Kerala High Court
Crl.MC/5149/2020 on 11 November, 2020
I]tI THE HTGH coURT OF KERALA AT ERI{AKULAI4
Present:
THE HONOURABLE IIIR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE I,IRS. JUSTTCE AttIU SIVARAIIATTI
&
THE HONOURABLE IIIRS. JUSTTCE il.R.ANTTHA
wednesday,the 11th day of November 2020/2gth Karthika, tg42
Z Crl. ilC No. 28./2016l
PETITTOilER/ACCUSED iIO. 4
IIIASTIGUDA ABOOBACKER,
s./0. utrttrtER ( LATE ) ,
AKKARAJIIEL HOUSE, HOSDURG,
KADAPPURAIT P.O.,
KAtttHAtfGAD,
TGSARAGOD DISTRICT, PIN 671 - 315.
RESPOT{ DEilT./GOMP LAI lrlAitT :
ilATroilAL ilrtvEsTlcATroil AGENCY (N.I.A),
REPRESEIIITED BY THE srAttlDrilc couNsEL, KATHRTKADAv, t(ALooR, ERNAKULAI|.
The Z crl.ltlc for orders on tt/tl/2o20 and this
No78/2gLg again coming
court's order dated zg/4/zgzg and upon hearing arguments of trt,/s.trtAttu roil
CHERUVALLY' sHYAItl ARAVTND, BALU Toltl CHERUvALLY AtttD JITHTil.K.R Advocates for
the petitioner and of Assistant Solicitor General of rndia
sRr.P.vrJAYAKutr'lAR,
and sri.Arjun Ambalapatta, special Public prosecutor for respondent, the
Court on the same day passed the following.
PTO
rN THE HTGH COURT OF KERALA AT ERI{AKULAIII
Present:
THE HONOURABLE UR. JUSTICE A.HARTPRASAD
&
THE HOII|OURABLE trtRs. JUSTICE ANU SfVARAtrtAil
&
THE HONOUMBLE I.IRS. JUSTICE III.R.AI{rTHA
wednesday,the 11th day of Novenber zgzg/2gth Karthika, rg42
Z.CrL.n.C No.Z2g/zgt6
PETITI O1{ ER./PETITTOil ER :
SHTHAB
S/0. IBRAHI]II, CHEENAI,IITIADATH (H),
BUSHRA IT|ANZIL, HoSDURG KADAppURAtr,t p.0.,
t(Ar{HAr{GAD, KASARAGoDE (DISTRTCT) .
RESPONDENTS,/RESPONDENTS :
1. NATTONAL INVESTIGATION AGEI{CY
REPRESE]IITED BY THE SPECTAL PUBLIG PR0SEGUT0R.
2. REGTONAL PASSPoRT oFFTCER,
KOZHTKODE.
3. STATE OF KERALA
REPRESEIIITED BY THE PuBLrc pRosEcuroR, HrcH couRT oF KERALAITI, ERt{AKuLAtrt.
The Z CRL.il.C 228/29L6 again coming for orders on tl/tl/2020 and this
Court's order dated Zg/4/2O29 and upon hearing the arguments of
sRr. sHAJrtr'loil. T. B, Advocate for the petitioner and of SRI . P. VIJAYAKUIIIAR,
Assistant soricitor Generar of rndia for respondents 1 and 2, Sri.Arjun
Ambalapatta, speciar pubric prosecutor for R1, sRr.suvril R.lt'lENON, Central
Government standing Gounsel for R2 and pubric prosecutor for Respondent
3,
the Court on same day passed the following.
PTO
o
rrc.R.rt
A.HARIPRASAD,
ANU SIVARAMAN & M.R.ANITHA, JJ.
Z Grf .M.G.Nos.78 and 228 of 2016
Dated this the 1{th day of November,2020
COMMON ORDER
Hariprasad. J.
We are called upon to answer a pointed question raised by a Division Bench in the order of reference dated 06.08.2016 in an unnumbered Criminal Miscellaneous Case ("Crl.M.C.", for short). The question is : 'Whether an order by which the Special Court, constituted under the National Investigation Agency Act, 2008 ("NlA Act" for short), refused to modifo or relax the condition imposed in a bail order can be chaffenged under Section 482 of the Code of Criminal Procedure, 1973 ("Code" for short)?". Subsequently, another Division Bench raised the same question in another unnumbered Crl.M.C. as per order dated 24.10.2016. On the orders of the Hon'ble Chief Justice, the matters are placed before us for resolution of the issue.
2. We heard Sri.Manu Tom Cheruvally and Sri.Shajimon T.B., learned counsel appearing for the petitioners and Sri.Suvin R.Menon, learned Central Government Standing Counsel ("CGSC" for short) and Z Crl.M.C.Nos.78 and 228 ot2016 o 2 Sri.Arjun Ambalapatta, learned Special Public Prosecutor appearing for National Investigation Agency ("NlA' for short).
3. In order to appreciate the rival contentions, we shall take note of the bare minimum facts involved in the cases. Dismissal of Crl.M.P.No.78 of 2016 in S.C.No.2/2013/NlA pending before the Special Court for trial of NIA cases, Ernakulam ("special court" for short) has been challenged in a Crl.M.C, which is the subject matter of the 1s reference. 4th accused was enlarged on bail with strict conditions. One of the conditions is that the sureties shall, along with basic tax receipts/solvency certificates, produce their title deeds in respect of the property for which they remitted tax. Later, 4th accused filed an application stating that his sureties needed their title deeds returned. In short, he requested the court to modifo the bail order, which was turned down through the impugned order. Hence, he approached this Court by invoking Section 482 of the Code.
4. 6th accused in R.C.No.112011/NIA/HYD approached the above Court with a petition seeking the release of his passport surrendered as per the directions in a bail order passed by the same court. After considering merits of his contentions, the Special Court dismissed the application. That order is challenged before this Court under Section 482 of the Code which resulted in the 2nd reference order.
5. ln the order of reference, the learned Judges pointed out apparent conflicts of judicial opinions expressed in Thadiyantevida Nazeer v. State of Kerala (2011 (3) KLT 734) and Majeed Koliyad v. National Z CA.M.C.Nos.78 and 228 of 2016 3 O fnvestigation Agency, Kochi (2015 (1) KHC 2611. Certain observations in Majeed Koliyad @ Mohammed Abdul Kader Majeed v. National lnvestigation Agency, Kochi and another (2014 (2) KHG 620) are also pointed out in the order of reference dated 06.08.2016. For the sake of convenience, Majeed Koliyad @ Mohammed Abdul Kader Majeed v. National Investigation Agency, Kochi and another (2014 (2) KHc 620) is refened to as "Majeed Koliyad-!" and Majeed Koliyad v. National Investigation Agency, Kochi (2015 (1) KHc 2611as "Majeed Koliyad-||".
6. At the outset, Sri.Manu Tom submitted that the petitioner/4th accused in S.C.No.212013/NlA is no more. Therefore, Crl.M.C. involved in the 1$ order of reference has become infructuous. However, we are bound to answer the issue raised in the order of reference, inespective of the event that has happened subsequent to the order. Moreover, the same question comes up in the 2nd reference order as well.
7. Since the issue centres around the interpretation of Section 21 of the NlAAct, we shall extract the same:
"21.Appeals.-(l) 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-secfrbn (1) shall be heard by a bench of two Judges of the High Court Z Crl.M.C.Nos.78 and 228 of 2O16 4 O and shall, as far as possrble, be drcposed 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 Specra/ 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:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if ft r.s safisfied that the appellant had sufficient cause for not preferring the appeal within the peiod of thirty days:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."
