in the gauhati high court (the high court …ghconline.gov.in/judgment/crla92013.pdf · (the high...
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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, MIZORAM, TRIPURA AND ARUNACHAL PRADESH)
1. Criminal Appeal 9 of 2013
Londhoni Devi (A-14) - Accused/Appellant -Versus-
The State through National Investigation Agency
- Respondent
2. Criminal Appeal 10 of 2013
Sougaijam Rakesh Singh - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
3. Criminal Appeal 75 of 2013
N. Bomi Singh - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
4. Criminal Appeal 74 of 2013
Wayenbam Noren Singh (A-8) - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
5. Criminal Appeal 76 of 2013
Lourenbam Jatishore Singh @ Telemba (A-17) - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
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6. Criminal Appeal 63 of 2013
A. Ibomcha Singh - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
7. Criminal Appeal 71 of 2013
Kh. Jeeten Singh (A-10) - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
8. Criminal Appeal 77 of 2013
Y. Brajabidhu Singh - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
9. Criminal Appeal 78 of 2013
Mutum Ibohal Singh (A-12) - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
10. Criminal Appeal 70 of 2013
Naba Kumar Singh @ Maibam Sarat Singh (A-9) - Accused/Appellant -Versus- The State through National Investigation Agency
- Respondent
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BEFORE HON’BLE MR JUSTICE I A ANSARI
HON’BLE MR. JUSTICE P.K. MUSAHARY
For the appellants:
Mr. MG Singh, Ms. Sheela Kh. Mr. S.K. Singha, Mr. B. Basumatary, Advocates For the respondent :: Mr. D. Das, Standing Counsel, NIA.
Date of hearing : 07.05.2013
Date of judgment : 07.05.2013
JUDGMENT AND ORDER (O R A L) (Ansari, J.)
By this common judgment and order, we propose to dispose of all
the above mentioned appeals, which have arisen out of the order, dated
06-09-2012, passed, in Special NIA Case No. 01 of 2010, by the learned
Special Judge, NIA, Assam, Guwahati, whereby the learned Court below
has framed charges under Sections 120B and 121A IPC read with
Sections 17, 18, 20 and 21 of the Unlawful Activities (Prevention) Act,
1967, against the present accused-appellants.
2. Before these appeals could be heard on merit, a preliminary
objection has been raised by the respondent herein, namely, National
Investigating Agency, the preliminary objection being that these
appeals, which have been preferred under Section 21 of the National
Investigating Agency Act, 2008 (in short, ‘NIA Act, 2008’), is not
maintainable in law inasmuch as an order framing charge in a case,
which is investigated by the NIA and covered by the provisions of the
NIA Act, 2008, is an interlocutory order and Sub-Section (1) of Section
21 specifically bars appeal from being entertained by High Court
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against any interlocutory order of a Special Court, which is constituted
under Section 11 or under Section 22 of the NIA Act, 2008, as the case
may be.
3. On the preliminary objection having been raised, as indicated
above, we have heard, on the preliminary objection, so raised, Mr. DK
Das, learned Senior counsel, appearing on behalf of the NIA, and Mr.
MG Singh, learned counsel for the appellant. We have also heard Mr.
DK Mishra, learned Senior counsel, as Amicus Curiae.
4. Appearing on behalf of the respondents, Mr. DK Das, learned
Senior counsel, has made us traverse through not only the Preamble,
but also the Statement of Object and Reason for enactment of NIA Act,
2008, and various other provisions contained therein, particularly,
Sections 3, 4, 6, 7, 11 and Sub-Section (5) of Section 16 in order to
show that the legislative intent, in the enactment of NIA Act, 2008, is to
have an investigation agency to investigate, primarily, offences relating
to ‘terrorism’, apart from other penal provisions, if required, and for
setting up of Special Court with special scheme for investigation so that
investigations are expeditious, fair and appropriately supervised and
the trial of the cases, investigated by the NIA, be conducted
expeditiously and concluded with great dispatch.
5. Trying to drive home his point, Mr. Das, learned, Senior counsel,
has submitted that while the Parliament provided by Section 21 of the
NIA Act, 2008, that an appeal shall lie before a Division Bench of High
Court from any judgment, sentence or order, it consciously excluded
the provisions for appeal in respect of an interlocutory order. This
legislative intent, submits Mr. Das, is reiterated by specifically laying
down in Sub-Section (3) of Section 21 that no appeal or revision shall lie
to any Court other than High Court from any judgment, sentence or
order, including an interlocutory order, passed by a Special Court.
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6. An order framing charge by Special Court, according to Mr. Das,
learned Senior counsel, is an interlocutory order and no appeal or
revision would, therefore, lie, in the light of the provisions of Section
21(1) read with Section 21(3) of the NIA Act, 2008, against an order
framing charge by Special Court.
7. Referring to Section 21(1) of the NIA Act, 2008, Mr. Das, learned
Senior counsel, has also pointed out that Section 21 opens with a non-
obstante clause, which seeks to exclude the application of the Code of
Criminal Procedure, 1973, so far as appeal or revision, provided under
the NIA Act, 2008, is concerned.
8. It is also submitted by Mr. Das, learned Standing counsel, NIA,
that the provisions, embodied in Section 21 of the NIA Act, 2008, are in
pari materia Section 34 of the Prevention of Terrorism Act, 2002
(hereinafter referred to as ‘POTA’) and this Court has already held, in
Redaul Hussain Khan –vs- National Investigation Agency, reported
in 2009 (3) GLT 855, that the provisions of Section 21 are in pari
materia Section 34 of the POTA.
9. It is further submitted by Mr. Das that not only Section 34 of the
POTA, but even Section 11 of the Special Courts Act, 1979, are in pari
materia, Section 21 of the NIA Act, 2008. which fell for discussion in V.
C. Shukla –vs- State through C.B.I., reported in 1980 Supp SCC 92,
and a Four-Judge Bench, while considering the question as to whether
an order, framing charge, shall be appealable or not under Section 11 of
the Special Courts Act, 1979, came to the conclusion, in the light of the
provisions of Special Courts Act, 1979, that though, ordinarily, an
order, framing charge, is not an interlocutory order and the embargo,
which is placed on the revisional jurisdiction of the Sessions Court and
the High Court by Section 397(2) of the Code of Criminal Procedure,
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would not be attracted, an order, framing charge, of the Special Courts
Act, 1979, is an interlocutory order
10. To put it a little differently, what Mr. Das, learned Senior counsel,
contends is that while an order, framing charge, is, ordinarily, not an
interlocutory order, an order, framing charge, under a special statute,
such as, the NIA Act, 2008, cannot be treated as an interlocutory order,
for, such an order, if not treated as an interlocutory order, would defeat
the object with which a legislation, such as, the NIA Act, 2008, has
been enacted, primarily aiming at expeditious and efficient investigation
and also expeditious and effective trial in respect of terrorist acts and
other acts related thereto.
