By High Court
Case Details
Crl.A. 9/2013 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE MR. JUSTICE P. K. MUSAHARY JUDGMENT AND ORDER (Ansari, J.) (O R A L) By this common judgment and order, we propose to dispose of all the above mentio ned appeals, which have arisen out of the order, dated 06-09-2012, passed, in Sp ecial NIA Case No. 01 of 2010, by the learned Special Judge, NIA, Assam, Guwahat i, whereby the learned Court below has framed charges under Sections 120B and 12 1A IPC read with Sections 17, 18, 20 and 21 of the Unlawful Activities (Preventi on) Act, 1967, against the present accused-appellants. 2. Before these appeals could be heard on merit, a preliminary objection ha s been raised by the respondent herein, namely, National Investigating Agency, t he preliminary objection being that these appeals, which have been preferred und er 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 ca se, which is investigated by the NIA and covered by the provisions of the NIA Ac t, 2008, is an interlocutory order and Sub-Section (1) of Section 21 specificall y bars appeal from being entertained by High Court against any interlocutory ord er 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 t he appellant. We have also heard Mr. DK Mishra, learned Senior counsel, as Amicu s Curiae. 4. Appearing on behalf of the respondents, Mr. DK Das, learned Senior couns el, has made us traverse through not only the Preamble, but also the Statement o f 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 NI A Act, 2008, is to have an investigation agency to investigate, primarily, offen ces relating to ’terrorism’, apart from other penal provisions, if required, and for setting up of Special Court with special scheme for investigation so that i nvestigations are expeditious, fair and appropriately supervised and the trial o f the cases, investigated by the NIA, be conducted expeditiously and concluded w ith great dispatch. 5.
Legal Reasoning
de has been used in a much wider sense so as to include even intermediate or qua si-final orders; (4) that an order passed by the Special Court discharging the accused would undo ubtedly be a final order inasmuch as it finally decides the rights of the partie s and puts an end to the controversy and thereby terminates the entire proceedin gs 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 orde r the accused is not left without any remedy because in suitable cases, the accu sed can always move this Court in its jurisdiction under Article 136 of the Cons titution even against an order framing charges against the accused. Thus, it can not be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused. (cid:29) (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 in asmuch as such an order does not terminate the proceeding, but the trial goes on until it culminates in either acquittal or conviction. The relevant observation Applying these tests to the order impugned we find that the order framin s, appearing at para 35, read: (cid:28)35. g of the charges is purely an interlocutory order as it does not terminate the p roceedings 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 di scharged 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. (cid:29) (Emphasis is added) Interpreting the term, interlocutory order, in the context of Section 39 54. 7(2) of the Code, the Supreme Court has pointed out, in V.C. Shukla’s case (supr a), 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 th at any order, which substantially affects the rights of the accused or decides c ertain 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, whi ch are matters of moment and which affect or adjudicate the rights of the accuse d 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: (cid:28)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 barr ed under sub-section (2) of Section 397 and held as follows: (cid:28)It seems to us that the term ’interlocutory order’ in Section 397(2) of the 197 3 Code has been used in a restricted sense and not in any broad or artistic sens e. 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 ord er which substantially affects the rights of the accused, or decides certain rig hts of the parties cannot be said to be an interlocutory order so as to bar a re vision to the High Court against that order, because that would be against the v ery object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, ad journing cases, passing orders for bail, calling for reports and such other step s 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 o rders which are matters of moment and which affect or adjudicate the rights of t he accused or a particular aspect of the trial cannot be said to be interlocutor y order so as to be outside the purview of the revisional jurisdiction of the Hi gh Court. (cid:29) It has to be appreciated that the order of the Sessions Judge on the revision pe tition of the complainant for (cid:28)further enquiry (cid:29), left no option to the Magistrat e 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: (cid:28)It is difficult to hold that the impugned order summoning the appellants straig htaway 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, the refore, satisfied that the order impugned was one which was a matter of moment a nd which did involve a decision regarding the rights of the appellants. (cid:29) (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 