8. Before analysing the scope and legal effect of the above Section, we shall take cognizance of certain pertinent aspects. Section 2(1)
(b) of the NIA Act says "Code" means the Code of Criminal Procedure, Z CA.M.C.Nos.78 and 228 ot2O16 o s 1973. In the NIA Act, chapter lll dealing with "lnvestigation by NIA' and Chapter lV relating to "special Courts" indicate, in generality, the application of the Code in the matter of investigation into the offences and trial of cases by the Special Courts. Chapter XXIX of the Code, comprising of Sections 372 to 394, deals with appeals. Section 372 says that no appeal shall lie from any judgment or order of a criminal court except as provided by the code or by any law for the time being in force. By the Amendment Act, 2008 (Act 5 of 2009), which came into effect on 31 .12.2009, a proviso has been added to Section 372 of the Code dealing with the victim's right to prefer an appeal. That provision is not relevant for our purpose.
9. Firmly settled proposition in law is that right to appeal is a creature of statute and it exists only where expressly provided by the statute.
10. From the preamble to the NlAAct it will be evident that it was enacted to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State and friendly relations with foreign States. It is also intended to conduct investigation into offences under the Acts, enacted to implement international treaties, agreements, conventions and resolutions of the United Nations and other international organizations. What is discernible from the statement of objects and reasons is that the legislature has noticed the happening of innumerable incidents of terrorist attacks, not only in the militancy areas and areas affected by Left Wing o Z CA.M.C.Nos.78 and 228 o12016 6 Extremism, but also in the form of terrorist attacks and bomb blasts in various parts of the country. A large number of incidents were found to have complex inter-State and international linkages and possible connections with other activities like the smuggling of arms and drugs and pushing in and circulation of fake Indian currency, infiltration from across the borders, etc. Reckoning all these aspects, the legislature felt the need of setting up an agency at the central level for investigation of offences relating to tenorism and certain other acts which have national ramifications. All the above considerations actuated the Parliament to enact the NlAAct.
11. We may make a passing mention that the NIA Act was amended by NIA (Amendment) Act, 2019 which came into force on 02.08.2019. The amendments so effected have no relevance in these cases.
12. In the above backdrop, we shall analyse Section 21 of the NIA Act quoted above. On a plain reading of Section 21(1), it will be clear that an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court, constituted under Section 11, to the High Court, both on facts and on law. Interlocutory orders have been excluded from the purview of appealable orders in clear terms. Sub-section (2) specifically states that every appeal filed under Sub-section (1) shall be heard by a Bench of two Judges of the High Court. lt is also provided that every appeal shall be disposed of, as far as possible, within a period of o Z CA.M.C.Nos.78 and 228 ol2016 7 three months from the date of its admission. Language used in the Section clearly shows that the High Court, as a court of appeal, can exercise all the powers provided under Chapter XXIX of the Code.
13. Section 21(3) emphatically says that except as provided in Sub-section (1), no appeal or revision shall lie to any court from any judgment, sentence or order, including an interlocutory order of a Special Court. Revisional powers of the High Court are specifically referred to in Sections 397, 398 and 401 of the Code falling under Chapter XXX. Plain language in Section 397(2) of the Code explicitly prohibits the exercise of revisional powers against interlocutory orders. Binding judicial precedents have now settled that there can be certain types of orders falling in between interlocutory orders and final orders, which are called 'intermediate orders', and they are amenable to revision. That aspect we shall discuss later.
14. In Sub-section (4) to Section 21,,t is stated starting with a non obstante clause, that notwithstanding anything contained in Section 378(3) of the Code (which relates to leave of the High Court in respect of an appeal in a case of acquittal), an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. lmportantly, under the scheme of the Code, there is no provision empowering a party to challenge in appeal an order passed by a criminal court under Chapter XXX|ll (relating to bail and bonds) either granting or refusing bail. Normally, when a bail application filed before a Magistrate under Section 437 of the Code is dismissed, the accused involved in a non-bailable offence gets a O Z Crl.M.C.Nos.78 and 228 ot2}16 I right to approach the Sessions Court concerned under Section 439 of the Code. When a bail plea raised under Section 439 is dismissed by a Court of Session, the accused can move the High Court. In contradistinction to the said provisions in the Code, by enacting Sub-section (4) to Section 21, a right of appeal is allowed to both the parties aggrieved by the grant or refusal of bail. Certainly, this is conferment of a distinct right on the parties. Sub-section (5) to Section 21 mentions about the time prescription to file an appeal and the High Court's limited power to extend the time. That provision has no application in our cases.
15. In the order of reference, it is specifically mentioned that the orders impugned, refusing to modify or relax the conditions imposed in the bail order, are interlocutory orders, pure and simple. In fact, there is no dispute between the contestants on this aspect. We are also of the view that the orders under challenge can only be qualified as interlocutory orders. We shall elaborate the reasons for our view.
16. lt may be apposite to understand the expressions "final order, intermediate order and interlocutory orded'.
17. Black's Law Dictionary (lh Edition, page 819) defines the word "interlocutory" in the following terms:
"(Of an order, judgment, appeal, etc.) interim or temporary, not constituting a final resolution of the whole controversy."
"lnterlocutory orde/' is defined at page 1123 thus: o Z Crl.M.C.Nos.78 and 228 ot2016 9
"An order that relates to some intermediate matter in the case,' any order other than a final order. "Final orde/'according to Black's Law Dictionary, is:
"An order that is dispositive of the entirc case. "
18. P.Ramanatha Aiyar's Law Lexicon (3'd Edition,2012) defines "interlocutory orde/'at page 876 in the following terms:
"An interlocutory order is one which is made pending the cause and before a final hearing on the merits.
An interlocutory order is made to secure some end and purpose necessary and essenfia/ to the progress of the suit, and generally collateral to the issues formed by the pleadings and not connected with the finaljudgment.
The term 'interlocutory ordef merely denotes orders of a purely interim or temporary, nature which do not decide or touch the impoftant rights or the liabilities of the pafties."
19. A final order or judgment is the one that ends an action. Indisputably, granting or refusing a request to modiff the conditions in a bail order cannot end a proceeding before a criminal court. Therefore, the impugned orders can never be termed as final orders. a ZCrl.M.C.Nos.78and228ot2016 10
20. In the Law Lexicon referred to above, "intermediate orde/' is defined thus:
"Accurately speaking, an order granted before entry of judgment is an intermediate order, white one granted thereafter is not.
An intermediate order is one made between the commencement of an action and the entry of a judgment from which the appeal is taken."
21. After referring to various decisions, including Madhu Limaye v. State of Maharashtra ((19771 4 SCC 551) and Stroud's Judicial Dictionary and also Gorpus Juris Secundum, a Division Bench, consisting of four Hon'ble Judges of the Supreme Court, in V.C.Shukla v. State through C.B.l.(AlR 1980 SC 962) held as follows in the context of Section 11 of the Special CourtsAct, 1979 and Section 397(2) of the Code:
"To sum up, the essential aftribute of an interlocutory order is that it merely decides some point or mafter essenfia/ to the progress of the suit or collateral to the r'ssues sought but not a final decision or judgment on the mafter rn rssue. 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. Sfafe of Maharashtra ctearty meant to convey that an order framing charge is not an O Z Crl.M.C.Nos.78 and 228 o't 2O16 11 interlocutory order but ,b an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselyes in complete agreement with the obseruations made in Corpus Juris Secundum. ........"
22. In the reference order, the learned Judges mentioned about certain observations in Madhu Limaye in regard to the exercise of power under Section 482 of the Code. We shall deal with that aspect later.
