Gauhati High Court
(The State ) The National ... vs Shri Akhil Gogoi on 30 September, 2022
Page No.# 1/44
GAHC010066072020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./121/2020
(THE STATE ) THE NATIONAL INVESTIGATION AGENCY,
MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, REPRESENTED
BY THE SUPERINTENDENT OF POLICE, NIA, BRANCH OFFICE, GUWAHATI,
ASSAM.
VERSUS
SHRI AKHIL GOGOI
S/O LATE BOLU GOGOI, VILLAGE LUKURAKHANGAON, SELENGHAT, P.S.
TEOK, DISTRICT JORHAT, ASSAM. (PRESENTLY LODGED IN JUDICIAL
CUSTODY).
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : MR Z KAMAR
Linked Case : Crl.A./130/2020
(THE STATE) THE NATIONAL INVESTIGATION AGENCY
MIN OF HOME AFFAIRS
GOVT OF INDIA
REP. BY THE SUPERINTENDENT OF POLICE
NIA
BRANCH OFFICE
GUWAHATI
ASSAM
Page No.# 2/44
VERSUS
DHIRJYA KONWAR @ DHAIJYA KONWAR @ DHAJYA KONWAR AND 2 ORS.
S/O- NIREN KONWAR
R/O- VILL- RUPAHIBAM
P.S- DIMOU
DIST- SIVASAGAR
ASSAM
2:MANAS KONWAR @ MANASH PRATIM KONWAR @ BHIM
S/O- DEBEN KONWAR @ DEBENDRA NATH KONWAR
R/O- VILL- CHETIA HANDIQUE GAON
P.O- SILASAKU
P.S- SIMALAGURI
SUB DIV- NAZIRA
DIST- SIVASAGAR
ASSAM
3:BITTU SONOWAL @ BITTU SONWAL @ BITU SONOWAL
S/O- ROBIN SONOWAL
R/O- ASHOK NAGAR
2ND APBN
P.S- MAKUM
DIST- TINSUKIA
ASSAM
------------
Advocate for : MR. S C KEYAL
Advocate for : MR. S BORTHAKUR appearing for DHIRJYA KONWAR @
DHAIJYA KONWAR @ DHAJYA KONWAR AND 2 ORS.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
JUDGMENT & ORDER (CAV)
Date of Judgment: 30.09.2022
(A M Bujor Barua, J)
Page No.# 3/44
Heard Mr. D Saikia, learned senior counsel, assisted by Mr. Satyanarayana,
learned Public Prosecutor for the appellants National Investigating Agency (for
short, the NIA). Also heard Mr. DK Mishra, learned senior counsel assisted by Mr.
B Prasad, learned counsel for the respondent Sri Akhil Gogoi (hereinafter
referred to as A1) in Crl. Appeal No.121/2020 and Mr. Z Kamar, learned senior
counsel for the respondents Dhirjya Konwar @ Dhajya Konwar, Manas [email protected]
Manas Pratim Konwar and Bittu Sonowal @ Bittu Sonowal @ Bitu Sonowal
(hereinafter to be referred to as A2, A3 and A4 respectively) in Crl.Appeal
No.130/2020.
2. The respondent A1 in Crl.Appeal No.121/2020 was arrested on 13.12.2019
by the investigating authorities in connection with Chandmari Police Station
Case corresponding to FIR No.166/2019 registered under Sections 120(B)/124-
A/153-A/153-B of the IPC read with Sections 18/39 of the Unlawful Activities
(Prevention) Act, 1967(for short, the UAPA-1967). Subsequently, the Central
Government as per MHA order No.F.No.11011/62/2019/NIA dated 14.12.2019,
in exercise of its power under Section 6(4) of the National Investigation Agency
Act, 2008 (for short, the NIA Act- 2008) formed its opinion and directed the
NIA to investigate the matter and, accordingly, FIR No.RC-13/2019/NIA-GUW
dated 14.12.2019 was registered by the Officer-in-Charge of Police Station NIA,
Guwahati.
3. In course of the investigation, the Special Public Prosecutor filed a report
under Section 43D(2)(b) of the UAPA-1967 seeking extension of custody of the
accused respondent A1 from 90 days up to 180 days for continuation of the
investigation. The application of the Special Public Prosecutor under Section
Page No.# 4/44
43D(2)(b) of the UAPA-1967 was registered as Petition No.492/2020 in the
Court of the learned Special Judge NIA Assam and was given its consideration
by the order dated 16.03.2020.
4. In paragraph 32 of its order dated 16.03.2020, the learned Special Judge
NIA, Assam was of the view that the Court of the Special Judge has to satisfy
with regard to the requirement for further time for completion of the
investigation and also about the need for extending the statutory remand period
of the accused for the purpose of the investigation. In paragraph 33, the
learned Special Judge took note of the report of the Special Public Prosecutor
that the examination of some of the crucial witnesses which surfaced during the
investigation were not complete and the investigating authorities were looking
into the aspect of an alleged conspiracy on the part of the accused persons to
destabilize the part of the country by using the platform of the passing of the
Citizenship Amendment Act. In paragraph 34, the learned Special Judge was of
the considered opinion that the investigating authorities had reasonable and
valid grounds for not been able to complete the investigation within the period
of 90 days and, therefore, had made out the requirement of additional time for
completing the investigation. In paragraph 38, the learned Special Judge took
note of a pronouncement of the Supreme Court in Hitendra Vishnu Thakur Vs.
State of Maharastra reported in (1994) 4 SCC 602 and was of the view that the
Hon'ble Supreme Court while interpreting the pari materia conclusion regarding
extension of remand for additional period of investigation had held that the
report of the learned Public Prosecutor has to be strictly complied and
interpreted. In paragraph 39, the learned Special Judge expressed that it is a
well settled principle that any law which curtails the liberty of the individual,
Page No.# 5/44
specially, at the stage of investigation and or trial, has to be strictly interpreted
and any detention as an under trial should be kept minimum to the extent
possible.
5. Accordingly in paragraph 40 of the judgment dated 16.03.2020 the learned
Special Judge was of the view that the contention of the learned Public
Prosecutor in the report for seeking extension of the remand for further
investigating into the aspect of the alleged link of A1 with the Maoists was
deemed not sufficient in the considered opinion of the court for extending the
remand. Further the apprehension indicated in the report that A1 being an
influential person will influence upon the witnesses and tamper with the
evidence, in the considered view of the learned Special Judge, was not
acceptable on its face value without being supported by other details to be
made available in the report. Accordingly in paragraph 43, it was provided that
even if the prayer of the prosecution for extension of the period for remand was
not accepted, but that would not preclude the investigating authority from
continuing with the investigation and bringing it to a logical conclusion. In
paragraphs 44 and 45 of the judgment, it has been provided that the learned
Special Judge was not convinced that the liberty of the accused A1 at that stage
of the investigation would be incompatible with the interest of effective
investigation of the case. Accordingly the Petition No.492/2020 filed by the
prosecution on 12.03.2020 was rejected.
6. Being aggrieved by the judgment and order dated 16.03.2020 in the
Petition No.490/2020 in Misc.Case No. (NIA) 01/2020, the authorities under the
NIA had preferred Criminal Appeal No.121/2020 under Section 21(1) of the NIA
Page No.# 6/44
Act-2008. When the Criminal Appeal No.121/2020 came up for its consideration
on 17.03.2020, notice was issued and the matter was ordered to be posted for
admission in the first week of April, 2020. On 17.03.2020, the learned senior
counsel appearing for A1 raised a question of maintainability of the appeal
under Section 21(1) of the NIA Act-2008 on the ground that the order impugned
being in the nature of an interlocutory order, no appeal would lie in view of the
provisions of Sections 21(1) & 21(3) of the NIA Act-2008. To substantiate the
stand on the question of non-maintainability of the appeal, reference was made
to a judgment of the Division Bench of this Court in Jai Kishan Sarma and
Another Vs. Union of India reported in 2020 (1) GLT 122, wherein it has been
held that an order extending the detention in custody of an accused under
Section 167 Cr.P.C., read with Section 43D of the UAPA-1967, would be an
interlocutory order and hence no appeal under Section 21(1) of the NIA Act-
2008 would be maintainable.
