Jharkhand High Court
Amit Agarwal @ Sonu Agarwal vs Union Of India Through Nia on 6 May, 2025
Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1517 of 2024
----
Amit Agarwal @ Sonu Agarwal
... ... ... Appellant
-Versus-
Union of India through NIA ......... Respondent
With
Cr. Appeal (DB) No. 1516 of 2024
----
Shree Balaji Transport and Roadways Pvt. Ltd.
... ... ... Appellant
-Versus-
National Investigation Agency ......... Respondent
With
Cr. Appeal (DB) No. 1554 of 2024
---
Jaishree Steels Pvt. Ltd. ... ... ... Appellant
-Versus-
National Investigation Agency ......... Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
------
For the Appellants : Mr. Indrajit Sinha, Advocate
Mr. Rishav Kumar, Advocate
For the Respondent : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
--------
CAV on 28/03/2025 Pronounced on 06/05/2025
Per Sujit Narayan Prasad, J:
Prayer:
1. At the outset, it would be apt to mention herein that on
the joint request of learned counsel for parties appearing in
Cr. Appeal (DB) No. 1554 of 2024, all these three matters
have been tagged together and with the consent of learned
counsel for the parties these matters have been heard
-1- Cr. A (DB) No. 1517 of 2024 and ors.
together by this Court since the common issues are involved
therein.
2. Since the issues involved in all these Criminal Appeals
are identical in nature, as such for the sake of convenience
and with the consent of learned counsel for the parties, the
fact involved in one of the case i.e., in the first case being Cr.
Appeal (DB) No. 1517 of 2024 is being taken up.
3. Initially, Writ Petition being W.P. (Cr.) No. 893 of 2024
was filed by the writ petitioner, under Article 226 of the
Constitution of India, for issuance of writ of certiorari for
quashing of the order dated 04.04.2024 passed by learned
Special Judge, NIA, Ranchi in Criminal Appeal No.341 of
2018 arising out of Special NIA Case No.03 of 2018 in
connection with R.C. Case No.06/2018/NIA/DLI whereby the
appeal preferred by the petitioner has been dismissed under
Section 25(6) of the Unlawful Activities (Prevention) Act, 1967
and affirmed the order passed by the designated authority
dated 07.12.2018.
4. Accordingly, the matter was heard by learned Single
Judge of this Court on 25.11.2024.
5. Before the learned Single Judge, at the outset, learned
counsel for the respondent-NIA raised objection making
submission that in light of Section 21 of the National
Investigation Agency Act, 2008 the appeal is required to be
filed and same should be heard by a Division Bench.
-2- Cr. A (DB) No. 1517 of 2024 and ors.
6. While, on the other hand, learned counsel appearing for
the petitioner submits that this writ petition is itself
maintainable and there is no requirement of filing the appeal
before the Division Bench of this Court.
7. The learned Single Judge, taking into consideration the
judgment rendered by Division Bench of this Court in Cr.
Appeal (D.B.) No.154 of 2023 and Cr. Appeal (D.B.) No.850 of
2024, has observed that the appeal will lie before the Division
Bench.
8. Further, prima facie view has been taken that the
petitioner is required to file the criminal appeal before the
Division Bench only, however the writ petition has been filed
and even Hon‟ble the Supreme Court has held in the case of
State of Kerala and Others versus Roopesh reported in
2021 SCC OnLine SC 3099 arising out of Kerala that any
case related to NIA is required to be heard by a Division
Bench.
9. The learned Single Judge, considering the judgment of
Hon‟ble Supreme in the case of State of Kerala and Others
versus Roopesh [Supra], referred the matter to be heard by
the Division Bench granting liberty to the parties to address
the maintainability aspect before the Division Bench.
10. For ready reference, the order dated 25.11.2024 passed
by learned Single Judge is quoted hereunder as:
-3- Cr. A (DB) No. 1517 of 2024 and ors.
Heard learned counsel appearing for the petitioner and
learned counsel appearing for the respondent National
Investigation Agency.
2. The prayer in the writ petition is made for quashing of the
order dated 04.04.2024 passed by learned Special Judge,
NIA, Ranchi in Criminal Appeal No.341 of 2018 arising out of
Special NIA Case No.03 of 2018 in connection with R.C. Case
No.06/2018/NIA/DLI whereby the appeal preferred by the
petitioner has been dismissed under Section 25(6) of the
Unlawful Activities (Prevention) Act, 1967 and affirmed the
order passed by the designated authority dated 07.12.2018.
3. Mr. Amit Kumar Das, learned counsel appearing for the
respondent NIA at the outset made the objection saying that
in light of Section 21 of National Investigation Agency Act,
2008 the appeal is required to be heard by a Division Bench.
4. Mr. Indrajit Sinha, learned counsel appearing for the
petitioner submits that this writ petition is itself maintainable
and there is no requirement of filing the appeal before the
Division Bench of this Court.
5. In view of the judgment of Division Bench passed in Cr.
Appeal (D.B.) No.154 of 2023 and Cr. Appeal (D.B.) No.850 of
2024, the appeal will lie before the Division Bench.
6. In view of the above prima facie it appears that the
petitioner is required to file the criminal appeal in the form of
Division Bench only, however the writ petition has been filed
and even Hon'ble the Supreme Court has held in the case of
State of Kerala and Others versus Roopesh reported in 2021
SCC OnLine SC 3099 arising out of Kerala that any case
related to NIA is required to be heard by a Division Bench.
7. In view of the above and considering the judgment of
Hon'ble Supreme in the case of State of Kerala and Others
versus Roopesh reported in 2021 SCC OnLine SC 3099 this
matter is referred to the Division Bench and the parties are at
liberty to address the maintainability aspect before the
Division Bench.‖
11. Thereafter, in view of order dated 25.11.2024 passed by
learned Single Judge, as quoted and referred hereinabove, the
-4- Cr. A (DB) No. 1517 of 2024 and ors.
writ petition being W.P. (Cr.) No. 893 of 2024 has been
converted to Cr. Appeal (DB) No. 1517 of 2024 by the Registry
of this Court. Accordingly, the matter as per roster has been
listed before this Bench.
12. The petitioner/appellant, being aggrieved with the
conversion of the writ petition [W.P. (Cr.) No. 893 of 2024] to
that of appeal [Cr. Appeal (DB) No. 1517 of 2024], has filed an
Interlocutory Application being I.A. No. 333 of 2025 praying
therein that the Registry of this Court be directed to restore
the present appeal to its original file being W.P. (Cr.) No. 893
of 2024, as it was originally filed, and place the matter before
the Division Bench to decide the issue of maintainability of
the writ petition, in terms of order dated 25.11.2024 passed
by the learned Single Judge.
13. The argument has been advanced on behalf of learned
counsel for the applicant on the said Interlocutory
Application that the Registry of this Court has exceeded its
jurisdiction in converting the writ petition to that of criminal
appeal to be heard by the Division Bench and hence, the
requirement is to again restore the position of the
nomenclature of this Criminal Appeal to that of writ petition
and thereafter the issue of maintainability, in pursuance of
order dated 25.11.2024 passed by the learned Single Judge,
may be decided.
-5- Cr. A (DB) No. 1517 of 2024 and ors.