23. In Madhu Limaye, the question came up for consideration was, whether framing of charges against the appellant under Section 500 IPC was an order challengeable before the High Court in a revision under Section 397(1) of the Code?. The High Court held that a revision petition was not maintainable in view of the interdiction in Section 397(2), by qualifying the order impugned as an interlocutory order. Supreme Court, after considering the rival contentions, observed thus:
u............
ln what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal Court? ls it circumscribed to examine only such proceeding which ,s brought for its examination after the final determination and wherein no appeal [ies? Such cases will be very few and far between. lt has been pointed aut repeatedly, vide for example, The River Wear a Z Crl.M.C.Nos.78 and 228 of 2O16 12 Commissioners v. William Adamson ((1576-77) 2 AC
743) and R.M.D.Chamarbaugwalla v. The Union of tndia ((1957) SCR 930:AlR 1957 SC 625) that atthough the words occuning in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the Legislature. 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. ln such a situation it appears to us that the real intention of the Legislature was not to equate the expressrbn "interlocutory ordef'as invariably being converse of the words "final orde/'. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in S.Kuppuswami Rao v. The Kng (1947 FCR 180: AIR 1949 FC 1) , but, yet it may not be an interlocutory order
- pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-secfibn (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of o ZCrl.M.C.Nos.78and 228ot2016 13 Article 134 of the Constitution, yet it would not be coffect to characterise them as merely interlocutory orders within the meaning of Section 397(2). lt rs neither advisable, nor possible, to make a catalogue of orders fo 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 exhausfye list of fhose 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, howeve4 indicate that the type of order with which we are concerned in fhrs case, even though it may not be final in one sense, is surely not interlocutory so as to aftract the bar of sub- section (2) of Section 397. ln our opinion it must be taken to be an order of the type falling in the middle course."
In the light of the legal principles enunciated above, the orders impugned in our cases can neither be called final orders nor intermediate orders. They are typical interlocutory orders. Hence, the relevant question is, whether they can be challenged in proceedings under Section 482 of the Code?
24. Sri.Manu Tom forcefully argued that the inherent powers safeguarded under Section 482 of the Code, are founded on the principles enshrined in Article 21 of the Constitution of India. He placed reliance on a O Z Crl.M.C.Nos.78 and 228 ot 2016 14 Constitution Bench decision in Ratilal Bhanji Mithani v. Assistant collector of customs, Bombay and another (AlR 196z SC 1639) to contend that the inherent powers of the High Court, saved under Section 561A of the Code of Criminal Procedure, 1898 ("old Code" for short) or Section 482 of the Code, are founded on Article 21 of the Constitution. The relevant observations read thus:
The Constitution confirmed and revested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules. When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted "law" within the meaning of Art. 21 as explained in A. K. Gopalan's case, 1950 SCR 88- - (AIR tg50 SC
27) (Supra). The inherent powers of the High Court preserued by S. 561-A of the Code of Criminal Procedure are thus vested in it by "law" within the meaning of ArL 21. The procedure for invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules is confened on the High Court by the Constitution............"
25. A Bench of three learned Judges of the Supreme Court in O ZCrl.M.C.Nos.78and 228of 2016 15 Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of fnvestigation (AlR 2018 SC 2039) while answering a reference followed the ratio in Ratilal Bhanji Mithani (supra) and overuled the decision in satya Narayan sharma v. state of Rajasthan (AtR 2oo1 sc 2gs6), wherein it was held that power under Section 482 of the Code cannot be invoked to circumvent the bar in granting an order of stay created by Section 19(3Xc) of the Prevention of Corruption Act, 1988. We shall quote paragraph 49 from Asian Resurfacing of Road Agency pvt. Ltd.:
"lt is thus clear that the inherent power of a Court sef up by the Constitution rs a power that inhere.s rn such Court because it is a superior coutt of record, and not because it is conferred by the Code of Criminal procedure. Ihrs ,s a power vesfed by the Constitution itself, inter alia, under Afticle 215 as aforestated. Also, as such High Courts have the power, nay, the duty to protect the fundamental rights of citizens under Article 226 of the Constitution, the inherent power to do justice rn cases involving the liberty of the citizen would a/so sound in Article 21 of the constitution. This being the constitutionat position, it is clear that Section 1g(3)(c) cannot be read as a ban on the maintainabil$ of a petition filed before the High Court under Secfion 482 of the Code of Criminat Procedure, the non-obstante clause in Secfbn 1g(3) O Z Crl.M.C.Nos.78 and 228 ot 2016 16 applying only to the Code of Criminal procedure. The judgment of this court in satya Narayan sharma v. sfafe of Rajasthan, (2001) I SCC 007 at paragraphs 14 and 15 (AIR 2001 SC 2856, Para 23, 24) does not, therefore, Iay down the conect position in law. Equally, in paragraph 17 of the said judgment, despite the clarification that proceedings can be "adapted" in appropriafe cases, fhe Court went on to hold that there is a blanket ban of stay of trials and that, therefore, Section 482, even as adapted, cannot be used for the aforesaid purpose. This again is contrary to the position in law as laid down hereinabove. Ihls case, therefore, sfands overruled."
According to the learned counsel, in the case of any invasion of right of a citizen involved in a criminal case, which cannot be challenged in appeal or revision before a higher court, certainly the High Court's power under Section 482 of the Code ought to be exercised to prevent abuse of the process of any court or othenruise to secure the ends of justice. Per contra, Sri.Suvin, learned CGSC would contend that the scheme of the NIA Act would plainly show that serious cases registered under the Act should not be prolonged by raising trivial challenges against each and every interlocutory order. Besides, the phraseology employed in Section 21 will make it clear that there is an implied bar in the exercise of the High Court's power under Section 482 of the Code.
O ZCd.M.C.Nos.78'and 228ot2016 17
26. In order to appreciate these contentions, let us examine the fegislative history of the present Section 482 of the Code. Section 484 of the Code erqticitly says that tfre sld Code has been repealed. Old Code received the assent of the Governor General on 22.03.1898. At the inception of the old Code, a provision expressly saving the inherent power of the High Court was not provided. Subsequently, by the Code of Criminal Procedure (Amendment) Act, 1923, which came into force on 02.04 .1923, Section 561A was introduced in the old Code. On juxtaposing Section 482 of the present Code with Section 5614 of the old Code, we find that they are not only similarly worded, but also pari materia in scope and legal effect. We shall extract Section 482 of the Code for easy reference:
"Saving of inherent power of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessa4f to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
Only distinction in the phraseology between Section 482 of the Code and Section 561A of the old Code is that in Section 5614, a reference was made in regard to "the inherent power of the High Court", whereas in Section 482, "inherent powers of the High Court" is the phrase employed. In other words, in Section 482, multiple facets of the High Court's inherent powers have been recognized and safeguarded. On the other hand, in O ZCrl.M.C.Nos.78and %ot2f16 1g Section 561A, the concept "inherent power'' had been envisaged as a single power. lt can be legitimately presumed that the framers of law must have eonseiously elnployed tlre wqds in Sedisn 482 dthe Csde ts indisde flre existence of wider inherent powers in the High Court for removal of any possible doubt. In our opinion, no material difference has occuned on account of the substitution of the word "powef by "powers" since Section 561A of the old Code and Section 482 of the Code always recognized and saved the inherentBowers inbuilt in the Higtr Csurts.
27. commentaries on the old code by v.v.Ghitarey and K.N.Annaji Rao (published by All India Reporter Ltd., Nagpur) (Vol.lll) shows the following mentioning about the inherent power:
"ln administering jusfibe as prescribed by a Code, lfterc arc necessarifr tvw slrorlwmingE: -
1. There will always be cases and circumstances which are not covered by the express provisions of the Code wherein justice has to be done.