11. Referring to the case of Bachraj Bengani alias B. R. Jain –vs-
State and another, reported in 2004 Cri.L.J. 2204 (Del.), Mr. Das has
pointed out that a Division Bench of the Delhi High Court, while dealing
with Section 34 of the POTA, which is pari materia Section 21 of the NIA
Act, 2008, reached the conclusion, relying upon V. C. Shukla’s case
(supra), that an order, framing charge, is an interlocutory order and no
appeal against such an order would lie to the High Court under Section
34 of the POTA.
12. While dealing with the case of Bachraj Bengani alias B. R. Jain
(supra), Mr. Das has also pointed out that Bachraj Bengani @ BR Jain
(supra) has referred to the case of Peoples Union for Civil Liberties –
vs- Union of India (AIR 2004 SC 456), too, wherein the Supreme
Court upheld the constitutional validity of various provisions of the
POTA and as Section 21 of the NIA Act, 2008, is in pari materia Section
34 of the POTA, Section 21 is also constitutionally valid. Mr. Das,
seeking to drive strength from the case of Peoples Union for Civil
Liberties (supra), reiterates that Section 21 of the NIA Act, 2008, needs
to be treated as constitutionally valid and it is, therefore, necessary that
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the provisions, embodied in Section 21 of the NIA Act, 2008, be
interpreted in such a manner as would advance the object of the
enactment of the NIA Act, 2008, and not defeat the same, namely, the
object of expeditious and effective investigation as well as trial.
13. Resisting the preliminary objection so raised on behalf of the
respondents, Mr. MG Singh, learned counsel, has submitted that in a
series of cases, decided by the Supreme Court, more particularly, Amar
Nath –vs- State of Haryana, (AIR 1977 SC 2185) and Madhu Limaye
–vs- State of Maharashtra (AIR 1978 SC 47), it has been made clear
that an order, which is an order of moment, cannot be regarded as
interlocutory order and, based on this principle, according to Mr. Singh,
learned counsel, an order, framing charge, which, according to Mr.
Singh, is an order of great moment, cannot be treated as an
interlocutory order and revision against such an order is maintainable,
notwithstanding the bar imposed, on the revisional jurisdiction of the
Sessions Court and High Court, by Section 397(2) Cr.P.C.
14. As far as V. C. Shukla’s case (supra) is concerned, Mr. MG
Singh, learned counsel for the appellants, submits that the Supreme
Court’s decision, in V. C. Shukla’s case (supra), that an order framing
charge is an interlocutory order was really based on the reading of the
Special Courts Act, 1979; whereas the scheme of the NIA Act, 2008, is
not entirely same as the Special Courts Act, 1979.
15. Referring to the case of Prabhakaran –vs- Excise Circle
Inspector, Wadakkancherry, reported in 1993 CRLJ 3599 (KER), Mr.
Singh, learned counsel, has submitted that the question as to whether
framing of charge shall or shall not amount to an interlocutory order
depends on the facts of the case, the statute, wherein the proceeding
has been initiated, and the nature of objection raised therein.
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16. Appearing as Amicus Curiae, Mr. DK Mishra, learned Senior
counsel, has submitted that the decision, in V. C. Shukla (supra),
cannot be applied to a case arising out of NIA Act, 2008. In this regard,
Mr. Mishra, referring to the cases of Amar Nath (supra) and Mohanlal
Thakkar (AIR 1963 SC 733), has pointed out that these cases were
considered in Madhu Limaye’s case (supra) and the Court took the
view that the expression interlocutory order, appearing in Section 397(2)
Cr.P.C., would not include an order, which, if had been passed in
favour of the accused, would have terminated or ended the proceeding
and since an order, framing charge, is such an order, which, if passed
in favour of the accused, would have ended in the discharge of the
accused, it would not be treated as an interlocutory order and the bar
imposed by Section 379(2) Cr.P.C. would not be attracted to such a
case.
17. Coupled with the above, it is also contended by Mr. Mishra,
learned Amicus Curiae, that since the provisions, embodied in Section
397(2), impose restrictions, on the right of an accused, such a provision
needs to be construed strictly and it was for this reason, contends Mr.
Mischra, that even in VC Sukla’s case (supra), the Court distinguished
the meaning and import of the expression interlocutory order between a
case, which is covered by the provisions of the Code of Criminal
Procedure, 1973, on the one hand, and the meaning of the interlocutory
order as may be applicable to a case covered by a special statute, such
as, the Special Courts Act, 1979.
18. Attempting to draw distinction between the NIA Act, 2008, and
the Special Courts Act, 1979, Mr. Mishra, learned Amicus Curiae, has
submitted that the most important reason why the Court, in V. C.
Shukla (supra), took the view that an order, framing charge, ought to be
regarded as interlocutory order was the fact that the trial was presided
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over by sitting Judge of the High Court and it was specifically held, at
para 46 in V. C. Shukla (supra), that one reason why no appeal was
provided against an interlocutory order might have been the fact that it
would be against the dignity and decorum of the very high status,
which the Special Judge, under the Special Courts Act, 1979, enjoyed.
19. It is the submission of Mr. Mishra that the scheme of the Special
Courts Act, 1979, is distinguishable from the present case inasmuch as
the Special Court, under the Special Courts Act, 1979, was constituted
by a sitting Judge of the High Court; whereas a Sessions Judge or
Additional Sessions Judge can constitute the Special Court.
20. Coupled with the above, it is also the submission of Mr. Mishra,
learned Amicus Curiae, that it would be unfair to deny to an accused
the right to go in appeal against framing of charge by taking recourse to
the provisions of Section 21 of the NIA Act, 2008, merely because the
case is not investigated by police, but by the NIA. Depending merely on
the question as to who has investigated the case, it would be unfair,
unreasonable and discriminatory to deny to an accused the benefit of
appeal or revision against an interlocutory order.
21. Elaborating his above submissions, Mr. Mishra, learned Senior
counsel, contends that if a case, involving any penal provision of the
Unlawful Activities (Prevention) Act, 1967, is investigated by police, the
accused can move the Sessions Court or the High Court, against an
order framing charge invoking its revisional jurisdiction, because the
bar, imposed by Section 397(2) Cr.P.C., would not be applicable and,
hence, in such a situation, there is no logical reason as to why such a
right shall be denied to an accused merely because the case, against
him, happens to have been investigated by the NIA and a Special Court,
constituted under the NIA Act, 2008, would hold the trial. Two persons,
made accused under the Unlawful Activities (Prevention) Act, 1967,
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cannot be treated differently merely because investigation, in one case,
is conducted by the NIA and, in the other, by the police in terms of the
provisions of the Code of Criminal Procedure, 1973.
