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IN THE HIGH COURT OF BOMBAY
Palshikar V.G. Bhosale D.B., JJ.
State of Maharashtra .... Petitioner.
Versus
Murli Ramchand Puruswami others.... Respondents.
Criminal Writ Petition Nos. 561 562 of 2003, decided on 4-7-2003.
Advocates appeared :
P.M. Pradhan Spl.P.P. with Ms. U.V. Kejariwal, A.P.P., for petitioners in both petitions.
V.R. Manohar Sr.C. with M.S. Mohite, Shrikant Shirade Ms. A.S. Kaushik Ms. Usha Dahanukar, for all respondents in both petitions except, for respondent No. 5 in W.P. No. 562/2003.
Nitin Pradhan with Subhash Jha i/b. Law Global, for respondent No. 9 intervener in W.P. 561/2003.
Subhash Jha i/b. Law Global, for respondent No. 5 in W.P. 562/03.
Held: The impugned order finally decides the right of prosecution to withdraw the prosecution in so far as offence under TADA is concerned. It finally decide the right of accused to be freed from the charges under TADA as desired by the prosecution. Both these rights are finally decided. Merely because the prosecution would, as a consequence thereof, continue before another forum, it cannot be said to be an interlocutory or intermediate order. In the case of Shukla cited above, the Supreme Court specifically laid down that the expression in Section 11(1) of the Special Courts Act has been used in its natural sense and cannot be interpreted in a wider sense as is used in Section 397 of the Code.
The order framing the charge is held to be interlocutory for the reason that though it may finally adjudicate the right of the accused to be discharged, the proceedings continue and therefore it is an intermediate order. In our opinion it is not applicable in the present case for the reason that under the Special Courts Act the prosecution would continue in the event of rejection of the application in the Special Court, whereas under the TADA Act allowing of the application would not continue the prosecution in TADA court, but would continue only in regular court in so far as the right to withdraw from the prosecution under TADA Act is concerned, it stands finally adjudicated by rejection of it. Continuation of prosecution in some other forum cannot be called continuation of the proceeding under TADA Act. The right of the accused that he should not be prosecuted under TADA Act as the prosecution does not want it and therefore he has a right to say that the application be accepted is also finally decided. The order under Section 321 of the Code seeking withdrawal of prosecution under TADA Act is therefore a final order, whether the application is granted or rejected. If it is granted the right under Section 321 of the Code, is given to the State and if it is not granted the right given to the State -to withdraw from the prosecution under Section 321 of the Code is decided finally and therefore also it is finally adjudicated. We are, therefore, of the view that in the present case the order is impugned as finally adjudicating the right of the prosecution and the consequential right of the defence under Section 321 of the Code. (Para 14 to 15)
Further held: It is an order passed under Section 321 of the Code and it finally determines the right of the parties i.e. the prosecution and its request to withdraw from the prosecution is finally denied by that order. The right of the accused is also finally determined in so far as, he not being tried by TADA court under TADA provision is concerned. Category (2) also would apply to the present order. The Supreme Court has held that the concept of the interlocutory order has to be explained in contradistinction to a fined order. In other words if an order is not a final order, it would be an interlocutory order. Applying these categories or propositions it will be seen that the order is a final order because it finally decides the right under Section 321 of the Code. In our opinion, therefore preliminary objection raised by Shri Nitin Pradhan is liable to be accepted as a consequence of which this petition will have to be dismissed and not maintainable in view of the availability of alternate remedy. We need not cite the decisions of the Supreme Court, where their Lordships have clearly laid down that when efficacious alternate remedy is available, writ jurisdiction need not be exercised. (Para 17)