The reason r.s that the legislature can foresee only the rnacf; ndurcl and otdimry evenls and no ruEs can "regulate for all time to come so as to make express provision against all inconveniences which are infinite in number and so that their dispositions shall express all fhe cases that may probably happen."
2. The prescrib:ed rules of ptocedtrrc O ZCrl.M.C.Nos.TBand %of fr1$ 19 may be abused, or so used as fo give a mere formality, the significance of substantive effect and thus obstruct, insteacl af faeititating, tfte administration af justiee.
It cannot be said that in the above circumstances Courts have no power to do justice or redress a wrcng merely because no express provlsion of the Code can be found to meet the requirements of a case. Every Court, wfietfter a eivil or a eriminal Court, flflrst, therefore, in the absence of express provision in the Code for that purpose be deemed to possess, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the eourse af tfre administration of justiee. Ttris is Eased on the principle embodied in the maxim quando lex aliquid alicui concedit concedere videtur id sine quo resipsa esse non potest - when the law gives a person anything, it gives him that without which it cannot exist. Whenever affiinE is required to be done by tatr and it is found impossible to do that thing unless something not authorized in express ferms be also done, then that something e/se will be supplied by necessary intendment."
28. Learned authms, quding the prineiples enuneided in large O Z Crl.M.C.ttos .TB and ZBof 2O1€ n volume of case law in this regard, further observed thus:
"But the power to be exercised under this Section ls in t's nature extraordinary and ougftf nat to be exercised capriciously or arbitrarily but is to be exercised ex debito iustitiae to do that realand substantiat justice for the administration of which alone Courts exr.sf. The High Court must, therefore, be careful to see that its deeision is based on sound general prineiples af eriminal jurisprudence and is not in conflict with them or with the intentions of the legislature as indicated in statutory provisions. Thus ff,,s Secfion cannot be invoked to override an express provision of law or when there is an ath er reme fi ava ila b Ie . "
Insofar as the interference by the High Court at an interlocutory stage of a criminal proceeding, the above commentary says thus:
"The High Court has power, no doubt inherent, to inteffere with the proceedings of the lower Court at any stage tfiereaf, if it frnds tfiat an abuse af the Broeess of law is being canied on in the trial of the case or that such an inbrterence is necessary to secure the ends of justice. This power is, howeven to be exercised subject to ceftain limitation. Though ordinarily the High Court need nat intetrerc at an in6rtoeutoy sfage of a eriminal o Z Crl.M.C.ltos.78 and22€ of 2O1€ 21 proceeding in a Subordinate Court, it can interfere whenever there ,s an exceptional and extraordinary reasofl for doing so or in order to Brevent the harassment of a party by an illegal prosecution. ......,,
29. Neither Section 561A of the old Code nor Section 482 of the Breserfi Csde h'as given any enfargemertts the por/ers exi$ing in tlre High Court. Even before enacting the respective provisions, the High Courts possessed inherent powers, because it is a power necessary to secure the ends of justice.
30. A Larger Bench of the High court of Bombay in Jairam Das v. Emperor ({945 (47} Bom L.R. 634 g fttAffU/ffiltl0008/t945) sonsidered the question whether a High Court in India had power to grant bail to a person who was convicted and sentenced to imprisonment and to whom His Majesty in Council had given special leave to appeal against the conviction and sentence. After analysing the provisions, finally it was held thd slef Csde eenferred tro power ofl a High Csufr to grart bail ts sudr a person. According to the learned Judges, such a power, if it existed, must be statutory. lt did not reside in the inherent powers of the court. In the course of discussion, it is held that Section 5614 of the old Code confened no powers on the High Court; it merely safeguarded all existing inherent powefs possessed by a High csuff f,eeessalr (among other purposes) to secure the ends of justice.
31. Relying on the ratio in Jairam Das (supra), learned CGSC O Z Crl.M.C.t{os.7B andZ.2€of 2016 contended that it cannot be assumed under all circumstances that the High Court has inherent power under Section 482 of the Code to entertain a cf,raltenge agalnst an irfiertoeffiory order, dbregarding tfie preswiflions in the special statute, viz., NIA Act. He drew our attention to Section 4(2) ot the Code, wherein it is stated that all offences under any law other than Indian Penal Code, 1860 shall be investigated, inquired into, tried and othenrise dealt with according to the provisions in the Code, but subject to any enadment fsrtfie time being in fsree regulating tfre manner or ptaee of investigating, inquiring into, trying or otherwise dealing with such offences. According to him, the manner in which Section 21 of the NlAAct is worded will indicate the non-availability of the powers under Section 482 of the Code when the High Court deals with a case registered by NlA. lt is his argtment that bar in the exeretse of inherent Bowers ean be inferred trsm the language employed in the NIA Act. This submission is strongly contested by Sri Manu Tom.
32. Before going further on this point, we shall examine the scope and legal effect of Section 482 of the Code. Neither Section 561A of the old Csde nsr Sedion 182 af lhe preseffi Csde has given a4r inoeased powers to the High Court which it did not possess before they were enacted. tn Madhu Limaye (supra), a three Judge Bench of the Supreme Court after taking note of the statements in Amar Nath v. State of Haryana ((i977) 4 SCC 137) made the following observations:
n................On a plain reading of Eeetion 482, o Z Crl.M.C.ltos.78 and Z8 ot fr1:S n however, it would follow that nothing in the Code, which would include sub-secfion (2) of Section 397 also, "shall be deemed to limit or affed tfte infrerent Bowers af tfie High Court." But, if we were to say that the said bar is not to operate in the exercrse of the inherent power at all, it will be sefting at naught one of the limitations imposed upon the exercise of the revisional powers. ln suefi a situation, what is tfte frarmonioas way out? In our opinion, a happy solution of this problem would be to say that the bar provided rn sub-section (2) of Secfibn 397 operates only in exercise of the revisional power of the High court, meaning thereby that the High Court will frave f,6 Bawer af revision in relation to any inErtoe$ory order. Then in accordance with one or the other principles enuneiated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved pafty. Bat tfren, if the order assailed is pureff af an interlocutory character which could be conected in exercrse of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation whieh is an abuse af tfre O ZCrf.M.C.ttos.TAandZ2tSof fr1:6 24 process of the Court or for the purpose of securing the ends of justice interterence by the High Court js absalutely fleeessary, tften natfring eaf,taif,ed in Seetion 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High court must exercise the inherent power very sparingly. ............."
Supreme Csurt, in tfre befsw mentisned deeisisns, fras freld tlrat the following principles would govern the exercise of inherent powers of a High Court recognized under Section 482 of the Code:
(1) The power shall not be resorted to, if there is a specific provision in the Code for redressal of the grievance of an aggrieved party (21 It sfizuId be exereised very sBaringfi to Brweffi tfie abuse of pro@ss of any court or othenruise to secure the ends of justice.
(3) lt should not be exercised as against the express bar of law engrafted in any other provision of the Code (Madhu Limaye (supra), Smt.Sooraj Devi v. Pyare Lal and another (AlR 1981 SC 736), Arun Stran*ar Sfiukta v. State of U.P. (AlR t99g SC 2554) and Central Bureau of Investigation v. Ravi Shankar Srivastava (AlR 2006 SC 28721.
Supreme Court has consistently held that the exercise of power under Section 482 of the Code is generally an exception and not a rule. Section 482 of the Code envisages three circumstances under which the inherent jurisdic*ion flray be exereised, viz., o Z Crl.M.C.lrtos.78 and Znof 2O16 Zs (1) to give effect to an order under the Code (2) to prevent an abuse of the process of court, and (3) ts sthetwise sefllre the ends of justi.ee.