22. The further submission of Mr. D.K. Mishra, learned amicus
curiae, is that while POTA contained provisions relating to substantive
as well as procedural law, the NIA Act, 2008, contains only procedureal
part of the law and, therefore, the NIA Act, 2008, cannot be said to be
exactly same as POTA.
23. We have given our anxious consideration to the submissions
made before us.
24. Though it is not in dispute before us that an interlocutory order is
neither appealable nor revisable under Section 21 of the NIA Act, 2008,
what is in dispute is whether an order, framing charge, in a case, which
has been investigated by the NIA, shall be treated as an interlocutory
order or not and, for this purpose, one has to determine if an order,
framing charge, in a case, investigated by the NIA, shall be held to be an
interlocutory order so that the progress of the trial is not hampered or
retarded and a trial, which once commences, comes to an end
expeditiously and without any stoppage.
25. For better appreciation of the issues, raised before us, we
reproduce hereinbelow Section 21 of the NIA Act, 2008, which reads as
under:
“Appeals.
21. (1) Notwithstanding anything contained in the Code, an appeal
shall lie from any judgment, sentence or order, not being an
interlocutory order, of a Special Court to the High Court both on
facts and on law.
(2) *** ***
(3) Except as aforesaid, no appeal or revision shall lie to any court
from any judgment, sentence or order including an interlocutory
order of a Special Court.”
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26. A bare reading of Section 21(1) very clearly shows that while
providing for a right of appeal to the High Court under Section 21(1)
from any judgment, sentence or order, passed by a Special Court,
constituted under Section 11 or 22 of the NIA Act, 2008, as the case
may be, what the Parliament has done is that it has denied any right of
appeal from an order, which is interlocutory. This apart, while providing
a right of appeal, the Parliament has completely denied to a person,
covered by Section 21, the benefit, if any, of the provisions of the Code
of Criminal Procedure, 1973, for Sub-Section (1) of Section 21 opens
with the expression, “Notwithstanding anything contained in the Code”.
27. Coupled with the above, Sub-Section (3) of Section 21 makes it
further explicit that no Court, other than the High Court, as provided
under Section 21, shall have the power to entertain either an appeal or
revision from the judgment, sentence or order, including an
interlocutory order, of a Special Court and even when a right of appeal is
provided to the High Court, under Section 21, it is made explicit that no
appeal will lie to the High Court if the order impugned is an
interlocutory order.
28. When, therefore, Section 21 is read minutely and cautiously, it is
found to have denied to an accused any right of appeal or revision from
an order, which is interlocutory in nature, and has also ousted the
application of the Code of Criminal Procedure, 1973, to an order passed
by a Special Court, whether the order is interlocutory or otherwise.
29. Apart from the fact, as has been clearly brought out in the case of
Redaul Hussain Khan (supra), that Section 34 of the POTA was in pari
materia Section 21 of the NIA Act, 2008, Section 11 of the Special
Courts Act, 1979, which fell for consideration in V.C. Shukla’s case
(supra), is pari materia Section 21 of the NIA Act, 2008. This is clearly
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discernible if one reads the provisions, as stood embodied in Section 11
of the Special Courts Act, 1979, which we reproduce below:
“11. Appeal.—(1) Notwithstanding anything in the Code, an appeal
shall lie as of right from any judgment, sentence or order, not being
interlocutory order, of a Special Court to the Supreme Court both on facts
and on law.
(2) Except as aforesaid, no appeal or revision shall lie to any court
from any judgment, sentence or order of a Special Court.
(3) Every appeal under this section shall be preferred within a
period of thirty days from the date of any judgment, sentence or order
of a Special Court:
Provided that the Supreme Court may entertain an appeal after the
expiry of the said period of thirty days if it is satisfied that the
appellant had sufficient cause for not preferring the appeal within the
period of thirty days.”
30. Bearing in mind that Section 11 of the Special Courts Act, 1979,
is pari materia Section 21 of the NIA Act, 2008, let us, first, determine
as to what an interlocutory order means and how the expression,
‘interlocutory order’, has to be construed, while considering the
provisions of Section 397(2) Cr.PC.
31. With regard to the above, we may point out that an order, framing
charge, was clearly revisable by the High Court under Sections 435 and
439 of the Code of Criminal Procedure, 1898. While making the
provisions for revision under the Code of Criminal Procedure, 1973, the
legislature gave revisional jurisdiction to both, the High Court as well as
Sessions Judge, but chose to place, at the same time, an embargo on
the revisional Court’s jurisdiction in respect of an interlocutory order by
laying down that no revision would lie against an interlocutory order.
32. In other words, while conferring revisional jurisdiction on the
Sessions Judge as well as the High Court against any finding, sentence
or order, the Code of Criminal Procedure, 1973, bars exercise of
revisional jurisdiction so far as interlocutory orders are concerned.
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33. Naturally, therefore, what an interlocutory order conveys and how
it shall be construed, in the context of Section 397(2) CrPC, has been a
subject of interpretation in a large number of judicial pronouncements,
one of the principal decisions being Amar Nath’s case (supra).
34. Before, however, we deal with the case of Amar Nath (supra), let
us examine and ascertain the meaning and expression of the non
obstante provisions embodied in Section 21(1) of the NIA Act, 2008,
inasmuch as Section 21 opens, as already indicated above, with the
non-obstante clause by stating, “Notwithstanding anything contained in
the Code”. Similar provisions were available in Section 11 of the Special
Courts Act, 1979, too, which came to be interpreted in V.C. Shukla’s
case (supra).
35. In order to arrive at the decision as to what the expression
“Notwithstanding anything contained in the Code” meant to convey, the
Supreme Court took note of the case of Aswini Kumar Ghosh vs.
Arobinda Bose (AIR 1952 SC 369) and the observations made therein.
In Aswini Kumar Ghosh (supra), Patanjali Sastri, C.J., observed as
follows:
“21. It was then contended by the learned counsel for the appellant that the non obstante clause should be interpreted according to the salutary principles laid down by this Court. In support of his submission, he relied on a decision of this Court in the case of Aswini Kumar Ghosh v. Arabinda Bose where Patanjali Sastri, C.J. observed as follows:
“It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment .... The true scope of the enacting clause must, as we have observed, be determined on a fair reading of the words used in their natural and ordinary meaning....”
36. Similar observations were made, in Aswini Kumar Ghosh
(supra), by Mukherjea, J, when his Lordship observed as follows:
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“In my opinion, the section on its negative side eliminates so far as the Supreme Court Advocates are concerned, all disabling provisions existing under any law in regard to persons who are not enrolled as Advocates of any particular High Court. On the positive side, the section confers on Supreme Court Advocates the statutory privilege of practising as of right, in any High Court in India, no matter whether he is enrolled as an Advocate of that court or not.”
