D.K Jain, J. (Rule D.B):— In this appeal filed under Section 34 of the Prevention of Terrorism Act, 2002 (for short ‘POTA’) the short question for consideration is whether an appeal under the said Section is maintainable against an order framing charge in a trial conducted according to the procedure prescribed under the POTA?
2. In view of the fact that the issue involved for determination is purely legal, we deem it unnecessary to narrate the facts in detail or to go into the evidence, on consideration whereof the learned Designated Court, New Delhi has found it to be a fit case for framing of charge against the petitioner. To appreciate the background in which the aforesaid controversy has arisen, a brief reference to the facts would suffice. These are as under:
Information was received from central intelligence agencies some time in June 2002 that a Pak based terrorist organisation Lashkar-e-Toiba had planned to conduct terrorist activities in India. As per the information, one militant of the said organisation, namely, Mohd. Ayub Mir, had come to Delhi to collect funds for the terrorist organisation, sent through hawala. The information was further developed and on 2 July 2002 the said Mohd. Ayub Mir was found receiving payment of Rs. 7 lakhs from one Harbans Singh near Central Park, Connaught Place, New Delhi. Both of them were arrested and interrogated. Harbans Singh disclosed that he had been directed by his employer namely, Bachraj Bengani @ B.R Jain, the petitioner herein, to deliver the said money to Mohd. Ayub Mir. On the basis of confessional statements and some other documents, recovered during the course of follow up actions, the petitioner was arrested on 2 September 2002. His interrogation revealed his connections with some London based persons. On completion of investigations and after obtaining sanction of the Central Government under section 50 of pota, a challan was filed against the petitioner and two others. Vide order dated 13 January 2003, the learned Designated Court has framed charges against all the three persons. The validity of this order is sought to be challenged in this appeal.
3. Initially the said order was challenged by means of a Criminal Revision petition filed under Section 397/401 read with Section 482 of the Code of Criminal Procedure (for short ‘the Code’). However, subsequently an application was moved seeking permission to treat the revision petition as an appeal under section 34 of pota, which was allowed by the learned Single Judge vide order dated 31 January 2003. That is how the matter is now before the Division Bench in terms of sub-section 2 of Section 34 of the POTA.
4. In the affidavit-in-opposition on behalf of the respondent State, a preliminary objection on the maintainability of the appeal has been raised on the ground that the order impugned being an “interlocutory order” within the meaning of section 34 of pota, the appeal is misconceived.
5. Since the preliminary objection merits serious consideration because if it is found in favour of the respondent, then the appeal has to be dismissed in limine as being not maintainable, we have heard learned counsel for the parties only on the said legal issue.
6. The main thrust of the submissions of Ms. Mukta Gupta, learned Standing Counsel (Criminal) for the State is that provisions of section 34 of pota being in pari materia the provisions contained in Section 11 of the Special Courts Act, 1979, the term “interlocutory order” has to be assigned the same meaning in both the statutes, particularly when the object of both the legislations is the same, namely, the expedited trial. It is asserted that in view of the decision of the Apex Court in V.C Shukla v. State, AIR 1980 SC 962, the order framing charge against an accused under POTA is merely an interlocutory order and, therefore, not appelable under Section 34. Per contra, the submission of Mr. Herjinder Singh, learned counsel for the petitioner, is that the provisions of POTA are not in pari materia the provisions of the Special Courts Act and, therefore, the interpretation given to the expression “interlocutory order” in V.C Shukla's case (supra) is to be confined only to the latter Act. Learned counsel has also submitted that to save Section 34 of the POTA from the vice of Articles 14 and 16 of the Constitution, we must assign the same meaning to the expression “interlocutory order”, as has been assigned to it under the Code, wherein the same expression appears in Section 397 (2).
7. Having given our thoughtful consideration to the rival submissions, we are of the view that the preliminary objection raised by the State is well founded.
8. Recently, in Peoples' Union for Civil Liberties & Anr. v. Union of India 2003 (10) SCALE 967, while upholding the constitutional validity of various provisions of POTA, their Lordships of the Supreme Court have made some significant observations. In order to examine whether there is any parity between the provisions contained in the Special Courts Act and POTA, it would be useful to take note of some of these observations. Their Lordships observed thus:
“Terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected Government, to promote prejudice and bigotry, to demoralize the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is interstate, inter-national or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather it is defence of our nation and its citizens. It is a challenge to the whole nation and indivisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organized groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements were trying to destabilize the country. This new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is much more than mere criminality. Today, the Government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws. In the above said circumstances Parliament felt that a new anti-terrorism law is necessary for a better future. This parliamentary resolve is epitomized in POTA.”
It is then said:
“........the anti-terrorism laws should be capable of dissuading individuals or groups from resorting to terrorism, denying the opportunities for the commission of acts of terrorism by creating inhospitable environments for terrorism and also leading the struggle against terrorism. Anti-terrorism law is not only a penal statute but also focuses on pre-emptive rather than defensive State action.”