7. When the appeal again came before the Division Bench on 07.04.2020, the
objection raised by A1 on the question of maintainability of the appeal was
heard. By referring to the provisions of Section 21 of the NIA Act 2008 as well
as the various pronouncements of the Supreme Court rendered in Amarnath Vs.
State of Haryana reported in 1977 4 SCC 137, Madhu Limaye Vs. State of
Maharastra reported in 1977 4 SCC 551, VC Shukla Vs. State though CBI
reported in 1980 Supp.SCC 92, State Vs. NMT Joy Immaculate reported in
(2004) 5 SCC 729, Girish Kumar Suneja Vs. CBI reported in (2017) 14 SCC 809,
Kandhal Sarman Jadeja Vs. State of Gujarat reported in 2012 SCC Online
Guj3104, came to an opinion that an important issue of law has arisen which
requires a more detailed consideration and accordingly formulated the following
Page No.# 7/44
questions of law to be examined as extracted:
(i). Whether order refusing to extend the period of investigation up to 180
days in terms of Section 43-D (2)(b) of the Unlawful Activities (Prevention) Act,
1967 can be construed as interlocutory order? Whether such an order would
have any bearing on the proceedings of the trial itself?
Whether such an order decides the right of one of the party (investigating
agency)?
(ii) Whether the order "refusing" to extend judicial remand from 90 days to
180 days in terms of Section 43-D (2)(b) under the Unlawful Activities
(Prevention) Act, 1967, would have any effect on ultimate decision of the
case/trial?
(iii) Consequently, whether appeal against such an order (impugned order)
would be maintainable under Section 21 of the National Investigating Agency
Act, 2008?
Accordingly the Division Bench placed the matter before Hon'ble the Chief
Justice for constituting a larger Bench to adjudicate the legal issues as framed.
8. As per the questions referred to the larger Bench, one of the questions for
determination would be whether an order refusing to extend the period of
detention of an accused beyond the period of 90 days up to 180 days under
Section 43 D of the UAPA-1967 would be an interlocutory order or such order
would be in the nature of a final order and decide the right of one of the
parties.
Page No.# 8/44
9. Mr. D Saikia, learned senior counsel for the appellant NIA refers to the
provisions of Section 21 of the NIA Act-2008 and contends that an appeal
against any judgment, sentence or order of a Special Court to the High Court
on facts and on law would be maintainable if such judgment, sentence or order
would be not an interlocutory order. As a corollary it is the contention that if the
judgment, sentence or order is an interlocutory order, an appeal would not be
maintainable, whereas if such judgment, sentence or order is not an
interlocutory order, such appeal would be maintainable.
10. Accordingly, the question referred would have to be answered as to
whether the judgment and order dated 16.03.2020 in the Petition No.490/2020
in Misc. Case No. (NIA) 01/2020 is an interlocutory order or it is not.
11. It is taken note of that in respect of the other accused persons A2, A3 and
A4 in NIA Case No.RC-13/2019/NIA/GUW, Petition No.541/2020 was filed by the
appellant NIA seeking extension of the detention in custody, which was refused
by the order dated 04.04.2020 in Misc. Case No. 04/2020. Against the order
dated 04.04.2020, Criminal Appeal No.130/2020 has been preferred by the
appellant, NIA.
12. We have been told that during the pendency of the criminal appeals being
Crl.A No.121/2020 and Crl. A No.130/2020, the investigation in FIR No.RC-
13/2019/NIA-GUW dated 14.12.2019 had been completed and the charge-sheet
had also been submitted in the Court of the learned Special Judge Guwahati
which had been numbered as Special (NIA) Case No.02/2020 in connection with
Page No.# 9/44
NIA Case RC-13/2019/NIA/GUW. At the stage of consideration of charge, A1,
A2, A3 and A4 had been discharged by the order dated 01.07.2021 in Special
(NIA) Case No.02/2020 and against the order of discharge the NIA had
preferred an appeal which is numbered as Crl.Appeal No.121/2021.
13. In the aforesaid circumstance, a submission is made on behalf of A1 that
the present Criminal Appeal No.121/2020 has become infructuous and does not
require any further adjudication. Per contra, it is the submission on behalf of
NIA that as an appeal had been filed against the order dated 01.07.2021
discharging A1, which again under the law has the possibility of either being
allowed or disallowed, it cannot be said with certainty that as because of the
other criminal appeal against the order of discharge the question involved in this
criminal appeal would not require any adjudication on its merit.
14. In the instant case, on being referred to a Larger Bench, a question of law
requires an adjudication as to whether an order refusing an extension of
detention in custody to an accused in a case of investigation by the NIA under
Section 43 D of the UAPA-1967 would be an interlocutory order or it would not
be an interlocutory order. The relevance of the question of law requiring an
adjudication flows from the aspect that if the order refusing an extension of
detention in custody is held to be an interlocutory order, no appeal would be
maintainable against it under Section 21(1) and Section 21(3) of the NIA Act.
But, on the other hand, if the order refusing an extension of detention in
custody is held to be not an interlocutory order, an appeal would be
maintainable.
Page No.# 10/44
15. In the circumstance, without going into the question as to whether the
Criminal Appeal 121/2020 requires an adjudication on its own merit in view of
the subsequent events as indicated above, we are of the view that the question
referred before the Larger Bench as to whether an order refusing an extension
of detention in custody in a case of investigation by the NIA under Section 43 D
of the UAPA-1967 would be an interlocutory order or not would have its
relevance requiring an adjudication, inasmuch as, depending upon the manner
in which the question is answered, the maintainability of an appeal under
Section 21(1) of the NIA Act against an order refusing an extension of detention
in custody would follow.
16. In the circumstance, without going into the other aspects of the reference
made, we proceed in the reference to adjudicate the question, as to whether an
order of refusing an extension of detention in custody of an accused in a case of
investigation by the NIA would be an interlocutory order or it would not be an
interlocutory order.
17. Mr. D Saikia, learned senior counsel for the appellant NIA by referring to
the order dated 16.03.2020 of the learned Special Judge NIA in Misc.
Case(NIA)No.01/2020 arising out of NIA Case No.RC-13/2019/NIA/GUW submits
that the learned Court had arrived at a conclusion that it would not be justified
to extend the detention in custody of the accused A1 beyond the initial statutory
period of 90 days merely on the statement and apprehension of the
investigation that A1 would misuse his liberty to influence witnesses and tamper
with evidences; and that the report of the learned public prosecutor that an
extension of detention beyond the statutory period of 90 days is necessary for
Page No.# 11/44
investigating into the aspect of the alleged links of A1 with the Maoists and the
aspect of a conspiracy on his part, is deemed not sufficient in the opinion of the
learned Court for extending the detention in custody for completing the
investigation; the report of the learned Public Prosecutor that A1 being an
influential person will influence witnesses and tamper with evidence cannot be
accepted on face value when such apprehension is merely in the form of a
statement rather than it being supported by other complete details, cannot be
acceptable reasons for the learned Special Judge to refuse the extension of
detention in custody of the accused persons. It is the submission that as
regards the aspect of the report of the learned Public Prosecutor that an
investigation is necessary into the alleged link of accused A1 with the Maoists
and for the purpose more time is required for completing the investigation and
therefore the detention in custody be extended, the learned Special Judge, NIA
had not given any reason as to why the said aspect was deemed not sufficient
in the considered opinion of the Court. It is the submission of Mr. D Saikia,
learned senior counsel that the said aspect of the matter having not been given
its due consideration, the learned Special Judge by arriving at its conclusion
against the extension of the extension of detention in custody had adversely
affected the investigation in a matter involving national security. Accordingly it is
the submission that the order dated 16.03.2020 refusing the extension of
detention in custody requires a reconsideration on appeal and from such point
of view also the appeal by the appellant NIA would have to be considered to be
maintainable.