37. Das, J, as his Lordship then was, observed, in Aswini Kumar
Ghosh (supra), as follows:
“In short, there is no escape from the conclusion that the ambit,
scope and effect of the non obstante clause are to supersede the
Indian Bar Councils Act and any other Act only insofar as they
regulate the conditions referred to therein.”
38. Having taken note of, and referring to the above observations
made, in Aswini Kumar Ghosh (supra), particularly, the observations
of Das, J., the Supreme Court, in V.C. Shukla’s case (supra), held at
para 22 and 23 thus:
“22. The observations of Das, J. clearly show that the effect
of non obstante clause was to supersede the Indian Bar
Councils Act and any other Act insofar as they regulate the
conditions referred to therein. If we apply this test to the
present case, then it is manifest that the non obstante clause
would have the effect of overriding and excluding the
provisions of the Code. Applying the test laid down by
Sastri, C.J., we find that the position may be summed
up as follows:
“(1) We should exclude the statute concerned from
consideration; in the instant case ‘The Code’.
(2) We should construe the words used according to
their natural and ordinary meaning instead of
referring to the statute which is sought to be
excluded.”
23. We entirely agree with the approach indicated by
Sastri, C.J. and which is also binding on us. Let us see
what is the effect of interpreting the non obstante clause
according to the test laid down by the decision, referred to
above, and particularly, the observations of Sastri, C.J. Let
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us for the time being forget the provisions of Section 397(2) of
the Code or the interpretation put by this Court on the term
“interlocutory order” as appearing in the Code because the
decisions were based purely on the interpretation of the
provisions of the Code. We have, therefore, first to
determine the natural meaning of the expression
“interlocutory order”. To begin with, in order to
construe the term “interlocutory”, it has to be
construed in contradistinction to or in contrast with a
final order. We are fortified by a passage appearing in THE
SUPREME COURT PRACTICE, 1976 (Vol. I, p. 853) where it is
said that an interlocutory order is to be contrasted with a
final order, referring to the decision of Salaman v. Warner. In
other words, the words “not a final order” must
necessarily mean an interlocutory order or an
intermediate order. That this is so was pointed out by
Untwalia, J. speaking for the court in the case of
Madhu Limaye v. State of Maharashtra as follows:
(SCC p. 557, para 12)
“Ordinarily and generally the expression ‘interlocutory
order’ has been understood and taken to mean as a
converse of the term ‘final order’.”
Thus, the expression “interlocutory order” is to be
understood and taken to mean converse of the term
“final order”. Now, let us see how this term has been
defined in the dictionaries and the textbooks. In WEBSTER'S
THIRD INTERNATIONAL DICTIONARY (Vol. II, p. 1179) the
expression “interlocutory order” has been defined thus:
“Not final or definitive: made or done during the progress of
an action: INTERMEDIATE, PROVISIONAL.”
STROUD'S JUDICIAL DICTIONARY (4th Edition, Vol. 3, p.
1410) defines interlocutory order thus:
“ ‘Interlocutory order’ Judicature Act, 1871 (clause 66),
Section 25(8) was not confined to an order made between
writ and find judgment, but means an order other than final
judgment.”
Thus, according to Stroud, interlocutory order means an
order other than a final judgment. This was the view taken
16
in the case of Smith v. Cowel and followed in Manchester &
Liverpool Bank v. Parkinson. Similarly, the term “final order”
has been defined in Vol. 2 of the same dictionary (p. 1037)
thus:
“The judgment of a Divisional Court on an appeal from a
county court in an interpleader issue was a ‘final order’
within the old R.S.C., Order 58 Rule 3 (Hughes v. Little); so
was an order on further consideration (Cummins v. Herron),
unless action was not thereby concluded.... But an order
under the old R.S.C., Order 25 Rule 3, dismissing an action
on a point of law raised by the pleadings was not ‘final’
within the old Order 58, Rule 3, because had the decisions
been the other way the action would have proceeded.
HALSBURY'S LAWS Or ENGLAND (3rd Edn., Vol. 22, pp.
743-44) describes an interlocutory or final order thus:
“Interlocutory judgment or order.—An order which does not
deal with the final rights of the parties, but either (1) is made
before judgment, and gives no final decision on the matters
in dispute, but is merely on a matter of procedure, or (2) is
made after judgment, and merely directs how the
declarations of right already given in the final judgment are
to be worked out, is termed ‘interlocutory’. An interlocutory
order though not conclusive of the main dispute, may be
conclusive as to the subordinate matter with which it
deals....
In general a judgment or order which determines the
principal matter in question is termed ‘final’.”
(Emphasis is added)
39. From the above observations, made in V.C. Shukla’s case
(supra), what can be safely gathered is that in a case of present nature,
while construing the non obstante provisions appearing in Section 21(1),
one has to keep excluded the Code of Criminal Procedure, 1973, from
consideration and one has to, therefore, construe the words, appearing
in, or used in, the NIA Act, 2008, more particularly, the term
interlocutory order according to their natural and ordinary meaning
instead of referring to the construction of the term, interlocutory order,
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as the said term has been interpreted in the context of the Code of
Criminal Procedure, 1973, which is, as pointed out above, sought to be
excluded by the non obstante clause in Section 21 of the NIA Act.
40. In other words, when Section 21 opens with the expression
“Notwithstanding anything contained in the Code”, it implies the
legislative intent of keeping excluded the provisions of the Code of
Criminal Procedure, 1973, wherever there is conflict between the
provisions embodied in the Code of Criminal Procedure, 1973, (in short,
‘the Code’), on the one hand, and the NIA Act, 2008, on the other.
41. What follows from the above observations is that when the
application of the Code has been excluded, while providing for a right of
appeal by Section 21, it means that the words or expressions, appearing
in Section 21, have to be given their ordinary and natural meaning and
not the meaning, which has been attributed to the term interlocutory
order by the Courts in the context of the provisions of the Code.
42. No wonder, therefore, that the Supreme Court, at para 23, in V.
C. Sukla’s case (supra), while construing Section 11 of the Special
Courts Act, 1979, observed, “We have, therefore, first, to determine the
natural meaning of the expression, interlocutory order.”
43. The essential attribute of an interlocutory order is that it merely
decides some point or matter essential to the progress of the suit or
collateral to the issues sought, but not a final decision or judgment on
the matter in issue; whereas an intermediate order is one, which is
made ‘between the commencement of an action and the entry of the
judgment’. It was, for this reason, that Untwalia, J., in Madhu Limaye
Vs. State of Maharashtra, reported in (1977) 4 SCC 551, held that an
order, framing charge, is not an interlocutory order, but an intermediate
order and that the conclusion, so reached, has been agreed to by the
18
Supreme Court in V.C. Shukla’s case (supra). The relevant
observations, which appear at para 24, read as under:
“24. To sum up, the essential attribute of an interlocutory
order is that it merely decides some point or matter
essential to the progress of the suit or collateral to the
issues sought but not a final decision or judgment on the
matter in issue. An intermediate order is one which is made
between the commencement of an action and the entry of
the judgment. Untwalia, J. in the case of Madhu Limaye v.
