2021 (12) TMI 1310 - HC - Indian Laws

Maintainability of petition - Grant of Bail - power of Court to stay its own order of grant of bail - power to stay bail order is incidental to power to grant bail or not - Section 21 of the National Investigation Agency Act, 2008 - HELD THAT - The order impugned, though said to be relatable to bail, as argued by Mr. Singh, however, in terms of provisions of sub-section (4) of Section 21, it is not an order of a Special Court, either 'granting' or 'refusing' bail. The sub-section (4) envisage two kind of orders; one 'granting' and another 'refusing' bail. It does not specify third kind of order i.e. 'orders concerning or relating to bail (emphasis supplied). 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. The Code of Criminal Procedure does not empower the Sessions Judge to stay the operation of his order of grant of bail. 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. No doubt, the High Court in exercise of its power under Section 482 Cr.P.C. can stay the operation of bail order where it finds it necessary to do so, to prevent abuse of process of the Court or to meet the ends of justice - 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 Cr.P.C. This being error in exercise of jurisdiction, the petition was perfectly maintainable. That even otherwise, the learned Sessions Judge has not justified the order by recording the reasons in suspending his own order. The petition is allowed.

Summary

Issues:
Challenge to the Special Judge's power to stay the operation of his own bail order.

Analysis:
The petition under Article 227 of the Constitution of India challenged the Special Judge's order staying the operation of a bail granted to the petitioner. The bail was granted for various offenses under the Indian Penal Code, Arms Act, Explosive Substances Act, and Unlawful Activities (Prevention) Act. The Special Judge stayed the bail order for 25 days based on the National Investigating Agency's intention to appeal the decision and the provision of Section 309(1) of the Criminal Procedure Code. The petitioner's Senior Counsel argued that the Sessions Judge lacked the authority to stay the bail order and failed to provide 'good reasons' for doing so. Furthermore, it was contended that Section 309 of the Cr.P.C. does not apply to bail matters, as bail is not an 'enquiry' or 'trial.'

The Additional Solicitor General opposed the petition, stating that the proper recourse for challenging a bail order was through an appeal under Section 21 of the National Investigation Agency Act, 2008. He argued that the impugned order was concerning the grant of bail and hence only appeal was maintainable, not a petition under Article 227. He cited precedents from the Bombay High Court and Gujarat High Court supporting the view that a judge can stay their own bail order upon the Public Prosecutor's request.

The High Court judge, after considering the submissions, ruled on the maintainability of the writ petition and the Sessions Judge's power to stay the bail order. The judge found that the Code of Criminal Procedure does not empower a Sessions Judge to stay a bail order, with the closest provision being Section 439(2) which only allows for re-arresting a person released on bail. The judge highlighted that the High Court, under Section 482 Cr.P.C., can stay a bail order to prevent abuse of process or meet the ends of justice. Therefore, the Sessions Judge erred in staying the bail order, and the petition was deemed maintainable. The impugned order was quashed and set aside, and the petition was allowed, with the request for stay of the order's operation being rejected.