18. It is the submission of Mr. D Saikia, learned senior counsel for the NIA,
that the learned Special Judge NIA, by the order dated 16.03.2020 having
Page No.# 12/44
refused to extend the detention in custody of the accused persons had
determined the rights of the parties as regards the extension of the detention
period and, therefore, the order dated 16.03.2020 in Misc.
Case(NIA)No.01/2020 and the order dated 04.04.2020 in
Misc.Case(NIA)No.04/2020 would be a final order in the proceeding.
19. Mr. D Saikia, learned senior counsel for the NIA submits that although the
judgment and orders dated 16.03.2020 & 04.04.2020 refusing the extension of
detention in custody of the accused persons are incorrect inasmuch as, a vital
aspect of the matter regarding the links of the accused persons with some of
the declared unlawful groups having not been given its due consideration, if
neither the remedy under Section 21(1) of the NIA Act-2008 providing for an
appeal, nor a revision under Section 482 of the Code of Criminal Procedure (for
short, Cr.P.C.), would be made applicable, the investigation by the NIA would
remain incomplete and thereby give an undue advantage to the accused, which
may not be in the interest of national security. In the circumstance, it is the
submission of the learned senior counsel that the right of the investigation to
have the accused in custody is affected.
20. It is the submission of Mr. D Saikia, learned senior counsel for the NIA that
if an order of extension of detention in custody is allowed and the accused
persons remain in custody, they would again have to be produced before the
Court for a further consideration as regards as to whether the detention in
custody should be extended or refused and, therefore, such order allowing an
extension would be an interlocutory order. But on the other hand, by an order
refusing an extension of detention in custody there would be no further
Page No.# 13/44
requirement to produce the accused before the Court for consideration as
regards the extension and, therefore, the refusal of extension itself is a final
order. The learned senior counsel submits that the grant of an extension of
detention in custody and refusal thereof are distinguishable, where, a grant
implies continuity, but a refusal brings an end to the proceeding.
21. Mr. D Saikia learned senior counsel for the appellant NIA relies upon the
proposition laid down by the Supreme Court in Central Bureau of Investigation,
Special Investigation Cell-I, New Delhi Vs. Anupam J Kulkarni reported in (1992)
3 SCC 141, wherein in paragraphs 11 and 13 it has been held that even if an
accused is later on found to be involved in a more serious offence in the same
case, he cannot be given the custody of the police after expiry of the initial 15
days, but at the same time, if the involvement in the other offence is connected
in a different case, the Magistrate can under Section 167(2) of the Cr.P.C.,
remand him to such custody during the first period of 15 days of the
investigation.
Mr. D Saikia, learned senior counsel also refers to the proposition of the
Supreme Court in Uday Mohanlal Acharya Vs. State of Maharastra reported in
(2001) 5 SCC 453, wherein in paragraph 13, it has been held that on the expiry
of the period of 90 days or 60 days, as the case may be, an indefeasible right
accrues in favour of the accused for being released on bail on account of default
by the investigating agency in completing the investigation within the period
prescribed.
22. Mr. D Saikia, learned senior counsel for the appellant NIA also relies upon
Page No.# 14/44
the pronouncement of the Supreme Court in Joy Immaculate, (supra), wherein
in paragraph 8 the expression 'interlocutory order' has been discussed and the
conclusion arrived that the test would be that if the objection of the accused
succeeded, the proceeding could have ended, but not vice versa and the order
can be said to be a final order only if, in either event, the action will be
determined.
23. Reference is also made by Mr. D Saikia, learned senior counsel to the
pronouncement in Kandhalal Sarman (supra) wherein it has been held that an
order of refusal of an extension of detention in custody is not an interlocutory
but a final order.
24. Reference is also made to the proposition laid down by the Supreme Court
in S Kuppuswami Vs. R reported in AIR 1949 FC 1, wherein in paragraph 3 it
had been held that if the decision given in one way finally dispose of the matter
in dispute, it would be a final order and on the other hand, if it allows the action
to go on, it is not final but interlocutory.
25. Mr. DK Mishra learned senior counsel for the accused A1, per contra, raises
the contention that judicial custody is not a custody of the appellant NIA as per
Section 3 of the Prisoners' Act and further that the appellant NIA cannot claim
that they have a right to have the custody of the accused. Accordingly, it is the
submission that as the NIA does not have a right to have the accused A1 in
custody, therefore, the learned Special Judge by refusing the prayer of the NIA
for extension of detention in custody had not finally decided any right of the
Page No.# 15/44
appellant NIA. As no right of the appellant NIA had been finally decided
therefore, the order impugned by which the extension was refused is an
interlocutory order and therefore under Section 21(1) of the NIA Act no appeal
would be maintainable.
26. By referring to the provisions of 167(5) of the Cr.P.C., read with the proviso
to Section 43 D(2)(b) of the UAPA-1967, it is the submission of Mr. DK Mishra,
learned senior counsel that the provisions thereof, merely refers to the
maximum period of custody of an accused and it has nothing to do with the
stage or the requirement of the investigation.
27. It is also the submission of Mr. DK Mishra, learned senior counsel that
unless an order culminates in a discharge, conviction or acquittal of an accused,
it cannot be said to be a final order and it being converse to a final order, such
order would be an interlocutory order. It is the further submission that by the
impugned order of refusal of extension of detention in custody dated
16.03.2020 the connected GR Case had not come to an end, and, therefore, it
would be an interlocutory order. Mr. DK Mishra, draws a parallel to an order
refusing to frame charges, which according to the learned senior counsel would
be a final order, but if the charges are framed the proceedings would continue
and, therefore, it would be an interlocutory order.
28. Mr. DK Mishra, learned senior counsel refers to the pronouncement of the
Supreme Court in Amarnath and others Vs. State of Haryana and Others
reported in (1977) 4 SCC 137, wherein in paragraph 6 it has been held that any
Page No.# 16/44
order which do not decide or touch the important liabilities of the parties or
which substantially affects the rights of the accused, or decide certain rights of
the parties, cannot be said to be an interlocutory order so as to bar a revision to
the High Court against such order.
Reliance is also placed in the pronouncement of the Supreme Court in
Madhu Limaye (supra), wherein in paragraph 13 it has been held that the
expression 'interlocutory order' has been understood and taken to mean as a
converse of the term 'final order', and by referring to Halsbury's Laws of England
it was accepted that a judgment or order may be final for one purpose and
interlocutory for another or final as to part and interlocutory as to another part
and that in general a judgment or order which determines the principal matter
in question is termed 'final'.
The learned senior counsel also seeks to explain the proposition in
Kuppuswami (supra) that the circumstance in which the said proposition was
laid is not applicable to the present case.
Mr. DK Mishra, learned senior counsel also refers to the proposition laid
down in Usmanbhai Dawoodbhai Menon & Ors. Vs. State Of Gujarat reported in
(1988) 2 SCC 271, wherein paragraph 24, it has been held that a final order has
to be interpreted in contra-distinction to an interlocutory order and that the test
for determining the finality of an order is whether the judgment or order finally
disposed of the rights of the parties.
29. Mr. DK Mishra, learned senior counsel refers to the proposition in V.C.
Shukla Vs. State through C.B.I. reported in 1980 Supp SCC 92, wherein:
(i). In paragraph 7, it is provided by reiterating even at the risk of repetition
Page No.# 17/44
that although the term 'interlocutory order' used in the Cr.P.C., has to be given a
very liberal construction in favour of the accused in order to ensure complete
fairness of the trial, but the same, in the opinion of the court cannot be
applicable under the Special Courts Act which was meant to cover only specified
number of crimes and criminals and the objective to be attained was quickest
despatch and speediest disposal. The relevant paragraph is extracted as below:
"7. We might reiterate here even at the risk. of repetition that the term
"interlocutory order" used in the Code of Criminal Procedure has to be given a very
liberal construction in favour of the accused in order to ensure complete fairness of the
trial because the bar contained in Section 397(3) of the Code would apply to a variety
of cases coming up before the courts not only being offences under the Penal Code
but under numerous Acts................"