It has been held that it may be neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. (state of Punjab v. Kasturi Lat and others (AlR 2oo4 sc 40sz)
33. Learned CGSC contended that if a special statute specifies a proeedure ts be fsffswed by tfre eourt, thefl, in tfie ligftr of Sedisn 1(zI af the Code, that procedure will prevail over the general directions in the Code. To buttress this argument, reliance is placed on State of Punjab v. Balbir Singh (AlR 1994 sc i8z2) and c.B.l., patna and others v. Braj Bhushan Prasad and others (AlR 2oo1 sc 40141. principle of law deetared in the deeisisns is tfrat SeetiorT 1(21 d tfre Csde dearV says that the statutory prescription therein shall be applicable insofar as they are not inconsistent with the special enactments. Nevertheless, the question to be considered here is whether the argument raised on behalf of NIA that an interlocutory order of the Special Court cannot be challenged under Section 482 6f the Csde, iR view sf the bar esffiained in Sedisfl zr(9, of the NfA Act, is sustainable or not?
34. Our attention has been drawn by learned CGSC to Section 5 of the Code which says that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any speciat or local {anr fsrthe time being tn fsree, or atry speeiaf form of proeedure presertbed O Z Crt.M.C.ttos .TB and %of 2O1€ by any other law for the time being in force. According to the learned CGSC, Section 5 of the Code unambiguously states that the Code will not affed the sBeeial form of Broeedure presoi'bed by the NfA Aet and flrerefsre Section 482 of the Code cannot be invoked to challenge an intertocutory order.
35. On a ptain reaefing sf Sedisn 5 sf the Csde, it ean be seen thd ordinarily the Code will not affect (i) any special law, (ii) any local law, (iii) any special jurisdiction and power and (iv) any special form of procedure. supreme Court in State (union of India) v. Ram Saran (AlR 2004 sc
481) laid down that where any special law envisages special procedure for maflfler or ptaee of i'nvestigdion, the prwisions theresf must prwait and ns provisions of the Code can apply. The contention raised by the learned CGSC based on Section 5 of the Code, that a special form of procedure has been prescribed by the NlAAct and therefore it excludes invocation of Section 482 of the Code, cannot be accepted for the simple reason that the NtA Aet aetualff dses not preseribe a speeial proeedure for investigding, inquiring into or trying the offences under the Act. In fact, the NIA Act is intrinsically interlinked with the provisions of the Code in the matter of investigation and trial. We shall explain this reasoning.
36. Chapter lll of the NIA Act, dealing with investigation by NlA, speeifies the rrarisus pswers given to the investigdsrs. Seetisn 6 specifically deals with investigation of the offences scheduled to the NIA Act. Another important provision in this Chapter is Section 8, which says O ZCrl.M.C.Nos.TBandntSof2O16 27 that while investigating any scheduled offence, NIA may also investigate any other offence, which the accused is alleged to have committed, if the sffenee is esnneded with the sffieduted sffenee. prsvisisns in the NIA Aet, relating to the manner of investigation by NlA, do not prescribe a procedure different from the procedure set forth in the Code.
37 - Provisions in Chapter lV dealing with the "special Courts", also fortiff our view. Section 11 clearly says that the Central Government shall in eoflsuftdisn witfi the Chief Justiees of the High Courts by notifieflion in the official gazette designate one or more Courts of Session as Special Courts for the trial of scheduled offences. Section 13 deals with the jurisdiction of Special Courts. Section 14 in clear terms speaks about the powers of Special Courts with respect to other offences. Sub-section (1) of Section 14 says thd when trylflg any offenee, a SBeeial Csurt afso may try atrt stfier offence with which the accused may, under the Code, be charged at the same trial, if the offence is connected with such other offence. This would etearff indieate tfrdthe proeedure fortriat envisaged underthe Csde wifi be applicable to cases registered under the NlAAct too. Section 16 deals with the procedure and powers of the Special Courts. Section 16(1) says that a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that esnstittfie suffi' ffienee or upof, a Botiee repoff sf sufr'fads. Normatfr a Sessions Court can take cognizance of a case only when the case has been committed to it by a Magistrate under Section 193 of the Code.
o ZCrt.M.C.Nos.78andnt3of 2016 n Perceivable difference here is that this essential requirement in the case of an ordinary Sessions Court has been dispensed with in the case of a SBeeiaf Csurt under tfre NIA Ad. Sub-sedion (3) of Seeti'on 16 of the NtA Act in crystal clear terms says that subject to the other provisions in the Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Csde fsr triat bffsre a Csurt sf Sessisn. Sub-seef,ion (5) ts Seeti.sn tG states that notwithstanding anything contained in the Code, but subject to the provisions of Section 299 of the Code, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness subject to th'e rigfit sf aealsed ts reeatl th'e witness for srsss-examindisn. This power conferred on the Special Court permits it to deviate from the procedure to be followed before a Court of Session. Merely by looking at Sections 16(1) and 16(5) of the NlAAct, it cannot be said thatthe general procedural formalities prescribed in Chapter XVlll in the Code, dealing with tria{ befsre a Csurt ff Sessisn, d€ made inapBfieabte ts the proeeedings before a Special Court. ln other words, except for some minor deviations, all other procedural aspects envisaged by the Code for trial of a Sessions Case are made applicable in a trial before the Special Court constituted under the NIA Act. For the aforementioned reasons, we are not able to agree with tfie esffieffiisns raised by the leamed CGSC that tlre NIA Ad O Z Crl.M.C.|'tos .TA atfi ZAof 2O16 E prescribes a special form of procedure for investigation or trial of the offences. So much so, we cannot agree with the claim raised by NIA to exdude tfie powers exereisable by the Higfr Csurt trnder Seetisn 482 sf the Code.
38. Another contention raised by the learned CGSC is that the NIA Act has been enacted immediately after the tenorist attack at Mumbai. Reference was made to the preamble to the statute which we have dissussed above. Refring or{ Puniab Land Dwelopment and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and others ((1990) 3 SCC 682), a decision rendered by a Constitution Bench, learned CGSC contended that the principles in Heydon's rule will have to be applied while interpreting the provisions in the NtAAd. tn paragrapfr 65, tfte fotto,wing obsenratisns have been made:
"The Heydon's Rule requires that the court will look at the Act to see what was ifs purpose and what mischief in the earlier law it was designed to prevent. Four things are to be considered (t) What was the law before the making of tfie Aet? (iilwfrat was the miselief ancl clefeet for which the earlier law did not provide? (iii) What rcmedy the Parliament had resolved to cure? (iv) What is the true rcason for the remedy? The Court shall make such construction as shall suppress the mischief and adranee tfie remedy."
o ZCrl.M.C.lrtos.TSand T2tiof XJ1:B AO
It is further held that where the statute has been passed to remedy a
weakness in the law, it is to be interpreted in such a way as well to bring th'at remedy. Aeeording to the leamed cGSc, befsre enading the NfA A6g, even a terrorist attack case was considered as one of the categories of cases to be tried by ordinary courts under the procedure prescribed by the code. since there occurred huge delay in the disposal of cases, the legislature thought of enacting a special law to tackle the menace. Aeeording ts him, tfie misehief, fsr vvfrieh flre csde did flot prwide a remedy, was that trial of cases involving terrorism had no precedence/preference over other cases. That also contributed to the inordinate delay in disposal of many cases. On many occasions public outcry had been there complaining about inexplicable delay. lt is therefore argued tlraf tffe said misehief was nst addressed by the then Brevaiting penal and procedural laws.
39. lt is the argument raised by the rearned cGSc that the Parliament resolved to enact the NIA Act and to constitute Special Courts under Section 11 of the Act to achieve the goal of speedy trial for grave sffenees eovered by it. He wsutd foreefutff esntend that Seetisn 2t sf the NlAAct should be understood in this context and reason for the remedy is to attain speedy trial in such cases.
