IMPORTANT POINT
Order framing charge or an order altering or refusing to alter charge passed by Special Court under NIA Act, is an interlocutory order not appealable under sub-section (1) of Section 21 of NIA Act.

JUDGMENT

Sanjeev Kumar, J.—In the appeal on hand the appellants have challenged the order of framing charge dated 25.10.2019 as also the order dated 26.08.2022 whereby the request of the appellants for alteration of the charge has been rejected. The appeal is preferred under Section 21 of the National Investigating Agency Act, 2008, (NIA Act for short). Mr. Rahul Sharma appearing for the respondent has raised a preliminary objection with regard to the maintainability of the appeal on the ground that, in terms of Section 21 of the NIA Act, the interlocutory orders passed by the Special Judge are not appealable and that the order of framing of charge or refusing to alter the charge are interlocutory in nature and, therefore, not appealable.

2. Having heard the learned counsel for the parties and gone through the scheme of the NIA Act, we deem it necessary to first set out Section 21 of the NIA Act, which reads thus:—

“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) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (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 anything 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: Provided further that no appeal shall be entertained after the expiry of period of ninety days.”

3. From plain reading of Section 21, it would transpire that the Section begins with a non-obstante clause i.e. “Notwithstanding anything contained in the Code” which would mean that any provision contained in the Code of Criminal Procedure which is not consistent with the provisions of Section 21 of the NIA Act, will give way and the provisions of Section 21 shall prevail and have over-riding effect. Insofar as the order of framing charge is concerned, same is already held to be not an interlocutory but an intermediate order in terms of the expression “the interlocutory order” used in Section 397 (2) Cr.P.C.

4. It is pertinent to note that this Court in S. K. Mahajan and ors v. Municipality, 1982 Cr.L.J 646 had taken the view that an order framing charge would not be revisable in view of the provisions of Sub-Section (2) of Section 435 of the Code of Criminal procedure Smvt 1989, which provision is in pari materia with Section 397(2) of the Code of Criminal Procedure 1973 which is now applicable to the Union Territory of Jammu and Kashmir. This view, which was taken by a Division Bench in S.K. Mahajan (supra), was consistently followed for long till we witnessed a shift in the recent past. The Courts took the view that framing of charge decides a vital right of an accused to be put on trial and, therefore, cannot be termed as a mere interlocutory order. The controversy was laid to rest by Hon’ble the Supreme Court in 3-Judge Bench judgment in the case of Sanjay Kumar Rai v. State of U.P., AIR 2021 SC 2351, wherein the Apex Court, after referring to the earlier judgments in the case of Asian Resurfacing of Road Pvt. Ltd. And anr v. Central Bureau of Investigation, 2018 (16) SCC 299 and Madhu Limaye v. State of Maharashtra, 1997 (4) SCC 551, concluded that the order framing