Sectio n 397(2) in a restricted sense and it denotes only such an order, which is purel y interim or temporary in nature, which do not decide or touch the important rig hts or liabilities of the parties and that any order, which substantially affect s the rights of the accused, is not an interlocutory order and it is on that rea soning that an order, framing charge, is treated as an order, which is not an in terlocutory order. The relevant observations, appearing at para 67 and 68 of V.C . Shukla’s case (supra), in this regard, read: (cid:28)67. This Court has therefore taken the view in Amar Nath case that the expressi on (cid:28)interlocutory order (cid:29) has been used in Section 397(2) of the Code in a restri cted sense, that it (cid:28)denotes (cid:29) orders of a purely interim or temporary nature whi ch 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 aga inst 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 Mahar ashtra where one of us was a member of the Bench which heard the case, and one o f the other two Judges was a party to the decision in Amar Nath case. The case a rose on a complaint by the Public Prosecutor in the Court of Session, after obta ining sanction under Section 199(4)(a) of the Code, as the alleged offence was u nder Section 500 IPC for defaming a Minister. Process was issued against the acc used. After the Chief Secretary had been examined to prove the sanction of the S tate Government, the accused filed an application for the dismissal of the compl aint on the ground that the allegations were made in relation to what the Minist er 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 Se ssions 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 whethe r the order of the Sessions Judge framing the charge under Section 500 IPC was i nterlocutory. (cid:29) (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 offences affecting the sover eignty, security and integrity of the country, is to create a Special Court to d eal with special kind of offences and to lay down, deviating from the general pr ocedure, a special procedure to deal with offenders and to complete the investi gation 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 Governme nt 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 th e State agencies. Thus, the NIA Act, 2008, seeks to deal with a distinct class o f offences and offenders. 58. By Section 4, the Central Government is given the power of superintenden ce over the National Investigation Agency so as to ensure that no person is char ged without evidence or is dealt with unfairly or that no unnecessary delay is c aused in investigation. 59.
Arguments
Trying to drive home his point, Mr. Das, learned, Senior counsel, has su bmitted that while the Parliament provided by Section 21 of the NIA Act, 2008, t hat 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 reitera ted 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, sent ence or order, including an interlocutory order, passed by a Special Court. An order framing charge by Special Court, according to Mr. Das, learned 6. Senior counsel, is an interlocutory order and no appeal or revision would, there fore, 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 Se ction 34 of the Prevention of Terrorism Act, 2002 (hereinafter referred to as ’P OTA’) and this Court has already held, in Redaul Hussain Khan -vs- National Inve stigation Agency, reported in 2009 (3) GLT 855, that the provisions of Section 2 1 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, Secti on 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 con sidering the question as to whether an order, framing charge, shall be appealabl e or not under Section 11 of the Special Courts Act, 1979, came to the conclusio n, in the light of the provisions of Special Courts Act, 1979, that though, ordi narily, 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 Hi gh Court by Section 397(2) of the Code of Criminal Procedure, would not be attra cted, an order, framing charge, of the Special Courts Act, 1979, is an interlocu tory order 10. To put it a little differently, what Mr. Das, learned Senior counsel, co ntends is that while an order, framing charge, is, ordinarily, not an interlocut ory order, an order, framing charge, under a special statute, such as, the NIA A ct, 2008, cannot be treated as an interlocutory order, for, such an order, if no t treated as an interlocutory order, would defeat the object with which a legisl ation, such as, the NIA Act, 2008, has been enacted, primarily aiming at expedit ious and efficient investigation and also expeditious and effective trial in res pect 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 POT A, 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 C ourt 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 referre d 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 v arious 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 Libertie s (supra), reiterates that Section 21 of the NIA Act, 2008, needs to be treated as constitutionally valid and it is, therefore, necessary that the provisions, e mbodied in Section 21 of the NIA Act, 2008, be interpreted in such a manner as w ould advance the object of the enactment of the NIA Act, 2008, and not defeat th e same, namely, the object of expeditious and effective investigation as well as trial. 