Karnataka High Court
Mohammed Kaleem Ahmed vs National Investigating Agency on 27 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
REVIEW PETITION NO. 549 OF 2023
C/W
REVIEW PETITION NO. 543 OF 2023
REVIEW PETITION NO. 544 OF 2023
REVIEW PETITION NO. 548 OF 2023
IN RP No. 549/2023
BETWEEN:
1 . MOHAMMED KALEEM AHMED
S/O MOHAMMED JAFFAR
AGED ABOUT 68 YEARS
RETIRED GOVERNMENT SERVANT/
MEDICAL SHOP OWNER
RESIDING AT NO. 401, 4TH FLOOR
HONEY ENCLAVE, NEAR PETROL PUMP
Digitally signed
by NAGAVENI SHAMPURA ROAD, GHANDHI NAGAR
Location: High K.G.HALLI, BENGALURU - 560 045.
Court of
Karnataka
2 . MUHAMMED MUDASSIR KALEEM
S/O MOHAMMED KALEEM AHMED
AGED ABOUT 27 YEARS
IT PROFESSIONAL
RESIDING AT NO. 401, 4TH FLOOR
HONEY ENCLAVE, NEAR PETROL PUMP
SHAMPURA ROAD, GHANDHI NAGAR
K.G.HALLI, BENGALURU - 560 045.
-2-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
3 . NAQEEB PASHA
S/O MOHAMMED RAHMATHULLA H.,
AGED ABOUT 29 YEARS
MANUFACTURER
RESIDING AT NO. 18, 2ND MAIN
4TH CROSS, EZIKAL INDUSTRIAL AREA
K.G.HALLI, BENGALURU - 560 045.
4 . IMRAN AHMED
S/O NAZEER AHMED
AGED ABOUT 40 YEARS
MACHINE, SELF - EMPLOYED
R/AT NO. 702, 1ST MAIN
3RD CROSS, 'B' STREET
VINOBA NAGAR, K.G.HALLI
BENGALURU - 560 045.
5 . MOHAMMED AZHAR
S/O MOHAMMED SHAUKAT
AGED ABOUT 28 YEARS
SALESMAN
RESIDING AT NO.2, 2ND MAIN ROAD
3RD CROSS, ANWAR LAYOUT
BENGALURU - 560 045.
6 . KAREEM @ SADAM
S/O BASHEER AHMED
AGED ABOUT 24 YEARS
POLISHMAN
R/AT NO.7, 2ND CROSS
KUMARI MARIYAPPA NAGAR
VENKATESHPURAM
BENGALURU - 560 045.
(ALL PETITIONERS ARE IN JUDICIAL CUSTODY)
REP. BY THE WIFE OF
-3-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
PETITIONER No.1 S.SHAMEEMUNISA.
... PETITIONERS
(BY SRI MOHAMMED TAHIR, ADVOCATE)
AND:
1 . NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
OFFICE AT
HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA
BENGALURU - 560 001.
2 . D.J.HALLI POLICE
BANGALORE CITY POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL. PP)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 AND 2 OF CPC PRAYING TO REVIEW THE IMPUGNED ORDER
DATED 05.04.2023 PASSED AT ANNEXURE A AND RESTORE
THE WP NO. 8725/2021 IN THE FILES OF THIS HON'BLE
COURT TO CONSIDER THE WRIT PETITION AFRESH, IN THE
INTEREST OF JUSTICE AND EQUITY.
-4-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
IN RP NO. 543/2023
BETWEEN:
MOHAMMED SHARIFF
S/O AHMED SHARIFF
AGED ABOUT 37 YEARS
RESIDING AT NO. 58/2
6TH CROSS, 3RD MAIN
2ND STAGE, M.S.PALYA
BENGALURU - 560 097
(PETITIONER IS IN JC)
REP. BY HIS WIFE SALMA KHATUN
... PETITIONER
(BY SRI MOHAMMED TAHIR, ADVOCATE)
AND:
NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA
BENGALURU - 560 001.
... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPL. PP)
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 AND 2 OF CPC PRAYING TO REVIEW THE
IMPUGNED ORDER DATED 05/04/2023 AT ANNEXURE-A
AND RESTORE THE WP NO. 5547/2021 IN THE FILES OF
THIS HON'BLE COURT TO CONSIDER THE WRIT PETITION
AFRESH, IN THE INTEREST OF JUSTICE AND EQUITY.
