Srinagar: The High Court of Jammu & Kashmir and Ladakh Monday said the petition filed by Peoples Democratic Party youth leader Waheed Ur Rehman Parra seeking quashing of an FIR against him for alleged “nexus with militant groups” is maintainable.
The petitioner also sought quashing of order as per which charges were framed against him.
The court of Justice Sanjay Dhar while rejecting the contention of the government held that an appeal would not lie against an order framing charge relating to offence to which NIA Act applies, as the same is an interlocutory order.
Justice Dhar said: “It was not open to the petitioner to challenge the order framing charges against him passed by the Special Court, by way of an appeal under Section 21 of the NIA Act.”
“The only option available to him was to challenge the said order under Section 482 of Cr.P.C invoking the inherent powers of this court, which he has rightly availed,” recorded the court.
The court passed the observations after the government counsel had questioned the maintainability of plea on the ground that in terms of Section 21 of the NIA Act, all orders passed by the Special Courts are appealable before the HC to be heard by a bench comprising two Judges.
The government counsel contended before the court that in the instant case, the petitioner has not only challenged the proceedings before the Special Court, but he has also challenged the order framing charges which according to the government counsel, is appealable in terms of Section 21 of the NIA Act.
The court after perusing the material on record and hearing the counsel said that argument of the government counsel appears to be attractive, but the same in the context of the provisions contained in a special statute like NIA Act cannot be accepted.
It noted that an order of framing charges for offences to which NIA Act applies, having regard to object of speedy trial of such offences, has to be treated as an interlocutory order and, as such, outside the purview of appeal as provided under Section 21 of the Act.
The court while giving reference to the Supreme Court recorded that order framing charge, in the context of the aforesaid statute, is an interlocutory order and, as such, not appealable.
The court further recorded that interlocutory order, which appears in Section 21 of the NIA Act cannot be construed as an intermediate order as is done in the context of the Code of Criminal Procedure and the term, interlocutory order, in the context of the NIA Act, 2008, has to be construed to mean an order passed during the progress of the trial and against which no special remedy has been provided.
“From the foregoing enunciation of the law on the subject, it becomes clear that a restrictive meaning has been given to the expression ‘interlocutory order’, which appears in Section 397(2) of Cr.P.C and the Courts have held that an order framing charge is an intermediate order and not an interlocutory order,” Justice Dhar recorded.
However, the court said, in the present case, where the application of Code of Criminal Procedure stands excluded due to non-obstante clause appearing in Section 21(1) of the NIA Act, and keeping in view the avowed object of the Act, the expression “interlocutory order” has to include even an order framing charge.
“Thus, an appeal would not lie against an order framing charge relating to offences to which NIA Act applies, as the same is an interlocutory order,” the court said.
For the foregoing reasons, the court said, the present petition is held to be maintainable and the contention raised by the government counsel is rejected.
“The petition shall now come up for its consideration on merits,” Justice Dhar said and listed the matter for hearing on December 22, 2021.
