The State of Maharashtra Vs. Murli Ramchand Puruswami and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/353022
SubjectCriminal
CourtMumbai High Court
Decided OnJul-04-2003
Case NumberCriminal Writ Petition No. 561 of 2003
JudgeV.G. Palshikar and ;D.B. Bhosale, JJ.
Reported in2003(2)ALD(Cri)131; 2003BomCR(Cri)1553; 2003CriLJ4152; 2003(4)MhLj91
ActsTerrorist and Distruptive Activities (Prevention) Act, 1987 - Sections 3, 5, 11(1), 12, 15, 18 and 19; Code of Criminal Procedure (CrPC) - Sections 32, 321, 397 and 397(2); Constitution of India - Article 226; Special Courts Act, 1979 - Sections 11; Evidence Act
AppellantThe State of Maharashtra
RespondentMurli Ramchand Puruswami and ors.
Appellant AdvocateNitin Pradhan and ;Subhash Jha, Advs., i/b., Law Global for R. No. 9- intervener in W.P. 561 of 2003;P.M. Pradhan, Spl. P.P. and ;U.V. Kejariwal, APP
Respondent AdvocateV.R. Manohar, Sr. Counsel, ;M.S. Mohite, ;Shrikant Shirade, ;A.S. Kaushik and ;Usha Dahanukar, Advs. except for Respondent No. 2 in W.P. No. 562 of 2003 and ;Subhash Jha, Adv., i/b., Law Global for R.
DispositionPetition rejected
Excerpt:
criminal - interlocutory order - sections 3, 5, 11 (1), 18 and 19 of terrorist and disruptive activities (prevention) act, 1987, sections 32, 321, 397 and 397 (2) of criminal procedure code, 1973 - petitioner's application for withdrawal of prosecution under section 5 and transfer of proceedings to regular sessions court dismissed by special court under section 321 - petition challenging said order of special court - impugned order held to be final order and not interlocutory order because it finally decides right under 321 - impugned order has to be challenged under section 19 - writ petition not maintainable in view of availability of alternative remedy. - - provided that the supreme 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 or not preferring the appeal within the period of thirty days. 11. in our opinion, this question, since it goes to the root of the matter, can well be decided with reference to the judgment of the supreme court reported in 1980crilj690 .in that case the supreme court was dealing with section 11 of the special courts act. if it is allowed, both the rights are satisfied and the matter is finally adjudicated. 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. we need not cite the decisions of the supreme court, where their lordships, have clearly laid down that when efficacious alternate remedy is available, writ jurisdiction need not be exercised. nitin pradhan that the writ petition is not maintainable in view of the fact that alternate and efficacious remedy by way of appeal is available to the prosecution is well founded. 20. in all humality, in our opinion, a remedy of appeal under 19 of the tada act is far more efficacious better for all concerned than seeking exercise of writ jurisdiction of this court under article 226 of the constitution. in the result therefore the petitions must fail and are rejected.palshikar, j.1. by this petition, the petitioners, state of maharashtra, has challenged the order passed by the special court under the provisions of terrorist and disruptive activities (prevention) act, 1987 on 15-3-2003 dismissing the application exh. 282 in tada sessions case no. 8 of 1993.2. tada sessions case no. 8 of 1993 is pending before the designated court (tada) at pune. the said cases are pending for prosecution of the accused therein, some of whom are respondents herein. the charges include charge under section 5 of the terrorist and disruptive activities (prevention) act, 1987 (hereinafter referred to as the act).3. exh. 282 was filed in tada sessions case no. 8 of 1993 by the special pubic prosecutor for the state of maharashtra under section 321 of the criminal procedure code (hereinafter referred to as the code). by this application the state sought withdrawal of prosecution under section 5 of the act and requested transmission of the proceedings to regular sessions court as it no longer would remain a case triable only by the special court. this application was rejected by the learned judge as aforesaid, which rejection is the subject matter of criminal writ petition no. 561 of 2003.4. criminal writ petition no. 562 of 2003 is filed by the state challenging the same order dated 15-3-2003 below exh. 282 in special case no. 8 of 1993. the tada sessions case is different but the allegations in both these applications are identical. the learned judge of the special court therefore proceeded to decide both these applications by the same order impugned in both these petitions. after a detailed discussion about various contentions raised before him, the learned special judge proceeded to reject the application under section 321 of the code in relation to both the trials. feeling aggrieved as aforesaid by this order the state have come up in writ petition. since both the petitions involve identical questions of law and also the arguments canvassed by the learned a.p.p. which was also supported by shri v.r. manohar the learned senior counsel for some of the respondents/accused in the original trial, we think it proper to pass a common order. the petition herein was opposed by the learned counsel shri nitin pradhan and shri subhash zha, advocates appearing for the representatives of some victims. they canvassed before us that the rejection of application under section 321 was proper whereas the prosecutor and the learned sr. counsel for the original accused submitted that the order is unsustainable in law and deserves to be set aside.5. there is yet another very significant and important fact which we must note. before this application under section 321 of the code was filed by the prosecution on 28-2-2003, the accused had filed an application under section 18 of the act claiming dropping of the charges under the provisions of the tada act and transfer of the case to regular sessions court. this application was decided by the trial court on 10-11-1998. the prayer made was rejected. the consequence was the prosecution under tada act continued before the designated court by reason of rejection of this application and it could have been claimed to be an interlocutory order. however the present respondents including suresh kalani filed an appeal before the supreme court of india under section 19 of the act. appeals were also filed in the supreme court of india by the state of maharashtra challenging the finding recorded by the special court that on the materials placed on record by the prosecution no charge can be framed under section 3 of the tada (p) act. the supreme court has then squarely observed that:'in this appeal filed under section 19 of the tada (p) act, accused no. 4 (suresh @ pappu bhudharmal kalani) of t.s.c. no. 25/1992, has challenged the order passed by the designated court of thane rejecting the application filed