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2022 DIGILAW 206 (ALL)

Hussna v. N. I. A. Thru. Home Secy-1

2022-02-16

RAJAN ROY, SAROJ YADAV

body2022
JUDGMENT : 1. Heard Mr. Murli Manohar Srivastava, learned counsel appearing on behalf of the appellant as well as Ms. Shikha Sinha, learned counsel for the National Investigating Agency. 2. These proceedings have come up before this Division Bench in view of an order dated 16.11.2017, passed by learned Single Judge in proceedings Under Section 482 Cr.P.C. bearing No.7514 of 2017; Hussna Vs. N.I.A. through Home Secretary-I and another, which was registered at the behest of the appellant. The said order reads as under:- "The instant application has been moved on behalf of accused/applicant under Section 482 Cr.P.C. praying for quashing of order dated 06.10.2017 passed by Special Judge N.I.A., Lucknow allowing the application of N.I.A. for taking voice sample of the accused/applicant in Session Trial No.157 of 2015 (State Vs. Hussna & Ors.) Police Station Kotwali City, District Bijnore. On behalf of N.I.A. objection has been made on the strength of provisions contained in Section 21 of the N.I.A. Act, 2008 which is quoted herein below:- 1. Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. 2. Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. 3. Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. 4. Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. 5. Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days. On behalf of the applicant it is submitted that the order is neither appealable nor revisable. It is out of the ambit of sub section 1 of section 21 of N.I.A. Act. On behalf of N.I.A. learned counsel Ms. Shikha Sinha has drawn attention to sub section 3 which prescribes that except as provided in sub section 1 no appeal or revision shall lie to any court from any judgment, sentence or order including interlocutory order. On behalf of applicant it has been submitted that interlocutory orders passed by Special Judge N.I.A. can be challenged by way of petition under Section 482 Cr.P.C. The contention raised before me relates to the maintainability of application under Section 482 Cr.P.C. challenging the order passed by Special Judge N.I.A. Prima-facie, such matter can be decided under the provisions of the Special Act i.e. N.I.A. Act, 2008 and a special forum has been provided under sub section 2 for the purpose. To judge the maintainability of any petition to be out of the mischief of section 21 requires to be decided by the special forum provided by section 21 of the said Act. Therefore, it is directed that put up the present matter before the appropriate court in the next week, if possible." 3. The facts of the case in brief are that the appellant before us challenged an order dated 6.10.2017, passed by Special Judge, N.I.A. Lucknow allowing the application of National Investigating Agency for taking voice sample of the accused/appellant during pendency of Session Trial No.157 of 2015; State Vs. Hussna and others, related to Police Station Kotwali City District Bijnore as asserted by the appellant. Another order dated 24.04.2015, by which the Union of India had directed the N.I.A. to take up the investigation of the said case and such other offences as may come to light during investigation, was also put to challenge. Hussna and others, related to Police Station Kotwali City District Bijnore as asserted by the appellant. Another order dated 24.04.2015, by which the Union of India had directed the N.I.A. to take up the investigation of the said case and such other offences as may come to light during investigation, was also put to challenge. The learned Single Judge as is evident from the order quoted hereinabove noticed the provision of Section 21 of National Investigating Agency Act, 2008 (hereinafter referred to as the Act of 2008) and opined that the proceedings under Section 482 Cr.P.C. would not be maintainable challenging the order passed by the Special Judge, N.I.A. Lucknow as prima-facie such matter should be decided under the provisions of the Special Act i.e. N.I.A. Act, 2008 and a special forum has been provided under sub Section (2) of Section 21 of the Act of 2008 for the said purpose to judge the maintainability of any petition to be out of the mischief of Section 21 it is required to be decided by the Special Forum provided by Section 21 of the Act of 2008. Thereafter a direction was issued to put up the matter before the appropriate Court in the next week. 4. On a conjoint reading of the various paragraphs of the said order, the matter has been placed before this Division Bench in view of the provisions contained in Section 21 (1) of the Act of 2008 as according to it 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. 5. Now the question before this Court is as to whether an appeal under Section 21 of the Act of 2008 is maintainable before this Division Bench or the remedy lies elsewhere, may be before the Single Judge Bench which has been assigned petitions under Section 482 Cr.P.C. or a petition under Article 227 of the Constitution of India or before the writ court. 6. Section 21 of the Act of 2008 reads as under : "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. 