Karnataka High Court
Asim Shariff vs National Investigating Agency on 8 March, 2018
Author: B.S. Patil
Bench: B.S. Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF MARCH, 2018
PRESENT
THE HON'BLE MR.JUSTICE B.S. PATIL
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL No.222 OF 2018
BETWEEN:
ASIM SHARIFF
S/O ANWAR.M.
AGED ABOUT 40 YEARS
R/AT HOUSE NO.6/1
1ST MAIN, S.K.GARDEN
BENSON TOWN, BENGALURU - 560 046. ...APPELLANT
(BY SRI S.BALAKRISHNAN, ADV.)
AND:
NATIONAL INVESTIGATING AGENCY
REP. BY SPL. P.P.
HIGH COURT OF KARNATAKA
BANGALORE - 560 001. ... RESPONDENT
(BY SRI P.PRASANNA KUMAR, ADV.)
THIS CRL.APPEAL IS FILED UNDER SECTION 21 OF
NATIONAL INVESTIGATION AGENCY ACT, 2008 PRAYING TO SET
ASIDE THE ORDER DATED 02.01.2018 PASSED BY THE XLIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL
COURT OF TRIAL OF NIA CASES), BENGALURU IN
2
SPL.C.C.NO.181/2017 AGAINST THE APPELLANT AND
DISCHARGE HIM FOR THE OFFENCE P/U/S 302, 201 R/W 34 OF
IPC AND SECTION 3 AND 27 OF INDIAN ARMS ACT AND UNDER
SECTION 15,16,17,18 AND 20 OF UNLAWFUL ACTIVITIES
(PREVENTION) ACT, 1967 AND FROM THE CASE.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY B.S. PATIL J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 21 of the National Investigation Agency Act, 2008 (for short 'the NIA Act') challenging the order dated 02.01.2018 passed by the learned 49th Additional City Civil and Sessions Judge in his capacity as Special Judge for trial of National Investigation Agency cases at Bengaluru. By the order under challenge the learned Spl.Judge has dismissed the application filed under Section 227 of Code of Criminal Procedure by accused No.5/appellant herein seeking his discharge.
2. It is contended by the appellant in the application filed, that he has been falsely implicated by invoking the provisions of the NIA Act, i.e., Unlawful Activities (Prevention) Act, 1967 without any materials against him so as to attract 3 penal provisions and has been wrongly charge-sheeted. This application was resisted by the State represented by National investigating Police, Bengaluru City. On consideration of the respective contentions, the Court below has dismissed the application.
3. The Office has raised objections regarding maintainability of this appeal. Therefore, we have heard learned counsel for the appellant Sri S. Balakrishnan and learned counsel appearing for the respondent Sri P.Prasanna Kumar, on the said question. It is contended by learned counsel for the appellant that the order under challenge is not an interlocutory order therefore, there is no bar for maintaining the appeal under Section 21 of the NIA Act.
4. Per contra, Sri P. Prasanna Kumar, learned counsel for the respondent submits that the order under challenge is an interlocutory order and therefore appeal is not maintainable as per the provisions of sub-sections (1), (2) and (3) of Section 21 of the Act. In support of his contention he relies upon judgment of the Apex Court in the case of V.C. Shukla vs. State, through C.B.I., AIR 1980 SCC 92.
4
5. In the light of respective contentions and in the light of provisions contained in Section 21 of the Act, the question to be considered is:
whether the appeal under Section 21 of the NIA Act a Special enactment is maintainable?
Section 21 of the NIA Act is extracted hereunder:
"21. Appeals.-(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) Every appeal under sub-section (1) shall be heard by a Bench of two judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
(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.
(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:5
Provided that the High 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:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."
6. It is apparent from a reading of the aforementioned provisions that an appeal is provided from any judgment, sentence or order not being interlocutory order passed by a Special Court to the High Court. Sub section (3) envisages that no appeal or revision shall lie except as provided under sub section 1 to any Court from any judgment, sentence or order including an interlocutory order of a Special Court.
7. Sub clause (4) provides an appeal to the High Court against the order of Spl. Court granting or refusing bail. It is, therefore, clear that against an interlocutory order passed by a Spl.Court, no appeal or revision lies to any Court. The question for consideration now is whether the order under challenge is an interlocutory order.
8. By the order under challenge, application for discharge filed by the appellant has been dismissed. It cannot 6 be said that proceedings pending before the Spl.Court have got terminated by virtue of the order passed. Therefore, order under challenge cannot be termed as a final order. In V.C. Shukla's case referred to above relied upon by the learned counsel for respondent, in paragraphs 22 & 23 dealing with nature of an order, whether interlocutory or final, it has been observed by the Apex Court as under:
22. 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 of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in S.11(1) of the Act. 7 Wharton's Law Lexicon (14th Edition, 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."
"23. 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 decide 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 S.11(1) of the Act."
09. Thus, by referring to dictionary meaning of the expression Interlocutory order and its ordinary and general meaning, the Apex Court has summed up in paragraph 22 8 stating that, 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, the Apex Court has held, is one which is made between the commencement of an action and the entry of the judgment. While summing up the natural and logical meaning of an interlocutory order, the Apex Court has concluded at para 22 of the above judgment that order which terminates the proceedings or finally decides the rights of the parties is only the final order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all.
10. Though several other judgments are also referred by learned counsel for respondent in support of the very contention, we find it unnecessary to deal with the same since it has been authoritatively pronounced by the Apex Court that an interlocutory order does not terminate the proceedings pending before the Court below.
9
In the present case, the Court below has dismissed the application seeking discharge, filed under Section 227 of Cr.P.C. By such an order, it cannot be said that proceedings pending before the Sessions Judge got terminated. It has to be construed as interlocutory order only. As against an interlocutory order, no appeal is provided under Section 21 of the NIA Act. Therefore, this appeal is not maintainable.
Hence the appeal stands dismissed as not maintainable.
Sd/-
JUDGE Sd/-
JUDGE HR