in the gauhati high court (the high court …ghconline.gov.in/judgment/crla92013.pdf · (the high...

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1 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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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

4

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

9

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,

10

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.”

11

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

12

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.

13

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:

14

“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

15

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,

17

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)