by him under section 18 of the act for discharging him from the charges under sections 3 and 5 of the tada (p) act and to transfer the case to the sessions court on the ground, interalia, that no case under section 3 or section 5 of the tada (p) act is made out against him.'6. the supreme court then proceeded to consider the appeals on merits and it came to a conclusion that there is no merit in the appeals and it therefore proceeded to dismiss all the appeals. even according to the accused and his advocates then appearing in the supreme court the order of rejection of an application under section 18 was final order. however ignoring this entire aspect, petitions are filed before us and we are asked to exercise under article 226 of the constitution because the order is an interlocutory order. in this very proceedings months or year earlier this very accused pleaded before the supreme court of india that it is a final order and therefore appeal is maintainable in the supreme court, or they treated this as a final order under section 19 of the act and therefore they filed appeal directly to the supreme court. it is a fact therefore on record that the supreme court has entertained the appeal against the order refusing transfer of the case under section 18 after dropping the charges under tada act in the final order. it will thus be seen that all the parties concerned had one round of litigation in the supreme court of india on the understanding that the order made under section 18 of the act is a final order. the accused persons who are appellants in the supreme court filed an appeal in the supreme court. the state was party thereto and all concerned argued the matter on merits only. it is in this background that we have to consider the contention raised before us.7. we heard the learned counsel at length. we have scrutinised the record as if filed in the petition before us. before we proceed to deal with the merits of the matter, a preliminary objection as raised by shri nitin pradhan has to be dealt with and decided. the objection is that the order impugned in this petition is passed under section 321 of the code and therefore it has to be challenged under section 19 of the act in the supreme court of india. the order passed is not an interlocutory order and therefore appeal squarely lies to the supreme court of india, relying on the provisions of section 19 of the act which reads thus:'19. appeal. (1) not withstanding anything contained in the code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a designated court to the supreme court both on facts and on law. (2) except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a designated court.(3) 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 supreme 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 or not preferring the appeal within the period of thirty days.'8. reliance was placed by the learned counsel on the words 'not being an interlocutory order', the submission in nutshell was that the order rejecting the application under section 321 was in effect an order under section 18 of the act and an order under section 321 of the code is not an interlocutory order as it has the effect of finally adjudicating the rights of the parties.9. opposing the submission the learned special prosecutor and the learned counsel for the accused contended that the order was an interlocutory order as the proceedings did not terminate with the order, only withdrawal of one charge was asked and denied and therefore it cannot be said that it is not an interlocutory order. our attention was drawn by shri v.r. manohar to a judgment of the supreme court in v.c. shukla v. state through cbi reported in 1980 s.c. 962 where the supreme court of india has considered the provisions of special courts act 1979 and section 11 thereof. section 11 of the special courts act and section 19 of the act are almost identical. there is no difference either in the phraseology or intent of the section. both provide for appeal and spell out the conditions in which it will lie. relying on this decision in v.c. shukla's case the learned counsel argued that the order impugned in v.c. shukla's case was held by the supreme court to be an interlocutory order and therefore it was held that no appeal lie under section 11. the contention consequently is, that the present order impugned in this petition is also an interlocutory order and therefore by square application of the ration in shukla's case it would be an interlocutory order and therefore no appeal would be maintainable in the face of the language of section 19 of the act. the arguments at the outset appear to the attractive and correct but on a closest scrutiny of the judgment in shukla's case and the facts in which the present order impugned in this petition came to be passed, it will be seen that both these submissions would require a detailed scrutiny.10. the submission of shri nitin pradhan is that this is not an interlocutory order because it does not decide temporarily a stage in the proceedings but finally adjudicate upon the rights of the prosecution as contemplated by section 321 of the code. if the application is accepted the prosecution stands terminated in so far as the provisions of tada act is concerned and that according to him is the final adjudication of the right of the state if it permitted withdrawal of the prosecution. grant of permission or refusal thereof, in his submission, is final adjudication of the right of state to withdraw the prosecution as provided by section 321 of the code. this submission is countered by the petitioner by saying that the order rejecting the application of the prosecution does not bring to an end the right of the prosecution because even if the application is allowed, the proceeding will require to be transferred to sessions court and therefore the proceeding would not end and therefore the order is interlocutory.11. in our opinion, this question, since it goes to the root of the matter, can well be decided with reference to the judgment of the supreme court reported in : 1980crilj690 . in that case the supreme court was dealing with section 11 of the special courts act. it has parimateria to the provisions of section 19 of the tada act. in the case of shukla, the order directing framing of charge was impugned by way of an appeal under section 11 of the special courts act before the supreme court of india. the supreme court in the light of the facts of that case examined the rival contentions and found that the order framing charge is an interlocutory order. the supreme court in that case was considering the prosecution under the special courts act only. in the present case we are considering the combined trial of offences under the tada act and the offences under indian penal code. the jurisdiction is given to the designated court to try all these offences