No Appeal Lies Against Special Court Order Rejecting Transfer Of Case U/S 20 NIA Act: Karnataka High Court

A full bench comprising of Chief Justice Ritu Raj Awasthi, Justice B Veerappa and Justice P Krishna Bhat while deciding on a reference said, "An interlocutory application rejected by the Special Court vide order dated 22.02.2021 would not give rise to filing of an appeal under Section 21 of the National Investigation Agency Act, 2008."

It added,

"No appeal shall lie under Section 21 of the National Investigation Agency Act, 2008 against an order passed under Section 20 of the Act. An appeal under Section 21 of the National Investigation Agency Act, 2008 shall be maintainable before the division bench of the High Court only against an interlocutory order granting or refusing to grant bail passed by the Special Court under National Investigation Agency Act, 2008."

Case Background:

This reference arose out of order dated 09.08.2021 made by the Division Bench of the High 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 appellants Irfan Pash and others are accused before the Special Court, Bangalore, charge sheeted for the offences punishable under Sections 302, 201 r/w Section 34 of IPC, Sections 3 and 27 of the Arms Act and Sections 15, 16, 17, 18 and 20 of Unlawful Activities (Prevention) Act, 1967.

They filed an application under Section 20 of the National Investigation Agency Act, 2008 seeking transfer of the case to a regular Sessions Court on the ground that charge sheet filed is defective, insofar as, offences under Unlawful Activities (Prevention) Act, 1967 are concerned and therefore, the Special Court has no jurisdiction to try the same.

The application was rejected vide order dated 22.02.2021, against which the instant Criminal Appeal was filed.

SUBMISSION OF APPELLANT:

Advocate S Balakrishnan appearing for the appellants submitted that the order impugned in the appeal is not an interlocutory order within the meaning of sub-section (1) of Section 21 of the Act and, therefore, an appeal to this Court is maintainable.

Further, he said if the application filed by the accused before the Special Court seeking transfer of the same to the regular Sessions Court were to be allowed, proceedings before the Special Court would have concluded. The sanction secured by the prosecution for filing charge sheet against the appellants for the offences under Unlawful Activities (Prevention) Act, 1967, was from an incompetent authority and therefore, it was without jurisdiction and ineffective.

SUBMISSION OF RESPONDENT:

Special Public Prosecutor for NIA P.Prasanna Kumar contended that impugned order is an interlocutory order and therefore, an appeal against the same to the High Court is specifically barred under sub-section (1) of Section 21 of the Act.

It was said that even if the contention of the accused-appellants before the Special Court were to be accepted, the proceedings would not have concluded. Kumar submitted that the only feasible test to determine whether appeal against the impugned order is maintainable before the High Court is to ascertain whether by upholding the grounds raised by appellants, proceedings against appellants would have been terminated.

Court findings

The bench noted that the Supreme Court had on several occasions observed that in view of the stringency of sentence on conviction under the NIA Act and also the exacting nature of provisions on bail, the intention of legislation is clear that trial should be accomplished at a faster pace. Therefore, the Act has drastically reduced the avenues for the parties to approach the High Court by way of an appeal. A reading of Section 21 of the Act makes it absolutely clear about no right of appeal being made available against an interlocutory order.

The bench relied on the Supreme Court judgement in the case of State Of Andhra Pradesh Vs. Mohd. Hussain, (2014) 1 SCC 258, wherein it considered the highly restricted scope of preferring an appeal from the orders passed by the Special Court constituted under the Act at various stages before the final judgement is passed in the proceedings before the said Court.

It then observed,

"it is absolutely clear that the only interlocutory order passed by the Special Court against which an appeal is maintainable to the High Court is the order granting or refusing to grant bail. The above decision of Hon'ble Supreme Court directly deals with the provision under consideration namely, Section 21 of the Act."

Following which it held, "In view of the law laid down by the Hon'ble Apex Court in the case of State Of Andhra Pradesh Vs. Mohd. Hussain, we are of the considered view that no appeal shall lie to the High Court under Section 21 of the Act against the interlocutory order except in the case of grant of bail or refusal to grant bail."

It added, "In the present case, the order impugned in the appeal is an interlocutory order rejecting the transfer application and as such, the appeal preferred by the appellants is not maintainable."

Case Title: Irfan Pasha v  State of Karnataka

Case No: Criminal Appeal no 755/2021

Citation: 2022 LiveLaw (Kar) 96

Date of Order: 29th March 2022

Appearance: Advocate S Balakrishnan for appellants

Advocate P Prasanna Kumar P for respondent

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