"......................The same, however, in our opinion, could not be said of the Special
Courts Act which was meant to cover only specified number of crimes and criminals and
the objective attained was quickest despatch and speediest disposal."
(ii). In paragraph 9, it is provided that Section 11 of the Special Courts Act
starts with a non-obstante clause which completely excludes the application of
the provisions of the Cr.P.C., and therefore, the decisions rendered by the
Supreme Court in interpreting the expression 'interlocutory order' under Section
397(2) of the Cr.P.C., would have no application whatsoever, while considering
the scope and ambit of Section 11. The relevant paragraph is extracted as
below:
"9. This brings as to the discussion of the main preliminary objection taken by the
Solicitor-General. The Solicitor-General submitted that Section 11, which is extracted
below starts with a non obstante clause which completely excludes the application of
the provisions of the Code of Criminal Procedure and therefore the decisions of this
Court rendered on an interpretation of Section 397(2) of the Code would have no
application whatsoever in considering the scope and ambit of Section 11."
(iii). In paragraph 24, it has been held that the essential attribute of an
Page No.# 18/44
interlocutory order is that it merely decides some point or matter essential to
the progress of the suit or collateral to the issue sought, but not a final decision
or judgment on the matter in issue. An intermediate order is one which is made
between the commencement of an action and the entry of the judgment. By
referring to Madhu Limaye (supra), it is clarified that an order framing charge is
not an interlocutory order, but an intermediate order as defined in Vol.49 page
35 of Corpus Juris Secondum. Therefore, framing of charge being an
intermediate order falls within the ordinary and natural meaning of the term
interlocutory order as used in Section 11(1) of Special Courts Act. It has further
been concluded that an interlocutory order is one which only decides a
particular aspect or a particular issue or a particular matter in a suit or trial, but
which does not however conclude the trial at all. It was held that 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 without having resort to the Cr.P.C. or any other
statute. The relevant paragraph is extracted as below:
"24. To sum up, the essential attribute of an interlocutory order is that it merely
decides some point or matter essential to the progress of the suit or collateral to the
issues sought but not a final decision or judgment on the matter in issue. An
intermediate order is one which is made between the commencement of an action and
the entry of the judgment. Untwalia, J. in the case of Madhu Limaye v. State of
Maharashtra [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : (1978) 1 SCR 749] clearly meant
to convey that an order framing charge is not an interlocutory order but is an
intermediate order as defined in the passage, extracted above, in CORPUS JURIS
SECUNDUM, Vol. 60. We find ourselves in complete agreement with the observations made
in CORPUS JURIS SECUNDUM. It is obvious that an order framing of the charge being an
intermediate order falls squarely within the ordinary and natural meaning of the term
"interlocutory order" as used in Section 11(1) of the Act. WHARTON'S LAW LEXICON (14th
Edn., p. 529) defines interlocutory order thus:
"An interlocutory order or judgment is one made or given during the progress of an
action, but which does not finally dispose of the rights of the parties."
Thus, summing up the natural and logical meaning of an interlocutory order, the
conclusion is inescapable that an order which does not terminate the proceedings or
Page No.# 19/44
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."
(iv). In paragraph 30, the Supreme Court referred to the decision in
Soloman Vs. Warner reported in (1885) 14 QBD 627 wherein the test to judge
whether an order was interlocutory or final had been laid down. The test
provided in Soloman Vs. Warner is that if the decision, if given in one way will
finally dispose of the matter in dispute, but if given in the other, will allow the
action to go on, then it would not be final but interlocutory. While examining the
said proposition by Lord Esher, in Solomon Vs. Warner, Kania CJ, in Kuppuswami
(supra) observed that an order is final if it finally disposes the rights of the
parties, but in the case at hand in Kuppuswami (supra) the orders under appeal
do not finally dispose of those rights, but leave them to be determined by the
Courts in the ordinary way. By referring to the judgment of the Privy Council in
Ramchand Manjimal Vs. Goverdhandas Vishindas , reported in (1920) 47 IA 124,
it had been held that the test of finality was whether the order finally disposes
of the right of the parties and that the order, in question, would not be a final
order if the rights of the parties were left to be determined by the Courts in the
ordinary way. It was further held that the term 'judgment' itself indicates a
judicial decision given on the merits of the dispute brought before the Court and
in a criminal case, it cannot cover a preliminary or interlocutory order. The
relevant paragraph is extracted as below:
"30. After referring to a number of decisions the learned Chief Justice observed as
Page No.# 20/44
follows:
The effect of those and other judgments in that an order is final if it finally disposes
of the rights of the parties. The orders now under appeal do not finally dispose of those
rights, but leave them to be determined by the courts in the ordinary way......."
".......To the same effect was a decision of the Privy Council in Ramchand Manjimal
case where after examining the decisions of the English Court, it was held that the test
of finality was whether the order finally disposes of the rights of the parties and held
that the order in question was not a final order because the rights of the parties were
left to be determined by the courts in the ordinary way. ......."
....."In our opinion, the term 'judgment' itself indicates a judicial decision given on the
merits of the dispute brought before the court. In a criminal case it cannot cover a
preliminary or interlocutory order."
(v). In paragraph 31 it has been held by referring to the decision in Mohd.
Amin Bros. Vs. Dominion of India, reported in (1949) XI FCR 842 that the
Supreme Court in Kuppuswami (supra) had settled the issue and Mukherjea J,
had observed that the expression 'final order' has been used in contradistinction
to what is known as interlocutory order and the test of determining the finality
is whether the judgment or order had finally disposed of the rights of the
parties. The relevant paragraph is extracted as below:
"31. This case was followed in the case of Mohd. Amin Bros. v. Dominion of
India [AIR 1950 FC 77, 78, 79 : (1949) XI FCR 842 : 1950 SCJ 139] where it was held
that so far as this Court is concerned the principles laid downin Kuppuswami case [1947
FCR 180 : AIR 1949 FC 1 : 49 Cri LJ 625] settled the law. In this connection, in the
aforesaid case, Mukherjea, J., speaking for the court observed as follows:
"The expression 'final order' has been used in contradistinction to what is known as
'interlocutory order' and the essential test to distinguish the one from the other has
been discussed and formulated in several cases decided by the Judicial Committee. All
the relevant authorities bearing on the question have been reviewed by this Court in
their recent pronouncement in S. Kuppuswami Rao v. King [1947 FCR 180 : AIR 1949
FC 1 : 49 Cri LJ 625] and the law on point, so far as this Court is concerned, seems to
be well settled. In full agreement with the decisions of the Judicial Committee
in Ramchand Manjimal v. Goverdhandas Vishandas [Ramchand
Manjimal v. Goverdhandas Vishindas, AIR 1920 PC 86 : (1920) 47 IA 124 : 22 Bom LR
606 : 39 MLJ 27] and Abdul Rahman v. D.K. Cassim and Sons [AIR 1933 PC 58 : (1933)
60 IA 76] and the authorities of the English courts upon which these pronouncements
Page No.# 21/44
were based, it has been held by this Court that the test for determining the finality of an
order is, whether the judgment or order finally disposed of the rights of the parties."
Thus, the Federal Court in its decision seems to have accepted two principles,
namely:
"(1) that a final order has to be interpreted in contradistinction to an interlocutory
order; and
(2) that the test for determining the finality of an order is whether the judgment or
order finally disposed of the rights of the parties."
