The main legal point established in the judgment is the interpretation of 'interlocutory order' under Section 21 of the NIA Act, 2008 and its applicability to the order of framing charge.

JUDGMENT :

Sanjeev Kumar, J.

Crl. M. No. 1789/2022

1. The appeal by accused Reyaz Ahmad directed against the order of framing of charge dated 25.10.2019 read with order dated 26.08.2022 passed by the learned 3rd Additional Sessions Judge, Jammu (Special Judge under section 22 of the National Investigating Agency Act, 2008) is delayed by 29 days. On being put on notice, the respondent appearing through Mr. Rahul Sharma, Deputy Advocate General, has chosen not to file objections in view of the preliminary objection raised with regard to the maintainability of the appeal.

2. We have considered the application for condonation of delay, which, as noted above, is not seriously opposed by the respondent and we are of the considered view that the applicant/appellant has shown sufficient cause which prevented him from filing the appeal within the limitation. The application is, therefore, allowed and delay in filing the appeal is condoned.

Crl.A. (D) No. 58/2022

3. In the appeal on hand the appellant has challenged the order of framing charge dated 25.10.2019 as also the order dated 26.08.2022 whereby the request of the appellant 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.

4. 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."

5. 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.

6. 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 Sm