6. Section 21 of the Act of 2008 reads as under : "21 Appeals. - (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days." 7. On a bare reading of it, we find that an appeal lies 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. Before proceeding further, we take note of the fact that the relief no.2 herein relates to an order dated 24.04.2015, passed by the Union of India handing investigation of the case to the National Investigating Agency, therefore, apparently it is not an order passed by the Special Court under the Act of 2008, therefore, this appeal is not maintainable against the said order and even the counsel for the appellant does not dispute this fact. For the same reason, and as it is not an order passed by the Special Court nor is it an order passed under the Code of Criminal Procedure, therefore, proceedings under Section 482 Cr.P.C. shall also not lie. For the same reason, and as it is not an order passed by the Special Court nor is it an order passed under the Code of Criminal Procedure, therefore, proceedings under Section 482 Cr.P.C. shall also not lie. We do not wish to go into the question as to whether a petition under Article 227 of the Constitution of India or a writ under Article 226 of the Constitution of India would lie or not, as it is a question to be considered as and when the occasion arises before the concerned Court. 8. Coming back to the original issue, Sub Section (3) of Section 21 clearly provides that except as aforesaid, meaning thereby as provided in sub Section (1) & (2), no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court, therefore, a revision is also barred against such a judgment, sentence or order including an interlocutory order of a Special Court. 9. Sub Section (4) of Section 21 of Act of 2008 is not very relevant for our purposes as it provides the remedy of appeal to the High Court against an order of the Special Court under the Act of 2008, granting or refusing bail. 10. Now the question before this Court is as to whether the order dated 6.10.2017 is an interlocutory order as is referred in sub Section (1) & (3) of Section 21 of the Act of 2008. Now in this regard we may refer to a decision of Hon'ble the Supreme Court in the case of Amar Nath and others Vs. State of Haryana and others; AIR 1977 SC 2185 , wherein the question as to what is an interlocutory order came up for consideration in the context of revisional provisions contained in Section 397 Cr.P.C., wherein also a revision against an interlocutory order is barred. The Supreme Court of India opined as under : "The main question which falls for determination in this appeal is as to, the what is the connotation of the term "interlocutory order" as appearing in sub-s. (2) of s. 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious diffident. The term "interlocutory order" is a term of well-known legal significance and does not present any serious diffident. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to, us that the term "interlocutory order" in s. 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in s. 397 of the, 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under s. 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be. outside the purview of the revisional jurisdiction of the High Court." 11. From a bare reading of the aforesaid decision, which still holds the ground and neither of the counsel of the parties have placed any other decision of Hon'ble the Supreme Court, wherein the view taken in the aforesaid decision in Amar Nath and others (supra) may have been overruled, we find that there are two types of the interlocutory orders, one category is of those interlocutory orders which are purely procedural, interim or temporary in nature and do not decide or touch upon the important rights or liabilities of the parties such as orders granting time for filing reply, objections etc. The other category of interlocutory orders comprises of those orders which are interlocutory in the sense that they do not dispose of the proceedings finally, but, nevertheless they decide the rights and liabilities of the parties concerning a particular aspect, meaning thereby they decide any particular issue relevant to the rights of the parties. With regard to the second category of interlocutory orders, Hon'ble the Supreme Court has observed as quoted above- "any order which substantially affects, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order." It went on to hold-"thus for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affects or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be an interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court." 12. But orders which are matters of moment and which affects or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be an interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court." 