IMPORTANT POINT
Order admitting evidence collected by interception of telephone in a case under POTA was interlocutory and could be challenged in statutory appeal under Section 34 of Prevention of Terrorism Act and High Court was not justified in interfering with order in exercise of its power either under Section 482 Cr.P.C. or under Act 227 of Constitution of India.

Headnote:Prevention of Terrorism Act, 2002 -Section 34-Constitution of India-Article 227-Criminal Procedure Code, 1973-Section 482-Terrorist attack on Parliament of India and case-Evidence collected by interception of telephone-Admissibility of evidence during trial-Objections raised by accused-Objections dismissed by Special Judge-Single Judge of High Court set aside order of trial Court-Appeal-Trial Court order was interlocutory and no appeal was maintainable against such order in view of Section 34 of POTA-Neither power under Article 227 of Constitution of India nor inherent power under Section 482 Cr.P.C. should have been exercised even if such power was available-High Court was not right in interfering at that stage.
       Held : On facts of this case we find that the effect of the impugned order is that the statutory provision of Section 34, POTA have been circumvented. The impugned order has also led to the very peculiar situation set out hereinabove. To repeat under Section 34, POTA the appeal is to be heard by a bench of two judges of the High Court. We are informed that the appeal is being heard by a bench of two Judges of the High Court. An appeal under Section 34, POTA is both on facts and on law. The correctness of the interlocutory order could, by virtue of Section 34, POTA, have been challenged only in the appeal filed against the final judgment. The respondents by filing the Application/Petitions and the learned Judge having chosen to entertain them, has resulted in a party being deprived of an opportunity of canvassing an important point of law in the statutory Appeal before the division bench. The peculiar situation is that the division bench, hearing a statutory appeal (both on law and facts) is bound/constrained by an order of a single Judge. The order of the Special Judge is based on an interpretation of the various provisions of POTA. The Special Judge undoubtedly had authority and jurisdiction to interpret the various provisions of POTA and other laws. The Special Judge had jurisdiction to decide whether the evidence collected by interception could be used for proving a charge under POTA. The Special Judge was acting within the limits of his authority in passing the impugned order. We are told that before single Judge of the High Court the arguments, by both sides, went on for approximately two weeks. Even before us considerable time was taken. This is being mentioned only to indicate that the question is not so clear. It requires interpretation of various provisions of POTA. Neither the power under Article 227 nor the power under Section 482 enabled the High Court to correct an error in interpretation even if the High Court felt that the order dated 11th July 2002 was erroneous. Even if the High Court did not agree with the correctness of that order, the High Court should have refused to interfere as the order could be corrected in the appeal under Section 34, POTA. To be remembered that by the time the impugned order was passed the evidence had already been recorded. Thus there was no abuse of process of Court which could now be prevented. Even the end of justice did not require interference at this stage. In fact the ends of justice required that the statutory intent of Section 34, POTA be given effect to. The High Court should have directed the Respondents to raise all such points in the statutory appeal, if any required to be filed, under Section 34, POTA. If in the appeal the division bench felt that the order was not correct or that it was erroneous it would set aside the order, eschew the evidence and not take the same into consideration. Thus no prejudice was being caused or would be caused to the respondents. Their rights were fully protected as per the provisions of POTA. At this stage there was no miscarriage of justice or palpable illegality which required immediate interference. We are therefore of the opinion that even if powers under Section 227 or under Section 482 could have been exercised this was a case where the High Court should not have exercised those powers. (Para 26)
       (ii) Constitution of India-Article 227-Supervisory jurisdiction-Powers are wide and can be used to meet ends of justice and can be used to interfere even with an interlocutory order-Power must be exercised sparingly and only to keep subordinate Courts and Tribunal within bounds of their authority and not to correct mere error.
       Held : Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunal s within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunal s within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise". (Para 23)
       (iii) Criminal Procedure Code, 1973-Section 482-Inherent jurisdiction of High Court-To be exercised only in cases where there is an abuse of process of Court or where interference is absolutely necessary for securing ends of justice.
       Held : Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayanan Sharma s case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment. (Para 24)

JUDGMENT

S.N. Variava, J.-Leave granted.

Heard parties.

Briefly stated the facts are as follows :

On 13th December, 2001 five terrorist attacked the Parliament of India. After an encounter, with the security forces, the five terrorists were shot dead. A F.I.R. was lodged by the Station House Officer, Police Station, Parliament Street. A case under Sections 120, 120B, 121, 121A, 122, 124, 186, 332, 353, 302 and 307 IPC, Sections 3, 4 and 5 of the Explosive Substances Act and Sections 25 and 27 of the Arms Act was registered. Investigation was then initiated. From the slain terrorists apart from arms, ammunitions and other items, three mobile phones, 6 sim cards and slips of paper containing five mobile telephone numbers and other two telephone numbers were recovered. It is the case of the prosecution that due to urgency authorisation to intercept was granted by the Joint Director of Intelligence Bureau, who was associated with the investigation. It is the case of the prosecution that this authorisation was as per the provisions of the Telegraph Act i.e. Section 5 of the Telegraph Act read with Rule 419A. It is the case of the prosecution that the interception disclosed the involvement of the respondents in the conspiracy to attack the Parliament of India. It is the case of the prosecution that as a result of the interceptions and the interrogation of the respondents, it was disclosed that slain terrorists and the respondents were in touch with one Ghazi Baba, who is a Pakistani national and the supreme commander of Jaish-e-Mohammed which is a notified and banned terrorist organisation under Section 18 of Prevention of Terrorism Act, 2002 and the schedule thereto (the Prevention of Terrorism Act will hereinafter be referred to as POTA). It is the case of the prosecution that after the investigating officers had, in the course of the investigation, collected the relevant and cogent material it was found that a case under POTA was made out. It is the case of the prosecution that relevant sections of POTA were added on 19th December, 2001 only after it was ensured that offences under POTA were made out. It is the case of the prosecution that this was done in view of the well established law laid down by this Court, in the context of TADA, that there must be due application of mind and cogent material before the special rigorous regime is added. It is the case of the prosecution that on 31st December, 2001 and 19th January, 2002 the Home Secretary approved the interception.

2. It is the case of the prosecution that after the investigation was completed the charge-sheet was filed on 14th May, 2002. It is the case of the prosecution that copy of the transcripts of the intercepted conversation were given to the accused along with the charge sheet. On 8th July, 2002 the respondents applied before the Special Judge seeking a direction that the intercepted conversation not be used as evidence in the trial for proving the charge/s under POTA. The procedure which the Special Judge should have followed is as laid down by this Court in the case of Bipin Shantilal Panchal v. State of Gujarat & Anr. reported in (2001) 3 SCC 1. In this case it has been held as follows :

"12. As pointed out earlier, on different occasions the trial Judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the parties concerned to go before the higher courts for the purpose of challenging such interlocutory orders.

13. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this : Suppose the trial cour

Click Here to Read the rest of this document

2003 Supreme(SC) 577

Cases Referred (10)