40. we are in agreement with the learned CGSC that cases involving terrorist attacks and other grave offences affecting national seetlrity shzultf be expeditiousff afld effeetivery ffed afld deeided. Creatiof, o- ZCrl.M.C.$,tos.78andZ23ot2f1€ 31 of Special Courts and conferment of some additional powers on such courts are certainly done with a laudable objective to have speedy trial in such eas'es. Hoffever; we afe unabte to agree witfr ttre argum,erff raised by the learned CGSC that by applying Heydon's Rule and reckoning the salutary object of speedy trial in respect of cases registered under the NIA Act, the plain language employed in Section 21 of the NlAAct should be understood in a manner restricting the scope of judicial review under Section 482 of the Cscfe. tt is alf the msre dffirruff i,rfren the NIA Ad itsetf esnfers rigfits on aggrieved parties to approach the High Court for redressal of their grievances. Moreover, exercise of jurisdiction by the High Court invoking Section 482 of the Code cannot be a ground for causing delay because there are binding decisions touching upon the manner in which it has to be exereised. lt fras been held in matry deeisisns thd powerunderSeeti'ofl 482 of the Code shall not be exercised as a matter of course. lt shall be exercised sparingly and only in extraordinary situations, that too if any of the conditions in the Section is satisfied.
41. Our attention has been drawn to State of Andhra Pradesh ttrrougfr f.G. l{atfonal lnvestigatlon Agenry and ottrers v. fltd.Hussaln and others ((2014) 1 SCC 258) wherein the point raised is that appeals against the orders granting or refusing bail under Section 21(4) of the NIA Act need not be heard by a Bench of two Judges. In that context, the Supreme Court held thus:
"16. Tfre abwerefened Seetion 21(41 of tfre NIA I Z Crl.M.C.Nos.78 and ZA of 2f'16 Act provides that an appeat lies to the High Court against an order of the Special Court granting or refusing bait. Hawever sub-seetion (J) wfiiefi is a Brior sub-section, specifically sfafes that ,except as aforesaid', no appeal or revision shall tie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. Therefore, the Bfrrase 'exeept as aforesaid takes us to sub-seetions (1) and (2). Thus when anybody is aggrieved by any judgment, sentence or order including an interlocutory order of the Special Court, no such appeal or rcvision shall lie to any court except as provided under sub-
sedions (t) and (2), meaning tfiereby onftJ to tfie Higfr Court. Ihrs is the mandate of Secfibn Z1(3) of the NIA Act.
17. Tfrere is no diffieuffi1 in aeeepting tfre submission on behalf of the appellant that an order granting or refusing bail is an interlocutory order. The point however to be noted is that as provided under Secfion 21@) of the NIA Act, the appeal against such an order ties to the High Coutt only, and to no atfter eourt as Eid dawn in Section 21(3). Thus it is only the intertocutory orders granting or refusing bail which are made appealable, t Z Crt.M.C.Nos .TB and zaof 2016 and no other interlocutory orders, which is made clear in Secfion 21(1), which lays down that an appeat shail tie to tfre High Court from any juclgment, sentenee or ordetr, not being an interlocutory order of a Special Court. Thus other interlocutory orders are not appealable at all. This rs because as provided under Secfibn 19 of the Act, the trial is to proceed on day-tuday basrs. /f is to be eonduded expeditiously. Tfterefore, flo apBeal is provided against any of the interlocutory orders passed by the Special Court. The only exception to this provision is that orders either granting or refusing bail are made appealable under Section 21(4). This ,s beeause ffrose orders are eoneerning the li;befi af the accused, and therefore although other interlocutory orders are not appealable, an appeal rs provided against the order granting or refusing the bail. Section 21(4), thus carues out an exception to the exclusion of inErtoeutory orders, whieh are nat appeatable under Section 21(1). The order granting or refusing the bail is therefore very much an order against which an appeal is permifted under Secfibn 21(1) of the Act."
Above decision, according to us, is not an authority to hold that Section 482 of the csde eannst be applied by the High Csufi it a party aggriwed by an o ZCrl.M.C.l*os.78ar#Z8otn16 94 interlocutory order approaches the court. lt is primarily because the question about invocation of the powers under Section 482 of the Code was not raised befsre tfre Supreme Csurt in tfre abwe ease, florwas it esnsidereef.
42. Another decision relied on by the learned CGSC is Usmanbhai Dawoodbhai Memon and others v. State of Gujarat ((ig8s) 2 scc 2711. An appeal was taken before the Supreme Court by special leave against the judgment and order of the Gujarat High Court and the orders passed by various des'ignded eoff'ts under the Tenorist and Disruflive Adivittes (Prevention) Act, 1987 ('TADA Act" for short). In the said Act, a sun set provision was provided under Section 1(4) stating that the Act would remain in force only for a period of eight years from 24.05.1987. Notwithstanding that provision the Repealing and Amending Act, 2001 (Act 30 of 2001), v\r,fTieh eafiTe ints fsree on 03.s .z@7 , fias speeifleatff repealed TADA Ad as a whole. We mentioned these facts only to understand the background of the said legislation. Mainly two issues were raised before the Supreme Court in the above case. First one is about the jurisdiction and power of the High Court to grant bail under Section 439 of the Code or by recourse to its inherent Bowers under Seetisn 482 ta a Bersofl hefd in ftSody under the provisions of the TADA Act. Second one is about the nature of the restraint placed on the power of the designated courts to grant bail to such a person in view of Section 20(8) of the TADAAct. While considering these questions, the Supreme Court specifically noticed Section 19 of the TADA Act, which readthus:
O Z Crl.M.€.Nos .78 and Z2a af fr1s 3s "19(1) Nofwithstanding anything contained in the Code, an appeal shall /ie as a matter of right from any judgment, senEnee or ordetr not being an in6rtoeutory order, of a Designated Court to the Supreme Court both on facts and on law.
(2) Exeept as aforesaid, no appeal orrevision sfrall Iie to any court from any judgment, sentence or order including an interlocutory order of a Designated Court. (3) Every appeal under fhrs Secfion shall be prefened within a period of thirty days from the date of the judgment, sentenee or order appea[ed fram:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if ff rs saflsfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days." The Supreme Csurt, affer an etabsrde esnsideratisn of the tanr, uphetd the view taken by the High Court that under TADAAct there was total exclusion of the jurisdiction of High Court. And, therefore, it could not have entertained an application to grant bail under Section 439 of the Code. After considering the various provisions of the Code and TADAAct, finally the Supreme Court hetcf thd the Hrgh Csurt was justified in frnding thd it esutd nst hare invoked Section 439 of the Code to grant bail to the accused. In our considered opinion, observations in the above decision cannot be made use a Z Crl.M.C.lrtos .78 and % of 2016 36 of by the learned CGSC in this case, because under the scheme of TADA Act the High Court was completely bypassed; whereas under the scheme of the NtA Ad, espeeialff Sedisn zf , tfie Higff Csuff is tfre souff empswered to hear and decide appeals against any judgment, sentence or order, not being an interlocutory order, of a Special Court. Once the NlAAct allows an aggrieved party to take recourse before the High Court, it cannot be heard to say that the High Court will only have appellate power and no other Bower, inefucfing the infrerent pswers saved under Sedion 482 sf tlre Csefe.