(vi) In paragraph 35, it has been provided that the order framing of the
charges is purely an interlocutory order as it does not terminate the
proceedings, but the trial goes on until it culminates in acquittal or conviction. It
further provided that if the Special Court would have refused to frame charges
and discharged the accused the proceedings would have terminated, but that is
only one side of the picture. The other side of the picture was that if the Special
Court refused to discharge the accused and framed charges against him then
the order would be interlocutory because the trial would still be alive. The
relevant paragraph is extracted as below:
"35. Applying these tests to the order impugned we find that the order framing of the
charges is purely an interlocutory order as it does not terminate the proceedings but the trial
goes on until it culminates in acquittal or conviction. It is true that if the Special Court would
have refused to frame charges and discharged the accused, the proceedings would have
terminated but that is only one side of the picture. The other side of the picture is that if the
Special Court refused to discharge the accused and framed charges against him, then the
order would be interlocutory because the trial would still be alive.....
"..... Furthermore, as already indicated, it is impossible to spell out the concept of an
interlocutory order unless it is understood in contradistinction to or in contrast with a final
order. This was held in a number of cases referred to, including Madhu Limaye case......"
(vii). In paragraph 45, it has been held that although the natural meaning of
the expression 'interlocutory order' is an order which neither terminated the
Page No.# 22/44
proceedings nor finally decided the rights of the parties, but taking into
consideration the non-obstante clause in Section 11 of the Special Courts Act,
the position is that the provisions of the Cr.P.C., are expressly excluded by the
non-obstante clause and therefore, Section 397(2) of the Cr.P.C., cannot be
called into aid to hold that the order impugned therein passed by the Special
Judge under the Special Courts Act 1979 directing framing of charge under
Section 120(B) of the IPC read with Sections 5(1)(d), 5(2) of the Prevention of
Corruption Act 1947 (for short, the Act of 1947), is not an interlocutory order.
The relevant paragraph is extracted as below:
"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."
(viii) In paragraph 47, it has been held that giving the expression
'interlocutory order' its natural meaning according to the test laid down in
Kuppuswami (supra) and applying the non-obstante clause, the expression
'interlocutory order' appearing in Section 11(1) of the Special Courts Act has
been used in the natural sense and not in a special or wider sense as used in
Section 397(2) of the Cr.P.C. The natural sense, as provided in paragraph 24, is
that 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
Page No.# 23/44
order, which in other words, in the ordinary sense of the term, 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 conclude the trial at all. The relevant
paragraph is extracted as below:
"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."
30. By referring to the aforesaid submissions in VC Shukla (supra) Mr. DK
Mishra, learned senior counsel for the respondent A1 submits that:
(i). The order dated 16.03.2020, by which remand was refused to A1, is an
interlocutory order by taking into consideration the natural meaning of the
expression 'interlocutory order', inasmuch as, it did not terminate the
proceedings or finally decided the rights of the parties. According to the learned
senior counsel, the proceedings against accused A1 would be terminated either
upon a discharge or the final conviction or acquittal in the proceedings against
him.
(ii). The provisions of Section 21(1) of the NIA Act-2008 is pari materia with
that of Section 11 of the Special Courts Act and, therefore, the interpretation
given to the expression 'interlocutory order' in VC Shukla (supra) would govern
Section 21(1) also and therefore, not the special or wider sense used in Section
397(2) of the Cr.P.C.
Page No.# 24/44
31. It is also the submission of Mr. DK Mishra, learned senior counsel that the
order impugned dated 16.03.2020 as to whether it is an interlocutory order or a
final order would have to be examined and understood from the propositions of
the Supreme Court in VC Shukla (supra) and Usmanbhai Dawoodbhai (supra)
and not as per the propositions in Joy Immaculate (supra) and Madhu Limaye
(supra). According to the learned senior counsel, the propositions in Joy
Immaculate (supra) and Madhu Limaye (supra) are on an interpretation of the
Cr.P.C., whereas the propositions in VC Shukla (supra) and Usmanbhai
Dawoodbhai (supra) are in respect of the Special Acts being the Special Courts
Act and the Terrorist and Disruptive Activities (Prevention) Act 1987.
Accordingly, it is the submission that the Special Acts providing for a non-
obstante clause, any interpretation of the expression 'interlocutory order' in
relation to the provisions in Cr.P.C. would be inapplicable in respect of an
interpretation of the same expression 'interlocutory order' under the Special
Acts.
32. Mr. Z Kamar, learned senior counsel for the accused A2, A3 and A4, in the
background of the submissions of Mr. DK Mishra, learned senior counsel, seeks
to give a meaning to the expression 'proceeding'. As the proposition already
referred leads to a situation, where if the proceedings come to an end pursuant
to a given order, such order would be a final order, whereas, on the other hand,
if the proceedings do not come to an end pursuant to an order, such order
would be an interlocutory order, it is the submission of learned senior counsel
Mr. Z Kamar, that for an effective adjudication on the referred question, the
meaning of the expression 'proceeding' would have to be appropriately
examined.
Page No.# 25/44
33. In order to answer the question under reference as to whether an order
refusing the extension of detention in custody under Section 43 D of the UAPA-
1967 would be appealable under Section 21(1) of the NIA Act, as per the
contentions and submissions of the learned counsel for the parties, two relevant
questions for determination would be:
(i). What would be the meaning of the expression 'interlocutory order' in the
context of NIA Act 2008 and UAPA-1967?
(ii). What would be the meaning of the expression 'proceeding' in the
context of an order refusing extension of detention in custody in terms of
Section 43D of the UAPA-1967?
34. Before examining the question as to what would be the meaning of
'interlocutory order' in the context of NIA Act-2008 and UAPA-1967, we take
note that the expression 'interlocutory order' had been examined in many of the
matters including that of the pronouncements in Amarnath (supra), Madhu
Limaye (supra) and Joy Immaculate (supra). But in all the aforesaid propositions
the expression 'interlocutory order' was examined in the context of Section
397(2) of the Cr.P.C., wherein the powers of revision were not made applicable
in relation to any interlocutory order passed in any appeal, enquiry, trial or other
proceedings. But in paragraph 45 of its pronouncement in VC Shukla (supra), by
referring to the provisions of Section 11(1) of the Special Courts Act which
begins with a non-obstante clause, it has been provided that by applying the
non-obstante clause the position is that the provisions of the Cr.P.C., are
expressly excluded and, therefore, Section 397(2) of the Cr.P.C., cannot be
called into aid in order to hold that the order impugned is not an interlocutory
Page No.# 26/44
order. In view of such provisions in paragraph 45 of VC Shukla (supra) we also
have to understand that the meaning given to the expression 'interlocutory
order' in the context of Section 397(2) of the Cr.P.C., cannot be brought into
effect to also give a meaning to the expression 'interlocutory order' in relation to
Section 21(1) of the NIA Act-2008, which also begins with the same non-
obstante clause 'not withstanding anything contained in the Code'.
35. In paragraph 24 of its pronouncement in VC Shukla (supra), the Supreme
Court provided that an interlocutory order is one which only decides a particular
aspect or a particular issue or a particular matter in a proceeding, suit, or a trial,
but which does not, however, conclude the trial at all. Accordingly, it has to be
understood that in case of a proceeding other than a suit or a trial if an order
decides a particular aspect or a particular issue or a particular matter in a
proceeding such order would be an interlocutory order. As a corollary, it has to
be understood that if an order decides the entire aspect or the issue or the
matter involved in a proceeding it would not be an interlocutory order, but a
final order for such proceeding.
36. For the purpose, to understand, as to whether the order impugned dated
16.03.2020 refusing an extension of detention in custody to the accused A1 and
the order dated 04.04.2020 also refusing an extension of detention in custody to
accused A2, A3 and A4 would be an interlocutory order or a final order, we have
to understand as to what is the meaning and scope of the expression
'proceeding' and whether the proceeding in which the Special NIA Court had
considered whether to grant extension of detention in custody to the aforesaid
accused persons or not to grant extension, were itself a proceeding or it was a
Page No.# 27/44
part of a proceeding in a larger context.