-5-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
IN RP NO. 544/2023
BETWEEN:
SYED ATIQ AHMED @ ATEEQ AHMED
S/O S.I.NAYAZ @ SYED NAYAZ AHMED
AGED ABOUT 30 YEARS
AC MECHANIC
RESIDING AT NO.14/2, 18TH CROSS
HALL ROAD CROSS
BENGALURU - 560 045
(PETITIONER IS IN JUDICIAL CUSTODY)
REP. BY HIS WIFE KHAIRUNNISA.
...PETITIONER
(BY SRI. MOHAMMED TAHIR.,ADVOCATE)
AND:
1. NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS
REPRESENTED BY
SPL PUBLIC PROSECUTOR
HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA
BENGALURU - 560 001.
2. D.J.HALLI POLICE
BANGALORE CITY POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA BANGALORE-560001
...RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL. PP)
-6-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 AND 2 OF CPC PRAYING TO REVIEW THE
IMPUGNED ORDER DATED 05/04/2023 AT ANNEXURE-A
AND RESTORE THE WP NO. 9277/2021 IN THE FILES OF
THIS HON'BLE COURT TO CONSIDER THE WRIT PETITION
AFRESH, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RP NO. 548/2023
BETWEEN:
1. IMRAN AHMED
S/O ILLYAS AHMED
AGED ABOUT 38 YEARS
HOME APPLIANCE MECHANIC
RESIDING AT NO. 28, 7TH 'B' CROSS
KAVERI NAGAR, R.T. NAGAR POST
BENGALURU, KARNATAKA - 560 032.
PRESENTLY IN THE JC
2. SAMIUDDIN S. R. @ SAMI
S/O LATE RAFIQ S. A.,
AGED ABOUT 42 YEARS
SELF EMPLOYED
RESIDING AT NO. 294,
6TH MAIN, 3RD BLOCK
HBR LAYOUT, BENGALURU - 560 043.
3. MOHAMMED SIRAJUDDIN
S/O SHIAK MOHIUDDIN
AGED ABOUT 45 YEARS
AUTO DRIVER
RESIDING AT NO. 436
6TH CROSS, MASJID E KHAIR
VINOBHA NAGAR, ARABIC COLLEGE
-7-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
BENGALURU, KARNATAKA.
4. RUBAH WAQAS
S/O KHALAQ SHARIF
AGED ABOUT 27 YEARS
MACHINE, SELF-EMPLOYED
RESIDING AT NO. 26/2
12TH A CROSS, SONNAPPA BLOCK
PILLANA GARDEN 3RD STAGE
K.G.HALLI, BENGALURU - 560 045
PRESENTLY IN JC.
5. SHABBAR KHAN
S/O NAWAB KHAN
AGED ABOUT 36 YEARS
CARPENTER
RESIDING AT NO. 540/589
1ST MAIN, 1ST CROSS
SHAMPUR MAIN ROAD
COFFEE BOARD, 2ND STAGE
BENGALURU - 560 045
PRESENTLY IN JC.
6. SHAIK AJMAL
S/O SHAIK RIYAZ
AGED ABOUT 33 YEARS
POLISHMAN
R/AT NO.62, 12TH CROSS
VINOBHA NAGAR, PILLANA GARDEN
K.G.HALLI, BENGALURU - 560 045
PRESENTLY IN JC.
REPRESNTED BY MOHAMMED SIRAJUDDIN.
...PETITIONERS
(BY SRI MOHAMMED TAHIR, ADVOCATE)
-8-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
AND:
1. NATIONAL INVESTIGATING AGENCY
MINISTRY OF HOME AFFAIRS
REP. BY SPL PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA
BENGALURU - 560 001.
2. K.G.HALLI POLICE
BANGALORE CITY POLICE
REP. BY STATE PUBLIC PROSECUTOR
OFFICE AT HIGH COURT COMPLEX
OPP. TO VIDHANA SOUDHA
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI P.PRASANNA KUMAR, SPL. PP)
THIS REVIEW PETITION UNDER ORDER 47 RULE 1
AND 2 OF CPC, PRAYING TO THE IMPUGNED ORDER DATED
05/04/2023 AT ANNEXURE A AND RESTORE THE WP NO.