14. While on the other hand, learned counsel for the
respondent-NIA has vehemently opposed the
submission/argument advanced on behalf of petitioner,
taking the ground that there is no error on the part of
Registry of this Court in converting the writ petition to that of
criminal appeal since the learned Single Judge has already
made an observation at paragraph 5 by making reference of
order passed by the Division Bench of this Court in Cr.
Appeal (D.B.) No.154 of 2023 and Cr. Appeal (D.B.) No.850 of
2024, that the appeal will lie before the Division Bench.
Further, in view of law laid down by Hon‟ble Apex Court in
the case of State of Kerala and Others versus Roopesh
reported in 2021 SCC OnLine SC 3099, the case related to
NIA Act is required to be heard by a Division Bench, however,
while referring the matter to the Division Bench granted
liberty to the parties to address the maintainability aspect
before the Division Bench.
15. It has been submitted that the Registry of this Court in
view of the purport of order dated 25.11.2024 passed by
learned Single Judge, wherein the reference of Cr. Appeal
(D.B.) No.154 of 2023 and Cr. Appeal (D.B.) No.850 of 2024,
as also the law laid by Hon‟ble Apex Court in the case of
State of Kerala and Others versus Roopesh (supra) since
-6- Cr. A (DB) No. 1517 of 2024 and ors.
has converted the writ petition to that of Criminal Appeal,
which cannot be said to suffer from error.
Analysis
16. We have heard learned counsel for the parties on the
instant Interlocutory Application.
17. The fact about matter related to NIA to be heard by the
Division Bench is not dispute in view of judgment passed by
Hon‟ble Apex Court in the case of Bikramjit Singh Vs. State
of Punjab [(2020) 10 SCC 616] and further in view of the
judgment rendered in the case of State of Kerala and
Others versus Roopesh [Supra].
18. Therefore, the only question which arises for
consideration is whether the writ petition will lie under Article
226 of the Constitution of India or the appeal under Section
21(4) of the National Investigation Agency (NIA) Act, 2008?
19. The argument has been advanced on behalf of writ
petitioner-appellant that before proceeding further the
nomenclature of the matter is required to be changed by
restoring it to that of the writ petition from criminal appeal.
20. This Court is of the view that even if the Registry/Office
be directed to again restore the matter to that of writ petition
but the moot question that arises for consideration that
before passing such order the requirement is to decide the
issue as to whether writ petition under Article 226 of the
-7- Cr. A (DB) No. 1517 of 2024 and ors.
Constitution of India will lie or Criminal Appeal under Section
21(4) of the NIA Act, 2008 will lie?
21. If the Court comes to the conclusion that writ petition
will lie then such order can be passed directing the office to
change the nomenclature of the petition. But if the Court
comes to the conclusion that the appeal will lie under Section
21(4) of the NIA Act, 2008, then sending the matter to the
Registry for changing the nomenclature of the appeal(s) by
restoring it to the writ petition will be said to be contrary to
the order passed by this Court in Cr. Appeal (D.B.) No.154 of
2023 and Cr. Appeal (D.B.) No.850 of 2024.
22. Therefore, before passing such order directing the
Registry/Office to restore the matter to that of writ petition(s),
this Court is of the view that the question whether the writ
petition will lie under Article 226 of the constitution of India
or appeal will lie under Section 21 of the Act, 2008 is required
to be answered.
23. The learned counsel for the parties has also agreed upon
this Court and accordingly advanced their argument in
support of their submission.
Submission of the learned counsel for the
petitioners/appellants:
24. Mr. Indrajit Sinha, learned counsel for the appellants-
petitioners has submitted that writ petition under Article 226
-8- Cr. A (DB) No. 1517 of 2024 and ors.
of the Constitution of India will lie and while advancing his
argument, he has taken the following grounds.
25. Submission has been made that the appeal against the
order passed related to the NIA is to be preferred under
Section 21(1) of the NIA Act, 2008. It has been submitted that
such forum can only be approached if the order under
challenge is a judgment, sentence, or order but it should not
be interlocutory in nature.
26. According to learned counsel for the appellants-
petitioners, the nature of order which has been passed is by
the Court as referred under Section 25(6) of the U.A. (P) Act,
1967, which is under the power of appeal on the issue of
attachment passed by the designated authority in view of
provision of Section 25 (3) of the U.A. (P) Act, 1967.
27. It has been contended that the power to forfeiture of
proceeds of terrorism or any property intended to be used for
terrorism is under Chapter V, which starts from the provision
of Section 24 and all procedures have been provided therein
so far as the seizure or attachment is concerned in Section 25
comprising of six sub-sections therein.
28. It has been submitted that the appeal, which lies under
sub-section 6 of Section 25 is to be considered by the court
and the court does not mean to be a Special Court in view of
provision of Section 11 of the NIA Act.
-9- Cr. A (DB) No. 1517 of 2024 and ors.
29. It has been contended that the Special Court has
referred in Section 11 of the NIA Act, 2008 is only for the
purpose to try the schedule offence and not for other
purposes.
30. The argument has been advanced that here the issue of
seizure and attachment is the subject matter which is having
no co-relation with the trial and as such the court, which has
been defined under sub-section (6) of Section 25 of the U.A.
(P) Act, 1967 cannot be construed to come within the fold of
Section 11 of the NIA Act, 2008.
31. Hence, the court which has been referred in sub-section
(6) of Section 25 will not be said to be Special Court and as
such the order passed under sub-Section 6 to Section 25
cannot be said to be amenable under Section 21(1) of the NIA
Act, 2008 since under Section 21 (1) of the NIA Act, 2008 it
has been provided that any judgment, or order not
interlocutory in nature will be challenged by filing an appeal
under the aforesaid provision.
32. The second limb of argument is that the order passed
under sub-section 6 of Section 25 will be said to be
interlocutory in nature since the seizure or attachment is
having nothing to do with the main offence and further
seizure or attachment will be said to be inconclusive unless it
will be forfeited as provided under Section 26 of the U.A. (P)
Act, 1967.
- 10 - Cr. A (DB) No. 1517 of 2024 and ors.
33. The argument, therefore, has been advanced that
chapter V begins with Section 24 and ends with Section 28,
in two parts. The first part is with respect to seizure and
attachment and the second part is forfeiture. Therefore, the
seizure or attachment will be said to be culminated in a final
decision when the order of forfeiture will be passed by
initiating a fresh proceeding under Section 26 of the UAP Act,
1967.
34. It has been contended that in absence of any order of
forfeiture the simple order of search, seizure or attachment
cannot be said to be final in nature adjudicating the right of
the parties and in that view of the matter the order impugned
passed under Section 25(6) of the Act, 1967 will not be said
to be final in nature rather it will be interlocutory and hence
the appeal will not lie under Section 21(1) of the NIA Act,
2008. Therefore, the writ petition was filed.
35. In support of his argument, learned counsel for the
appellant(s)/petitioner(s), has referred following judgments to
fortify the argument with respect to the interpretation of the
word „interlocutory order‟ and the „attachment order will be
said to be interlocutory in nature‟:
(i) V.C.Shukla Vs. State through CBI 1980 Supp SCC 92
(ii) Amina Ahmed Dossa and Others vs.State of
Maharashtra (2001) 2 SCC 675
Submission of the learned counsel for the state/ NIA
- 11 - Cr. A (DB) No. 1517 of 2024 and ors.
36. While on the other hand, Mr. Amit Kumar Das, learned
counsel for the respondent-NIA has raised the following
grounds while opposing the maintainability of the writ
petition.