37. Mr. DK Mishra, learned senior counsel for A1 had made a submission that
from the stage of lodging of an FIR, carrying forward the process of
investigation, thereafter to file the charge sheet, framing of charges or
discharging the accused, conducting the trial and the conclusion thereof would
be a part of one proceeding. By adverting to such submission, it is the further
submission of the learned senior counsel that the process of examining the
aspect as to whether an extension of detention in custody is required to be
allowed or refused in case of the accused persons is a part of the proceeding at
the stage of the investigation itself and therefore, any order refusing the
extension of detention in custody of the accused persons would not bring the
proceeding itself to an end, inasmuch as, the proceeding would come to an end
only at the conclusion of the trial, and accordingly, the order refusing the
extension of detention in custody would be an interlocutory order.
38. In the context of the aforesaid submission of the learned senior counsel,
we have to examine as to whether the meaning and scope of the expression
'proceeding' would render it acceptable that the various stages from the lodging
of the FIR up to the conclusion of the trial would be one proceeding or whether
the meaning and scope of 'proceeding' would allow it to be fragmented so as to
render the various individual stages from the stage of lodging of the FIR up to
the conclusion of the trial to be proceedings of its own.
39. In Babu Lal Vs. Hazari Lal Kishori Lal & Ors. reported in (1982) 5 SCC 525,
Page No.# 28/44
the Supreme Court while examining the word 'proceeding' in Section 22 of the
Specific Relief Act 1963 arrived at its proposition that the term 'proceeding' is a
very comprehensive term and generally speaking means a prescribed course of
action for enforcing a legal right and it is not a technical expression with a
definite meaning attached to it, but one the ambit of whose meaning will be
governed by the statute concerned. In paragraph 17 of Babu Lal (supra), it has
been held as extracted:
17. The word "proceeding" is not defined in the Act. Shorter Oxford
Dictionary defines it as "carrying on of an action at law, a legal action or process, any
act done by authority of a court of law; any step taken in a cause by either party". The
term "proceeding" is a very comprehensive term and generally speaking means a
prescribed course of action for enforcing a legal right. It is not a technical expression
with a definite meaning attached to it, but one the ambit of whose meaning will be
governed by the statute. It indicates a prescribed mode in which judicial business is
conducted.
40. The meaning given by the Supreme Court to the term 'proceeding' in Babu
Lal (supra) is a general meaning given, irrespective of the statute which was
under consideration of the Supreme Court where the word 'proceeding' may
have appeared. The meaning given that it is a very comprehensive term gives
the indication that the concept of proceeding is of a larger content or scope,
which is wide ranging and includes nearly all elements or aspects of something.
Secondly, the meaning given is that it means a prescribed course of action for
enforcing a legal right.
41. From the meaning given to the expression 'proceeding' in Babu Lal (supra),
it has to be understood that the concept 'proceeding' is of a large content or
scope and includes nearly all elements or aspects of something. One such
aspect may be to look at it from the point of view that from the stage of lodging
Page No.# 29/44
of the FIR, carried through the investigation stage, thereafter filing a charge
sheet, framing of charges, resulting in a trial, and conclusion thereof, would be
one proceeding. But going by the concept 'proceeding', if that is one way of
looking at the concept, it cannot be said that it would be the only way to look at
it to the exclusion of any other way of looking at it.
42. Going by the other meaning of the concept 'proceeding' as provided in
paragraph 17 of Babu Lal (supra), 'proceeding' also means a prescribed course
of action for enforcing a legal right. To understand the concept, if a course is
adopted by any person for enforcing a legal right, such course so adopted would
also be a proceeding of its own.
43. In the instant case, the appellant NIA had filed petition No. 492/2020
under Section 43 D(2)(b) of the UAPA-1967 in respect of accused A1 and
petition No.541/2020 also under the same Section in respect of accused A2, A3
and A4 for extension of the period of investigation and detention in custody
leading to the registration of Misc.Case(NIA) No.01/2020 and Misc.Case(NIA)
No.04/2020, respectively.
44. According to the appellant NIA, the petitions for extension of the period of
investigation and detention in custody were in furtherance of their legal right to
conduct the investigation in the required manner as provided under the law. On
the other hand, the accused persons opposed such petition claiming their
respective legal rights to be not further detained in custody. Going by the
respective claims of the appellant and the accused persons, both the parties by
Page No.# 30/44
means of the petition No. 492/2020 and petition No.541/2020 leading to
Misc.Case(NIA) No.01/2020 and Misc.Case(NIA) No.04/2020, respectively,
adopted a prescribed course of action for enforcing a legal right.
45. Going by the meaning of the expression 'proceeding' in Babu Lal (supra), it
can be accepted that the respective parties having adopted a prescribed course
of action for enforcing a legal right, the petition No. 492/2020 and petition
No.541/2020 leading to Misc.Case(NIA) No.01/2020 and Misc.Case(NIA)
No.04/2020, respectively were itself proceedings. In paragraph 24 of the
pronouncement in VC Shukla (supra), the provision that 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 also makes it discernible that the Supreme
Court distinguishes between a proceeding, a suit or a trial and, therefore, it
cannot be that only at the conclusion of a trial would make it to be a
proceeding.
46. In order to understand as to whether the orders impugned dated
16.03.2020 and 04.04.2020 refusing an extension of detention in custody are
interlocutory orders, we examine the concept 'interlocutory order' as appearing
in Section 21(1) of the NIA Act of 2008. In doing so, we also take note that the
meaning given to the expression 'interlocutory order' in the context of Section
397(2) of the Cr.P.C., in Amarnath (supra), Madhu Limaye (supra) and Joy
Immaculate (supra) cannot be the basis to understand the meaning of the
expression 'interlocutory order' in Section 21(1) of the NIA Act-2008, in view of
the provisions of paragraph 45 in VC Shukla (supra), inasmuch as, Section 21(1)
also begins with a non-obstante clause.
Page No.# 31/44
47. On the concept of as to whether a judgment or an order is final or not, had
been given a consideration by the Constitution Bench of the Supreme Court in
Mohan Lal Magan Lal Thacker Vs. State of Gujarat , reported in AIR 1968 SC
733, wherein in paragraph 4, it is provided that on the question as to whether a
judgment or an order is final or not has been a subject matter of a number of
decisions, but yet no single general test has been laid down. The reason
probably is that a judgment or an order may be final for one purpose, and
interlocutory for another or final and interlocutory in parts. Accordingly, the
meaning of the words 'final' and 'interlocutory' has to be considered separately
in relation to the particular purpose for which it is required, but however,
generally speaking, a judgment or order which determines the principal matter
in question is termed 'final'. By referring to certain English decisions, one or
other of the following four tests were applied to understand as to whether a
judgment or an order is final. One test was whether upon an application being
made, a decision in favour of either of the parties would determine the main
dispute and another test was whether if the order in question is reversed would
the action have to go on. Paragraph 4 in Mohan Lal (supra) is extracted as
below:
4. The question as to whether a judgment or an order is final or not has been
the subject-matter of a number of decisions; yet no single general test for finality has
so far been laid down. The reason probably is that a judgment or order may be final
for one purpose and interlocutory for another or final as to part and interlocutory as to
part. 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 determines the principal
matter in question is termed final. It may be final although it directs enquiries or is
made on an interlocutory application or reserves liberty to apply [Halsbury's Laws of
England (3rd Edn.) Vol. 22, 742-43] . In some of the English decisions where this
question arose, one or the other of the following four tests was applied.
1. Was the order made upon an application such that a decision in favour of either
Page No.# 32/44
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?
