New Delhi: The Delhi High Court on Tuesday dismissed the pleas of two sons of Hizbul Mujahideen chief Syed Salahuddin and others challenging framing of charges against them in different terror funding cases.
A bench of Justices Vivek Chaudhary and Manoj Jain rejected the appeals on the ground that they were not maintainable.
“All the present appeals, on grounds of maintainability, are dismissed,” the bench said in its order.
The high court held that an order framing charges against the accused is interlocutory in nature and cannot be challenged in appeal under Section 21 of National Investigation Agency (NIA) Act.
The court passed the order while rejecting the appeals filed by sons of Hizb-ul-Mujahideen chief Syed Salahuddin and others challenging the framing of charges against them in a Jammu and Kashmir terror funding case.
Besides, the court also rejected similar petitions filed by various other accused facing prosecution in separate NIA cases — Masarat Alam Bhat, Shabir Ahmed Shah, Zahoor Ahmad Shah Watali, Nayeem Ahmed Khan, Javed Ali, Alemla Jamir, Masasasong Ao, Abdur Rehman, MD Waqar Lone, Rajkumar, Rouf Ahmad Bhat, Mateen Ahmed Bhat, Hasir Nisar Langoo, Manan Dar, Hanan Gulzar Dar, Zamin Adil Bhat and Arsalan Feroze Ahenger.
The court passed a common decision on all the appeals, filed under Section 21 of the National Investigation Agency Act, challenging orders of special courts framing charges framed against the various accused in different cases.
The NIA raised a preliminary objection that an appeal against an order framing charge is not maintainable under Section 21 of the NIA Act.
As per Section 21 of the NIA Act, an appeal should 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.
The counsel for the accused appellants submitted as per Section 21, an appeal is maintainable against every order other than an interlocutory order.
They contended that it was already settled by the Supreme Court that an order framing charge is not an interlocutory order but an intermediate order and thus an appeal would be maintainable.
However, the counsel for NIA argued that a plain reading cannot be given to Section 21 as it would not serve the purpose of the NIA Act. It should rather be interpreted in a manner which fulfils the purpose of the rest of the sections along with the Act and thus a purposeful interpretation needs to be given.
The high court said an order framing charge is an interlocutory order as it does not decide any proceeding finally and the term ‘intermediate order’ is a concept of revisional jurisdiction which cannot be applied while interpreting the term ‘appeal’ both on facts and law.
“A conjoint reading of Section 21, other sections and purpose of the NIA Act shows that the term ‘order’ in Section 21(1) refers to a final order and not an interlocutory or intermediate order,” it said.
The court said the scheme of Act is that for the scheduled offences covered by the NIA Act, the investigation as well as trial shall be speedy and a revision challenging any order is absolutely barred to enable the court to hold proceedings expeditiously.
An appeal is provided only from any judgment, sentence or order, not being an interlocutory order, to a division bench of the high court both on facts and on law, it said.
“The term ‘order’ here is preceded by words ‘judgment’ and ‘sentence’ and followed by ‘not being an interlocutory order’. The scope of challenge to such order is by way of appeal both on facts and law. Thus, the order has to be a final order, like a judgment or sentence which can be challenged both on facts and law and conclude proceeding finally,” the bench said.
It added that under the NIA Act, though a revision is barred, “we do not find any provision enlarging the scope of challenge of an order framing charge from supervisory jurisdiction to challenge on facts and law”.
It said at the stage of framing of charge, the court is to summarily look into the evidence collected by the prosecution and to find if a charge is made out.
“It is also obliged to see that there is no abuse of process of law or jurisdictional defects in the proceedings. However, the evidence is yet to be led by the parties before the court and thus, at this stage, the special court is not expected to give any definite finding on facts and law, consequently an appeal on facts and law cannot be envisaged,” it said.
Salahuddin’s sons challenged a 2021 trial court order framing charges against them.
According to the NIA, the case pertains to the “transfer of funds through hawala channels by Pakistan-based terrorists to J&K, in a criminal conspiracy hatched with some operatives in India, to fuel and fund the secessionist and terrorist activities in J&K”.
While Salahuddin’s son Shahid Yousuf was arrested in October 2017, his other son Syed Ahmad Shakeel was arrested by the NIA on August 30, 2018, from his Srinagar residence in connection with the 2011 terror funding case.
The NIA had said Yousuf was arrested on the allegations of receiving funds from Hizbul Mujahideen from abroad and was chargesheeted in 2018.
It had said Shakeel allegedly received money through Western Union from absconding accused Aijaz Ahmad Bhat and his name had also surfaced in raising, receiving and collecting funds from the terrorist organisation through cadres from Saudi Arabia.
Salahuddin, designated as a “global terrorist” by the United States, is the self-styled commander of Hizbul Mujahideen.