State of Maharashtra clearly meant to convey that an order
framing charge is not an interlocutory order but is an
intermediate order as defined in the passage, extracted
above, in CORPUS JURIS SECUNDUM, Vol. 60. We find
ourselves in complete agreement with the observations made
in CORPUS JURIS SECUNDUM. It is obvious that an order
framing of the charge being an intermediate order falls
squarely within the ordinary and natural meaning of the
term “interlocutory order” as used in Section 11(1) of the
Act. WHARTON'S LAW LEXICON (14th Edn., p. 529) defines
interlocutory order thus:
“An interlocutory order or judgment is one made or given
during the progress of an action, but which does not finally
dispose of the rights of the parties.”
Thus, summing up the natural and logical meaning of an
interlocutory order, the conclusion is inescapable that an order
which does not terminate the proceedings or finally decides
the rights of the parties is only an interlocutory order. In
other words, in ordinary sense of the term, an interlocutory
order is one which only decides a particular aspect or a
particular issue or a particular matter in a proceeding, suit
or trial but which does not however conclude the trial at all.
This would be the result if the term interlocutory order is
interpreted in its natural and logical sense without having
resort to Criminal Procedure Code or any other statute. That
is to say, if we construe interlocutory order in ordinary parlance it
would indicate the attributes, mentioned above, and this is what
the term interlocutory order means when used in Section 11(1) of
the Act.”
19
(Emphasis is added)
44. From the above observations, the conclusion, which is
inescapable, is that an intermediate order is one, which is made
between the commencement of an action and the entry of the judgment
and that an order, framing charge, being an intermediate order, squarely
falls within the ordinary and natural meaning of the term interlocutory
order. This would be the result if the term, interlocutory order, is
interpreted in its natural and logical sense without having taken resort
to the Code or any other statute.
45. The position, therefore, which emerges, in the light of the
observations made by Patanjali Sastri, CJ., in Aswini Kumar Ghosh
(supra) read with the observations, made in V.C. Shukla’s case (supra),
by S. Murtaza Fazal Ali, J., is that the non-obstante clause would
exclude application of the Code and, consequently, the words, used in
the NIA Act, 2008, have to be construed according to their natural and
ordinary meaning instead of construing them in the manner as may
have been construed in the context of the Code, which is sought to be
excluded by the NIA Act, 2008.
46. Logically extended, it would mean that while construing the term,
interlocutory order, appearing in Section 21(1) of the NIA Act, 2008, the
said term cannot be given the meaning, which has been applied to the
term interlocutory order in the context of the provisions embodied in the
Code.
47. When construed thus, the term, interlocutory order, would mean
an order, which is in contrast to a final order. When so construed, the
term, interlocutory order, will take, within its own sweep, intermediate
order or quasi final order. No wonder, therefore, that in the Supreme
Court Practice, 1976, (Vol.I, p.853), which stands referred to in para 23
of V.C. Shukla’s case (supra), an interlocutory order has been described
20
to mean, in the light of the decision in Salaman Vs. Warner, reported in
(1891) 1 QB 734, a final order and, deriving strength from the decision
in Salaman (supra), the Supreme Court, in V.C. Shukla’s case (supra),
has clearly pointed out that the words ‘not a final order’ must
necessarily mean and include an interlocutory order or an intermediate
order and this aspect was recognized even by Untwalia, J., speaking for
the Court in Madhu Limaye (supra), when his Lordship observed: “We
have, therefore, first, to determine the natural meaning of the expression
‘interlocutory order’.
48. Thus, as held in V.C. Shukla’s case (supra), the expression,
interlocutory order, has to be understood, in its natural and ordinary
meaning, as an order converse to the term final order. The relevant
observations, appearing in this regard, in V.C. Shukla’s case (supra),
read: “Thus, the expression interlocutory order is to be understood and
taken to mean converse of the term final order.”
49. The Supreme Court has pointed out, in V.C. Shukla’s case
(supra), that in Madhu Limaye (supra), Untwalia, J., mean to convey
that an order, framing charge, is not an interlocutory order, but is an
intermediate order and this conclusion, which was reached in Madhu
Limaye (supra), has been, it is necessary to note, agreed to in V.C.
Shukla’s case (supra). It is for this reason that the Supreme Court
observed, in V.C. Shukla’s case (supra), if we may reiterate, thus, “We
find ourselves in complete agreement with the observations made in
Corpus Juris Secundum. It is obvious that an order framing of the
charge being an intermediate order falls squarely within the
ordinary and natural meaning of the term interlocutory order as
used in Section 11(1) of the Act.” (Emphasis is added)
50. From the above discussion, what clearly surfaces is that the term,
interlocutory order, which appears in Section 21(1) and 21(3) of the NIA
21
Act, 2008, includes an order framing charge meaning thereby that while
the term, interlocutory order, in the context of the Code, has to be
construed as an intermediate order and, therefore, revisable, the term,
interlocutory order, which appears in the special statute, namely,
Section 21(1) and 21(3) of the NIA Act, 2008, would have to be
construed according to its ordinary and natural meaning and when
attributed its natural and ordinary meaning, the term, interlocutory
order, would convey any order, including even an order, framing charge,
passed at the intermediate stage.
51. In short, an order, framing charge, is treated as an intermediate
order and not strictly an interlocutory order, while applying provisions of
the Code. The Supreme Court had held, in this context, in Madhu
Limaye (supra), that an order, framing charge, is not an interlocutory
order and revisional jurisdiction would not, therefore, stand barred by
Section 397(2); whereas, in the case at hand, interlocutory order would
mean and include even an order, whereby a charge against an accused,
in a case investigated by the NIA, is framed by a Special Court
constituted either under Section 11 or under Section 22 of the NIA Act,
2008, as the case may be.