48. The proposition laid down in Mohal Lal (supra) was considered by the
Supreme Court in VC Shukla (supra) wherein in paragraph 41, the proposition
that an order may be final for one purpose and interlocutory for another was
taken note of. But without expressing any view on the applicability of the said
proposition in the matter in VC Shukla (supra), the conclusion arrived was that
the decision in Mohal Lal (supra) as to whether the order passed by the High
Court in revision in respect of the complaint for the remaining offence under
Section 205 read with Section 114 of the Cr.P.C., as was applicable at that
relevant point of time, was a final order within the meaning of the certificate
given under Article 134(1)(c) was not applicable in the matter of VC Shukla
(supra).
49. We have already noted that the Constitution Bench in Mohal Lal (supra)
had proceeded to examine the concept final order with the preceding expression
'generally speaking', meaning thereby that the view expressed was not in the
context of the particular statutory provision, but would have a general
application.
50. In paragraph 7 in VC Shukla (supra) it has been reiterated that the term
'interlocutory order' used in the Cr.P.C., has to be given a very liberal
construction in favour of the accused in order to ensure complete fairness of the
Page No.# 33/44
trial, but the same however, cannot be said of the Special Courts Act which was
meant to cover only specified numbers of crimes and criminals and the objective
to be attained was quickest despatch and speediest disposal. The provision of
paragraph 17 in VC Shukla (supra), envisages a more restrictive meaning to the
term 'interlocutory order' in order to avoid revisions at the interlocutory stage so
as to adversely affect the objective of quickest despatch and speediest disposal.
To understand the proposition, reference was also made in VC Shukla (supra) to
the decision of the Supreme Court in In re The Special Courts Bill 197810,
reported in (1979) 1 SCC 380, wherein it has been provided that speedy
termination of prosecutions under the Special Courts Bill was the heart and soul
of the Bill.
51. Accordingly, it was the view of the Supreme Court in VC Shukla (supra) that
the meaning given to the term interlocutory order under the Cr.P.C., which was a
very liberal construction in favour of the accused, would not be applicable to the
term interlocutory order under the Special Courts Act where the essence is of a
speedy disposal and bringing an end to the trial. In other words, it has to be
understood that the proposition laid down was that in a matter of a trial under
the Special Courts Act, the accused should not be given the indulgence to
approach the higher Courts in revision by giving a liberal construction to the bar,
as had been done under Section 397(2) of the Cr.P.C.
52. In paragraph 24 of the pronouncement of the Supreme Court in VC Shukla
(supra) it has been laid down that the essential attribute of an interlocutory
order is that it merely decides some point or matter essential to the progress of
Page No.# 34/44
the suit or collateral to the issue sought, but not a final decision or judgment on
the matter in issue. Accordingly, it was held that framing of the charge is an
intermediate order falling squarely within the ordinary and natural meaning of
the term interlocutory order. Again reference has been made to the Wharton's
Law Lexicon 14th Edition P. 529 which defines interlocutory order to be one
made or given during the progress of an action, but which does not finally
dispose of the rights of the parties. The definition of interlocutory order in
Wharton's Law is extracted as below:
"An interlocutory order or judgment is one made or given during the progress of
an action, but which does not finally dispose of the rights of the parties."
53. In paragraph 24 of VC Shukla (supra) it has been summed up that the
natural and logical meaning of an interlocutory order is to be an order which
does not terminate the proceedings or finally decides the rights of the parties
and in other words, in ordinary sense of the term, it decides a particular aspect
or a particular issue or a particular matter in a proceeding or suit or trial.
54. In paragraph 30 of VC Shukla (supra), the Supreme Court by referring to
the pronouncement in Ram Chand Manjimal Vs. Goverdhandas Vishindas
reported in (1920) 47 IA 124 held that the test of finality was whether the order
finally disposes the rights of the parties and if the rights of the parties were left
to be determined by the Courts in the ordinary way, such order would not be a
final order.
55. In paragraph 31 of VC Shukla (supra), the Supreme Court by referring to
Page No.# 35/44
the principles laid down in Kuppuswami (supra), that the expression 'final order'
has been used in contradistinction to what is known as 'interlocutory order' and
that the test for determining the finality of an order is whether the judgment or
order had finally disposed the rights of the parties, arrived at its conclusion that
two principles would govern the aspect which are:
(1) that a final order has to be interpreted in contradistinction to an interlocutory
order; and
(2) that the test for determining the finality of an order is whether the judgment
or order finally disposed of the rights of the parties.
56. In paragraph 33 of VC Shukla, the Supreme Court by referring to
Kuppuswamy (supra) and Mohan Lal (supra) was of the view that generally
speaking a judgment or order which determines the principal matter in question
is termed final.
57. In paragraph 47 in VC Shukla (supra) by summing up the entire position
arrived at an inescapable conclusion that giving the expression 'interlocutory
order' its natural meaning and applying the non-obstante clause, in the Special
Courts Act, the expression 'interlocutory order' in Section 11(1) of the Act would
have to be used in the natural sense and not in a special or wider sense as used
in Section 397(2) of the Cr.P.C.
58. The natural meaning of the expression 'interlocutory order' as provided in
paragraph 24 of the judgment in VC Shukla (supra) is that an interlocutory order
or judgment is one made or given during the progress of an action, but does
Page No.# 36/44
not finally dispose of the rights of the parties and 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 proceeding.
59. Mr. DK Mishra learned senior counsel for the accused A1 also relied upon
the judgment of the Federal Court in Kuppuswami (supra), wherein it was
provided as:
(i). It was argued on behalf of the appellant Kuppuswami that the
words judgment or final order should be given a wider interpretation so as
to enable the Court to entertain that appeal, but the Federal Court was of
the view that such contention was unacceptable.
(ii). In the final paragraph of the judgment in Kuppuswami it was
provided that the order under appeal in the said matter is not a judgment
but an interlocutory order made on a preliminary objection in course of a
criminal trial and as the order was not on a point, which decided either
way, would have terminated the matter before the Court finally, therefore,
it was not a final order.
60. In our view, the aforesaid submission of the learned senior counsel based
upon the aforesaid proposition in Kuppuswami (supra) would be inapplicable to
decide the question as to whether the orders dated 16.03.2020 and 04.04.2020
by which an extension of detention in custody was refused in respect of the
accused persons, inasmuch as, the said proposition was in respect of a criminal
trial where certain preliminary objections had been raised, but in the instant
case, the concept of interlocutory order has to be examined from the context as
Page No.# 37/44
to whether by refusing an extension of detention in custody the proceedings
that were before the Court came to an end and whether the rights of the parties
raised in such proceedings were finally decided.
61. To answer the question as to whether the two orders dated 16.03.2020
and 04.04.2020, by which an extension of detention in custody in respect of the
accused A1 and accused A2, A3 and A4 respectively, were refused, would be an
interlocutory order or a final order, we refer to the propositions laid down in VC
Shukla (supra) as to what would constitute an interlocutory order or a final
order in case of a proceeding under a statute where the restrictions in a
provision for an appeal in respect of an interlocutory order begins with a non-
obstante clause.
62. The propositions laid down in VC Shukla (supra) as to what would
constitute an 'interlocutory order' or a 'final order' in respect of a provision for
an appeal beginning with a non-obstante clause, broadly speaking, as discussed
and referred hereinabove, are:
(i) Whether the judgment or order under consideration determines the
rights of the parties in the proceeding and;
(ii) Whether by such judgment or order the proceedings in which the
judgment or order was passed came to an end.
63. The aforesaid two propositions culled out from the judgment in VC Shukla
(supra) are also consistent and in conformity with the general proposition as
regards an 'interlocutory order' or a 'final order' laid down by the Supreme Court
Page No.# 38/44
in paragraph 4 of the judgment in Mohan Lal (supra).
64. The order dated 16.03.2020 passed in Misc. Case (NIA)No.01/2020 in
respect of the accused A1 and the order dated 04.04.2020 passed in Misc. Case
(NIA)No.04/2020 in respect of the accused A2, A3 and A4 were passed in
Petition No.492/2020 filed by the appellant NIA seeking extension of the period
of investigation and detention in custody of the accused A1 and Petition
No.541/2020 filed by the appellant NIA also seeking extension of the period of
investigation and detention in custody of the accused A2, A3 and A4.
