IN A relief to Naresh Gaur, an accused in the Antilia terror scare case, the Bombay High Court on Wednesday set aside a special NIA court order staying for 25 days the bail it had granted to him.
Quashing and setting aside the order of special NIA Court, the single-judge bench of Justice Sandeep K Shinde also refused the National Investigation Agency’s (NIA) request to stay the operation of its verdict. Gaur’s counsel argued that while the special court had granted the bail to him on merits, it was not competent to stay its own verdict at the central agency’s request.
The special court had on November 20 granted bail to Gaur, who was the first among the 10 people arrested in the case to be granted bail. The court had, however, said that Gaur will not be released immediately as it stayed its own order after the NIA said it wanted to approach the HC against the granting of the bail.
Gaur was arrested in March for his alleged involvement in the procurement of SIM cards used by the other accused in the conspiracy.
On December 3, the HC was informed by senior advocate Shirish Gupte and advocate Aniket Nikam, representing Gaur, that the special court had wrongly stayed its bail order without giving any “good reasons” to stay his release.
The HC had asked the NIA to respond as to whether the trial court judge, under the provisions of the Criminal Procedure Code (CrPC), was competent to stay the bail order and also asked the agency to explain as to how Gaur’s detention after the judicial order of stay on bail be described.
On Tuesday, Additional Solicitor General Anil Singh and advocate Sandesh Patil for NIA justified the special court’s decision and said that Gaur’s plea was not maintainable as he should have filed an appeal against the trial court order instead of filing a writ plea. However, Gaur’s counsel opposed NIA’s contention stating that it was the Central agency which should have filed an appeal against the special court’s order granting bail, after which the bench closed the plea for order.
“The impugned order, not being order granting or refusing the bail, obviously would not fall under sub-section (4) of Section 21 of the NIA Act. For these reasons, contention of the respondents that Writ Petition was not maintainable, is rejected,” the court said.
Justice Shinde went on to note: “In so far as power of the Sessions Judge to stay his own order of grant of bail is concerned, in my view, the CrPC does not empower the Sessions Judge to stay the operation of his order of grant of bail. Therefore, the Sessions Judge could not have assumed the jurisdiction to stay its own order of grant of bail by taking recourse to the section 209 of CrPC. This being an error in exercise of jurisdiction, the petition was perfectly maintainable.”
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