52. Pausing, this stage, for a moment, one may also point out that
the Supreme Court, in V.C. Shukla’s case (supra), culled out various
propositions, which emerge in the context of interpretation of
interlocutory order. The relevant observations read:
“34. There is yet another aspect of the matter which has to be
considered so far as this decision is concerned, to which we shall
advert when we deal with the last plank of the argument of the
learned counsel for the appellant. Suffice it to say at the moment
that the case referred to also fully endorses the view taken by the
Federal Court and the English decisions viz. that an order is not a
final but an interlocutory one if it does not determine or decide the
22
rights of parties once for all. Thus, on a consideration of the
authorities, mentioned above, the following propositions emerge:
“(1) that an order which does not determine the right of the
parties but only one aspect of the suit or the trial is an
interlocutory order;
(2) that the concept of interlocutory order has to be
explained in contradistinction to a final order. In other
words, if an order is not a final order, it would be an
interlocutory order;
(3) that one of the tests generally accepted by the English courts
and the Federal Court is to see if the order is decided in one way, it
may terminate the proceedings but if decided in another way, then
the proceedings would continue, because, in our opinion, the term
‘interlocutory order’ in the Criminal Procedure Code has been used
in a much wider sense so as to include even intermediate or quasi-
final orders;
(4) that an order passed by the Special Court discharging the
accused would undoubtedly be a final order inasmuch as it
finally decides the rights of the parties and puts an end to
the controversy and thereby terminates the entire
proceedings before the court so that nothing is left to be
done by the court thereafter;
(5) that even if the Act does not permit an appeal against an
interlocutory order the accused is not left without any remedy
because in suitable cases, the accused can always move this Court
in its jurisdiction under Article 136 of the Constitution even against
an order framing charges against the accused. Thus, it cannot be
said that by not allowing an appeal against an order framing
charges, the Act works serious injustice to the accused.”
(Emphasis is added)
53. Applying the above tests, the Supreme Court concluded, in V.C.
Shukla’s case (supra), that an order, framing charge, is purely an
interlocutory order inasmuch as such an order does not terminate the
proceeding, but the trial goes on until it culminates in either acquittal
or conviction. The relevant observations, appearing at para 35, read:
23
“35. Applying these tests to the order impugned we find that the
order framing of the charges is purely an interlocutory
order as it does not terminate the proceedings but the trial
goes on until it culminates in acquittal or conviction. It is
true that if the Special Court would have refused to frame charges
and discharged the accused, the proceedings would have
terminated but that is only one side of the picture. The other side of
the picture is that if the Special Court refused to discharge the
accused and framed charges against him, then the order would be
interlocutory because the trial would still be alive.”
(Emphasis is added)
54. Interpreting the term, interlocutory order, in the context of Section
397(2) of the Code, the Supreme Court has pointed out, in V.C.
Shukla’s case (supra), at para 66, that the term, interlocutory order,
appearing in Section 397(2), has been used in a restricted sense and
not in a broad or artistic sense and that any order, which substantially
affects the rights of the accused or decides certain rights of the parties,
cannot be said to be an interlocutory order so as to bar a revision and,
on this basis, it has also been observed that orders, which are matters of
moment and which affect or adjudicate the rights of the accused or a
particular aspect of the trial, cannot be said to be interlocutory order so
as to fall outside the purview of revisional jurisdiction as contemplated by
Section 397. The relevant observations, appearing at para 66, read thus:
“66. The matter came to this Court. It proceeded to examine the
question whether the impugned order was interlocutory so as to justify
the view that it was barred under sub-section (2) of Section 397 and
held as follows:
“It seems to us that the term ‘interlocutory order’ in Section
397(2) of the 1973 Code has been used in a restricted sense
and not in any broad or artistic sense. It merely denotes orders
of a purely interim or temporary nature which do not decide or
touch the important rights or the liabilities of the parties. Any
order which substantially affects the rights of the accused, or
decides certain rights of the parties cannot be said to be an
24
interlocutory order so as to bar a revision to the High Court
against that order, because that would be against the very
object which formed the basis for insertion of this particular
provision in Section 397 of the 1973 Code. Thus, for instance,
orders summoning witnesses, adjourning cases, passing orders for
bail, calling for reports and such other steps in aid of the pending
proceeding, may no doubt amount to interlocutory orders against
which no revision would lie under Section 397(2) of the 1973 Code.
But orders which are matters of moment and which affect or
adjudicate the rights of the accused or a particular aspect of the trial
cannot be said to be interlocutory order so as to be outside the
purview of the revisional jurisdiction of the High Court.”
It has to be appreciated that the order of the Sessions Judge on the
revision petition of the complainant for “further enquiry”, left no option
to the Magistrate but to summon the accused and proceed with their
trial after framing a charge against them, but it was nevertheless held
by this Court as follows:
“It is difficult to hold that the impugned order summoning the
appellants straightaway was merely an interlocutory order which
could not be revised by the High Court under sub-sections (1) and (2)
of Section 397 of 1973 Code.... We are, therefore, satisfied that the
order impugned was one which was a matter of moment and which
did involve a decision regarding the rights of the appellants.”
(Emphasis is added)
55. It is because of the above reasons that it was concluded, in Amar
Nath’s case (supra), that the expression, interlocutory order, has been
used in Section 397(2) in a restricted sense and it denotes only such an
order, which is purely interim or temporary in nature, which do not
decide or touch the important rights or liabilities of the parties and that
any order, which substantially affects the rights of the accused, is not an
interlocutory order and it is on that reasoning that an order, framing
charge, is treated as an order, which is not an interlocutory order. The
relevant observations, appearing at para 67 and 68 of V.C. Shukla’s
case (supra), in this regard, read:
25
“67. This Court has therefore taken the view in Amar Nath case
that the expression “interlocutory order” has been used in
Section 397(2) of the Code in a restricted sense, that it
“denotes” orders of a purely interim or temporary nature
which do not decide or touch the important rights or
liabilities of the parties and that any order which
substantially affects the rights of the accused is not an
interlocutory order. On that reasoning, an order for the
framing of a charge against the accused in this case cannot
be said to be an interlocutory order.
68. The matter again came up for consideration in Madhu Limaye
v. State of Maharashtra where one of us was a member of the
Bench which heard the case, and one of the other two Judges was
a party to the decision in Amar Nath case. The case arose on a
complaint by the Public Prosecutor in the Court of Session, after
obtaining sanction under Section 199(4)(a) of the Code, as the
alleged offence was under Section 500 IPC for defaming a Minister.
Process was issued against the accused. After the Chief Secretary
had been examined to prove the sanction of the State Government,
the accused filed an application for the dismissal of the complaint
on the ground that the allegations were made in relation to what
the Minister had done in his personal capacity and not as a
Minister. The accused made two other contentions and challenged
the legality and validity of the trial. The Sessions Judge rejected all
the contentions and framed a charge under Section 500 IPC. The
accused challenged that order by a revision petition to the High
Court. A preliminary objection was raised there to the
maintainability of the revision petition with reference to the bar
under sub-section (2) of Section 397 of the Code. The High Court
upheld the objection, and the matter came in appeal to this Court at
the instance of the accused. The question for consideration was
whether the order of the Sessions Judge framing the charge under
Section 500 IPC was interlocutory.”
(Emphasis is added)
56. What is, therefore, in the light of the discussion held above,
necessary to point out is that the purpose of the NIA Act, 2008, apart
from constituting an agency, at the national level, is to investigate
26
offences affecting the sovereignty, security and integrity of the country,
is to create a Special Court to deal with special kind of offences and to
lay down, deviating from the general procedure, a special procedure to
deal with offenders and to complete the investigation in shortest
possible period and the trial by having precedence over other cases as is
stipulated in Section 19 .