13. Resisting the preliminary objection so raised on behalf of the responden ts, Mr. MG Singh, learned counsel, has submitted that in a series of cases, deci ded by the Supreme Court, more particularly, Amar Nath -vs- State of Haryana, (A IR 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 regar ded 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, learne d 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 sch eme 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, Wadak kancherry, reported in 1993 CRLJ 3599 (KER), Mr. Singh, learned counsel, has sub mitted that the question as to whether framing of charge shall or shall not amou nt to an interlocutory order depends on the facts of the case, the statute, wher ein the proceeding has been initiated, and the nature of objection raised therei n. 16. Appearing as Amicus Curiae, Mr. DK Mishra, learned Senior counsel, has s ubmitted 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 case s of Amar Nath (supra) and Mohanlal Thakkar (AIR 1963 SC 733), has pointed out t hat these cases were considered in Madhu Limaye’s case (supra) and the Court too k 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, frami ng charge, is such an order, which, if passed in favour of the accused, would ha ve ended in the discharge of the accused, it would not be treated as an interloc utory 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 Amic us Curiae, that since the provisions, embodied in Section 397(2), impose restric tions, on the right of an accused, such a provision needs to be construed strict ly and it was for this reason, contends Mr. Mischra, that even in VC Sukla’s cas e (supra), the Court distinguished the meaning and import of the expression inte rlocutory order between a case, which is covered by the provisions of the Code o f Criminal Procedure, 1973, on the one hand, and the meaning of the interlocutor y order as may be applicable to a case covered by a special statute, such as, th e Special Courts Act, 1979. 18. Attempting to draw distinction between the NIA Act, 2008, and the Specia l Courts Act, 1979, Mr. Mishra, learned Amicus Curiae, has submitted that the mo st important reason why the Court, in V. C. Shukla (supra), took the view that a n order, framing charge, ought to be regarded as interlocutory order was the fac t that the trial was presided 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 a ppeal 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 S pecial 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 Cou rt, under the Special Courts Act, 1979, was constituted by a sitting Judge of th e High Court; whereas a Sessions Judge or Additional Sessions Judge can constitu te 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 Sectio n 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 th e case, it would be unfair, unreasonable and discriminatory to deny to an accuse d the benefit of appeal or revision against an interlocutory order. 21. Elaborating his above submissions, Mr. Mishra, learned Senior counsel, c ontends that if a case, involving any penal provision of the Unlawful Activities (Prevention) Act, 1967, is investigated by police, the accused can move the Ses sions Court or the High Court, against an order framing charge invoking its revi sional jurisdiction, because the bar, imposed by Section 397(2) Cr.P.C., would n ot 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, again st him, happens to have been investigated by the NIA and a Special Court, consti tuted under the NIA Act, 2008, would hold the trial. Two persons, made accused u nder the Unlawful Activities (Prevention) Act, 1967, cannot be treated different ly merely because investigation, in one case, is conducted by the NIA and, in th e other, by the police in terms of the provisions of the Code of Criminal Proced ure, 1973. 22. The further submission of Mr. D.K. Mishra, learned amicus curiae, is tha t 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. s. Though it is not in dispute before us that an interlocutory order is nei 24. ther 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 investiga ted 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, investigat ed by the NIA, shall be held to be an interlocutory order so that the progress o f the trial is not hampered or retarded and a trial, which once commences, comes We have given our anxious consideration to the submissions made before u to an end expeditiously and without any stoppage. For better appreciation of the issues, raised before us, we reproduce he 25. reinbelow Section 21 of the NIA Act, 2008, which reads as under: (cid:28)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 j udgment, sentence or order including an interlocutory order of a Special Court. (cid:29) 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, s entence 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 i t has denied any right of appeal from an order, which is interlocutory. This apa rt, 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 Co de of Criminal Procedure, 1973, for Sub-Section (1) of Section 21 opens with the expression, (cid:28)Notwithstanding anything contained in the Code (cid:29). 