9. It has also been observed that the Parliament had explored the possibility of employing the existing laws to tackle terrorism and came to the conclusion that the existing laws were not adequate. The Parliament felt that terrorism is not a usual law and order problem. Their Lordships also sounded a note of caution and said that constitutional soundness of POTA was to be judged by keeping the following aspects in mind:
“The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism. Here comes the role of law and Court's responsibility. If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violation of human rights. The lack of hope for justice provides breeding grounds for terrorism. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful to the human rights. Our Constitution laid down clear limitations on the State actions within the context of the fight against terrorism. To maintain this delicate balance by protecting ‘core’ Human Rights is the responsibility of Court in a matter like this.
......”
10. From the afore-extracted observations of the Apex Court it is transparent that POTA has been enacted not only to tackle a special breed of criminals, its object and motive is also to have speedy trial/disposal of cases so that not only the guilty are brought to book with utmost dispatch, their convictions and sentences may act as a deterrent for others to contain the menace of terrorism.
11. At this juncture, it would be appropriate to take stock of the object and purpose behind the enactment of the Special Courts Act, which has been noted in V.C Shukla's case (supra). It is pointed out that the preamble of the Act, inter alia, provides that the ordinary criminal courts, due to congestion of work and other reasons, cannot reasonably be expected to bring those prosecutions to a speedy termination and that commission of offences referred to in various recitals in the preamble should be judicially determined, with the utmost dispatch, the Parliament enacted the Act. Thus, the dominant purpose of the said Act was to achieve not only speedy determination but a determination with the utmost dispatch, which is the basic spirit, motive and purpose of enacting POTA.
12. Having come to the conclusion that the heart and the soul of the two enactments is speedy disposal and quick dispatch of the trial in these cases, we proceed to examine whether there is any similarity between Section 11 of the Special Courts Act and Section 34 of POTA, the two provisions, conferring a right on an accused to prefer appeal against particular orders, passed during the course of trial or on its conclusion. For the sake of ready reference and comparison, both the said provisions are tabulated hereunder:
Section 11 of Spl. Court Act
“Appeal. 11(1)
Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law.
(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of any judgment, sentence or order of a Special Court.
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.”
section 34 of pota
“Appeal. 34-(1)
Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
Explanation: For the purposes of this section, “High Court” means a High Court within whose jurisdiction, a Special Court which passed the judgment, sentence or order, is situated.
(2) Every appeal under subsection (1) shall be heard by a bench of two judges of the High Court.
(3) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court.
(4) Notwithstanding any contained in sub-section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.
13. A comparison of the two provisions, leaves little room for doubt that material part of section 34 of pota is in pari materia Section 11 of the Special Courts Act and therefore, in our opinion, the interpretation placed by the Apex Court to the term “interlocutory order” in V.C Shukla's case (supra) would apply mutatis mutandis for the purpose of section 34 of pota.
14. In V.C Shukla's case (supra) taking note of the special features of the Special Courts Act, as projected in the preamble of the Act, their Lordships of the Supreme Court observed that since the paramount intention of the said Act was most expeditious trial and quick dispatch of the case, it was manifest that the provisions of the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act, through which the disposal of the case may be delayed. The Court finally held as follows:
“On a true construction of S. 11(1) of the Act and taking into consideration of 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's case (supra) 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.”
15. Thus, interpreting the expression “interlocutory order” appearing in Section 11 of the Special Courts Act, in the light of the object of the said Act, the Supreme Court held that the order framing charges against an accused under the said Act was merely an interlocutory order. In our opinion, the ratio of this decision is on all fours to the facts in hand.
16. Reverting back to the question at issue, as noted above the paramount object of POTA is also expeditious trial and quick dispatch of the case and its provisions have necessarily to be interpreted keeping in view the said intention. Section 34 starts with a non-obstante clause, which excludes the operation of the Code with reference to the provision of the appeals in the Code and provides for an appeal as fossilised in the substantive provision of Section 34(1) of POTA. Section 34(1) provides for an appeal from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law and the appeal lies as a matter of right. The expression “not being an interlocutory order” carves out an exception, and any order falling in this category is not appealable. In other words, an order which can be categorised as “interlocutory order” cannot be appealed against in the High Court. The position becomes still clearer from the provision in sub-section (3) of Section 34, which in terms provides that except as provided in sub-section (1), no appeal or revision would lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court. The Section, thus, circumscribes the right of appeal against the orders, excluding therefrom orders which are interlocutory in nature.
17. As regards the true import of the expression “interlocutory order”, the question has been succinctly discussed and explained in V.C Shukla's case (supra) and as already held above, ratio of the said decision squarely applies in the present case. Following the said decision, we hold that the impugned order, framing charge against the petitioner, is an “interlocutory order” and, therefore, not appealable under the substantive provision of Section 34(1) of POTA. In view of the non-obstante clause, what is contained in the Code in this behalf is also to be excluded while examining the scope and content of sub-section (1) of section 34 of pota.
18. Having regard to the object, motive and nature of the legislation, we do not find any substance in the contention of learned counsel for the petitioner that to save Section 34 of the Act from the vice of Articles 14 and 16 of the Constitution, the provisions contained in the said Section may be read down and a liberal interpretation should be given to the expression “interlocutory order.”
19. In view of the above discussion, we hold that the impugned order, framing charge against the petitioner, is an interlocutory order within the meaning of section 34(1) of pota and, thus, appeal against such an order is not maintainable in view of the provision contained in section 34(3) of pota. Consequently, the preliminary objection raised by the respondents is upheld and the appeal as well as the application for stay are dismissed in limine, with no order as to costs.