37. Learned counsel for the respondent relying upon the
judgment rendered in the case of Bikramjit Singh Vs. State
of Punjab (supra) and State of Kerala and Others versus
Roopesh (supra) has submitted that the writ petition will not
lie rather the appeal to be heard by Division Bench will lie.
38. It has been submitted that the U.A. (P) Act, 1967 itself is
a self-content code wherein two chapters i.e., Chapter IV and
VI deals with the penal offences and punishments while
Chapter V deals with the issue of seizure or attachment and
forfeiture.
39. It has been contended that the order of seizure or
attachment cannot be said to be interlocutory order as is
being argued on behalf of petitioner reason being that the
order of attachment attains its finality the moment the court
hearing the appeal on the issue has confirmed the seizure or
attachment.
40. The reference of word, the „court‟ has been made in sub-
section 6 to Section 25 will be construed to be the Code
within the meaning of UAP Act, 1967 as defined under
Section 2(d) of the U.A. (P) Act, 1967, that "court" means a
criminal court having jurisdiction, under the Code, to try
- 12 - Cr. A (DB) No. 1517 of 2024 and ors.
offences under this Act and includes a Special Court
constituted under section 11 or under section 21 of the
National Investigation Agency Act, 2008.
41. Further, the reference of the word „court‟ has also been
made under Section 25(6) of the U.A. (P) Act, 1967, will be
construed to be court within the meaning of Section 11 of the
NIA Act, 2008 and as such the order which is to be passed by
the court under the power conferred to it under Section 25(6)
of the U.A. (P) Act, 1967 will be construed to be passed by the
court constituted under Section 11 of the NIA Act, 2008.
42. So far as the argument that the order of seizure or
attachment will be said to be interlocutory order, on the
ground that seizure or attachment will be said to attain its
finality only after the order of forfeiture under Section 26 will
be passed, it has been contended that seizure or attachment
is one thing and forfeiture is another.
43. The argument has been advanced that after seizing the
proceeding of terrorism or after attaching the same, the
proceeding for forfeiture if situation so warrants can be
initiated but before passing the order of forfeiture a fresh
proceeding is to be initiated by issuance of show cause in
favour of person concerned from whose possession the
property has been found to be there and even by third party
and if it will be satisfied that the money, which has been
searched or attached, is having nothing to do with the
- 13 - Cr. A (DB) No. 1517 of 2024 and ors.
proceeds of terrorism or without any idea about the same to
be used in the commission of terrorism then the same is not
to be forfeited.
44. The argument has been advanced by making reference
of Section 33 (2) of the U.A. (P) Act, 1967 that the issue of
forfeiture cannot also be initiated under the provision of
Section 26 of the U.A. (P) Act, 1967 in a situation where the
concerned person if convicted and thereafter in consequence
of conviction the seized or attached property if the court so
wishes shall stand forfeited meaning thereby the power of
forfeiture is also invested with the court conducting the trial
and in that view of the matter the seizure or attachment and
the forfeiture will be said to be two parallel proceedings and
hence, the seizure or attachment cannot be said to be
interlocutory in nature rather the moment the court passes
the order under Section 25(6) it will be said to attain its
finality deciding the right of the party and in that view of the
matter the order will be said to be final. Hence, the appeal
will lie under Section 21(1) of the NIA Act, 2008.
45. So far as maintaining the writ petition under Article 226
of the Constitution of India is concerned since the offence
pertains to the U.A. (P) Act, 1967 and order of seizure or
attachment of under the UAPA Act having been passed by the
Special Judge and as such the appeal will lie under Section
21 of the NIA Act, 2008.
- 14 - Cr. A (DB) No. 1517 of 2024 and ors.
46. So far as the issue of maintainability of writ petition
under Article 226 of the Constitution of India is concerned,
the same cannot be said to be maintainable in view of the fact
that when the provision of appeal is there having with the
effective and efficacious remedy under the statute then why
the writ petition will be maintainable.
47. The learned counsel has also relied upon the judgment
rendered by Hon‟ble Apex Court in the case of V.C. Shukla V.
State through CBI [supra].
48. On the aforesaid ground the learned counsel for the NIA
has submitted that the contentions as raised by the learned
counsel for the appellant is not fit to be accepted.
Analysis
49. We have heard learned counsel for the parties and
appreciated the arguments advanced on behalf of parties.
50. In the backdrop of the aforesaid factual aspect and
contentions of the learned counsel for the appellant this
Court, needs to consider the following issues to be
adjudicated, on the basis of argument advanced on behalf of
parties:
(i) Whether the order passed under Section 25(6) of
the Unlawful Activities (Prevention) Act, 1967 is
maintainable under the writ jurisdiction under
Article 226 of the Constitution of India or appeal
- 15 - Cr. A (DB) No. 1517 of 2024 and ors.
will lie under Section 21(1) of the National
Investigating Agency Act, 2008?
51. This Court before answering the said issue needs to
refer herein the object and intent of the two provisions i.e.,
Unlawful Activities (Prevention) Act, 1967 [UA(P) Act, 1967]
and the National Investigation Agency Act, 2008 [NIA Act,
2008].
52. The main objective of the Act, 1967 is to make powers
available for dealing with activities directed against the
integrity and sovereignty of India. As per Preamble, the
Unlawful Activities (Prevention) Act, 1967 has been enacted to
provide for more effective prevention of certain unlawful
activities of individuals and associations and dealing with
terrorist activities and for matters connected therewith.
Therefore, the aim and object of enactment of U.A.(P) Act is
also to provide for more effective prevention of certain
unlawful activities.
53. To achieve the said object and purpose of effective
prevention of certain unlawful activities the Parliament in its
wisdom has provided that where an association is declared
unlawful by a notification issued under Section 3, a person,
who is and continues to be a member of such association
shall be punishable with imprisonment for a term which may
extend to 2 years, and shall also be liable to fine.
- 16 - Cr. A (DB) No. 1517 of 2024 and ors.
54. Clause (m) of Section 2 of the 1967 Act defines "terrorist
organization". It is defined as an organization listed in the
First Schedule. Chapters III onwards of the 1967 Act
incorporate various offences. Chapter IV has the title
"Punishment for Terrorist activities". Clause (k) of Section 2
provides that "terrorist act" has the meaning assigned to it
under Section 15 and the terrorist act includes an act which
constitutes an offence within the scope of, and as defined in
any of the treaties specified in the Second Schedule. Chapter
V has the title "Forfeiture of proceeds of terrorism or any
property intended to be used for terrorism". The Chapter V is
the main concern herein.
55. The NIA Act has been constitution in order 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, friendly relations with
foreign States and offences under Acts enacted to implement
international treaties, agreements, conventions and
resolutions of the United Nations, its agencies and other
international organizations and for matters connected
therewith or incidental thereto.
56. Thus, the NIA Act, 2008, aims to establish a central
counter-terrorism law enforcement agency called the National
Investigation Agency (NIA). The Act's object is to investigate
and prosecute offenses listed in a schedule (scheduled
- 17 - Cr. A (DB) No. 1517 of 2024 and ors.
offenses) that affect the sovereignty, security, and integrity of
India, as well as the security of the state. The scope of the
NIA Act encompasses a wide range of offenses, including
those under the Unlawful Activities (Prevention) Act, 1967,
and other laws specified in the schedule.