27. Coupled with the above, Sub-Section (3) of Section 21 makes it further e xplicit 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 ev en 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 i s 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, whi ch is interlocutory in nature, and has also ousted the application of the Code o f Criminal Procedure, 1973, to an order passed by a Special Court, whether the o rder is interlocutory or otherwise. Apart from the fact, as has been clearly brought out in the case of Reda 29. ul 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 discernible if one reads the provisions, as s tood embodied in Section 11 of the Special Courts Act, 1979, which we reproduce below: (cid:28)11. Appeal.-(1) Notwithstanding anything in the Code, an appeal shall l ie as of right from any judgment, sentence or order, not being interlocutory ord er, 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 j udgment, 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. (cid:29) 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 sa me time, an embargo on the revisional Court’s jurisdiction in respect of an inte rlocutory order by laying down that no revision would lie against an interlocuto ry 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 Cod e of Criminal Procedure, 1973, bars exercise of revisional jurisdiction so far a s interlocutory orders are concerned. 33. Naturally, therefore, what an interlocutory order conveys and how it sha ll be construed, in the context of Section 397(2) CrPC, has been a subject of in terpretation in a large number of judicial pronouncements, one of the principal decisions being Amar Nath’s case (supra). Before, however, we deal with the case of Amar Nath (supra), let us exam 34. ine and ascertain the meaning and expression of the non obstante provisions embo died in Section 21(1) of the NIA Act, 2008, inasmuch as Section 21 opens, as alr eady indicated above, with the non-obstante clause by stating, (cid:28)Notwithstanding anything contained in the Code (cid:29). Similar provisions were available in Section 11 of the Special Courts Act, 1979, too, which came to be interpreted in V.C. Shuk la’s case (supra). 35. In order to arrive at the decision as to what the expression (cid:28)Notwithsta nding anything contained in the Code (cid:29) meant to convey, the Supreme Court took no te 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: (cid:28)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 th is Court in the case of Aswini Kumar Ghosh v. Arabinda Bose where Patanjali Sast ri, C.J. observed as follows: (cid:28)It should first be ascertained what the enacting part of the section provides o n 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 asi de as no longer valid anything contained in relevant existing laws which is inco nsistent 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.... (cid:29) Similar observations were made, in Aswini Kumar Ghosh (supra), by Mukhe 36. rjea, J, when his Lordship observed as follows: (cid:28)In my opinion, the section on its negative side eliminates so far as the Suprem e 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 C ourt. On the positive side, the section confers on Supreme Court Advocates the s tatutory privilege of practising as of right, in any High Court in India, no mat ter whether he is enrolled as an Advocate of that court or not. (cid:29) Das, J, as his Lordship then was, observed, in Aswini Kumar Ghosh (supra 37. ), as follows: (cid:28)In short, there is no escape from the conclusion that the ambit, scope and effe ct of the non obstante clause are to supersede the Indian Bar Councils Act and a ny other Act only insofar as they regulate the conditions referred to therein. (cid:29) 38. Having taken note of, and referring to the above observations made, in A swini Kumar Ghosh (supra), particularly, the observations of Das, J., the Suprem e Court, in V.C. Shukla’s case (supra), held at para 22 and 23 thus: (cid:28)22. The observations of Das, J. clearly show that the effect of non obstante cl ause was to supersede the Indian Bar Councils Act and any other Act insofar as t hey regulate the conditions referred to therein. If we apply this test to the pr esent case, then it is manifest that the non obstante clause would have the effe ct of overriding and excluding the provisions of the Code. Applying the test lai d down by Sastri, C.J., we find that the position may be summed up as follows: (cid:28)(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 me aning instead of referring to the statute which is sought to be excluded. (cid:29) 23. We entirely agree with the approach indicated by Sastri, C.J. and which is a lso binding on us. Let us see what is the effect of interpreting the non obstant e clause according to the test laid down by the decision, referred to above, and particularly, the observations of Sastri, C.J. Let 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 (cid:28)interlocutory order (cid:29) as appearing in the Code because the dec isions were based purely on the interpretation of the provisions of the Code. We have, therefore, first to determine the natural meaning of the expression (cid:28)inte rlocutory order (cid:29). To begin with, in order to construe the term (cid:28)interlocutory (cid:29), 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 (V ol. 