose.
Final Decision
The impugned order dated 20th November 2021 staying the operation of the bail order is quashed and set aside. The petitioner shall be released on bail forthwith in terms of the original bail order.
Law Points
- Power to stay bail order is not incidental to power to grant bail
- Section 309(1) CrPC does not confer power to stay bail order
- Special Judge cannot stay own order of grant of bail
Case Details
2021 LawText (BOM) (12) 107
Writ Petition No. 4677 of 2021
Shirish Gupte, Aniket Nikam, Ashraf Diamondwala, Saurin Shah for petitioner; Anil C. Singh, Sandesh D. Patil, Prithviraj S. Gole, Chintan Y. Shah, Anusha P. Amin for respondent
Union of India through SP, NIA, Mumbai
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution challenging the order of Special Judge staying the operation of bail order.
Remedy Sought
Petitioner sought quashing of the order dated 20th November 2021 staying his bail for 25 days and immediate release on bail.
Filing Reason
The Special Judge stayed the operation of his own bail order for 25 days on the request of NIA, which the petitioner contended was without jurisdiction.
Previous Decisions
The Special Judge granted bail on 20th November 2021 but immediately stayed its operation for 25 days.
Issues
Whether a Special Judge under the NIA Act has the power to stay the operation of his own order granting bail?
Whether Section 309(1) of the CrPC can be invoked to stay a bail order?
Submissions/Arguments
Petitioner argued that the Sessions Judge has no power under law to stay its own order of grant of bail, and even assuming incidental power, it cannot be exercised under Section 309(1) CrPC.
Respondent NIA argued that the court has inherent power to stay its own order to enable the prosecution to challenge it, relying on Section 309(1) CrPC and the C.P. Nangia case.
Ratio Decidendi
The power to grant bail does not include the incidental power to stay the bail order. Section 309(1) CrPC only deals with postponement of inquiry or trial and does not confer power to stay a bail order. A Special Judge has no jurisdiction to stay his own order of grant of bail.
Judgment Excerpts
The power to grant bail does not include the incidental power to stay the bail order.
Section 309(1) of the Criminal Procedure Code does not confer any power to stay a bail order.
The Special Judge has no power under the law to stay the operation of its own order of grant of bail.
Procedural History
The petitioner was granted bail on 20th November 2021 by the Special Court. On the same day, the Special Judge stayed the operation of the bail order for 25 days on NIA's request. The petitioner filed a writ petition under Article 227 before the Bombay High Court, which was heard and decided on 8th December 2021.
Acts & Sections
- Constitution of India: Article 227
- Code of Criminal Procedure, 1973 (CrPC): Section 309(1)
- Indian Penal Code, 1860 (IPC): 120B, 201, 286, 302, 364, 384, 386, 403, 419, 465, 471, 473, 506
- Arms Act, 1959: 3, 25
- Explosive Substances Act, 1908: 4
- Unlawful Activities (Prevention) Act, 1967 (UAPA): 16, 18, 20
