Point of Law - Nature of certain orders which are neither ‘final’ nor ‘interlocutory’, but of an ‘intermediary’ nature, that is to say, an order of the type falling in the middle course. It was also held that the bar under Section 397(2) is not attracted in the case of intermediate orders.

JUDGMENT :

Jayachandran, J.

We, in these appeals, are called upon to answer an intriguing question on the interpretation of Section 299 of the Code of Criminal Procedure, 1973.

2. Facts:-

These Criminal Appeals stem from the impugned order passed in the infamous crime against Prof.T.J.Joseph, who was brutally attacked and right hand chopped off, alleging blasphemy in setting up a question paper for college examinations. The order impugned was passed in Criminal M.P.No.75/2021 (in S.C.No.1/2015), an application under Section 299 of the Code of Criminal Procedure (‘Code’ for short) seeking issuance of necessary orders to take the sworn in statement of PW1 (Smt.Salomi, wife of the victim) in S.C.No.1/2013 as evidence against 11 accused persons in the ongoing trial in S.C.No.1/2015 before the Special Court for trial of NIA Cases.

3. The case was registered as Crime No.704/2010 and investigated by Kerala Police at the first instance. The Police filed final report on 14.1.2011 arraigning 27 persons as accused and 27 others as suspects, who were not charge-sheeted. The investigation was thereafter taken over by the National Investigation Agency (hereinafter referred to as ‘N.I.A.’ for short) and the case was transferred to the Special Court. On 18.1.2013, the N.I.A filed the first supplementary final report against 9 other accused persons. Subsequently, on 12.4.2013 the N.I.A. filed the second supplementary final report against one more accused person, who was originally Accused No.31 in the Crime. In that supplementary final report, the names of the remaining 17 persons were shown as accused, who were not charge-sheeted.

4. Thus, altogether 37 accused persons (27+9+1) were called upon to face trial in S.C.No.1/2011 before the Special Court, of which six accused persons were absconding. Their presence could not be secured, despite resorting to coercive steps, including the one under Sections 82 and 83 of the Code. In the trial against 31 accused persons, Smt.Salomi, the wife of the victim, was examined as PW1. The trial culminated in the conviction of 13 accused persons and acquittal of the remaining 18. The case against the six absconding accused persons was split up and re-filed as S.C.No.1/2015. After the judgment dated 30.4.2015 in S.C.No.1/2011, accused Nos.2, 3, 4 and 6 (originally A4, A28, A30 and A40 in the crime) had surrendered before the Special Court. The fifth accused (A35 in the crime) was arrested; the first accused remaining absconding.

5. On 1.6.2017, the N.I.A filed the third supplementary final report against six more persons, the case against whom was numbered as S.C. No.2/2017. This was thereafter clubbed with S.C.No.1/2015, the six accused persons in S.C.No.2/2017 being arraigned as accused Nos.7 to 12 respectively. Thus altogether 11 persons (5 out of the original six in S.C.No.1/2015 and 6 persons clubbed) were called upon to face trial in S.C.No.1/2015. Accused 9 & 11 were arrested in 2011 and released on bail and they were continuing on bail when the trial in S.C.No. 1/2013 was commenced and concluded.

6. At this juncture, N.I.A. filed Criminal M.P.No.75/2021 in S.C.No.1/2015 seeking issuance of necessary orders to take the sworn-in-statement of Smt.Salomi (PW1) recorded in S.C.No.1/2013 as evidence against the 11 accused in the on-going trial in S.C.No.1/2015. The learned Special Judge, on a meticulous analysis of the facts and referring to the precedents cited, allowed Criminal M.P.No.75/2021 in part, by order dated 3.11.2021, allowing the deposition of PW1 to be given in evidence as against accused Nos.2 to 8, 10 and 12 in S.C.No.1/2015. The Criminal M.P. stood dismissed as against accused Nos.9 and 11 on the finding that they were not absconding at the time when final reports in S.C.No.1/2013 were filed, as they were on bail and no charge sheet was issued against them. Challenging the impugned order, accused Nos.2 to 6 filed Criminal Appeal No.868/2021 and accused Nos.7, 8, 10 and 12 filed Criminal Appeal No.860