43. Learned CGSC forcefully argued that the inherent powers under Section 482 of the Code can only be an appendage to the statutory power of the High Court and if no statutory power is expressly conferred on it by the special statute to remedy a perceived malady, the inherent powers eannst be exereised to grant any refief to tfie pary. we rejeet this contention unhesitatingly for the reason that if it is accepted, it will go against the fundamental concept of inherent powers, which existed in the High Courts de hors the statutory powers confened on them. In other words, inherent powers vested in the High Court cannot be dependent on sr subservient ts the stdtffory powers esrfferred ofl rt, unfess tlre Sfiute expressly prohibited the exercise of inherent powers. Pertinently, there is no provision in the NlAAct either expressly or impliedly barring the exercise of the High Court's inherent powers. Section 21 does not expressly bar the power of the High Court exercisable under Section 482 of the Code, nor the wsnls therein are indieative of any implied bar.
? Z Crl.M.C.$os .78 aN ZA of N1:6 37
44. Sri.Manu Tom contended that Section 21(1) of the NIA Act provides for an appeal only against any judgment, sentence or order, not being an interlseutory order, passed by a speeial cotrtr and tfie appeftffe forum is the High Court. lt also shows that an appeal can be filed against the findings on facts or on law According to him, no appeal can be filed against some other orders passed by a Special Court which could be per se illegal, irregular or incorrect. lt is his argument that Section 397(1) read with Seetisn 4O1 sf the Cscfe esuldtake eare sf suffi a situdisn, if revisisR could be exercised by the High Court. He would further argue that Section 21 o'f the NlAAct does not in any way fetter the scope of a revision against any procedural incorrectness, illegality or impropriety of any finding, sentence or order. lt is therefore contended that various Sub-sections in Sedisn 21 of tfre NtA Aet ds nst restrid the power sf the High Csurt as a court of appeal or as a revisional court. For the same reason, it neither directly nor indirectly interdict the exercise of High Court's power under Section 482 of the Code. lt is also pointed out that if the legislature had any intention to exclude the exercise of inherent powers or to impose restriction on the Hrgfi Csurfs powers sther than the appeltate Bowei it esulef have excluded intermediate orders also from the purview of challenge. On the contrary Section 21(1) of the NIA Act creates a prohibition for appealing against an interlocutory order alone. Since the revisional power of the High Court in respect of cases under the NlAAct is not a subject matter of these refereflees, we do flot express afiy spifliofl sn tfiat asBeet. Brff tfren, we o ZCrf.M.C.Nos.TSand22€ot2fl:6 3g agree with the arguments raised by Sri.Manu Tom that the High Court's power in matters arising out of the NIA Act cannot be restricted to the aBpeltde jurisdidion alofle in th'e absenee sf any express or imptiecf bar created by the statute.
45. Another contention raised by the learned CGSC is that even if powers under Section 482 are not ceded to the High Court, the aggrieved party can very well approach the court by invoking Article 227 of the csnstitrfisn sf lnefia. Ns dsubt, th.ere eannst be any sfiutory prwision abridging or limiting or barring the constitutional powers of the High Court. It is an indisputable proposition that power conferred on the High Court under Article 227 of the Constitution is a power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exereises iurisdidion. The power of superiffiendenee under this Artiete is very wide and discretionary in nature. In the exercise of supervisory power the High Court cannot go into intricate details of facts and decide factual questions. But, in cases where orders of the Subordinate Court or Tribunal are perverse and arbitrary interference will be justified (Guljar Singh and otfrens v. Depr{y Director (consofitfation} and ofirers (arcg} tz scc
590). In Laxmikant Revchand Bhojwani and others v. pratapsing Mohansingh Pardeshi Deceased through his heirc and legal representatives (JT 1995 (7) SC 400=MANU/SC/0828/1995). High Court under Article 227 cannot assume unlimited prerogative to conect all speeies of hardships or l^rToflg deeisisns. It must be restridecf ts eases d o Z Crl.M.C.Nos .78 at:c 22€3 of fr1:6 39 grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court iffiefferes.
46. Indisputable is the proposition that under Article 227 of the Constitution, the High Court is concerned not with the decision of the lower court or tribunal, but with its decision making process (Sugarbai M.Siddiq v. Ramesh S.Hankare ((2001) 8 SCC 4771and State of Andhra Pradesh v. P.v.ffanumantfra Rao (AtR zwf sc 62z)). The suBreme cstfr had emphasized again and again that power under Article 22T of the Constitution cannot be used as appellate or revisional power. High Court's power is supervisory in nature to see that an inferior court or tribunal functions within the limits of its authority. (Mohd. yunus v. Mohd. IbTustaqt-m (AlR tg8,l SC 38), Motran Amba Prasad Agnilrotrt v. Blrasftar Balwant Aher (AlR 2000 sc 931) and shama prashant Raje v. Ganpatrao (AlR 2000 SG 3094)).
47. lt is therefore clear that the powers exercisabte by the High Court under Section 482 of the Code , viz., to give effect to any order under the Csde sr to Brevent tfre abuse of proeess sf afiy eouft sr sthefl{rise ts secure the ends of justice, are not identical with the constitutional powers provided under Arttcle 227. ln other words, the ambit, intendment and scope of these two powers are not similar and one cannot be regarded as a substitute for the other. We, therefore, hold that availability of supervisory power under Artiete 27 an flever b'e a reason ts excfude the intrererfr O Z Crl.M.C.lrtos .TB ard Znof 2O.16 powers existing in the High Court, which is expressly saved under Section 482 of the Code. We also hold that there is no express or implied bar ereated by tfre NtA Atr in the exereise ff the High Csurfs inh'erent powers safeguarded under Section 482 of the Code. Besides, as held by the Constitution Bench of the apex Court in Ratilal Bhanji Mithani and followed in Asian Resurfacing of Road Agency Pvt. Ltd. (supra), the Constitution confirmed and revested in the High Court all the existing Bo\lt/et's and ju'isdietlons, ineluding its infrererfr Bou/ers. Tfie intrer.ent powers of the High Court, preserved by Section 561A of the old Code and Section 482 of the present Code, are thus vested in the High Court by "law" within the meaning of Article 21 of the Constitution. We shall neither negate nor abdicate or abridge the inherent powers of the High Court by relying on soffie frimry inferenees beeause tfie exereise of sueh Bowers will be essentially required in certain cases. We, therefore, hold that in appropriate cases the High Court has power to invoke its jurisdiction under Section 482 of the Code to give effect to any order under the Code or to prevent abuse of the process of any court or othenruise to secure the ends of justice.
48. Having hefd as above, we shatl examine the ratis sf tfre decisions doubted in the reference order. In Thadiyantevida Nazeer (supra), some of the accused persons in a Case, pending before the Special Court, challenged an order passed by it dismissing their application seeking the cancellation of tendering pardon to the 7th accused in the case, iryhs beeame afl approver in the ease and testified as PW1 at tfre triat. O Z Crl.M.C.Nos.7B and zzt3ot z11:6 when the crl.M.C. was filed, Registry raised an objection on the ground that the impugned order was a final order and it was, at best, a revisable ordef tt was eqrtended befsre the esurt tfrat the order impugned would nst have terminated the main proceedings before the Special Court and therefore it was only an interlocutory order. Since no revision would lie against an interlocutory order under Section 397(2) of the Code, the Crf.M.C. should be entertained invoking Section 482 of the Code. These wrfierffisns were eonsidered by a Division Bencfi and in paragraph 7 itwas decided thus:
"lf, in the alternative, the order dated 2.9.2011 is to 6e treated as an inteiloeutory order tfien S.2t(3) is an express bar to an appeal or revision even against interlocutory orders. When the Legislature has specifically prohibited an appeal or revision even against interlocutory orders, the above statutory obstacle cannot be indireethJ surmounted by frting a petition under 8.482 Cr.P.C. ln other words, the inherent power of the High Court cannot be exercised for doing some thing which is expressly prohibited by the statute."