57. The Unlawful Activities (Prevention) Act is of the year
1967, under which, the „court‟ has been defined as under
Section 2(d) that "court" means a criminal court having
jurisdiction, under the Code, to try offences under this Act,
however, after coming into existence of the NIA Act, 2008, by
virtue of insertion of Act, 35 of 2008, s. 3 (w.e.f. 31-12-2008),
the amendment/addition has been carried out in the
definition of court, and it has been defined that "the court
means a criminal court having jurisdiction, under the Code, to
try offences under this Act and includes a Special Court
constituted under section 11 or under section 21 of the
National Investigation Agency Act, 2008.
58. The National Investigation Agency Act, 2008 has come
into being w.e.f. 31.12.2008. Section 2 of the NIA Act, 2008 is
the definition clause wherein at Section 2(g), Schedule
Offence has been defined which says that "Scheduled Offence"
means an offence specified in the Schedule. Schedule has
been incorporated in the NIA Act, 2008 under Section 2(f),
which means the Schedule to this Act. The offences
- 18 - Cr. A (DB) No. 1517 of 2024 and ors.
pertaining to Unlawful Activities (Prevention) Act, 1967 [Act
No. 37 of 1967] has been kept under the aforesaid schedule
along with other schedule offences.
59. The „Special Court‟ has been defined under Section 2(h)
of the NIA Act, 2008, which means a Special Court
constituted under section 11 or, as the case may be, under
section 22 thereof.
60. Section 11 of the NIA Act, 2008 confers power to the
Central Government to designate the Court of Sessions as
special courts wherein it has been provided that the Central
Government shall, by notification in the Official Gazette, for
the trial of Scheduled Offences, constitute one or more
Special Courts for such area or areas, or for such case or
class or group of cases, as may be specified in the
notification. Under the explanation it has been provided that
the expression „high court‟ means high court of the State in
which court of sessions to be designated as special Court is
functioning.
61. The jurisdiction of the special court has been provided
under Section 13 wherein it has been stipulated that
notwithstanding anything contained in the Code, every
Scheduled Offence investigated by the Agency shall be tried
only by the Special Court within whose local jurisdiction it
was committed. Section 14 provides „Powers of Special Courts
with respect to other offences‟ wherein it has been stipulated
- 19 - Cr. A (DB) No. 1517 of 2024 and ors.
that when trying any offence, a Special Court may also try
any other offence with which the accused may, under the
Code be charged, at the same trial if the offence is connected
with such other offence.
62. For ready reference, Section 11,13 and 14 are quoted as
under:
"11. Power of Central Government to designate court of
sessions as Special Courts.--( (1) The Central Government
shall, in consultation with the Chief Justice of the High Court,
by notification in the Official Gazette, for the trial of
Scheduled Offences, designate one or more Courts of Session
as Special Court for such area or areas, or for such case or
class or group of cases, as may be specified in the
notification.
Explanation - For the purposes of this sub-section, the
expression "High Court" means the High Court of the State in
which a Court of Session to be designated as Special Court is
functioning. (2) Where any question arises as to the
jurisdiction of any Special Court, it shall be referred to the
Central Government whose decision in the matter shall be
final
. [xxxxxxxx ]
(8) (8) For the removal of doubts, it is hereby provided that
the attainment, by the Sessions Judge of the Court of Session
referred to in sub-section (1) of the age of superannuation
under the rules applicable to him in the service to which he
belongs shall not affect his continuance as judge of the
Special Court and the appointing authority in consultation
with the Central Government may by order direct that he
shall continue as judge until a specified date or until
completion of the trial of the case or cases before him,
whichever is earlier. (9) When more than one Special Court is
designated for an area or areas, the seniormost Judge shall
distribute the business among them..
- 20 - Cr. A (DB) No. 1517 of 2024 and ors.
13. Jurisdiction of Special Courts ---(1)
Notwithstanding anything contained in the Code, every
Scheduled Offence investigated by the Agency shall be
tried only by the Special Court within whose local
jurisdiction it was committed.
(2) If, having regard to the exigencies of the situation
prevailing in a State if,--
(a) it is not possible to have a fair, impartial or speedy
trial; or
(b) it is not feasible to have the trial without
occasioning the breach of peace or grave risk to the
safety of the accused, the witnesses, the Public
Prosecutor or a judge of the Special Court or any of
them; or
(c) it is not otherwise in the interests of justice, the
Supreme Court may transfer any case pending before a
Special Court to any other Special Court within that
State or in any other State and the High Court may
transfer any case pending before a Special Court
situated in that State to any other Special Court
within the State.
(3) The Supreme Court or the High Court, as the case
may be, may act under this section either on the
application of the Central Government or a party
interested and any such application shall be made by
motion, which shall, except when the applicant is the
Attorney General for India, be supported by an
affidavit or affirmation
14. Powers of Special Courts with respect to other
offences.--(1) When trying any offence, a Special Court may
also try any other offence with which the accused may,
under the Code be charged, at the same trial if the offence is
connected with such other offence.
(2) If, in the course of any trial under this Act of any offence,
it is found that the accused person has committed any other
offence under this Act or under any other law, the Special
Court may convict such person of such other offence and
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pass any sentence or award punishment authorised by this
Act or, as the case may be, under such other law.‖
63. Purpose of referring to those provisions hereunder as is
to consider the issue with respect to the meaning of court, as
referred under Section 25(6). Since the court has been
defined under the UA(P)A Act, 1967 under Section 2(d), which
means a criminal court having jurisdiction, under the Code,
to try offences under this Act and includes a Special Court
constituted under section 11 or under section 22 of the
National Investigation Agency Act, 2008 and further Special
Court has also been defined under Section 2(h), which means
a Special Court constituted under section 11 or, as the case
may be, under section 22 of the NIA Act, 2008.
64. Hence, we of the view that the reference of Court under
Section 25(6) will be the Special Judge and except this
conclusion, there is no other possibility or other conclusion in
the light of discussion made hereinabove based upon the
reference of the provisions made hereinabove.
65. Mr. Sinha, learned counsel for the petitioner has
submitted by emphasizing on the word „try‟/ „tried‟, as
referred in Section 13 or 14 of the NIA Act, 2008, which
according to him the Special Court has only power to try the
cases and since we are dealing with the issue of seizure or
attachment, which is not under the fold of the cases to be
tried.
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66. The question, therefore, is that whether the issue of
seizure or attachment is to be excluded from the purview of
jurisdiction of special court.
67. This Court in order to consider the same is again
adverting to Section 13 which has already been quoted herein
above, which contains the issue of jurisdiction of special
courts.
68. This Court is of the view that the moment the court has
been defined under the U.A. (P) Act, 1967 read with NIA Act,
2008 meaning thereby any proceeding pertaining to case
related to the schedule offence, herein the U.A. (P) Act, 1967
is to be adjudicated by the court then the meaning of the Act
that is within the meaning of Section 11 and 13 of the Act.,
i.e. the Special Court.
69. If the contention of Mr. Sinha, learned counsel for the
petitioners-appellants will be accepted then it will allow to
have the two proceedings in two courts meaning thereby the
trial court will be in the court designated under Section 11 of
the NIA Act and another related issues i.e., seizure or
attachment will have to be sent to the Sessions Court, which
cannot be said to be just and proper at least for two reasons.