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 wor ds, the words (cid:28)not a final order (cid:29) must necessarily mean an interlocutory order o r an intermediate order. That this is so was pointed out by Untwalia, J. speakin g for the court in the case of Madhu Limaye v. State of Maharashtra as follows: (SCC p. 557, para 12) (cid:28)Ordinarily and generally the expression ’interlocutory order’ has been understo od and taken to mean as a converse of the term ’final order’. (cid:29) Thus, the expression (cid:28)interlocutory order (cid:29) is to be understood and taken to mean converse of the term (cid:28)final order (cid:29). Now, let us see how this term has been defi ned in the dictionaries and the textbooks. In WEBSTER’S THIRD INTERNATIONAL DICT IONARY (Vol. II, p. 1179) the expression (cid:28)interlocutory order (cid:29) has been defined thus: (cid:28)Not final or definitive: made or done during the progress of an action: INTERME DIATE, PROVISIONAL. (cid:29) STROUD’S JUDICIAL DICTIONARY (4th Edition, Vol. 3, p. 1410) defines interlocutor y order thus: (cid:28) ’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 oth er than final judgment. (cid:29) Thus, according to Stroud, interlocutory order means an order other than a final judgment. This was the view taken in the case of Smith v. Cowel and followed in Manchester & Liverpool Bank v. Parkinson. Similarly, the term (cid:28)final order (cid:29) has been defined in Vol. 2 of the same dictionary (p. 1037) thus: (cid:28)The judgment of a Divisional Court on an appeal from a county court in an inter pleader 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), unles s 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 no t ’final’ within the old Order 58, Rule 3, because had the decisions been the ot her way the action would have proceeded. HALSBURY’S LAWS Or ENGLAND (3rd Edn., Vol. 22, pp. 743-44) describes an interloc utory or final order thus: (cid:28)Interlocutory judgment or order.-An order which does not deal with the final ri ghts 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 alre ady 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 conclu sive 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’. (cid:29) (Emphasis is added) From the above observations, made in V.C. Shukla’s case (supra), what ca 39. n be safely gathered is that in a case of present nature, while construing the n on 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 particular ly, the term interlocutory order according to their natural and ordinary meaning instead of referring to the construction of the term, interlocutory order, as t he said term has been interpreted in the context of the Code of Criminal Procedu re, 1973, which is, as pointed out above, sought to be excluded by the non obsta nte clause in Section 21 of the NIA Act. 40. In other words, when Section 21 opens with the expression (cid:28)Notwithstandi ng anything contained in the Code (cid:29), 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 oth er. 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 gi ven their ordinary and natural meaning and not the meaning, which has been attri buted to the term interlocutory order by the Courts in the context of the provis ions 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, ob served, (cid:28)We have, therefore, first, to determine the natural meaning of the expr ession, interlocutory order. (cid:29) 43. The essential attribute of an interlocutory order is that it merely deci des 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 Untwali a, J., in Madhu Limaye Vs. State of Maharashtra, reported in (1977) 4 SCC 551, h eld that an order, framing charge, is not an interlocutory order, but an interme diate order and that the conclusion, so reached, has been agreed to by the Supre me Court in V.C. Shukla’s case (supra). The relevant observations, which appear at para 24, read as under: (cid:28)24. To sum up, the essential attribute of an interlocutory order is that it mer ely decides some point or matter essential to the progress of the suit or collat eral 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 passag e, extracted above, in CORPUS JURIS SECUNDUM, Vol. 60. We find ourselves in comp lete agreement with the observations made in CORPUS JURIS SECUNDUM. It is obviou s that an order framing of the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term (cid:28)interlocutory order (cid:29) as us ed in Section 11(1) of the Act. WHARTON’S LAW LEXICON (14th Edn., p. 529) define s interlocutory order thus: (cid:28)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. (cid:29) 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 i n a proceeding, suit or trial but which does not however conclude the trial at a ll. This would be the result if the term interlocutory order is interpreted in i ts 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 ordina ry 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. (cid:29) (Emphasis is added) 44. From the above observations, the conclusion, which is inescapable, is th at an intermediate order is one, which is made between the commencement of an ac tion and the entry of the judgment and that an order, framing charge, being an i ntermediate order, squarely falls within the ordinary and natural meaning of the term interlocutory order. This would be the result if the term, interlocutory o rder, is interpreted in its natural and logical sense without having taken resor t 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 obse rvations, made in V.C. Shukla’s case (supra), by S. Murtaza Fazal Ali, J., is th at the non-obstante clause would exclude application