57. Section 3 of the NIA Act, 2008, therefore, empowers the Central
Government to constitute a special agency to be called National
Investigating Agency for investigation of scheduled offences, which
means that offences, other than the scheduled offences, are, ordinarily,
left to be dealt with by other agency or the State agencies. Thus, the NIA
Act, 2008, seeks to deal with a distinct class of offences and offenders.
58. By Section 4, the Central Government is given the power of
superintendence over the National Investigation Agency so as to ensure
that no person is charged without evidence or is dealt with unfairly or
that no unnecessary delay is caused in investigation.
59. Section 11 of the NIA Act, 2008, deals with constitution and
appointment of Special Judge to deal with scheduled offences having
precedent over trials of other cases. Section 16 (5) lays down the
procedure as to how the Special Court shall proceed in absence of
accused. Section 17 of the NIA Act, 2008, lays down special procedure
regarding protection of witness, recording of evidence in camera, etc.
Section 19 provides that trial of the cases, under the NIA Act, 2008, will
have precedence over other cases. All interlocutory orders are, vide
Section 21 of the NIA Act, 2008, barred from provisions of appeal and
Section 21 also mandates that an appeal shall be disposed of within
three months.
60. The dominant purpose of the NIA Act, 2008, is to achieve not only
speedy determination, but determination with utmost dispatch as was
27
the case in V.C. Shukla (supra). Naturally, therefore, the Court, in V.C.
Shukla (supra), held at para 19, thus:
“19. The aforesaid observations, therefore, clearly show that the
heart and soul of the Act is speedy disposal and quick
dispatch in the trial of these cases. It is, therefore, manifest
that the provisions of the Act must be interpreted so as to
eliminate all possible avenues of delay or means of adopting
dilatory tactics by plugging every possible loophole in the
Act through which the disposal of the case may be delayed.
Indeed if this be the avowed object of the Act, could it have been
intended by the Parliament that while the Criminal Procedure Code
gives a right of revision against an order which, though not purely
interlocutory, is either intermediate or quasi-final, the Act would
provide a full-fledged appeal against such an order. If the
interpretation as suggested by the counsel for the appellant is
accepted, the result would be that this Court would be flooded with
appeals against the order of the Special Court framing charges
which will impede the progress of the trial and delay the disposal
of the case which is against the very spirit of the Act. We are of the
opinion that it was for this purpose that a non obstante clause was
put in Section 11 of the Act so as to bar appeals against any
interlocutory order whether it is of an intermediate nature or is
quasi-final.”
(Emphasis is added)
61. In the case at hand, too, the heart and soul of the NIA Act, 2008,
is speedy disposal and quick dispatch in the trial of these cases. It is,
therefore, clear that the provisions of the NIA Act, 2008, must be
interpreted in such a way that it eliminates all possible avenues of delay
or means of adopting dilatory tactics by plugging every possible loophole
in the NIA Act, 2008, through which the disposal of the case may be
delayed.
62. In short, thus, the sole object and the scheme of the NIA Act,
2008, is to achieve speedy trial as well as speedy judicial determination.
28
63. If the above objects, embodied in the NIA Act, 2008, are kept in
mind, it is not difficult to conclude that interlocutory order, which
appears in Section 21, cannot be construed as an intermediate order as
is done in the context of the Code and the term, interlocutory order, in
the context of the NIA Act, 2008, has to be construed to mean an order
passed during the progress of the trial and against which no special
remedy has been provided.
64. It is, no doubt, true, as has been pointed out by the learned
amicus curiae, that under the Special Courts Act, 1979, a sitting Judge
of the High Court was to preside over the trial; whereas the Special
Court, constituted under the NIA Act, can be presided over by an
additional Sessions Judge. We are, however, unable to persuade
ourselves to hold that the fact that the Presiding Judge of the Court
under the Special Courts Act, 1979, was a sitting Judge of the High
Court was the only reason for holding, as has been held in V.C. Shukla
(supra), that an order, framing charge, is not an interlocutory order.
Undoubtedly, the fact that it was a sitting Judge of the High Court, who
was to preside over the trial under the Special Courts Act, 1979, was an
important factor, but not the only factor inasmuch as a close and
dispassionate analysis of the various observations made, the inferences
drawn and conclusions reached in V.C. Shukla’s case (supra), clearly
demonstrate that the Court came to the conclusion that the Special
Courts Act, 1979, meant to deal with cases expeditiously and with great
dispatch and if that be so, the appeal shall not be allowed to be
hindered by entertaining revision against interlocutory order including
an order framing charge. Considered in this light, it is not difficult to
construe, and we do construe, that the NIA Act, 2008, aims at
expeditious and fair investigation by the NIA and also early and effective
disposal of case by trial held by a Special Court.
29
65. In the circumstances indicated above, there is no reason to
attribute to the term, interlocutory order, a meaning other than the one,
which we have done above.
66. Mr. M. Singh, learned counsel, is not wholly incorrect, when he
refers to the case of Prabhakaran (supra). In Prabhakaran (supra), the
Kerala High Court observed:
“14. Legal position laid down by the Supreme Court as
understood from the reading of the three decisions – (1) Amar
Nath’s case, (2) Madhu Limaye’s case and (3) V. C. Sukla’s
case - is the following:
15. Framing of charge may or may not amount to
interlocutory order as it depends upon facts of the case, the
statute under which proceedings have been initiated, as also
the nature of objections raised against it, etc. If the objection
or objections raised against the order framing charge are
such that upholding such objection/objections would result
in termination of the proceedings, then framing of charge
cannot be regarded as merely interlocutory order for the
purpose of revisional jurisdiction under Section 397 (2) of the
Code.”
67. From the observations, made at para 15, it is clear that framing of
charge may or may not amount to interlocutory order as it depends
upon facts of the case, the statute whereunder proceedings have been
initiated, and the nature of objections, which have been raised, etc with
the observations, made in Prabhakaran (supra), we have, in principle,
no difference.
68. As regards the learned amicus curiae’s submission that
depending upon the fact as to whether the NIA has investigated a case
under the Unlawful Activities (Prevention) Act, 1967, or the ordinary
police, an accused cannot be denied his right to challenge an order,
framing charge, by branding such an order as an interlocutory order,
suffice it to point that the validity of Section 21 of the NIA Act, 2008, is
30
not in question before us in these appeals and, hence, we have to
proceed to deal with these appeals by treating Section 21 as a valid
piece of legislation. When so proceeded, we cannot attribute a meaning
to the term, interlocutory order, other than a manner in which such a
term has been construed in V.C. Shukla (supra).