provided some of them are triable exclusively by the designated court under tada act. it has been held by this court in : (1992)94bomlr547 santosh dattaram more and anr. v. state of maharashtra that when an accused is discharged for the offences under tada act and only course open for the designated court would be to transfer the case to the regular court under section 18 of the act. consequently the result of granting an application under section 321 of the code in a trial for tada offences and ipc offence would be to take away the jurisdiction of the designated court, requiring transfer of the case to regular sessions court. the necessary consequence is therefore that the order granting the application under section 321 of the code does finally adjudicate the question of jurisdiction of the designated court. the court cannot thereafter continue to have control over the matter. the right of the accused to have the prosecution withdrawn under section 32 of the code stands finally adjudicated by rejection of that application made by the prosecution under section 321 of the code. it should be born in mind that the application under section 321 of the code is an application for exercising the right conferred on the prosecution by that section. the consequential right of the accused on allowing the application by the prosecution under the provisions of tada act would be decided. both these rights are finally decided when an application under section 321 of the code is decided. if it is allowed, both the rights are satisfied and the matter is finally adjudicated. if it is not allowed both the rights, still are finally decided, the right of the prosecution to take away the matter from tada court is finally adjudicated by the rejection and the right of the accused to have the prosecution in regular court and be free from the tada prosecution is also finally adjudicated. such an order cannot be said to be an interlocutory order, is the contention. we will consider at length what the supreme court has observed in relation to this.'22. 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. it is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in section 11(1) of the act. wharton's law lexicon (14th edition p. 529) defines interlocutory order thus:'an interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties.' 12. it will be seen from the above quoted paragraph that the supreme court found the order made in shukla's case is an intermediate order and not an interlocutory order for which reliance was placed in case of madhu limaye v. state of maharashtra and therefore it was observed that such an order of framing charge being an intermediate order falls within the category of interlocutory order.13. then quoting wharton's law lexicon (14th edition, page 529) the supreme court has observed that the order framing charge in shukla's case was intermediate order as it did not terminate the proceedings or finally decide the rights of the parties. the supreme court then in para 23 summed up the natural and logical meaning of an interlocutory order and it held that by necessary implications, the provisions of criminal procedure code cannot be taken resort to for interpreting he words interlocutory order. the supreme court observed that taking into consideration the non obstetrical clause in section 19 of the act, recourse cannot be taken to the provision of the code for interpreting a term or phrase used in the act. according to the supreme court therefore the word interlocutory order occurring in section 11 of the special courts act as liable to be given its original and natural meaning or not artificial or wider or enlarged definition given by section 397(2). it therefore observed that the word interlocutory order occurring in section 11 of the special courts act, should be given its original and natural meaning and not artificial or wider and enlarged definition given by section 397(2) of the code. the supreme court observed in para 23 as follows: 23. thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. in other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. this would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to criminal procedure code or any other stature. that is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above and this is what the term interlocutory order means when used in section 11(1) of the act.14. we have already observed how the order is not an interlocutory order. the impugned order finally decides the right of prosecution to withdraw the prosecution in so far as offence under tada is concerned. it finally decide the right of accused to be freed from the charges under tada as desired by the prosecution. both these rights are finally decided. merely because the prosecution would, as a consequence thereof, continue before another forum, it cannot be said to be an interlocutory or intermediate order. in the case of shukla cited above, the supreme court specifically laid down that the expression in section 11(1) of the special courts act has been used in its natural sense and cannot be interpreted in a wider sense as is used in section 397 of the code.15. the order framing the charge is held to be interlocutory for the reason that though it may finally adjudicate the right of the accused to be discharged, the proceedings continue and therefore it is an intermediate order. in our opinion it is not applicable in the present case for the reason that under the special courts act the prosecution would continue in the event of rejection of the application in the special court whereas under the tada act allowing of the application would not continue the prosecution in tada court, but would continue only in regular court in so far as the right to withdraw from the prosecution under tada act is concerned, it stands finally adjudicated by rejection of it. continuation of prosecution in some other forum cannot be called continuation of the preceding under tada act. the right of the accused that he should not be prosecuted under tada act as the prosecution does not want it and therefore he has a right to say that the application be accepted, is also finally decided. the order under section 321 of the code seeking withdrawal of prosecution under tada act is therefore a final order, whether the application is granted or rejected. if it is granted the right under section 321 of the code, is given to the state and if it is not granted the right given to the state to withdraw from the prosecution under section 321 of the code is decided finally and therefore also it is finally adjudicated. we are, therefore, of the view in the present case the order is impugned as finally adjudicating the right of the prosecution and the consequential right of the defence under section 321 of the code.16. we would again advert to the case of shukla in para 33 where the supreme court, after