of the Code and, consequent ly, the words, used in the NIA Act, 2008, have to be construed according to thei r natural and ordinary meaning instead of construing them in the manner as may h ave 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, interl ocutory order, appearing in Section 21(1) of the NIA Act, 2008, the said term ca nnot be given the meaning, which has been applied to the term interlocutory orde r 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, interlocuto ry order, will take, within its own sweep, intermediate order or quasi final ord er. No wonder, therefore, that in the Supreme Court Practice, 1976, (Vol.I, p.85 3), which stands referred to in para 23 of V.C. Shukla’s case (supra), an interl ocutory order has been described to mean, in the light of the decision in Salama n 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 necessar ily mean and include an interlocutory order or an intermediate order and this as pect was recognized even by Untwalia, J., speaking for the Court in Madhu Limaye (supra), when his Lordship observed: (cid:28)We have, therefore, first, to determine t he natural meaning of the expression ’interlocutory order’. 48. Thus, as held in V.C. Shukla’s case (supra), the expression, interlocuto ry 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: (cid:28)Thus, the expression interlocutory order is to be understood and taken to mean converse of the term final order. (cid:29) 49. The Supreme Court has pointed out, in V.C. Shukla’s case (supra), that i n Madhu Limaye (supra), Untwalia, J., mean to convey that an order, framing char ge, is not an interlocutory order, but is an intermediate order and this conclus ion, which was reached in Madhu Limaye (supra), has been, it is necessary to no te, agreed to in V.C. Shukla’s case (supra). It is for this reason that the Supr eme Court observed, in V.C. Shukla’s case (supra), if we may reiterate, thus, (cid:28)W e find ourselves in complete agreement with the observations made in Corpus Juri s Secundum. It is obvious that an order framing of the charge being an intermedi ate order falls squarely within the ordinary and natural meaning of the term int erlocutory order as used in Section 11(1) of the Act. (cid:29) (Emphasis is added) 50. From the above discussion, what clearly surfaces is that the term, inter locutory order, which appears in Section 21(1) and 21(3) of the NIA Act, 2008, i ncludes an order framing charge meaning thereby that while the term, interlocuto ry order, in the context of the Code, has to be construed as an intermediate ord er and, therefore, revisable, the term, interlocutory order, which appears in th e special statute, namely, Section 21(1) and 21(3) of the NIA Act, 2008, would h ave to be construed according to its ordinary and natural meaning and when attri buted its natural and ordinary meaning, the term, interlocutory order, would con vey any order, including even an order, framing charge, passed at the intermedia te 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 or der, framing charge, is not an interlocutory order and revisional jurisdiction w ould not, therefore, stand barred by Section 397(2); whereas, in the case at han d, interlocutory order would mean and include even an order, whereby a charge ag ainst an accused, in a case investigated by the NIA, is framed by a Special Cour t 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 Supre me Court, in V.C. Shukla’s case (supra), culled out various propositions, which emerge in the context of interpretation of interlocutory order. The relevant obs ervations read: (cid:28)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 l ast plank of the argument of the learned counsel for the appellant. Suffice it t o 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 fina l but an interlocutory one if it does not determine or decide the rights of part ies once for all. Thus, on a consideration of the authorities, mentioned above, the following propositions emerge: (cid:28)(1) that an order which does not determine the right of the parties but only on e aspect of the suit or the trial is an interlocutory order; (2) that the concept of interlocutory order has to be explained in contradistinc tion to a final order. In other words, if an order is not a final order, it woul d be an interlocutory order; (3) that one of the tests generally accepted by the English courts and the Feder al Court is to see if the order is decided in one way, it may terminate the proc eedings but if decided in another way, then the proceedings would continue, beca use, in our opinion, the term ’interlocutory order’ in the Criminal Procedure Co
Decision