69. Because of the fact that a restrictive meaning has been given to
the expression interlocutory order, which appears in Section 397(2), the
Courts have held that an order, framing charge, is an intermediate order
and not, therefore, an interlocutory order; whereas in a case of present
nature, particularly, when application of the Code stands excluded by
the non obstante clause appearing in Section 21(1) of the NIA Act, 2008,
one cannot, but construe the expression interlocutory order to mean
every interlocutory order, be it in an order of great moment or otherwise,
including an order framing charge.
70. In Bachraj Bengani (supra), which the learned Standing Counsel,
NIA, has relied upon, the Court has pointed out that paramount object
of the POTA being expeditious trial and quick dispatch of the case, the
provisions, contained in the POTA, have to be necessarily interpreted
keeping this legislative intent in view and because of the fact that
Section 34 of POTA started with a non-obstante clause, which excluded
the operation of the Code of Criminal Procedure, the Court, in Bachraj
Bengani (supra), took the view that the order, framing charge, has to be
regarded as an interlocutory order.
71. Nothing has been shown, in the present case, on behalf of the
appellants, to make us hold that an order, framing charge, shall not be
given its natural and ordinary meaning, we have no option, but to hold,
and we do hold, that as Section 21 aims at excluding the possibility of
halting of trials at any stage, the expression interlocutory order, which
appears in Section 21, shall be given its ordinary and natural meaning
31
and, if such a meaning is attributed to the expression interlocutory
order, appearing in Section 21, then, the resultant effect is that even an
order, whereby charge is framed, will be regarded as an interlocutory
order.
72. What crystallizes from the above discussion is that under the
scheme of the NIA Act, 2008, an order, framing charge, is an
interlocutory order and no appeal would, therefore, lie against such an
order.
73. Because of the conclusion, which we have reached above, we hold
that these appeals are not sustainable and must, therefore, fail.
74. In the result and for the reasons discussed above, these appeals
fail and the same shall accordingly stand dismissed.
JUDGE JUDGE
dutt
32
XCLUDED PART
In Madhu Limaye (supra), it was, therefore, clearly indicated that on
the one hand, the legislature kept intact the revisional power of the
High Court and, on the other, it put a bar on the exercise of that power
in relation to any interlocutory order. It is in this context, that the
Supreme Court observed, in V.C. Shukla’s case (supra), “In such a
situation, it appears to us that the real intention of the legislature was not
to equate the expression ‘interlocutory order’ as invariably being converse
of the words ‘final order’. There may be an order passed during the
course of a proceeding, which may not be final in the sense noticed in
Kuppuswami case; but, yet it may not be an interlocutory order — pure or
simple. Some kinds of orders may fall in between the two.”
It is further observed by the Supreme Court, in V.C. Shukla’s case
(supra), “By a rule of harmonious construction, we think that the bar in
sub-section (2) of Section 397 is not meant to be attracted to such kinds of
interlocutory orders. They may not be final orders for the purposes of
Article 134 of the Constitution, yet it would not be correct to characterise
them as merely interlocutory orders within the meaning of Section
397(2).” The relevant observations, appearing in this regard, read:
“70. Their Lordships considered S. Kuppuswami Rao and Salaman
cases and examined the question whether the test that if the decision
whichever way it was given, would, if it stood, finally dispose of the
matter in dispute, was a proper test for deciding whether an order
was interlocutory, and disapproved it. They went on to hold as
follows: (SCC p. 558, para 13)
“But in our judgment such an interpretation and the universal
application of the principle that what is not a final order must be an
interlocutory order is neither warranted nor justified. If it were so it
will render almost nugatory the revisional power of the Sessions Court
or the High Court conferred on it by Section 397(1). On such a strict
interpretation, only those orders would be revisable which are orders
passed on the final determination of the action but are not appealable
33
under Chapter XXIX of the Code. This does not seem to be the
intention of the legislature when it retained the revisional power of the
High Court in terms identical to the one in the 1898 Code.”
After referring to the rule of interpretation of statutes, Their Lordships
further stated that: (SCC pp. 558-59, para 13)
“On the one hand, the legislature kept intact the revisional power of
the High Court and, on the other, it put a bar on the exercise of that
power in relation to any interlocutory order. In such a situation it
appears to us that the real intention of the legislature was not to
equate the expression ‘interlocutory order’ as invariably being
converse of the words ‘final order’. There may be an order passed
during the course of a proceeding which may not be final in the sense
noticed in Kuppuswami case, but, yet it may not be an interlocutory
order — pure or simple. Some kinds of orders may fall in between the
two. By a rule of harmonious construction, we think that the bar in
sub-section (2) of Section 397 is not meant to be attracted to such
kinds of interlocutory orders. They may not be final orders for the
purposes of Article 134 of the Constitution, yet it would not be correct
to characterise them as merely interlocutory orders within the meaning
of Section 397(2). It is neither advisable, nor possible, to make a
catalogue of orders to demonstrate which kinds of orders would be
merely, purely or simply interlocutory and which kinds of orders
would be final, and then to prepare an exhaustive list of those types of
orders which will fall in between the two. The first two kinds are well
known and can be culled out from many decided cases. We may,
however, indicate that the type of order with which we are concerned
in this case, even though it may not be final in one sense, is surely not
interlocutory so as to attract the bar of sub-section (2) of Section 397.
In our opinion it must be taken to be an order of the type falling in the
middle course.”
(Emphasis is added)
The Supreme Court has also pointed out, at para 77, in V.C.
Shukla (supra), that an appeal, in substance, is in the nature of a
judicial examination of a decision by a higher Court of a decision of an
inferior Court, the purpose being to rectify any possible error in the
order, which may have been appealed against, and, in that sense,
revisional jurisdiction is regarded as a part and parcel of the appellate
34
jurisdiction. The relevant observations, appearing in this regard, at para
77, read:
“77. It has to be appreciated that an appeal, in substance, is in the
nature of a judicial examination of a decision by a higher Court of a
decision of an inferior court. The purpose is to rectify any possible
error in the order under appeal. In that sense the revisional
jurisdiction is regarded as a part and parcel of the appellate
jurisdiction: Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya
Bapat. Moreover, it is well settled that statutes pertaining to a right of
appeal should be liberally construed. The position has been stated as
follows in CRAWFORD ON THE CONSTRUCTION OF STATUTES, para
336, with particular reference to interlocutory orders:
“Moreover, statutes pertaining to the right of appeal should be
given a liberal construction in favour of the right, since they are
remedial. Accordingly, the right will not be restricted or denied unless
such a construction is unavoidable. In a few states, however, where
the statute pertains to appeals from interlocutory orders, the rule of
strict construction has been applied. But, there seems to be no real
justification for this departure from the general rule in accord with
which a liberal construction would be given by the court.”
Any doubt regarding the right of appeal should therefore be resolved in
favour of the right.” (Emphasis is added)