Point of Law : Sections 20 and 21 of the Act are relevant which reads as Power to transfer cases to regular courts Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of.

ORDER :

1. This reference arises out of order dated 09.08.2021 made by the Division Bench of this Court raising doubt about the correctness of view taken by coordinate bench in Criminal Appeal No.97/2018, wherein the office objection regarding maintainability of the appeal was over-ruled and the appeal was decided on merits. The order dated 09.08.2021 for ready reference, is reproduced below :

“The registry has raised following objection with regard to maintainability of this appeal:

"How this Crl.A. is maintainable u/s 21 of NIA Act seeking transfer the case in Spl.C.No.181/2017, pending before LI Additional City Civil and Sessions Judge, C/C.LIX Additional City Civil and Sessions Judge, Bengaluru."

2. Sri. S. Balakrishnan, learned counsel appearing for appellants has relied upon order dated 08.07.2019 passed in Crl.A.No.97/2018 to contend that similar application had been filed in Spl.C.C.No.330/2015 and said application came to be rejected by the Special Court by order dated 08.01.2018, which was challenged in the Crl.A.No.97/2018 and appeal came to be decided on merits, by over-ruling said office objection and as such he prays for over ruling the office objections raised in this appeal.

3. Per contra, Sri. P. Prasanna Kumar, learned Standing Counsel appearing for respondent would submit that in view of express language contained in sub-section (1) of Section 21 this appeal is not maintainable, since as it is filed against an interlocutory order.

4. Having heard the learned Advocates appearing for parties and after perusing the records of Crl.A.No.97/2018, we notice that in the final order which has been passed on 08.07.2019 in the said appeal there is no reference to any discussion with regard to maintainability of the appeal, obviously on account of order passed on 03.06.2019 whereunder the Coordinate Bench had over ruled the office objections by following order:

"Heard learned counsel for the appellant and learned SPP for the respondent.

Office objection over ruled.

Call on 06/06/2019."

5. In order to appreciate the rival contentions raised in this appeal regarding maintainability it would be necessary to note Section 20 and 21(1) of the National Investigation Agency Act, 2008, which has been pressed into service and it reads:

"20. Power to transfer cases to regular courts.-- Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had take cognizance of the offence.

21. Appeals.-- (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."

(2) xxxxx

(3) xxxxx

(4) xxxxx

(5) xxxxx"

6. A plain reading of Section 20 would indicate that where the Special Court after taking cognizance of an offence is of the opinion that offence is not triable by it, is empowered to transfer the said case for trial of such offence to any court having jurisdiction under the Criminal Procedure Code and such court may proceed with the trial of the offence as if it had taken the cognizance of the offence. Sub- section (1) of Section 21 would indicate that an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to this Court both on facts and on law. In other words, where the order which is under challenge is an interlocutory order passed by the jurisdictional Special Court, necessarily the appeal would not be maintainable. In the instant case, an interlocutory application came to be filed by appellant/accused contending interalia that offence alleged against is not triable by Special Court and it ought to be transferred to regular Special