First, there will be every likelihood of inconsistency in the
decision and the same will lead to multiplicity of proceeding
and not only that it will be time consuming because matter
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pertaining to the same issue has to be adjudicated by two
forums.
70. It can also be considered from different angle that
suppose in a case where the order passed under Section 25(6)
in which the issue of seizure or attachment is not confirmed
by the Session Courts, and the special judge has passed
judgment of conviction then it will lead to inconsistent and
anomalous result.
71. Further, the question of appreciation of the documents
for the purpose of coming to the conclusion of the issue of
reason to believe as provided under Section 25(1) of the Act,
1967 if allowed to be appreciated by two forums then it will
lead to miscarriage of justice.
72. This Court, therefore, is of the view that if the nature of
offence is scheduled one and the forum has been provided
under the Act then all related issue including the trial is to be
heard under the forum formulated under the scheme of the
statute.
73. This Court, based upon the aforesaid reason, is of the
view that the meaning of the Court will be special court
within the meaning of Section 11of the Act 2008 as referred
under Section 25(6) of Act 1967.
74. The second question which has been raised that the
order of seizure or attachment cannot be said to be final
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rather it is interlocutory in nature, hence appeal will not be
maintainable under Section 21 of the Act 2008.
75. There is no dispute, as per the stipulation provided
under Section 21(1) of the NIA Act, 2008, that if the order is
interlocutory in nature, then appeal will not lie.
76. Therefore, this Court is to consider that whether the
nature of order which is being passed by the learned special
judge under the power conferred under Section 25(6) will be
said to be interlocutory or final deciding the right of the party.
77. This Court before considering the said issue needs to
refer herein the relevant paragraphs of the judgment rendered
in the case of V.C. Shukla Vs. State through CBI (supra).
"23. We entirely agree with the approach indicated
by Sastri, C.J. and which is also binding on us. Let
us see what is the effect of interpreting the non
obstante clause according to the test laid down by
the decision, referred to above, and particularly, the
observations of Sastri, C.J. Let us for the time being
forget the provisions of Section 397(2) of the Code or
the interpretation put by this Court on the term
"interlocutory order" as appearing in the Code
because the decisions were based purely on the
interpretation of the provisions of the Code. We
have, therefore, first to determine the natural
meaning of the expression "interlocutory order". To
begin with, in order to construe the term
"interlocutory", it has to be construed in
contradistinction to or in contrast with a final order.
We are fortified by a passage appearing in The
Supreme Court Practice, 1976 (Vol. I, p. 853) where it
is said that an interlocutory order is to be contrasted
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with a final order, referring to the decision
of Salaman v. Warner [(1891) 1 QB 734 : 60 LJ QB
624] . In other words, the words "not a final order"
must necessarily mean an interlocutory order or an
intermediate order. That this is so was pointed out
by Untwalia, J. speaking for the court in the case
of Madhu Limaye v. State of Maharashtra [(1977) 4
SCC 551 : 1978 SCC (Cri) 10 : (1978) 1 SCR 749] as
follows: (SCC p. 557, para 12)
"Ordinarily and generally the expression
„interlocutory order‟ has been understood and taken
to mean as a converse of the term „final order‟."
Thus, the expression "interlocutory order" is to be
understood and taken to mean converse of the term
"final order". Now, let us see how this term has been
defined in the dictionaries and the textbooks.
In Webster's Third International Dictionary (Vol. II, p.
1179) the expression "interlocutory order" has been
defined thus:
"Not final or definitive: made or done during the
progress of an action: intermediate, provisional."
Stroud's Judicial Dictionary (4th Edition, Vol. 3, p.
1410) defines interlocutory order thus:
" „Interlocutory order‟ Judicature Act, 1871 (clause
66), Section 25(8) was not confined to an order made
between writ and final judgment, but means an
order other than final judgment."
Thus, according to Stroud, interlocutory order
means an order other than a final judgment. This
was the view taken in the case
of Smith v. Cowell [(1880) 6 QBD 75] and followed
in Manchester & Liverpool Bank v. Parkinson [(1889)
22 QBD 175] . Similarly, the term "final order" has
been defined in Vol. 2 of the same dictionary (p.
1037) thus:
"The judgment of a Divisional Court on an appeal
from a county court in an interpleader issue was a
„final order‟ within the old R.S.C., Order 58 Rule 3
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(Hughes v. Little [(1886) 18 QBD 32] ); so was an
order on further consideration
(Cummins v. Herron [(1877) 4 Ch D 787] ), unless
action was not thereby concluded.... But an order
under the old R.S.C., Order 25 Rule 3, dismissing an
action on a point of law raised by the pleadings was
not „final‟ within the old Order 58, Rule 3, because
had the decisions been the other way the action
would have proceeded.
Halsbury's Laws Or England (3rd Edn., Vol. 22, pp.
743-44) describes an interlocutory or final order
thus:
"Interlocutory judgment or order.--An order which
does not deal with the final rights of the parties, but
either (1) is made before judgment, and gives no final
decision on the matters in dispute, but is merely on
a matter of procedure, or (2) is made after judgment,
and merely directs how the declarations of right
already given in the final judgment are to be worked
out, is termed „interlocutory‟. An interlocutory order
though not conclusive of the main dispute, may be
conclusive as to the subordinate matter with which
it deals....
In general a judgment or order which determines the
principal matter in question is termed „final‟."
At p. 743 of the same volume, Blackstone says thus:
Final judgments are such as at once put an end to
the action by declaring that the plaintiff has either
entitled himself, or has not, to recover the remedy he
sues for.... Four different tests for ascertaining the
finality of a judgment or order have been suggested:
(1) Was the order made upon an application such
that a decision in favour of either party would
determine the main dispute? (2) Was it made upon
an application upon which the main dispute could
have been decided? (3) Does the order, as made,
determine the dispute? (4) If the order in question is
reversed, would the action have to go on?
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corpus juris secundum (Vol. 49, p. 35) defines
interlocutory order thus:
A final judgment is one which disposes of the cause
both as to the subject-matter and the parties as far
as the court has power to dispose of it, while an
interlocutory judgment is one which reserves or
leaves some further question or direction for future
determination.... Generally, however, a final
judgment is one which disposes of the cause both as
to the subject-matter and the parties as far as the
court has power to dispose of it, while an
interlocutory judgment is one which does not so
dispose of the cause, but reserves or leaves some
further question or direction for future
determination.... The term „interlocutory judgment‟
is, however, a convenient one to indicate the
determination of steps or proceedings in a cause
preliminary to final judgment, and in such sense the
term is in constant and general use even in code
states." (emphasis ours)
Similarly, Vol. 60 of the same series at p. 7 seeks to
draw a distinction between an interlocutory and a
final order thus:
"The word „interlocutory‟, as applied to rulings and
orders by the trial court, has been variously defined.
It refers to all orders, rulings, and decisions made by
the trial court from the inception of an action to its
final determination. It means, not that which decides
the cause, but that which only settles some
intervening matter relating to the cause. An
interlocutory order is an order entered pending a
cause, deciding some point or matter essential to the
progress of the suit and collateral to the issues
formed by the pleadings and not a final decision or
judgment on the matter in issue.... An intermediate
order has been defined as one made between the
commencement of an action and the entry of the
judgment."