considering the entire relevant law on the point observed as under:'thus, on a consideration of the authorities, mentioned above, the following propositions emerge; (1) that an order which does not determine the rights of the parties but only in aspect of the suit or the trial is an interlocutory order; (2) that the concept of interlocutory order has to be explained in contradistinction to a final order. on other words, if an order is not a final order, it would be an interlocutory order; (3) that one of the tests generally accepted by the english courts and the federal court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the criminal procedure code has been used in a much wider sense so as to include even intermediate or quasi-final orders; (4) that an order passed by the special court discharging the accused would undoubtedly be a final order in as much as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter; (5) that even if the act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable case, the accused can always move this court in its jurisdiction under article 136 of the constitution even against the acucsed. thus, it cannot be said that by not allowing an appeal against an order framing charges, the act works serious injustice to the accused.' 17. in our opinion the very first proposition squarely covers the order impugned in this case. it is an order passed under section 321 of the code and it finally determines the right of the parties i.e the prosecution and its request to withdrawn from the prosecution is finally denied by that order. the right of the accused is also finally determined in so far as, he not being tried by tada court under tada provision is concerned. category (2) also would apply to the present order. the supreme court has held that the concept of the interlocutory order has to be explained in contradistinction to a final order. in other words if an order is not a final order, it would be an interlocutory order. applying these categories or propositions it will be seen that the order is a final order because it finally decides the right under section 321 of the code. in our opinion, therefore, preliminary objection raised by shri nitin pradhan is liable to be accepted as a consequence of which this petition will have to be dismissed, as not maintainable in view of the availability of alternate remedy. we need not cite the decisions of the supreme court, where their lordships, have clearly laid down that when efficacious alternate remedy is available, writ jurisdiction need not be exercised. here, we may also note the observations of the supreme court in shukla's case that the whole purpose of special courts act was to bring to books certain kind of offenders and give them a speedy trial and end the entire prosecution as early as possible. therefore the special court was created. therefore jurisdiction of other courts was barred and appeal was directly provided to the supreme court of india, appeals from interlocutory order were also barred. the reason as is stated in this judgment was to offer a speedy trial and quick end of that trial, and applies with equal force to the present case also.18. there is yet another aspect which has direct bearing on the issue as to whether the order under section 321 of the code or under section 18 of the act is a final order or interlocutory order. section 15 of the act provides that notwithstanding anything in the code or in the indian evidence act, a confession made by a person before a police officer not lower in rank than a superintendent of police and recorded by such police officer shall be admissible in the trial of such person. section 12 specifically empowers the designated court to hear and try any other offence with which the accused may, under the code, be charged, if the trial of that offence is connected with such other offence under the act. therefore in a case where a person is facing trial for the offence under tada and also under any other law and the confession is made under section 15 of the act, use of it is possible or permissible in law by the designated court. this advantage of the prosecution and dis-advantage of the accused is not available under the regular law namely the code and the evidence act. this section therefore creates a right in the prosecution to use a confession if made to a superintendent of police and recorded by him as it is made admissible by this section. this right would not be available to the prosecution if it goes before a regular court under the code. when the prosecution wants to withdraw the prosecution before the designated court, the accused gets a right that confession made under section 15 cannot thereafter be used in the regular trial before the court under the code. both these rights are available and both of them are finally decided by the order passed under section 321 of the code and 18 of the tada act. this being the impact of withdrawal of the prosecution under section 321, grant or refusal thereof will have to be construed as final.19. in our opinion therefore the objection raised by mr. nitin pradhan that the writ petition is not maintainable in view of the fact that alternate and efficacious remedy by way of appeal is available to the prosecution is well founded.20. in all humality, in our opinion, a remedy of appeal under 19 of the tada act is far more efficacious better for all concerned than seeking exercise of writ jurisdiction of this court under article 226 of the constitution.21. yet another important aspect to be noted is that this very interveners in this case i.e. representatives of the victim, are also the interveners of the appeal in the supreme court, which was decided by the order dated 2nd march 2001. it is pertinent to note that they did not, in our opinion, rightly raise any objection about maintainability of the appeal in supreme court on the ground that the order challenged is an interlocutory order.22. the entire scheme of tada act shows creation of special court, defining of special offences, providing punishment for it and providing designated court for trial of it as early as possible and in doing this the only appellate authority provide by the act is the supreme court of india. to exercise the jurisdiction under article 226 of the constitution of india, in such cases where the entire power of superintendence or appeal is given only to the supreme court of india, would defeat the very purpose of the act to provide speedy trial. in any case, in our opinion, it would be a sound exercise of discretion vested under article 226, to deny exercise of it because alternate efficacious remedy is available. in the result therefore the petitions must fail and are rejected. it is however obvious that the right of the accused or the prosecution to impugned these orders are not effected by the rejection of these petitions.
Judgment:

Palshikar, J.

1. By this petition, the petitioners, State of Maharashtra, has challenged the order passed by the Special Court under the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 on 15-3-2003 dismissing the application Exh. 282 in TADA Sessions Case No. 8 of 1993.

2. TADA Sessions Case No. 8 of 1993 is pending before the designated Court (TADA) at Pune. The said cases are pending for prosecution of the accused therein, some of whom are respondents herein. The charges include charge under Section 5 of the Terrorist and disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the Act).

3. Exh. 282 was filed in TADA Sessions Case No. 8 of 1993 by the Special Pubic Prosecutor for the State of Maharashtra under Section 321 of the Criminal Procedure Code (hereinafter referred to as the Code). By this application the State sought withdrawal of prosecution under Section 5 of the Act and requested transmission of the proceedings to regular Sessions Court as it no longer would remain a case triable only by the Special Court. This application was rejected by the learned Judge as aforesaid, which rejection is the subject matter of Criminal Writ Petition No. 561 of 2003.

4. Criminal Writ Petition No. 562 of 2003 is filed by the State challenging the same order dated 15-3-2003 below Exh. 282 in Special Case No. 8 of 1993. The TADA Sessions case is different but the allegations in both these applications are identical. The learned Judge of the Special Court therefore proceeded to decide both these applications by the same order impugned in both these petitions. After a detailed discussion about various contentions raised before him, the learned Special Judge proceeded to reject the application under Section 321 of the Code in relation to both the trials. Feeling aggrieved as aforesaid by this order the State have come up in writ petition. Since both the petitions involve identical questions of law and also the arguments canvassed by the learned A.P.P. which was also supported by Shri V.R. Manohar the learned Senior counsel for some of the respondents/accused in the original trial, we think it proper to pass a common order. The petition herein was opposed by the learned counsel Shri Nitin Pradhan and Shri Subhash Zha, advocates appearing for the representatives of some victims. They canvassed before us that the rejection of application under Section 321 was proper whereas the prosecutor and the learned Sr. counsel for the original accused submitted that the order is unsustainable in law and deserves to be set aside.

5. There is yet another very significant and important fact which we must note. Before this application under Section 321 of the Code was filed by the prosecution on 28-2-2003, the accused had filed an application under Section 18 of the Act claiming dropping of the charges under the provisions of the TADA Act and transfer of the case to regular sessions court. This application was decided by the trial court on 10-11-1998. The prayer made was rejected. The consequence was the prosecution under TADA Act continued before the Designated court by reason of rejection of this application and it could have been claimed to be an interlocutory order. However the present respondents including Suresh Kalani filed an appeal before the Supreme Court of India under Section 19 of the Act. Appeals were also filed in the Supreme Court of India by the State of Maharashtra challenging the finding recorded by the Special court that on the materials placed on record by the prosecution no charge can be framed under Section 3 of the TADA (P) Act. The Supreme Court has then squarely observed that:

'In this appeal filed under Section 19 of the TADA (P) Act, accused No. 4 (Suresh @ Pappu Bhudharmal Kalani) of T.S.C. No. 25/1992, has challenged the order passed by the Designated Court of Thane rejecting the application filed by him under Section 18 of the Act for discharging him from the charges under Sections 3 and 5 of the TADA (P) Act and to transfer the case to the Sessions Court on the ground, interalia, that no case under Section 3 or Section 5 of the TADA (P) Act is made out against him.'