9681/2021 IN THE FILES OF THIS HONB'LE COURT TO
CONSIDER THE WRIT PETITION AFRESH, IN THE INTEREST
OF JUSTICE AND EQUITY.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
-9-
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
These petitions are preferred seeking review of a common
order dated 05.04.2023 passed in W.P.No.8725/2021 C/w.
W.P.Nos.5547/2021, 9277/2021 and 9681/2021.
2. The writ petitions in W.P.No.8725/2021 C/w.
W.P.Nos.5547/2021 9277/2021 and W.P.No.9681/2021 had
been preferred calling in question the proceedings in
Spl.C.No.141/2021 registered for the offences punishable under
Sections 16, 18 and 20 of the Unlawful Activities (Prevention)
Act, 1967 (‘the UA(P)A’ for short), Sections 143, 147, 148, 427.
149 and 34 of the Indian Penal Code, 1860 (‘the IPC‘ for short)
(including Sections 120B, 145, 188, 353 of the IPC and
excluding Section 148 of the IPC in W.P.No.9681/2021) and
Section 2 of the Prevention of Damage to Public Property Act,
1984.
3. Heard Shri Mohammed Tahir, learned counsel
appearing for the petitioners and Shri P. Prasanna Kumar,
Special Public Prosecutor appearing for the respondents.
– 10 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
4. After hearing the learned counsel for the parties,
the writ petitions were dismissed. After dismissal of the writ
petitions, the review petitions are preferred on certain reasons
that the judgments relied on by the learned counsel appearing
for the petitioners were not completely considered and there
was overlapping of the facts. The review was also heard.
Later, certain jurisdictional errors are noticed in considering
these petitions at the hands of this Court. According to the
learned counsel appearing for the petitioners and the learned
counsel appearing for the respondent – National Investigating
Agency, these matters have to be placed before the Division
Bench as these are offences emerging out of the UA(P)A.
5. In that light, the matter was directed to be listed for
further hearing. The matters were heard and it is noticed that
the matters had to be placed before the division bench. In all
identical circumstances, this Court has disposed the petitions,
reserving liberty to the accused to approach the division bench
for the relief of the kind that they are seeking.
– 11 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
6. The issue is, whether the review petitions are to be
entertained or otherwise. When there is a jurisdictional error, it
would undoubtedly become a reason for entertaining the review
petition. The law laid down by the Apex Court in the case of
KAMALESH VERMA Vs. MAYAWATI1, is as follows:
“Summary of the principles
20. Thus, in view of the above, the following grounds of
review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or
evidence which, after the exercise of due diligence, was
not within knowledge of the petitioner or could not be
produced by him;
(ii) Mistake or error apparent on the face of the
record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been
interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 :
(1922) 16 LW 37 : AIR 1922 PC 112] and approved by this
Court in Moran Mar Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520]
to mean “a reason sufficient on grounds at least analogous
to those specified in the rule”. The same principles have
been reiterated in Union of India v. Sandur Manganese &
Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]20.2. When the review will not be maintainable:
1
(2013) 8 SCC 320
– 12 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
(i) A repetition of old and overruled argument is not
enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the
original hearing of the case.
(iv) Review is not maintainable unless the material
error, manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise
whereby an erroneous decision is reheard and corrected
but lies only for patent error.
(vi) The mere possibility of two views on the subject
cannot be a ground for review.
(vii) The error apparent on the face of the record
should not be an error which has to be fished out and
searched.
(viii) The appreciation of evidence on record is fully
within the domain of the appellate court, it cannot be
permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief
sought at the time of arguing the main matter had been
negatived.”
(Emphasis supplied)
The Apex Court delineates as to when the review should be
entertained and when it should not.
7. In the light of the jurisdictional error, which would cut
at the root of the matter taking cue from the judgment of the
– 13 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
Apex Court supra, I deem it appropriate to entertain the review
petitions. The entertainment of the review petitions would lead
to recalling of the common order dated 05.04.2023 passed by
this Court in W.P.No.8725/2021 C/w. W.P.Nos.5547/2021,
9277/2021 and W.P.No.9681/2021 and restoring the petitions
to file. Thus, the review petitions stand allowed and the writ
petitions are restored to file.