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Thus, summing up the natural and logical meaning
of an interlocutory order, the conclusion is
inescapable that an order which does not terminate
the proceedings or finally decides the rights of the
parties is only an interlocutory order. In other
words, in ordinary sense of the term, an
interlocutory order is one which only decides a
particular aspect or a particular issue or a particular
matter in a proceeding, suit or trial but which does
not however conclude the trial at all. This would be
the result if the term interlocutory order is
interpreted in its natural and logical sense without
having resort to Criminal Procedure Code or any
other statute. That is to say, if we construe
interlocutory order in ordinary parlance it would
indicate the attributes, mentioned above, and this is
what the term interlocutory order means when used
in Section 11(1) of the Act.
28. Similarly, another test to determine whether or
not an order is an interlocutory order was evolved by
Lord Alverstone, C.J. in the case
of Bozson v. Altrincham Urban Distt. Council [(1903) 1
KB 547 : 72 LJ KB 272] who observed as follows:.
"It seems to me that the real test for determining
this question ought to be this: Does the judgment or
order, as made, finally dispose of the rights of the
parties? If it does, then I think it ought to be treated
as a final order; but if it does not it is then, in my
opinion, an interlocutory order."
Sir Jeune P. concurred with Lord Alverstone while
Lord Halsbury preferred to follow an earlier decision
in the case of Shubrook v. Tufnell [(1882) 9 QBD 621
: 46 LT 749] . In Shubrook v. Tufnell [(1882) 9 QBD
621 : 46 LT 749] what happened was that an action
was filed by the lessee against the lessor to recover
damages caused to them by the defendant's making
a drain through the adjoining land. By an order in
Chambers the action was referred to the arbitrator
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who sent the case to the court for its opinion. In that
case the position was that if the case was referred
back to the arbitrator, the award had to be given by
him, if not, then judgment was to be entered for the
defendant. The question was whether an appeal lay
to the Court of Appeal against the reference made by
the arbitrator. In view of the peculiar circumstances
of the case, Jessel, M.R. with whom Lord Lindley
concurred, held that appeal lay as the order seeking
the opinion of the court was not an interlocutory
order. It is manifest that in this case the proceedings
would have terminated. In any event if the case was
referred back to the arbitrator, then the arbitrator
would have to give his award and therefore the
reference proceedings terminated. If, however, the
reference was not made to the arbitrator, then the
judgment was to be entered for the defendant. Thus,
the order passed in this case undoubtedly could not
be said to be an interlocutory order even in the
widest sense of the term. At any rate, the
preponderance of the authorities of the English
courts favour the view that an interlocutory order is
one which (sic does not) finally disposes of the rights
of the parties as observed by Lord Alverstone in the
case of Bozson v. Altrincham Urban District
Council [(1903) 1 KB 547 : 72 LJ KB 272] cited
above. We might, however, state that although Lord
Halsbury had expressed his dissent
from Salaman v. Warner case [(1891) 1 QB 734 : 60
LJ QB 624] yet the Federal Court as also this Court
appear to have followed and accepted the view taken
by Lord Esher, as discussed above. We shall deal
with the authorities of the Federal Court and this
Court on this point a little later.
33. The view taken in Kuppuswami case [1947 FCR
180 : AIR 1949 FC 1 : 49 Cri LJ 625] was endorsed
by this Court in the case of Mohan Lal Magan Lal
Thacker v. State of Gujarat [AIR 1968 SC 733 :
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(1968) 2 SCR 685, 688, 689 : 1968 Cri LJ 876]
where it was held that generally speaking a
judgment order which determines the principal
matter in question is termed final. The English
decisions as also the Federal Court decisions were
referred to in this case and after considering the
decision, this Court observed as follows:
"The meaning of the two words „final‟ and
„interlocutory‟ has, therefore, to be considered
separately in relation to the particular purpose for
which it is required. However, generally speaking, a
judgment or order which determine the principal
matter in question is termed final.... An interlocutory
order, though not conclusive of the main dispute
may be conclusive as to the subordinate matter with
which it deals....
***
If the decision on an issue puts an end to the suit,
the order is undoubtedly a final one but if the suit is
still left alive and has yet to be tried in the ordinary
way, no finality could attach to the order.... This test
was adopted in S. Kuppuswami Rao v. King [1947
FCR 180 : AIR 1949 FC 1 : 49 Cri LJ 625] where the
court also held that the words „judgment‟ and „order‟
have the same meaning whether the proceeding is a
civil or a criminal proceeding. In Mohd. Amin Bros.
Ltd. v. Dominion of India [AIR 1950 FC 77, 78, 79 :
(1949) XI FCR 842 : 1950 SCJ 139] the Federal
Court following its earlier decision adopted against
the test viz. whether the judgment or order finally
disposed of the rights of the parties."
32. These principles apply to civil as also to criminal
cases as pointed out by Kania, C.J. in the case of S.
Kuppuswami Rao v. King [1947 FCR 180 : AIR 1949
FC 1 : 49 Cri LJ 625] . We find ourselves in complete
agreement with the view taken by Mukerjea, J.
which is based on English
34. There is yet another aspect of the matter which
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has to be considered so far as this decision is concerned, to which we shall advert when we deal with the last plank of the argument of the learned counsel for the appellant. Suffice it to say at the moment that the case referred to also fully endorses the view taken by the Federal Court and the English decisions viz. that an order is not a final but an interlocutory one if it does not determine or decide the rights of parties once for all. Thus, on a consideration of the authorities, mentioned above, the following propositions emerge:
"(1) that an order which does not determine the right of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue, because, in our opinion, the term „interlocutory order‟ in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi-final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the
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accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused"
45. On a true construction of Section 11(1) of the Act and taking into consideration the natural meaning of the expression "interlocutory order", there can be no doubt that the order framing charges against the appellant under the Act was merely an interlocutory order which neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami case [1947 FCR 180 : AIR 1949 FC 1 : 49 Cri LJ 625] the order impugned was undoubtedly an interlocutory order. Taking into consideration, therefore, the natural meaning of interlocutory order and applying the non obstante clause, the position is that the provisions of the Code of Criminal Procedure are expressly excluded by the non obstante clause and therefore Section 397(2) of the Code cannot be called into aid in order to hold that the order impugned is not an interlocutory order. As the decisions of this Court in the cases of Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : (1978) 1 SCR 749] and Amar Nath v. State of Haryana [(1977) 4 SCC 137 : 1977 SCC (Cri) 585 :
(1978) 1 SCR 222] were given with respect to the provisions of the Code, particularly Section 397(2), they were correctly decided and would have no application to the interpretation of Section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non obstante clause.
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47. Thus, summing up the entire position the inescapable conclusion that we reach is that giving the expression "interlocutory order" its natural meaning according to the tests laid down, as discussed above, particularly in Kuppuswami case [1947 FCR 180 : AIR 1949 FC 1 : 49 Cri LJ 625] and applying the non obstante clause, we are satisfied that so far as the expression "interlocutory order" appearing in Section 11(1) of the Act is concerned, it has been used in the natural sense and not in a special or a wider sense as used by the Code in Section 397(2). The view taken by us appears to be in complete consonance with the avowed object of the Act to provide for a most expeditious trial and quick dispatch of the case tried by the Special Court, which appears to be the paramount intention in passing the Act."