6. The Supreme Court then proceeded to consider the appeals on merits and it came to a conclusion that there is no merit in the appeals and it therefore proceeded to dismiss all the appeals. Even according to the accused and his advocates then appearing in the Supreme Court the order of rejection of an application under Section 18 was final order. However ignoring this entire aspect, petitions are filed before us and we are asked to exercise under Article 226 of the Constitution because the order is an interlocutory order. In this very proceedings months or year earlier this very accused pleaded before the Supreme Court of India that it is a final order and therefore appeal is maintainable in the Supreme Court, or they treated this as a final order under Section 19 of the Act and therefore they filed appeal directly to the Supreme Court. It is a fact therefore on record that the Supreme Court has entertained the appeal against the order refusing transfer of the case under Section 18 after dropping the charges under TADA Act in the final order. It will thus be seen that all the parties concerned had one round of litigation in the Supreme Court of India on the understanding that the order made under Section 18 of the Act is a final order. The accused persons who are appellants in the Supreme Court filed an appeal in the Supreme Court. The State was party thereto and all concerned argued the matter on merits only. It is in this background that we have to consider the contention raised before us.

7. We heard the learned counsel at length. We have scrutinised the record as if filed in the petition before us. Before we proceed to deal with the merits of the matter, a preliminary objection as raised by Shri Nitin Pradhan has to be dealt with and decided. The objection is that the order impugned in this petition is passed under Section 321 of the Code and therefore it has to be challenged under Section 19 of the Act in the Supreme Court of India. The order passed is not an interlocutory order and therefore appeal squarely lies to the Supreme Court of India, relying on the provisions of Section 19 of the Act which reads thus:

'19. Appeal. (1) Not withstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.

(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Designated Court.

(3) 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 Supreme 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 or not preferring the appeal within the period of thirty days.'

8. Reliance was placed by the learned counsel on the words 'not being an interlocutory order', the submission in nutshell was that the order rejecting the application under Section 321 was in effect an order under Section 18 of the Act and an order under Section 321 of the Code is not an interlocutory order as it has the effect of finally adjudicating the rights of the parties.

9. Opposing the submission the learned Special Prosecutor and the learned counsel for the accused contended that the order was an interlocutory order as the proceedings did not terminate with the order, only withdrawal of one charge was asked and denied and therefore it cannot be said that it is not an interlocutory order. Our attention was drawn by Shri V.R. Manohar to a judgment of the Supreme Court in V.C. Shukla v. State through CBI reported in 1980 S.C. 962 where the Supreme Court of India has considered the provisions of Special Courts Act 1979 and Section 11 thereof. Section 11 of The Special Courts Act and Section 19 of the Act are almost identical. There is no difference either in the phraseology or intent of the section. Both provide for appeal and spell out the conditions in which it will lie. Relying on this decision in V.C. Shukla's case the learned counsel argued that the order impugned in V.C. Shukla's case was held by the Supreme Court to be an interlocutory order and therefore it was held that no appeal lie under Section 11. The contention consequently is, that the present order impugned in this petition is also an interlocutory order and therefore by square application of the ration in Shukla's case it would be an interlocutory order and therefore no appeal would be maintainable in the face of the language of Section 19 of the Act. The arguments at the outset appear to the attractive and correct but on a closest scrutiny of the judgment in Shukla's case and the facts in which the present order impugned in this petition came to be passed, it will be seen that both these submissions would require a detailed scrutiny.

10. The submission of Shri Nitin Pradhan is that this is not an interlocutory order because it does not decide temporarily a stage in the proceedings but finally adjudicate upon the rights of the prosecution as contemplated by Section 321 of the Code. if the application is accepted the prosecution stands terminated in so far as the provisions of TADA Act is concerned and that according to him is the final adjudication of the right of the State if it permitted withdrawal of the prosecution. Grant of permission or refusal thereof, in his submission, is final adjudication of the right of State to withdraw the prosecution as provided by Section 321 of the Code. This submission is countered by the petitioner by saying that the order rejecting the application of the prosecution does not bring to an end the right of the prosecution because even if the application is allowed, the proceeding will require to be transferred to Sessions Court and therefore the proceeding would not end and therefore the order is interlocutory.

