[Antilia bomb scare case] NIA Court cannot stay its own order: Bombay High Court

The Bombay High Court on Wednesday held that a Sessions Court cannot stay its own order after granting bail. The Court thus quashed the stay granted by a Special NIA Court on the bail granted to Naresh Gaur, the first bail recipient in the Antilia bomb scare case..Justice Sandeep Shinde pronounced the verdict today. Advocate Sandesh Patil appearing for the National Investigation Agency (NIA), prayed for a stay on this order. However, the request was rejected by the Court. Gaur can now be released from prison. "The learned Judge could not have assumed the jurisdiction to stay its own order of grant of bail by taking recourse to Section 209 of the Code of Criminal Procedure" the 9 page order stated..Justice Shinde observed that a provision which can come closest to the act of staying the order is Section 439(2) of the Code of Criminal Procedure. However, that provision could only empower the trial judge to direct any person who has been released on bail to be arrested and committed to the custody.Having observed so, the order staying the bail granted was quashed and set aside. .A Special NIA Court had granted bail to Gaur, a cricket bookie who was accused of procuring SIM cards for prime accused Sachin Waze and co-accused, encounter specialist Pradeep Sharma.After passing a reasoned order granting bail, the Court had stayed the order to enable the NIA to file an appeal before the High Court. The same was recorded in the roznama (register of the daily proceedings of a court case). Aggrieved by the roznama, Gaur moved the High Court through Diamondwala & Co. with the present writ petition..Senior Advocate Shirish Gupte and Advocate Aniket Nikam, appearing for Gaur, submitted that the Special Court erred in applying Section 309 of the Code of Criminal Procedure (power to postpone or adjourn proceedings).It was argued that the Court after perusing the chargesheet came to a conclusion that Gaur had no active knowledge of the conspiracy and hence had proceeded to grant bail. However, while staying its own order, it overlooked Gaur's constitutional right to freedom, it was argued..Additional Solicitor General Anil Singh and Advocate Sandesh Patil, appearing for the NIA, raised a preliminary objection to the maintainability of the petition before a single-judge of the High Court. Citing Section 21 of the NIA Act, Singh stated that every order passed by the NIA Court could be challenged in appeal only before a Division Bench of the High Court.He stated that Gaur was raising an issue pertaining to an order of the NIA Court, and as per the order in the case of Sudha Bharadwaj v. NIA passed by Justice SV Kotwal on July 11, 2021, the same had to be raised before a Division Bench of the High Court..Justice Shinde also held that being an error in exercise of jurisdiction, the writ petition was maintainable. That even otherwise, the learned Sessions Judge did not justify the order by recording the reasons in suspending his own order..[Read order]