Section 11 of the NIA Act, 2008, deals with constitution and appointment of Special Judge to deal with scheduled offences having precedent over trials o f other cases. Section 16 (5) lays down the procedure as to how the Special Cour t shall proceed in absence of accused. Section 17 of the NIA Act, 2008, lays do wn special procedure regarding protection of witness, recording of evidence in c amera, 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 Sect ion 21 of the NIA Act, 2008, barred from provisions of appeal and Section 21 als o 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 the case in V.C. S hukla (supra). Naturally, therefore, the Court, in V.C. Shukla (supra), held at para 19, thus: (cid:28)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. I t 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 tact ics 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 g ives 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 ap peal against such an order. If the interpretation as suggested by the counsel fo r the appellant is accepted, the result would be that this Court would be floode d 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 ag ainst the very spirit of the Act. We are of the opinion that it was for this pur pose that a non obstante clause was put in Section 11 of the Act so as to bar ap peals against any interlocutory order whether it is of an intermediate nature or is quasi-final. (cid:29) (Emphasis is added) In the case at hand, too, the heart and soul of the NIA Act, 2008, is sp 61. eedy 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 wa y 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. In short, thus, the sole object and the scheme of the NIA Act, 2008, is 62. to achieve speedy trial as well as speedy judicial determination. 63. If the above objects, embodied in the NIA Act, 2008, are kept in mind, i t is not difficult to conclude that interlocutory order, which appears in Sectio n 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 an d against which no special remedy has been provided. 64. It is, no doubt, true, as has been pointed out by the learned amicus cur iae, 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 t he Court under the Special Courts Act, 1979, was a sitting Judge of the High Cou rt was the only reason for holding, as has been held in V.C. Shukla (supra), tha t 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 tria l 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 observation s made, the inferences drawn and conclusions reached in V.C. Shukla’s case (supr a), clearly demonstrate that the Court came to the conclusion that the Special C ourts 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 entertainin g revision against interlocutory order including an order framing charge. Consid ered in this light, it is not difficult to construe, and we do construe, that th e 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. 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 t o the case of Prabhakaran (supra). In Prabhakaran (supra), the Kerala High Court observed: Legal position laid down by the Supreme Court as understood from the rea (cid:28)14. ding 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 dep ends upon facts of the case, the statute under which proceedings have been initi ated, 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 s uch objection/objections would result in termination of the proceedings, then fr aming of charge cannot be regarded as merely interlocutory order for the purpose of revisional jurisdiction under Section 397 (2) of the Code. (cid:29) 67. From the observations, made at para 15, it is clear that framing of char ge 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 Prabhaka ran (supra), we have, in principle, no difference. 68. As regards the learned amicus curiae’s submission that depending upon th e fact as to whether the NIA has investigated a case under the Unlawful Activiti es (Prevention) Act, 1967, or the ordinary police, an accused cannot be denied h is 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 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 o f legislation. When so proceeded, we cannot attribute a meaning to the term, int erlocutory order, other than a manner in which such a term has been construed in V.C. Shukla (supra). Because of the fact that a restrictive meaning has been given to the exp 69. ression interlocutory order, which appears in Section 397(2), the Courts have he ld that an order, framing charge, is an intermediate order and not, therefore, a n interlocutory order; whereas in a case of present nature, particularly, when a pplication of the Code stands excluded by the non obstante clause appearing in S ection 21(1) of the NIA Act, 2008, one cannot, but construe the expression inter locutory order to mean every interlocutory order, be it in an order of great mom ent 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 t he 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-obstant e clause, which excluded the operation of the Code of Criminal Procedure, the Co urt, in Bachraj Bengani (supra), took the view that the order, framing charge, h as to be regarded as an interlocutory order. Nothing has been shown, in the present case, on behalf of the appellants 71. , 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 Se ction 21 aims at excluding the possibility of halting of trials at any stage, th e expression interlocutory order, which appears in Section 21, shall be given it s ordinary and natural meaning and, if such a meaning is attributed to the expre ssion interlocutory order, appearing in Section 21, then, the resultant effect i s that even an order, whereby charge is framed, will be regarded as an interlocu tory 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 ap peal would, therefore, lie against such an order. 73. se appeals are not sustainable and must, therefore, fail. 74. d the same shall accordingly stand dismissed. In the result and for the reasons discussed above, these appeals fail an Because of the conclusion, which we have reached above, we hold that the