65. The two petitions being Petition No.492/2020 and Petition No.541/2020
were filed in the circumstance where the earlier period of detention in custody
for 90 days under Section 167 of the Cr.P.C., was to be over and the appellant
NIA sought for an extension of the period of investigation and detention in
custody up to a period of 180 days in view of the provisions of Section 43 D of
the UAPA-1967.
66. Admittedly the subject matter of the two petitions related to the stage of
investigation of the NIA Case No.RC-13/2019/NIA/GUW, where the investigation,
beginning from the lodging of the first information in cognizable cases under
Section 154 of the Cr.P.C., leading to the report of police officer on completion of
investigation under Section 173, are governed by Chapter XII of the Cr.P.C.
67. Section 167 of the Cr.P.C., provides for the procedure when investigation
cannot be completed in 24 hours, where it is also provided that an accused
Page No.# 39/44
person shall not be authorized for detention in custody for a total period
exceeding 90 days where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term not less than 10 years
and in respect of other offences the authorized period for detention would be a
total of 60 days.
68. In case of offence also under the UAPA-1967, the provisions of Section 167
Cr.P.C., have been suitably modified by Section 43 D thereof by providing that
the references to '15 days' '90 days' and '60 days' be construed to be a
reference to '30 days', '90 days', and '90 days' respectively, with a proviso that
where it is not possible to complete the investigation within the period of 90
days, the Court, if it is satisfied with the report of the Public Prosecutor
indicating the progress of the investigation and the specific reasons for the
detention of the accused beyond 90 days, may extend the period up to 180
days.
69. The modification incorporated by Section 43 D of the UAPA-1967 upon
Section 167 of the Cr.P.C., inter alia, would have its effect that on a report of the
Public Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the period of 90 days, the said
period may be extended upto 180 days.
70. In view of the aforesaid provisions of Section 167 Cr.P.C. as modified by
Section 43 D of the UAPA-1967, the Petition No.492/2020 in respect of accused
A1 and petition No.541/2020/2020 in respect of accused A2, A3 and A4 would
Page No.# 40/44
be the report of the Public Prosecutor contemplated in the proviso to Section 43
D where the progress of the investigation would be indicated and the specific
reason seeking for detention of the accused beyond 90 days would be provided.
71. Although seeking the detention of the accused beyond 90 days by
providing the specific reason cannot strictly be construed to be a right of the
investigation, but again, as there is also a requirement under the proviso of
Section 43 D to indicate the progress of the investigation by the Public
Prosecutor, it cannot be wholly said that there is no requirement on the part of
the investigation to seek for extension of the period of detention of the accused
by providing for the specific reasons therefor.
72. But, under the law, as well as under the circumstance, if there is a
requirement of the investigation to seek for an extension of the detention of the
accused, which again would be for the interest of the investigation, there would
be a very thin line differentiating the concept of right and that of a requirement.
73. In the Petition No.492/2020 in respect of accused A1 and petition
No.541/2020 in respect of accused A2, A3 and A4, the Public Prosecutor had
provided for the progress of the investigation and the specific reasons as to why
the accused persons are required for further detention upto 180 days, which has
to be understood to indicate the requirement of the investigation. On the other
hand, the accused persons by filing their respective objections opposed the
seeking of extension of the period of detention of the accused persons by taking
the stand that the progress of the investigation, the subject matter of the
Page No.# 41/44
investigation and the specific reasons seeking for extension of the period of
detention did not justify the extension. In other words, the accused persons by
raising their respective objections take the stand that the facts and
circumstances referred in the petitions of the investigation did not warrant an
interference with their fundamental and legal right to remain not in custody in
connection with the investigation in NIA Case No.RC-13/2019/NIA/GUW,
otherwise than by following the due procedure of law.
74. In the Misc. Case (NIA)No.01/2020 in Petition No.492/2020 and Misc.Case
(NIA)No.04/2020 in Petition No.541/2020, the subject matter involved is
whether the facts and circumstances stated therein, the detention of the
accused persons are required to be extended beyond 90 days upto 180 days.
The said subject matter, as already concluded in paragraph 45 would itself be a
proceeding and any decision which may conclusively decide the subject matter
would bring the proceeding to its end.
75. The two orders dated 16.03.2020 in Misc. Case (NIA)No.01/2020 and
dated 04.04.2020 in Misc.Case (NIA)No.04/2020 had provided for a refusal of
extension of detention of the accused persons as sought for by the
investigation. By such refusal, the requirement of the investigation for extension
of the period of detention beyond 90 days up to 180 days had been finally
determined in respect of the investigation in NIA Case No.RC-
13/2019/NIA/GUW. Further the fundamental and legal right of the respondents
not to remain in custody in connection with the investigation in NIA Case No.RC-
13/2019/NIA/GUW by following the procedure of law had also been finally
determined. In other words, for the purpose of the investigation in NIA Case
Page No.# 42/44
No.RC-13/2019/NIA/GUW it has been finally decided by the orders dated
16.03.2020 and 04.04.2020 that the accused A1 and accused A2, A3 and A4
would not be required to be detained in custody any further.
76. From the aforesaid conclusions, as regards the proceedings on the subject
matter of extension of detention in custody of the accused persons for the
purpose of the investigation, it can be concluded that by the orders of refusal of
extension of detention in custody dated 16.03.2020 and 04.04.2020 the
proceedings itself came to an end. Further by the orders of refusal of extension
of detention in custody dated 16.03.2020 and 04.04.2020 the fundamental and
legal rights of accused A1 and accused A2, A3 and A4 to remain not in custody
any further in connection with the investigation in NIA Case No.RC-
13/2019/NIA/GUW had also been finally determined. As such, there is a final
determination of the rights of one of the parties to the proceedings i.e. the
accused persons. Also the requirement of the investigation being the appellant
NIA to have the detention of the accused persons extended beyond 90 days
upto 180 days had also been finally determined by the two orders dated
16.03.2020 and 04.04.2020.
77. In view of such conclusion, the orders dated 16.03.2020 in Misc. Case
(NIA)No.01/2020 and dated 04.04.2020 in Misc.Case (NIA)No.04/2020 cannot
be said to be 'interlocutory order', but a 'final order', inasmuch as, the
proceedings in which such orders were passed came to an end and the rights of
one of the parties had been finally determined and also the requirement of the
other party had also been finally determined.
Page No.# 43/44
78. The reference on the question as to whether the orders dated 16.03.2020
in Misc. Case (NIA)No.01/2020 and dated 04.04.2020 in Misc.Case
(NIA)No.04/2020 are 'interlocutory order' or 'final order' is answered
accordingly.
79. We further provide that the judgment and order dated 20.12.2019 of the
Division Bench rendered in Jai Kishan Sarma and Another Vs. Union of India
reported in 2020 (1) GLT 122 providing that the order allowing for extension of
detention in custody of the accused persons is an 'interlocutory order' is
accepted to be the correct proposition of law. In a situation, where extension of
detention in custody of the accused persons is allowed, firstly, the proceeding
on the subject matter whether such detention is to be allowed or not does not
come to an end and secondly, the right of one of the parties i.e., the accused
persons, to remain not in custody in connection with the investigation,
otherwise, than by following the due procedure of law, had also not been finally
determined inasmuch as, after the end of the extended period of detention
there would be a further consideration as to whether the detention requires to
be further extended or not.
80. Accordingly, the Crl. Appeal No.121/2020 and Crl. Appeal No.130/2020
under Section 21 (1) of the NIA Act-2008 are held to be maintainable. The
appeals be now placed before the appropriate Bench for its adjudication on
merit.
81. Reference answered accordingly.
Page No.# 44/44
JUDGE JUDGE JUDGE
Comparing Assistant