78. It is evident from the aforesaid judgment that the interlocutory order will be said to be interlocutory in nature if the right of the parties has not been adjudicated finally having no effect in the final outcome of the proceeding so initiated. If the right of the parties has been adjudicated finally with respect to the issue in question, then the said order will be said to be final in nature.
79. The ground has been taken by taking aid of Section 26 of the U.A. (P) Act, 1967 which provided that a fresh proceeding is to be initiated for forfeiture and hence the seizure or attachment will be said to be an interim arrangement and the said interim arrangement will culminate into final decision, the moment the order of forfeiture will be passed.
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80. This Court in order to appreciate the said argument needs to refer herein Section 26 of the UA(P) Act, which is being referred herein.
―26. Court to order forfeiture of proceeds of terrorism.--Where any property is seized or attached on the ground that it constitutes proceeds of terrorism and the court confirms the order in this regard under sub-section (6) of section 25, it may order forfeiture of such property, whether or not the person from whose possession it is seized or attached, is prosecuted in a court for an offence under Chapter IV or Chapter VI.‖
81. It is evident from the said provision that the court is to pass order for forfeiture of proceeds of terrorism in a case where any property seized or attached on the ground that it constitutes the proceeds of terrorism and the court confirms that is under sub-section 6 to Section 25 it may order forfeiture of such property whether or not the person from whose possession it is seized or attached, if prosecuted in a court for an offence under Chapter IV or Chapter VI.
82. But before doing that the person holding or in possession of such proceeds is to be given notice in writing informing him of the grounds on which it is proposed to forfeit the proceeds of terrorism and such person is given an opportunity of making a representation in writing within such reasonable time. No order of forfeiture shall be made under Sub-section (1) of Section 27 if such person establishes that
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he is a bona fide transferee of such proceeds for value without knowing that they represent proceeds of terrorism.
83. Section 28 of the Act, 1967contains a provision of appeal under which any person aggrieved by an order of forfeiture under section 26 may prefer appeal to the High Court within whose jurisdiction, the court, which passed the order appealed against. Sub-section (2) thereof provides that if an order under section 26 is modified or annulled by the High Court or wherein a prosecution instituted for any offence under Chapter IV or Chapter VI, the person against whom an order of forfeiture has been made under section 26 is acquitted, such property shall be returned to him and in either case if it is not possible for any reason to return the forfeited property, such person shall be paid the price therefor as if the property had been sold to the Central Government with reasonable interest calculated from the day of seizure of the property and such price shall be determined in the manner prescribed, for ready reference Section 28 is being quoted as under:
28. Appeal.--(1) Any person aggrieved by an order of forfeiture under section 26 may, within one month from the date of the receipt of such order, appeal to the High Court within whose jurisdiction, the court, which passed the order appealed against, is situated. (2) Where an order under section 26 is modified or annulled by the High Court or where in a prosecution instituted for any offence under Chapter
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IV or Chapter VI, the person against whom an order of forfeiture has been made under section 26 is acquitted, such property shall be returned to him and in either case if it is not possible for any reason to return the forfeited property, such person shall be paid the price therefor as if the property had been sold to the Central Government with reasonable interest calculated from the day of seizure of the property and such price shall be determined in the manner prescribed."
84. In this context, the reference of Section 33 is also required to be made which confers power of forfeiture of property in a case where the person concerned has been convicted for an offence under Chapter IV or Chapter VI. In such circumstances, it shall be open to the court to pass an order that all or any of the properties, movable or immovable or both, belonging to him, shall, during the period of such trial, be attached, if not already attached under this Chapter. Further, where a person has been convicted of any offence punishable under Chapter IV or Chapter VI, the court may, in addition to awarding any punishment, by order in writing, declare that any property, movable or immovable or both, belonging to the accused and specified in the order, shall stand forfeited to the Central Government or the State Government, as the case may be, free from all encumbrances.
85. It is, thus, evident that Section 26 deals with the issue of forfeiture having by initiating a fresh proceeding before passing an order of forfeiture.
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86. Section 28, the appellate provision, if the order passed under Section 26 is annulled then the forfeited amount is to be released in favour of the person concerned.
87. However, in a case of conviction the amount so attached is to be forfeited if the amount has not been attached and if the person concerned has been convicted then such property is to be attached.
88. Thus in concise it can be stated that Proceeds of terrorism, whether held by a terrorist or terrorist organisation or terrorist gang or by any other person and whether or not such terrorist or other person is prosecuted or convicted for any offence under Chapter IV or Chapter VI, shall be liable to be forfeited to the Central Government or the State Government, as the case may be, in the manner provided under Chapter (V) Under Section 25 of the UAPA, the investigating officer or the designated authority has powers to seize properties, which such officer believes to be proceeds of terrorism.
89. Where any property is seized or attached on the ground that it constitutes proceeds of terrorism and the court confirms the order in this regard under sub-section (6) of section 25, it may order forfeiture of such property, whether or not the person from whose possession it is seized or attached, is prosecuted in a court for an offence under Chapter IV or VI (of the UAPA).
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90. Sections 27 and 28 of the UA(P)Act,1967 respectively, ensure that the orders made by a competent court for the forfeiture under Section 26, pass the test of natural justice and an avenue for appeal against such order is open to the aggrieved person. The UAPA also contains a novel provision to obviate financial injury to any third person by operation of Section 25, whereby such third persons may prefer claims or make objection against seizure or attachment of any property.
91. Section 33 of the UAPA stipulates an additional filtering mechanism providing that during the trial of a person for offences under the UAPA, his properties shall stand attached if not already attached in accordance with the provisions of Chapter V of UAPA.
92. At this juncture it would be apt to refer Section 24-A of the UA(P) Act, 1967 wherein it has been stipulated that where proceedings have been commenced under this section, the court may pass an order directing attachment or forfeiture, as the case may be, of property equivalent to, or, the value of the proceeds of terrorism involved in the offence. It is evident that legislature used "OR" in between attachment and forfeiture.
93. As discussed herein above the seizure procedures have been given in Section 25 of the UA (P) Act, 1967 which starts from sub-section (1) wherein the investigating officer has been conferred with the power to have reason to believe on the basis of the material available on record to seize and
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attach and thereafter it is to be produce along with the reason before the designate authority. The designated authority after applying its mind is to confirm or reverse the decision of the investigating officer. Sub-section 6 of Section 25 confers power to the court, constituted under Section 11 of the NIA Act, 2008.
94. Section 24-A since provides the mechanism for attachment or forfeiture both and to deal with the issue of attachment mechanism has been provided under Section 25 along with the power to appeal, as provided under sub- section 6 to Section 25.
95. Therefore, on interpretation of provision of Section 24 A taking together with Section 25, the same relates to the issue of seizure or attachment while Section 26 up-to Section 28 deals with the issue of forfeiture.
96. Thus, Section 25 of the UA (P) Act 1967 is a complete scheme for dealing with seizure or attachment of proceeds of terrorism. No doubt if seized articles are held to be „proceeds of terrorism‟, the mandate of Section 25 of the UA (P) Act, 1967 would come into play. Reading of the whole of Section 25 of the UA (P) Act, 1967 conveys that the term "proceeds of terrorism" is used in the sense of some valuable movable or immovable, obviously acquired by the act of terrorism.