8. In the light of what is aforesaid and the issue being
a jurisdictional error, in all such cases, this Court has declined
to entertain the petition and has directed those accused to
approach the division bench. Therefore, I deem it appropriate
to quote the judgment of the full bench of the High Court of
Kerala at Ernakulam, in the case of MASTIGUDA ABOOBACKER
Vs. NATIONAL INVESTIGATION AGENCY reported in 2020
SCC Online Ker 5159
“7. Since the issue centres around the interpretation of
Section 21 of the NIA Act, we shall extract the same:
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
– 14 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
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.”
8. Before analysing the scope and legal effect of the
above Section, we shall take cognizance of certain pertinent
aspects. Section 2(1) (b) of the NIA Act says “Code” means
the Code of Criminal Procedure, 1973. In the NIA Act,
Chapter III dealing with “Investigation by NIA” and Chapter
IV relating to “Special Courts” indicate, in generality, the
application of the Code in the matter of investigation into the
offences and trial of cases by the Special Courts. Chapter
XXIX of the Code, comprising of Sections 372 to 394, deals
with appeals. Section 372 says that no appeal shall lie from
any judgment or order of a criminal court except as provided
by the Code or by any law for the time being in force. By the
Amendment Act, 2008 (Act 5 of 2009), which came into
effect on 31.12.2009, a proviso has been added to Section
372 of the Code dealing with the victim’s right to prefer an
appeal. That provision is not relevant for our purpose.
– 15 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
9. Firmly settled proposition in law is that right to appeal
is a creature of statute and it exists only where expressly
provided by the statute.
10. From the preamble to the NIA Act it will be
evident that it was enacted to constitute an
investigation agency at the national level to
investigate and prosecute offences affecting the
sovereignty, security and integrity of India, security of
State and friendly relations with foreign States. It is
also intended to conduct investigation into offences under
the Acts, enacted to implement international treaties,
agreements, conventions and resolutions of the United
Nations and other international organizations. What is
discernible from the statement of objects and reasons
is that the legislature has noticed the happening of
innumerable incidents of terrorist attacks, not only in
the militancy areas and areas affected by Left Wing
Extremism, but also in the form of terrorist attacks
and bomb blasts in various parts of the country. A
large number of incidents were found to have complex
inter-State and international linkages and possible
connections with other activities like the smuggling of
arms and drugs and pushing in and circulation of fake
Indian currency, infiltration from across the borders,
etc. Reckoning all these aspects, the legislature felt
the need of setting up an agency at the central level
for investigation of offences relating to terrorism and
certain other acts which have national ramifications.
All the above considerations actuated the Parliament
to enact the NIA Act.
11. We may make a passing mention that the NIA Act
was amended by NIA (Amendment) Act, 2019 which came
into force on 02.08.2019. The amendments so effected have
no relevance in these cases.
12. In the above backdrop, we shall analyse Section 21 of
the NIA Act quoted above. On a plain reading of Section
21(1), it will be clear that an appeal shall lie from any
judgment, sentence or order, not being an
– 16 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
interlocutory order, of a Special Court, constituted
under Section 11, to the High Court, both on facts and
on law. Interlocutory orders have been excluded from
the purview of appealable orders in clear terms. Sub-
section (2) specifically states that every appeal filed
under Sub-section (1) shall be heard by a Bench of
two Judges of the High Court. It is also provided that
every appeal shall be disposed of, as far as possible, within a
period of three months from the date of its admission.
Language used in the Section clearly shows that the High
Court, as a court of appeal, can exercise all the powers
provided under Chapter XXIX of the Code.
13. Section 21(3) emphatically says that except as
provided in Sub-section (1), no appeal or revision shall
lie to any court from any judgment, sentence or order,
including an interlocutory order of a Special Court.
Revisional powers of the High Court are specifically referred
to in Sections 397, 398 and 401 of the Code falling under
Chapter XXX. Plain language in Section 397(2) of the Code
explicitly prohibits the exercise of revisional powers against
interlocutory orders. Binding judicial precedents have now
settled that there can be certain types of orders falling in
between interlocutory orders and final orders, which are
called ‘intermediate orders’, and they are amenable to
revision. That aspect we shall discuss later.