11. In our opinion, this question, since it goes to the root of the matter, can well be decided with reference to the judgment of the Supreme Court reported in : 1980CriLJ690 . In that case the Supreme court was dealing with Section 11 of the Special Courts Act. It has parimateria to the provisions of Section 19 of the TADA Act. In the case of Shukla, the order directing framing of charge was impugned by way of an appeal under Section 11 of the Special Courts Act before the Supreme Court of India. The Supreme Court in the light of the facts of that case examined the rival contentions and found that the order framing charge is an interlocutory order. The Supreme Court in that case was considering the prosecution under the Special Courts Act only. In the present case we are considering the combined trial of offences under the TADA Act and the offences under Indian Penal Code. The jurisdiction is given to the Designated Court to try all these offences provided some of them are triable exclusively by the Designated Court under TADA Act. It has been held by this court in : (1992)94BOMLR547 Santosh Dattaram More and Anr. v. State of Maharashtra that when an accused is discharged for the offences under TADA Act and only course open for the Designated Court would be to transfer the case to the regular court under Section 18 of the Act. Consequently the result of granting an application under Section 321 of the Code in a trial for TADA offences and IPC offence would be to take away the jurisdiction of the Designated Court, requiring transfer of the case to regular Sessions Court. The necessary consequence is therefore that the order granting the application under Section 321 of the Code does finally adjudicate the question of jurisdiction of the Designated Court. The Court cannot thereafter continue to have control over the matter. The right of the accused to have the prosecution withdrawn under Section 32 of the Code stands finally adjudicated by rejection of that application made by the prosecution under Section 321 of the Code. It should be born in mind that the application under Section 321 of the Code is an application for exercising the right conferred on the prosecution by that section. The consequential right of the accused on allowing the application by the prosecution under the provisions of TADA Act would be decided. Both these rights are finally decided when an application under Section 321 of the Code is decided. If it is allowed, both the rights are satisfied and the matter is finally adjudicated. If it is not allowed both the rights, still are finally decided, the right of the prosecution to take away the matter from TADA Court is finally adjudicated by the rejection and the right of the accused to have the prosecution in regular court and be free from the TADA prosecution is also finally adjudicated. Such an order cannot be said to be an interlocutory order, is the contention. We will consider at length what the Supreme Court has observed in relation to this.

'22. 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. It is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in Section 11(1) of the Act. Wharton's Law Lexicon (14th Edition P. 529) defines interlocutory order thus:'An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties.'

12. It will be seen from the above quoted paragraph that the Supreme Court found the order made in Shukla's case is an intermediate order and not an interlocutory order for which reliance was placed in case of Madhu Limaye v. State of Maharashtra and therefore it was observed that such an order of framing charge being an intermediate order falls within the category of interlocutory order.

13. Then quoting Wharton's Law Lexicon (14th Edition, Page 529) the Supreme Court has observed that the order framing charge in Shukla's case was intermediate order as it did not terminate the proceedings or finally decide the rights of the parties. The Supreme Court then in para 23 summed up the natural and logical meaning of an interlocutory order and it held that by necessary implications, the provisions of Criminal Procedure Code cannot be taken resort to for interpreting he words interlocutory order. The Supreme Court observed that taking into consideration the non obstetrical clause in Section 19 of the Act, recourse cannot be taken to the provision of the Code for interpreting a term or phrase used in the Act. According to the Supreme Court therefore the word interlocutory order occurring in Section 11 of the Special Courts Act as liable to be given its original and natural meaning or not artificial or wider or enlarged definition given by Section 397(2). It therefore observed that the word interlocutory order occurring in Section 11 of the Special Courts Act, should be given its original and natural meaning and not artificial or wider and enlarged definition given by Section 397(2) of the Code. The Supreme Court observed in para 23 as follows:

23. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other stature. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above and this is what the term interlocutory order means when used in Section 11(1) of the Act.

14. We have already observed how the order is not an interlocutory order. The impugned order finally decides the right of prosecution to withdraw the prosecution in so far as offence under TADA is concerned. It finally decide the right of accused to be freed from the charges under TADA as desired by the prosecution. Both these rights are finally decided. Merely because the prosecution would, as a consequence thereof, continue before another forum, it cannot be said to be an interlocutory or intermediate order. In the case of Shukla cited above, the Supreme Court specifically laid down that the expression in Section 11(1) of the Special Courts Act has been used in its natural sense and cannot be interpreted in a wider sense as is used in Section 397 of the Code.

15. The order framing the charge is held to be interlocutory for the reason that though it may finally adjudicate the right of the accused to be discharged, the proceedings continue and therefore it is an intermediate order. In our opinion it is not applicable in the present case for the reason that under the Special Courts Act the prosecution would continue in the event of rejection of the application in the Special Court whereas under the TADA Act allowing of the application would not continue the prosecution in TADA court, but would continue only in regular court in so far as the right to withdraw from the prosecution under TADA Act is concerned, it stands finally adjudicated by rejection of it. Continuation of prosecution in some other forum cannot be called continuation of the preceding under TADA Act. The right of the accused that he should not be prosecuted under TADA Act as the prosecution does not want it and therefore he has a right to say that the application be accepted, is also finally decided. The order under Section 321 of the Code seeking withdrawal of prosecution under TADA Act is therefore a final order, whether the application is granted or rejected. If it is granted the right under Section 321 of the Code, is given to the State and if it is not granted the right given to the State to withdraw from the prosecution under Section 321 of the Code is decided finally and therefore also it is finally adjudicated. We are, therefore, of the view in the present case the order is impugned as finally adjudicating the right of the prosecution and the consequential right of the defence under Section 321 of the Code.