Exhaustive provisions are made for the seizure and
attachment of property, opportunity to make a
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representation, confirmation or rejection of the order of seizure or attachment and the right of appeal to the aggrieved person. The whole scheme conveys that it relates a valuable movable or immovable property which was acquired through the act of terrorism.
97. Thus, Section 25 of the UA (P) Act deals with the powers of Investigating Officer and Designated Authority and appeal against order of Designated Authority. Section 25(2)(3) of the UA (P) Act specifically lays down that the Investigating Officer has to duly inform the Designated Authority within forty-eight (48) hours of the seizure or attachment of the property, whereas, the Designated Authority has to either confirm or revoke the order of seizure or attachment so issued by the Investigating Officer within a period of sixty (60) days. Section 25(6) of the UA (P) Act lays down the procedure that any person aggrieved by an order made by the Designated Authority may prefer an appeal to the court within a period of thirty (30) days and the court may either confirm the order of attachment of property or seizure so made or revoke it and release the property. Section 26 of the UA (P) Act deals with the provisions that the Court has power to confirm the order passed by the Designated Authority in regard to seizure of the property in terms of Section 25(6) of the UA (P) Act. Section 27 of the UA (P) Act deals with the mandatory provisions of show-cause notice
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before forfeiture of the proceeds of terrorism, while Section 28 deals with the provisions of appeal within a period of one month from the date of order of forfeiture made under Section 26 of the UA (P) Act.
98. Further, the court while adjudicating the issue on the decision taken by the designated authority is require to go through the entire aspect of the matter so as to come to the conclusive finding whether the seized property is proceeds of crime or not.
99. Once the appellate authority has come to a conclusion that the order passed by the Designated Authority is without any reasoning, then the appellate authority ought to have exercised the power of giving a finding whether the seized property is proceeds of crime or not. Once, the appellate authority was convinced that the order passed by the designated authority was bereft of any reasoning, then the appellate authority ought to have exercised the power under section 25 (6), by revoking such order of the designated authority and releasing the property.
100. The learned Special Judge while exercising the jurisdiction of appeal is required to see all the incriminating material which has been collected in course of investigation.
101. It needs to refer herein that seizure or attachment is one part of the exercise while forfeiture is another part. The forfeiture under Section 26 can be initiated but before
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forfeiting the principle of natural justice is to be observed provided therein a provision that in a case of acquittal the amount is to be returned back.
102. The said mechanism is not available under Section 25 of the UA(P)A Act, 1967 rather the situation gets clarified from the provision of Section 33 wherein the circumstances of such case where property has not been attached but the concerned accused person has been convicted then the court trying the offence can attach the property if not attached under the said chapter i.e., chapter V; meaning thereby the seizure or attachment is independent to that of the forfeiture and once the order of attachment has been passed having been confirmed by the court that is the special judge constituted under section 11 then the issue of seizure or the attachment will be said to have adjudicated the right of the party so far as the seizure or attachment is concerned.
103. Accordingly, If the provision of Section 25, 26 and 33 of the U.A. (P) Act, 1967 will be taken together then it would be evident that Section 33 speaks with respect to the issue of attachment if not attached in a case where person concerned has been arraigned as an accused. The issue of forfeiture has been referred under Section 26 and the obvious reason as per our view is that the proceeds of terrorism if the amount is being used for proceeds of terrorism and the third party claim its right and the third party establishes its bona fide the such
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amount is to be refunded to the third party. Otherwise, the Section 33 of the U.A. (P) Act, 1967 would have also been stipulated with filing the reference of seizure or attachment along with forfeiture, therefore, the Section 25 of the UA(P) Act, 1967 is to be read along with Section 33 of the Act making two different proceedings; one under Section 25 confers power upon the designated authority/ investigating officer appeal before the court constituted under Section 11 of the NIA Act, 2008 and if there is no attachment of the property or property has not been seized said to be the proceeds of crime then the court has conferred with the power to seize or attach in a case of conviction of that person but consciously the reference of the word „forfeiture‟ is not there keeping the fact into consideration as per the legislative command that there might be possibility to claim such proceeds by the third party and in case of proving the bona fide the chance would be there to return the amount in favour of third party. If the forfeiture amount would have been inserted under Section 33 then the provision of Section 26 would have become redundant.
104. Herein, We are not concerned with the consequence of seizure or attachment as has been dealt with under Section 26 of the U.A. (P) Act, 1967.
105. Accordingly, the issue has been answered.
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106. Therefore, on the basis of the discussion made herein above this court is of the view that the order passed under section 25(6) of the U.A. (P) Act, 1967 cannot be construed to be interlocutory in nature rather it will be finally adjudicating the right of the party so far as the issue of seizure or attachment is concerned based upon the availability of document having been appreciated by the learned Special Judge under Section 25(6) of the U.A. (P) Act, 1967.
107. This Court, therefore, is of the view that when the provision of appeal is provided under the Special statutes, which we are dealing with then allowing the party concerned to invoke the jurisdiction under Article 226 of the Constitution of India will be contrary to the principle laid down therein, wherein it has been provided that the forum of writ jurisdiction can only be exercised if there is no availability of efficacious alternative remedy.
108. We are herein not dealing with the issue of efficacious alternative remedy rather we are dealing with the special statute which is a self-content code and if the offences have been registered under the said section hence all the proceedings related to the schedule offences is to be dealt with under the statutory command as formulated under the act governing the schedule offence herein under the UA(P) Act, 1967 to be read with the NIA Act, 2008.
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109. Since, this Court has come to the finding that order passed under Section 25(6) of the U.A. (P) Act, 1967 cannot be construed to be interlocutory in nature and therefore appeal will lie as stipulated under Section 21 of the Act 2008.
110. Thus in view of the judgment passed by Hon‟ble Apex court in the case Bikramjit Singh Vs. State of Punjab (supra) and further in the case of State of Kerala and Others versus Roopesh [Supra], and in view of the judgment by this Court in in Cr. Appeal (D.B.) No.154 of 2023 and Cr. Appeal (D.B.) No.850 of 2024, along with the judgment passed by the Full Bench of this Court in the case of Rakesh Saw @ Sahu @ Rakesh Kumar Sahu Vs. State of Jharkhand [B.A. No. 5937 of 2022], this Court is of the view that directing the Registry to change the nomenclature of the litigation will not be said to be proper rather we are of the view that the office/registry has change the nomenclature in view of the order passed by learned Single Judge, which has taken care of the order passed by the Hon‟ble Apex Court and this court.
111. On the basis of discussion made hereinabove this Court is of the considered view that the prayer made by the appellant in interlocutory Application being I.A. No. 333 of 2025 that the Registry of this Court be directed to restore the present appeal to its original file being W.P. (Cr.) No. 893 of 2024, as it was originally filed, is not fit to be accepted.
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112. Interlocutory Application being I.A. No. 333 of 2025 is hereby disposed of with aforesaid direction and observation.
113. Since the I.A. No. 331 of 2025 and I.A. No. 332 of 2025 has been filed in Cr. Appeal (DB) No. 1516 of 2024 and Cr. Appeal (DB) No. 1554 of 2024 respectively, making similar prayer, as such, both the Interlocutory Applications stands disposed of.
114. Office is hereby directed to proceed accordingly.
I Agree (Sujit Narayan Prasad, J.)
(Gautam Kumar Choudhary, J.) (Gautam Kumar Choudhary, J.)
Alankar/-
A.F.R.
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