14. In Sub-section (4) to Section 21, it is stated starting
with a non obstante clause, that notwithstanding anything
contained in Section 378(3) of the Code (which relates to
leave of the High Court in respect of an appeal in a case of
acquittal), an appeal shall lie to the High Court against an
order of the Special Court granting or refusing bail.
Importantly, under the scheme of the Code, there is no
provision empowering a party to challenge in appeal an order
passed by a criminal court under Chapter XXXIII (relating to
bail and bonds) either granting or refusing bail. Normally,
when a bail application filed before a Magistrate under
Section 437 of the Code is dismissed, the accused involved in
a non-bailable offence gets a right to approach the Sessions
Court concerned under Section 439 of the Code. When a bail
plea raised under Section 439 is dismissed by a Court of
– 17 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
Session, the accused can move the High Court. In
contradistinction to the said provisions in the Code, by
enacting Sub-section (4) to Section 21, a right of appeal is
allowed to both the parties aggrieved by the grant or refusal
of bail. Certainly, this is conferment of a distinct right on the
parties. Sub-section (5) to Section 21 mentions about the
time prescription to file an appeal and the High Court’s
limited power to extend the time. That provision has no
application in our cases.
15. In the order of reference, it is specifically mentioned
that the orders impugned, refusing to modify or relax the
conditions imposed in the bail order, are interlocutory orders,
pure and simple. In fact, there is no dispute between the
contestants on this aspect. We are also of the view that the
orders under challenge can only be qualified as interlocutory
orders. We shall elaborate the reasons for our view.
Xxxx
21. After referring to various decisions, including Madhu
Limaye v. State of Maharashtra ((1977) 4 SCC 551)
and Stroud’s Judicial Dictionary and also Corpus Juris
Secundum, a Division Bench, consisting of four Hon’ble
Judges of the Supreme Court, in V.C. Shukla v. State
through C.BJ.(1980 Supp SCC 92 : AIR 1980 SC 962) held as
follows in the context of Section 11 of the Special Courts Act,
1979 and Section 397(2) of the Code:
“To sum up, the essential attribute of an interlocutory
order is that it merely decides some point or matter
essential to the progress of the suit or collateral to the
issues sought but not a final decision or judgment on the
matter in issue. An intermediate order is one which is
made between the commencement of an action and the
entry of the judgment, Untwalia J. in the case of Madhu
Limaye v. State of Maharashtra clearly meant to convey
that an order framing charge is not an interlocutory order
but is an intermediate order as defined in the passage,
extracted above, in Corpus Juris Secundum, Vol. 60. We
find ourselves in complete agreement with the
observations made in Corpus Juris Secundum………”
– 18 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
22. In the reference order, the learned Judges mentioned
about certain observations in Madhu Limaye in regard to
the exercise of power under Section 482 of the Code. We
shall deal with that aspect later.
23. In Madhu Limaye, the question came up for
consideration was, whether framing of charges against the
appellant under Section 500 IPC was an order challengeable
before the High Court in a revision under Section 397(1) of
the Code?. The High Court held that a revision petition was
not maintainable in view of the interdiction in Section
397(2), by qualifying the order impugned as an interlocutory
order. Supreme Court, after considering the rival
contentions, observed thus:
“………… In what cases then the High Court will
examine the legality or the propriety of an order or the
legality of any proceeding of an inferior Criminal Court? Is
it circumscribed to examine only such proceeding which is
brought for its examination after the final determination
and wherein no appeal lies? Such cases will be very few
and far between. It has been pointed out repeatedly, vide
for example, The River Wear Commissioners v. William
Adamson ([1876-77] 2 A.C. 743) and R.M.D.
Chamarbaugwalla v. The Union of India (1957 SCR
930 AIR 1957 SC 628) that although the words occurring
in a particular statute are plain and unambiguous, they
have to be interpreted in a manner which would fit in the
context of the other provisions of the statute and bring
about the real intention of the Legislature. On the one
hand, the Legislature kept intact the revisional power of
the High Court and, on the other, it put a bar on the
exercise of that power in relation to any interlocutory
order. In such a situation it appears to us that the real
intention of the Legislature was not to equate the
expression “interlocutory order” as invariably being
converse of the words “final order”. There may be an
order passed during the course of a proceeding which
may not be final in the sense noticed in S. Kuppuswami
Rao v. The King (1947 FCR 180 : AIR 1949 FC 1), but,
yet it may not be an interlocutory order – pure or simple.