16. We would again advert to the case of Shukla in para 33 where the Supreme court, after considering the entire relevant law on the point observed as under:

'Thus, on a consideration of the authorities, mentioned above, the following propositions emerge;

(1) that an order which does not determine the rights of the parties but only in aspect of the suit or the trial is an interlocutory order;

(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. On other words, if an order is not a final order, it would be an interlocutory order;

(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi-final orders;

(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order in as much as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;

(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable case, the accused can always move this court in its jurisdiction under Article 136 of the Constitution even against the acucsed. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.'

17. In our opinion the very first proposition squarely covers the order impugned in this case. It is an order passed under Section 321 of the Code and it finally determines the right of the parties i.e the prosecution and its request to withdrawn from the prosecution is finally denied by that order. The right of the accused is also finally determined in so far as, he not being tried by TADA court under TADA provision is concerned. Category (2) also would apply to the present order. The Supreme Court has held that the concept of the interlocutory order has to be explained in contradistinction to a final order. In other words if an order is not a final order, it would be an interlocutory order. Applying these categories or propositions it will be seen that the order is a final order because it finally decides the right under Section 321 of the Code. In our opinion, therefore, preliminary objection raised by Shri Nitin Pradhan is liable to be accepted as a consequence of which this petition will have to be dismissed, as not maintainable in view of the availability of alternate remedy. We need not cite the decisions of the Supreme Court, where Their Lordships, have clearly laid down that when efficacious alternate remedy is available, writ jurisdiction need not be exercised. Here, we may also note the observations of the Supreme Court in Shukla's case that the whole purpose of special Courts Act was to bring to books certain kind of offenders and give them a speedy trial and end the entire prosecution as early as possible. Therefore the Special Court was created. Therefore jurisdiction of other courts was barred and appeal was directly provided to the Supreme Court of India, appeals from interlocutory order were also barred. The reason as is stated in this judgment was to offer a speedy trial and quick end of that trial, and applies with equal force to the present case also.

18. There is yet another aspect which has direct bearing on the issue as to whether the order under Section 321 of the Code or under Section 18 of the Act is a final order or interlocutory order. Section 15 of the Act provides that notwithstanding anything in the Code or in the Indian Evidence Act, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer shall be admissible in the trial of such person. Section 12 specifically empowers the Designated Court to hear and try any other offence with which the accused may, under the Code, be charged, if the trial of that offence is connected with such other offence under the Act. Therefore in a case where a person is facing trial for the offence under TADA and also under any other law and the confession is made under Section 15 of the Act, use of it is possible or permissible in law by the Designated Court. This advantage of the prosecution and dis-advantage of the accused is not available under the regular law namely the Code and the Evidence Act. This section therefore creates a right in the prosecution to use a confession if made to a Superintendent of police and recorded by him as it is made admissible by this section. This right would not be available to the prosecution if it goes before a regular court under the Code. When the prosecution wants to withdraw the prosecution before the Designated Court, the accused gets a right that confession made under Section 15 cannot thereafter be used in the regular trial before the Court under the Code. Both these rights are available and both of them are finally decided by the order passed under Section 321 of the Code and 18 of the Tada Act. This being the impact of withdrawal of the prosecution under Section 321, grant or refusal thereof will have to be construed as final.

19. In our opinion therefore the Objection raised by Mr. Nitin Pradhan that the writ petition is not maintainable in view of the fact that alternate and efficacious remedy by way of appeal is available to the prosecution is well founded.

20. In all humality, in our opinion, a remedy of appeal under 19 of the TADA Act is far more efficacious better for all concerned than seeking exercise of writ jurisdiction of this court under Article 226 of the Constitution.

21. Yet another important aspect to be noted is that this very interveners in this case i.e. representatives of the victim, are also the interveners of the appeal in the Supreme Court, which was decided by the order dated 2nd March 2001. It is pertinent to note that they did not, in our opinion, rightly raise any objection about maintainability of the appeal in Supreme Court on the ground that the order challenged is an interlocutory order.

22. The entire scheme of TADA Act shows creation of Special court, defining of special offences, providing punishment for it and providing designated court for trial of it as early as possible and in doing this the only appellate authority provide by the Act is the Supreme Court of India. To exercise the jurisdiction under Article 226 of the Constitution of India, in such cases where the entire power of superintendence or appeal is given only to the Supreme Court of India, would defeat the very purpose of the Act to provide speedy trial. In any case, in our opinion, it would be a sound exercise of discretion vested under Article 226, to deny exercise of it because alternate efficacious remedy is available. In the result therefore the petitions must fail and are rejected. It is however obvious that the right of the accused or the prosecution to impugned these orders are not effected by the rejection of these petitions.