Further held: There is yet another aspect which has direct bearing on the issue as to whether the order under Section 321 of the Code or under Section 18 of the Act is a final order or interlocutory order. Section 15 of the Act provides that notwithstanding anything in the Code or in the Indian Evidence Act a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer shall be admissible in the trial of such person. Section 12 specifically empowers the Designated Court to hear and try any other offence with which the accused may under the Code be charged if the trial of that offence is connected with such other offence under the Act. Therefore in a case where a person is facing trial for the offence under TADA and- also under any other law and the confession is made under Section 15 of the Act. use of it is possible or permissible in law by the Designated Court. This advantage of the prosecution and dis-advantage of the accused is not available under the regular law namely the Code and the Evidence Act. This section therefore creates a right in the prosecution to use a confession if made to a Superintendent of police and recorded by him as it is made admissible by this section. This right would not be available to the prosecution if it goes before a regular court under the Code. When the prosecution wants to withdraw the prosecution before the Designated Court, the accused gets a right that confession made under Section 15 cannot thereafter be used in the regular trial before the Court under the Code. Both these rights are available and both of them are finally decided by the order passed under Section 321 of the Code and 18 of the TADA Act. This being the impact of withdrawal of the prosecution under Section 321, grant or refusal thereof will have to be construed, as final. (Para 18)
2. TADA Sessions Case No. 8 of 1993 is pending before the Designated Court (TADA) at Pune. The said cases are pending for prosecution of the accused therein, some of whom are respondents herein. The charges include charge under section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the Act).
3. Exhibit 282 was filed in TADA Sessions Case No. 8 of 1993 by the Special Public Prosecutor for the State of Maharashtra under section 321 of the Criminal Procedure Code (hereinafter referred to as the Code). By this application the State sought withdrawal of prosecution under section 5 of the Act and requested transmission of the proceedings to regular Sessions Court as it no longer would remain a case triable only by the Special Court. This application was rejected by the learned Judge as aforesaid, which rejection is the subject matter of Criminal Writ Petition No. 561 of 2003.
4. Criminal Writ Petition No. 562 of 2003 is filed by the State challenging the same order dated 15-3-2003 below Exhibit 282 in Special Case No. 8 of 1993. The TADA Sessions case is different but the allegations in both these applications are identical. The learned Judge of the Special Court therefore proceeded to decide both these applications by the same order impugned in both these petitions. After a detailed discussion about various contentions raised before him, the learned Special Judge proceeded to reject the application under section 321 of the Code in relation to both the trials. Feeling aggrieved as aforesaid by this order the State have come up in writ petition. Since both the petitions involve identical questions of law and also the arguments canvassed by the learned A.P.P. which was also supported by Shri V.R. Manohar the learned Senior Counsel for some of the respondents/accused in the original trial, we think it proper to pass a common order. The petition herein was opposed by the learned Counsel Shri Nitin Pradhan and Shri Subhash Zha, Advocates appearing for the representatives of some victims. They canvassed before us that the rejection of application under section 321 was proper whereas the prosecutor and the learned Senior Counsel for the original accused submitted that the order is unsustainable in law and deserves to be set aside.
5. There is yet another very significant and important fact which we must note. Before this application under section 321 of the Code was filed by the prosecution on 28-2-2003, the accused had filed an application under section 18 of the Act claiming dropping of the charges under the provisions of the TADA Act and transfer of the case to regular Sessions Court. This application was decided by the trial Court on 10-11-1998, the prayer made was rejected. The consequence was the prosecution under TADA Act continued before the Designated Court by reason of rejection of this application and it could have been claimed to be an interlocutory order. However the present respondents including Suresh Kalani filed an appeal before the Supreme Court of India under section 19 of the Act. Appeals were also filed in the Supreme Court of India by the State of Maharashtra challenging the finding recorded by the Special Court that on the materials placed on record by the prosecution no charge can be framed under section 3 of the TADA (P) Act. The Supreme Court has then squarely observed that:
"In this appeal filed under section 19 of the TADA (P) Act, accused No. 4 (Suresh @ Pappu Bhudharmal Kalani) of T.S.C. No. 25/1992, has challenged the order passed by the Designated Court of Thane rejecting the application filed by him under section 18 of the Act for discharging him from the
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