12. Taking a cue from the observations made by Hon'ble the Supreme Court as aforesaid and also the fact that the scope of an appeal is obviously larger than a revision, considering the provisions contained in Section 21 of the Act of 2008 as referred above, we do not see any reason as to why the law as clarified by Hon'ble the Supreme Court with regard to the meaning of the term interlocutory order and a revision being maintainable against such orders under Section 397 Cr.P.C. should not be applied in the context of the provisions of the Act of 2008 also; meaning thereby, if the order impugned which has been passed by the Special Court decides or touches upon the important rights or liabilities of the parties concerning a particular aspect, then, it would be covered within the meaning of the term 'orders' used in Section 21 (1) and the jurisdiction of this Court under Section 21 (1) would not be ousted and such an order which would not be covered by the term 'interlocutory order' used in the said provision whether in Sub Section (1) or (3) of Section 21 of the Act of 2008. The orders which are purely procedural and in aid of the proceedings as already referred hereinabove would of course not fall within the ambit of Section 21 of the Act of 2008. 13. Now, the only question which remains to be considered is as to whether the order impugned is one against which an appeal shall lie under Section 21 of the Act of 2008 in the light of what has been stated by us hereinabove or not. It is the appellant's own case that in view of the decision of Andhra Pradesh High Court in the case of Mr. It is the appellant's own case that in view of the decision of Andhra Pradesh High Court in the case of Mr. Amit Khetawat vs State Of Telangana; Criminal Revision Case No.3208 of 2016 dated 20th February, 2017 as there is no provision for taking voice sample either in the Code of Criminal Procedure or any other statute, therefore, taking of such sample is not permissible and as he has further advanced the argument that even if it is held to be permissible, the same cannot be taken without the consent of the accused-appellant and the order passed by the Special Court permitting the investigating agency to take the voice sample deprives the appellant of her valuable rights including constitutional rights and as on the other hand, Ms. Shikha Sinha, learned counsel appearing on behalf the N.I.A. has relied upon a decision of Hon'ble the Supreme Court in the case of Ritesh Sinha Vs. State of U.P. and others; [2020 (205) AIC 83 (SC)] wherein considering the provision of Article 20 (3) of the Constitution of India the question before the Supreme Court was; (1) as to whether Article 20 (3) of the Constitution of India which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?; and (2) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?", and these questions were considered by Hon'ble the Supreme Court of India relying upon its earlier decision in the case of State of Bombay Vs. Kathi Kalu Oghad; AIR 1961 SC 1808 , wherein it was held that the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in aid only in cases of testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself. Kathi Kalu Oghad; AIR 1961 SC 1808 , wherein it was held that the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in aid only in cases of testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself. The Hon'ble Supreme Court in the case of Ritesh Sinha (supra) went on to observe that the issue in the case (of Kathi Kalu Oghad) was with regard to specimen writings taken from the accused for comparison with other writings in order to determine the culpability of the accused and whether such a course of action was prohibited under Article 20(3) of the Constitution. Thereafter the following paragraph from the decision in Kathi Kalu Oghad (supra) were quoted with the observation-"The following observations of the then Chief Justice B.P. Sinha would be apt for recollection as the same conclusively determines the first question arising. The same, therefore, is extracted below : "(11)....It is well-established that cl. (3) of Art. 20 is directed against self-incrimination by an accused person. Self-Incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge.... (12) In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous, because they are unchangeable; except, in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'. [emphasis supplied]" 14. The first question framed by Hon'ble the Supreme Court as referred earlier was answered accordingly. Thereafter the Hon'ble Supreme Court considered the second question. It noticed the absence of any statutory provision with regard to taking of voice sample and therefore considered the aforesaid second question in the said context so that a clear gap in the statute should be filled up pending a formal legislative exercise. Accordingly it opined unhesitatingly that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. 15. From the submissions made by learned counsel for the appellant and National Investigating Agency itself as noticed above, it is evident that the taking of voice sample involves valuable rights including alleged constitutional rights and allegations of their violation, therefore, in view of the discussions made earlier the order dated 6.10.2017 of the Special Court is one against which an appeal shall lie under Section 21 (1) of the Act of 2008 and Sub Section (3) thereof shall not come in the way for the reasons already given hereinabove. 16. Now the next question to be considered is as to whether the order passed by the Special Court dated 6.10.2017 is sustainable on facts and in law or not. This issue as requested by Mr. Murli Manohar Srivastava, learned counsel for the appellant shall be considered on the next date fixed. Subject to it, the appeal is held to be maintainable. 17. Put up day after tomorrow i.e. 18.02.2022.