Some kinds of order may fall in between the two. By a
rule of harmonious construction, we think that the bar in
– 19 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHERsub-section (2) of Section 397 is not meant to be
attracted to such kinds of intermediate orders. They may
not be final orders for the purposes of Article 134 of the
Constitution, yet it would not be correct to characterise
them as merely interlocutory orders within the meaning
of Section 397(2). It is neither advisable, nor possible, to
make a catalogue of orders to demonstrate which kinds of
orders would be merely, purely or simply interlocutory
and which kinds of orders would be final, and then to
prepare an exhaustive list of those types of orders which
will fall in between the two. The first two kinds are well-
known and can be culled out from many decided cases.
We may, however, indicate that the type of order with
which we are concerned in this case, even though it may
not be final in one sense, is surely not interlocutory so as
to attract the bar of sub-section (2) of Section 397. In our
opinion it must be taken to be an order of the type falling
in the middle course.”
24. In the light of the legal principles enunciated above,
the orders impugned in our cases can neither be called final
orders nor intermediate orders. They are typical interlocutory
orders. Hence, the relevant question is, whether they can be
challenged in proceedings under Section 482 of the Code?
xxxx
36. Before going further on this point, we shall examine
the scope and legal effect of Section 482 of the Code.
Neither Section 561A of the old Code nor Section 482 of the
present Code has given any increased powers to the High
Court which it did not possess before they were enacted.
In Madhu Limaye (supra), a three Judge Bench of the
Supreme Court after taking note of the statements in Amar
Nath v. State of Haryana ((1977) 4 SCC 137) made the
following observations:
“…………….On a plain reading of Section 482, however,
it would follow that nothing in the Code, which would
include sub-section (2) of Section 397 also, “shall be
deemed to limit or affect the inherent powers of the High
Court.” But, if we were to say that the said bar is not to
operate in the exercise of the inherent power at all, it
will be setting at naught one of the limitations imposed
– 20 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHERupon the exercise of the revisional powers. In such a
situation, what is the harmonious way out? In our
opinion, a happy solution of this problem would be to say
that the bar provided in sub-section (2) of Section 397
operates only in exercise of the revisional power of the
High court, meaning thereby that the High Court will
have no power of revision in relation to any interlocutory
order. Then in accordance with one or the other
principles enunciated above, the inherent power will
come into play, there being no other provision in the
Code for the redress of the grievance of the aggrieved
party. But then, if the order assailed is purely of an
interlocutory character which could be corrected in
exercise of the revisional power of the High Court under
the 1898 Code, the High Court will refuse to exercise its
inherent power. But in case the impugned order clearly
brings about a situation which is an abuse of the process
of the Court or for the purpose of securing the ends of
justice interference by the High Court is absolutely
necessary, then nothing contained in Section 397 (2) can
limit or affect the exercise of the inherent power by the
High Court. But such cases would be few and far
between. The High court must exercise the inherent
power very sparingly…………..”
xxxxx
40. Our attention has been drawn by learned CGSC to
Section 5 of the Code which says that nothing contained in
the Code shall, in the absence of a specific provision to the
contrary, affect any special or local law for the time being in
force, or any special form of procedure prescribed by any
other law for the time being in force. According to the
learned CGSC, Section 5 of the Code unambiguously states
that the Code will not affect the special form of procedure
prescribed by the NIA Act and therefore Section 482 of the
Code cannot be invoked to challenge an interlocutory order.
Xxxxx
56. It is therefore clear that the powers exercisable by
the High Court under Section 482 of the Code, viz., to give
effect to any order under the Code or to prevent the abuse
of process of any court of otherwise to secure the ends of
– 21 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
justice, are not identical with the constitutional powers
provided under Article 227. In other words, the ambit,
intendment and scope of these two powers are not similar
and one cannot be regarded as a substitute for the other.
