Order Framing Charges By NIA Special Court Not Interlocutory Under Section 21 NIA Act: Allahabad High Court

The Court was hearing a petition under Article 227 of the Constitution challenging an order passed by the Special Judge, NIA, Lucknow, to the extent it framed charge under Section 121-A IPC in a case also involving offences under the Official Secrets Act, 1923.

A Bench of Justice Subhash Vidyarthi observed: “The legal position is well settled beyond any doubt that an order framing charges is not an interlocutory order. It is not necessary to examine whether it is a final order or not as Section 21 of the NIA Act merely prohibits filing of appeals against interlocutory orders and it does not provide that appeals would lie only against the final orders.”

Advocate Prashant Tiwari appeared for the petitioner; AGA-I Shiv Nath Tilhari appeared for the State of Uttar Pradesh and U.P. Anti-Terrorist Squad; Advocate Hina Naqvi appeared for the Union of India.

Background

The petitioner challenged the charge framed against him under Section 121-A IPC by invoking the High Court’s supervisory jurisdiction under Article 227.

The State raised a preliminary objection that the petition was not maintainable because Section 21 of the NIA Act provided a statutory appeal. It relied on Madhu Limaye (1977), Asian Resurfacing of Road Agency Private Limited (2018), and Sanjay Kumar Rai (2022).

The petitioner argued that V.C. Shukla (1980), decided by a larger Bench of the Supreme Court, had held an order framing charges to be interlocutory. He also relied on decisions of the Delhi High Court, the Jammu and Kashmir and Ladakh High Court, and the Gauhati High Court to submit that no appeal would lie under Section 21 of the NIA Act.

Court’s Observations

The Court identified the central question as whether an order passed by a Special Court under the NIA Act framing charge under Section 121-A IPC was an interlocutory order within the meaning of Section 21.

The Court noted: “Section 21 of the NIA Act provides that notwithstanding anything contained in Cr.P.C., an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court.”

The Court held that V.C. Shukla had to be understood in the context of the Special Courts Act, 1979, and not mechanically applied to Section 21 of the NIA Act.

The Court observed: “The question of maintainability of an appeal before the High Court under Section 21 of the NIA Act against an order passed by a Special Court under NIA Act was not involved in V.C. Shukla (supra). It is well known that a judgment is an authority for what it decides and not what may even logically be deduced therefrom.”

Relying on P.S. Sathappan (2004), the Court reiterated that a decision cannot be read like a statute and must be understood in the context of the question decided.

The Court compared the repealed Special Courts Act, 1979 with the NIA Act and noted that under the former statute, Special Courts were presided over by sitting High Court Judges and appeals lay to the Supreme Court. Under the NIA Act, Special Courts are presided over by Sessions Judges and appeals lie to Division Benches of the High Court.

The Court held: “Therefore, there are substantial differences in the provisions of the Special Courts Act, 1979 which was enacted to deal with the offences committed by persons who held high public or political offices in the country and others connected with the commission of such offences during the operation of the Proclamation of Emergency, dated 25.06.1975 which was repealed in the year 1982 and the provisions of the NIA Act and in view of the law laid down by the five-Judge Constitution Bench in P.S. Sathappan v. Andhra Bank Ltd. (supra), the interpretation of the term ‘interlocutory order’ used in Section 11 of the repealed Special Courts Act, 1979 will not apply to interpretation of the same term used in Section 21 of the NIA Act, which is worded differently from Section 11 of the repealed Special Courts Act, 1979.”

The Court rejected the petitioner’s argument that V.C. Shukla must prevail because it was rendered by a larger Bench. It found that Asian Resurfacing (2018) had noticed, considered and explained V.C. Shukla, and that Sanjay Kumar Rai (2022) had followed the same position.

The Court observed: “Therefore, I am unable to accept the submission of the learned Counsel for the petitioner that the judgment in the case of V.C. Shukla (supra), will govern the field in spite of the subsequent judgment in the case of Asian Resurfacing of Road Agency (P) Ltd. v. CBI: (supra) and this submission is turned down.”

The Court further noted that the High Court decisions relied upon by the petitioner were rendered on the basis of V.C. Shukla without appreciating its later treatment by the Supreme Court.

The Court held that since a statutory appeal was maintainable before a Division Bench, it would not entertain the Article 227 petition before a Single Judge.

The Court observed: “In these circumstances, this Court does not deem it proper to entertain this petition under Article 227 of the Constitution of India filed before a Single Judge Bench of this Court invoking the power of superintendence of this Court over the Courts subordinate to it, when a statutory appeal lies before a Division Bench of this Court, as entertaining this petition under Article 227 of the Constitution of India would result in the validity of the impugned order being examined by a Single Judge Bench in spite of the statutory appeal being maintainable before a Division Bench of this Court and this would amount to a breach of judicial discipline.”

Conclusion

The High Court dismissed the petition under Article 227 of the Constitution. It left the petitioner at liberty to challenge the order framing charge by filing an appeal under Section 21 of the NIA Act before a Division Bench of the High Court.

Cause Title: Satendra Siwal v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 others (Neutral Citation: 2026:AHC-LKO:56814)

Appearances

Petitioner: Advocate Prashant Tiwari

Respondents: AGA-I Shiv Nath Tilhari for the State of Uttar Pradesh and U.P. Anti-Terrorist Squad; Advocate Hina Naqvi, holding brief of Central Government Counsel Varun Pandey, for the Union of India

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