49. Another Division Bench in Majeed Koliyad-l (supra) esnsidered the quest'ron whether the Speeial Csuffs refusat ts fifi the condition in the bail order, that the petitioner's passport would stand surrendered, could be challenged in a proceeding under Section 482 of the O ZCrt.M.C.trtos.7gat:si2t|of x,1:S 42 code? In paragraph o the following observations are made:
"ln the nature of the issues nised, if is not
fleeessary for as to ctuvell (sie. detue/ cleeB into the
question as fo the qualig of the orders impugned and say whether they could be subjected to appeat or revision, in terms of the provisions of the NIA Act. AIt that the petitioner has sought for in fhese matters rs exercise of jurisclidion under seefion 4gz crpc. Tfrat, obviousff, would be done only in cases of manifest miscarriage of justice or when an inferior criminat court acfs in excess,ve exercrse of jurisdiction or when the action of that Court is in lack of jurisdiction and in situations when tfie order impugned woutd resuff in gross injustiee and violation of rights, if allowed to stand. rhr.s is the onty law, which is trite, as can be fished out from the ocean of preeedent Iaw. We do not deem it neeessary to quate the precedents settling this iconic principle."
Albeit making the above observations, the Division Bench, on finding that the challenge against the impugned order in the petition under Section 482 of the Code was without any merit, dismissed the same.
50. Laffer, an'cilfier Divtsion Bendr in Majeed Kotiyad-lt (supr.a) was called upon under Section 482 of the Code to decide the legality of refusal by Special Court of the petitioner's plea for permitting him to go to I Z Crl.M.C.Nos .Ta atfi Zzaof 2o16 4a Dubai for 15 days. When the matter was placed before a Single Bench, considering the pronouncement in Thadiyantevida Nazeer, it was refered to a Division Beneh. Afier eoflsiderfiTg the rivaf eoffieffii.ofls, the Benffi observed thus:
"Bar to remedy under a particular provision has to be specific. The semblance of a bar to jurisdiction cannot be imported by inference when the requirement is to find wfretfter tfte superior coutts would stancl cleprivecl of their inherent power of superintendence, incruding within the nature of the powers recognized under section 4g2 of CrPC. We notice this poignant rssue at this point of time only to say that the availability or not, to recourse to Sedian 482 of CrPC need nat atuvays be relevant iryften access is permissible in the form of an appeat under Secfion 21(1) and 21(4) of the NtA Act read together, which ,s more comprehensrye in content. Therefore, when an application for interference under section 4g2 is made, in any situation, nonethelss, it has to be freard by a Bench of two Judges, since the relief sought for is akin to what could be granted in an appeal under Section 21 of the NIA Act. Ihis rs how sub-section (2) of Section 21 of the NIA Act will have to be meaningfutty understood to exelude eonfliet of deeisions in maffers relating to orders O ZCrl.M.C.xos .TB and*mt of ffl1;B of NIA court. rhis is how sub-section (2) of section 21 of the NIA Act will have to be meaningfutty understood to exelude eonfliet 6 deeisions in matters relating to orders of NIA court. ln the backdrop of the different provisions of the NIA Act and the CrpC, in the backdrop of the egualig and liberty doctrines enshrined in the constitution of India, we hold that allpersons invotved in dases falling under tfte eaflory of tfte NIA Aet, evefl if na NIA Court ,s constituted, are entifled to urge their grievance before a Bench of two Judges, whatever be the provision they invoke for institution of proceedings. This would a/so ensure institutional consistency in the judieiary."
51. Notwithstanding the fact that the Division Bench did not, in clear terms, pronounce on the question whether powers under Section 482 of the Code can be invoked in such situations, the innate spirit of the decision appears to be in favour of invoking inherent powers.
52. Upsfiof sf the above diseussion is thff the inh'erent powers of the High Court safeguarded under Section 4gz of the Code can be exercised in an appropriate case when atleast one of the stipulations in the Section is satisfied. View taken in Thadiyantevida Nazeer contrary to the above finding is legally unsound. Therefore, we overrule the decision refldered by this Csurt in Tludiyantevida ffazeer (supra).
O ZCrt.M.C.Nos.TBand zz€lotffi1:S 4s
53. We are conscious of the fact that generally the cases registered under the NlAAct are very serious in nature and they should be expeditiousff tried and disposed tr Any faetor interBosing the triat may cause procrastination and consequent prejudice to the parties and at times, it may adversely affect the national interest too. We are certainly bound to balance the rights of all concerned.
54. In order to dispel the apprehension regarding causation of detay, we hereby dedare tfiff th'e Htgh Csurfs infiereffi Bowers saved under Section 482 of the Code cannot be invoked on flimsy reasons or on trivial grounds. Large body of case law on the point would clearly show that the powers should be exercised with great care and caution. Also, the High Court should apply its sound judicial discretion when a matter is brought up in the fonn sf a Betition under Sedisn 182 of the Cscfe. Untess it is established that one of the ingredients of Section 482 of the Code is satisfied, the High Court will take its hands off.
55. Taking cue from Section 21 of the NlAAct, it has been held in Majeed Koliyad-ll that an application under Section 482 of the Code filed in a ease underth'e NIAAd shall be h'eard by a Beneh sf finro JuetEes sf the High Court. Section 4(1) of the Kerala High Court Act, 1958 supports the above view. lt reads thus:
"1. Pawers of a Bencfi of lrrtto Judges.-
The powers of the High Court in relation to the following matters may be exercised by a Bench of O ZCrl.M.C.t*os.TBa{#zZAof 2016 46 two Judges, provided that if both Judges agree that the decision invofues a guestion of law they may order tfiat tfte malter or question af law be re6red to a Full Bench:-
(1) Any mafter in respecf of which the
powers of the High Court can be exercised by a
Single Judge.
xxxxxxxxx"
Hence, we are of the view that when a petition is filed under Section 482 of the Code challenging an interlocutory order passed in a case registered under the NIA Act, it shall be placed before a Bench of two Judges for hearing and disposal. We are sure that the Bench certainly will consider the issues rabed therein and deeide the Bfea based on the preedential lanr relating to the exercise of inherent powers of the High Court. We are also sure that the Bench will take note of the prejudice likely to be caused by a delayed decision.
To conclude, we sum up the findings as follows:
(t) Sedisn 21 af the NIA Ad neither expressff nor impliecff bars the High Court's inherent powers saved under Section 482 of the Code.
(ll) An interlocutory order, pure and simple, passed by a Special Court under the NIA Act which cannot be challenged either in appeal or revision, can be challenged in a petition under Section 482 of the Code. lt is made dear tfid tlrc cfialfenge ean be sustained onff wtren tfie Ba(y I ZCrl.M.C.Nos.TBand %ofZ:1€ 4T satisfies the High Court that orders thereon will be necessary to give effect to any order under the Code or to prevent abuse of the process of any oouffi sr sthentvise to secllre the ends of justiee.
(lll) Any petition filed under Section 482 of the Code in relation to a €se under the NIA Act shall be heard and decided by a Bench of two Judges of the High Court.
(lV) The Bench hearing a petition under Section 482 of the Code, fottowing tfre lead frsm Sedisn 21(Z) sf tfie NIA Aet, itherein three msnths time has been stipulated for appeals, will hear and dispose of the petition, as far as possible, within the said period.
M Registry shall number the petitions, if they are otherwise in order, and place it before a Bench of two Judges in accordance with the roster.
A.HARIPRASAD, JUT}GE.
AI{U SIVARAftTAfi[ , JUDGE.
ffi.R.Af$TlfA, JUDGE cks