We, therefore, hold that availability of supervisory power
under Article 227 can never be a reason to exclude the
inherent powers existing in the High Court, which is
expressly saved under Section 482 of the Code. We also
hold that there is no express or implied bar created by the
NIA Act in the exercise of the High Court’s inherent powers
safeguarded under Section 482 of the Code. Besides, as
held by the Constitution Bench of the apex Court in Ratilal
Bhanji Mithani and followed in Asian Resurfacing of Road
Agency Pvt. Ltd. (supra), the Constitution confirmed and
revested in the High Court all the existing powers and
jurisdictions, including its inherent powers. The inherent
powers of the High Court, preserved by Section 561A of the
old Code and Section 482 of the present Code, are thus
vested in the High Court by “law” within the meaning of
Article 21 of the Constitution. We shall neither negate nor
abdicate or abridge the inherent powers of the High Court
by relying on some flimsy inferences because the exercise
of such powers will be essentially required in certain cases.
We, therefore, hold that in appropriate cases the High Court
has power to invoke its jurisdiction under Section 482 of the
Code to give effect to any order under the Code or to
prevent abuse of the process of any court or otherwise to
secure the ends of justice.
57. Having held as above, we shall examine the ratio of
the decisions doubted in the reference order.
In Thadiyantevida Nazeer (supra), some of the accused
persons in a Case, pending before the Special Court,
challenged an order passed by it dismissing their application
seeking the cancellation of tendering pardon to the
7th accused in the case, who became an approver in the
case and testified as PW1 at the trial. When the Crl.M.C.
was filed, Registry raised an objection on the ground that
the impugned order was a final order and it was, at best, a
revisable order. It was contended before the court that the
order impugned would not have terminated the main
proceedings before the Special Court and therefore it was
– 22 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
only an interlocutory order. Since no revision would lie
against an interlocutory order under Section 397(2) of the
Code, the Crl.M.C. should be entertained invoking Section
482 of the Code. These contentions were considered by a
Division Bench and in paragraph 7 it was decided thus:
“If, in the alternative, the order dated 2.9.2011 is to
be treated as an interlocutory order then S.21(3) is an
express bar to an appeal or revision even against
interlocutory orders. When the Legislature has
specifically prohibited an appeal or revision even against
interlocutory orders, the above statutory obstacle cannot
be indirectly surmounted by filing a petition under S.482
Cr.P.C. In other words, the inherent power of the High
Court cannot be exercised for doing some thing which is
expressly prohibited by the statute.”
58. Another Division Bench in Majeed Koliyad-I (supra)
considered the question whether the Special Court’s refusal
to lift the condition in the bail order, that the petitioner’s
passport would stand surrendered, could be challenged in a
proceeding under Section 482 of the Code? In paragraph 6
the following observations are made:
“In the nature of the issues raised, it is not necessary
for us to dwell (sic. delve/deep into the question as to
the quality of the orders impugned and say whether they
could be subjected to appeal or revision, in terms of the
provisions of the NIA Act. All that the petitioner has
sought for in these matters is exercise of jurisdiction
under Section 482 CrPC. That, obviously, would be done
only in cases of manifest miscarriage of justice or when
an inferior Criminal Court acts in excessive exercise of
jurisdiction or when the action of that Court is in lack of
jurisdiction and in situations when the order impugned
would result in gross injustice and violation of rights, if
allowed to stand. This is the only law, which is trite, as
can be fished out from the ocean of precedent law. We
do not deem it necessary to quote the precedents
settling this iconic principle.”
59. Albeit making the above observations, the Division
Bench, on finding that the challenge against the impugned
– 23 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
order in the petition under Section 482 of the Code was
without any merit, dismissed the same.
60. Later, another Division Bench in Majeed Koliyad-
II (supra) was called upon under Section 482 of the Code to
decide the legality of refusal by Special Court of the
petitioner’s plea for permitting him to go to Dubai for 15
days. When the matter was placed before a Single Bench,
considering the pronouncement in Thadiyantevida
Nazeer, it was referred to a Division Bench. After
considering the rival contentions, the Bench observed thus:
“Bar to remedy under a particular provision has to be
specific. The semblance of a bar to jurisdiction cannot be
imported by inference when the requirement is to find
whether the superior Courts would stand deprived of
their inherent power of superintendence, including within
the nature of the powers recognized under Section 482
of CrPC. We notice this poignant issue at this point of
time only to say that the availability or not, to recourse
to Section 482 of CrPC need not always be relevant
when access is permissible in the form of an appeal
under Section 21(1) and 21(4) of the NIA Act read
together, which is more comprehensive in content.
Therefore, when an application for interference
under Section 482 is made, in any situation,
nonethelss, it has to be heard by a Bench of two
Judges, since the relief sought for is akin to what
could be granted in an appeal under Section 21 of
the NIA Act. This is how sub-section (2) of Section
21 of the NIA Act will have to be meaningfully
understood to exclude conflict of decisions in
matters relating to orders of NIA Court. This is how
sub-section (2) of Section 21 of the NIA Act will
have to be meaningfully understood to exclude
conflict of decisions in matters relating to orders of
NIA Court. In the backdrop of the different
provisions of the NIA Act and the CrPC, in the
backdrop of the equality and liberty doctrines
enshrined in the Constitution of India, we hold that
all persons involved in eases falling under the
canopy of the NIA Act, even if no NIA Court is
constituted, are entitled to urge their grievance
– 24 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHERbefore a Bench of two Judges, whatever be the
provision they invoke for institution of
proceedings. This would also ensure institutional
consistency in the judiciary.”
65. Taking cue from Section 21 of the NIA Act, it
has been held in Majeed Koliyad-ll that an application
under Section 482 of the Code filed in a case under
the NIA Act shall be heard by a Bench of two Judges
of the High Court. Section 4(1) of the Kerala High
Court Act, 1958 supports the above view. It reads
thus:
“4. Powers of a Bench of two Judges.–The
powers of the High Court in relation to the
following matters may be exercised by a Bench of
two Judges, provided that if both Judges agree
that the decision involves a question of law they
may order that the matter or question of law be
referred to a Full Bench:–
(1) Any matter in respect of which the powers of the
High Court can be exercised by a Single Judge.
xxxxxxxxx”
66. Hence, we are of the view that when a petition is
filed under Section 482 of the Code challenging an
interlocutory order passed in a case registered under the
NIA Act, it shall be placed before a Bench of two Judges for
hearing and disposal. We are sure that the Bench certainly
will consider the issues raised therein and decide the plea
based on the precedential taw relating to the exercise of
inherent powers of the High Court. We are also sure that
the Bench will take note of the prejudice likely to be caused
by a delayed decision.
67. To conclude, we sum up the findings as follows:
(I) Section 21 of the MA Act neither expressly nor
impliedly bars the High Court’s inherent powers saved
under Section 482 of the Code.
– 25 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHER
(II) An interlocutory order, pure and simple, passed by a
Special Court under the NIA Act which cannot be
challenged either in appeal or revision, can be
challenged in a petition under Section 482 of the
Code. It is made dear that the challenge can be
sustained only when the party satisfies the High
Court that orders thereon will be necessary to give
effect to any order under the Code or to prevent
abuse of the process of any court of otherwise to
secure the ends of justice.
(III) Any petition filed under Section 482 of the
Code in relation to a case under the NIA Act
shall be heard and decided by a Bench of two
Judges of the High Court.
(IV) The Bench hearing a petition under Section 482 of
the Code, following the lead from Section 21(2) of the
NIA Act, wherein three months time has been
stipulated for appeals, will hear and dispose of the
petition, as far as possible, within the said period.
(V) Registry shall number the petitions, if they are
otherwise in order, and place it before a Bench of two
Judges in accordance with the roster.”
(Emphasis supplied)
In the light of the offences being similar, i.e., arising out of the
offence punishable under the UA(P)A and the fact that in
identical circumstances, this Court has directed the petitioners
to approach the division bench, I deem it appropriate to follow
suit. Therefore, the following:
ORDER
a. The review petitions are allowed.
– 26 –
NC: 2025:KHC:13416
RP No. 549 of 2023
C/W RP No. 543 of 2023
RP No. 544 of 2023
AND 1 OTHERb. Writ Petition Nos.8725/2021 c/w. 5547/2021,
9277/2021 and 9681/2021 are restored to file.
c. Office to place the writ petitions before the appropriate
division bench having roster.
d. Liberty is reserved to the petitioners to approach the
division bench on the same cause action or any cause
of action that would ensue.
Ordered accordingly.
SD/-
(M.NAGAPRASANNA)
JUDGEJY
List No.: 1 Sl No.: 114
CT: SS
[ad_1]
Source link