Dismissed

Roopesh @ Praveen v. Union of India Rep by Nia Kochi

Kerala HC1 Mar 2024CRL.A/394/2024

Case brief

AI extract

What is this about?

This High Court disposed of a criminal appeal challenging an interlocutory order allowing re-examination of prosecution witnesses. Relying on Section 21 of the NIA Act and Supreme Court precedents, the court held that interlocutory orders are not appealable except for bail decisions. The appeal was dismissed as not maintainable.

What did the court decide?

Appeal dismissed. Re-examination of PWs 89 and 90 confined to matters in paragraphs 1 and 3 of the petition.

Roopesh @ Praveen Vs Union of India Rep by Nia Kochi — Criminal Trial and Appeal | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN

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FRIDAY, THE 1^ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 CRL.A NO. 394 OF 2024

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CRIME NO.1/2016 NIA KOCH/2016 OF NATIONAL INVESTIGATION AGENCY KOCHI, ERNAKULAM

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AGAINST THE ORDER DATED 18.01.2024 IN CRMP NO.20 OF 2024 IN SC NO.3 OF 2016 OF SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM.

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APPELLANT/ACCUSED NO.1:

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ROOPESH @ PRAVEEN, AGED 53 YEARS, H. NO. XVII /183, AAMI, UNIVERSITY COLONY, KOCHIN UNIVERSITY, KOCHI, NOW IN CUSTODY AT CENTRAL PRISON, VIYYUR, UT NO. 2628. THRISSUR,, PIN – 680010. BY ADV V.T.RAGHUNATH

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RESPONDENT/COMPLAINANT:

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UNION OF INDIA REP BY NIA KOCHI UNION OF INDIA REP BY NIA KOCHI, PIN – 682 020. BY SRI.S.MANU, DSG OF INDIA.

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Appeal No.394 OF 2024

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P.B.SURESH KUMAR & JOHNSON JOHN, JJ.

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Crl.Appeal No.394 OF 2024

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Dated this the 1 st day of March, 2024 JUDGMENT

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JOHNSON JOHN, J.

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The appellant is the first accused in S.C No.3 of 2016 on the file of the Special Court for Trial of NIA Cases, Ernakulam and in this appeal he is challenging the order dated 18-01-2024 in CRMP No.20 of 2024 in S.C No.3 of 2016, wherein the trial court allowed the said petition under Section 311 of the Cr.P.C to recall and re-examine PWs 89 and 90.

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The prosecution filed the petition under Section 311 of Cr.P.C on the ground that PW89 has stated that he has not taken the Hash Value of the devices brought before him for examination and extraction of data and PW90 has deposed that he has not received the Hash Value of the devices from where the data was imaged. However, on perusal of Ext.P134(a) to (d) which are the Hard Disks produced by PW89 and also on perusal of Exts.P119, P119(d), P135 and P135(a) which are the analysis reports and extracted data from Ext.P134(a) to (d), it is seen that the Hash Value of all the relevant gadgets have been clearly taken through

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an automated process by PW89 and the same was provided to PW90 for extraction of data. Therefore, there is lack of clarity between the testimony of PWs 89 and 90 and the available documentary evidence.

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The learned counsel for the appellant argued that the attempt of the prosecution is only to fill up the lacuna in the prosecution case and since PWs 89 and 90 were already examined in detail in chief and cross, re-examination will cause damage to the various aspects brought out in cross-examination and further, even if the said two witnesses are recalled and re-examined, at the most they can only depose that the Hash Value can be seen from Ext.P134(a) to (d), P135(a) and P119(a) to (d) and even without recalling the said witnesses, the court can look into the documents available on record for arriving at a finding regarding the Hash Value.

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Sri.S.Manu, Deputy Solicitor General of India, argued that this appeal is filed against an interlocutory order and therefore the same is not maintainable and that there are cogent and sufficient reasons for the re-examination of PWs 89 and 90 for the just decision of the case on merit and therefore there is also no reason to interfere with the impugned order. The specific

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contention of the respondent is that this appeal is not maintainable in view of Section 21 of the National Investigation

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Agency Act, 2008 (for short 'the Act'). Section 21 of the Act reads thus :

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“(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.

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(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.

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(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.

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(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.

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(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:

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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:

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PROVIDED FURTHER that no appeal shall be entertained after the expiry of the period of ninety days.”

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The specific case of the prosecution is that PW89 has

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deposed that he has not taken the Hash Value of the devices and PW90 has deposed that he has not received the Hash Value of the devices, but the documents marked in evidence would show that the Hash Value of all the relevant gadgets have been clearly taken through an automated process by PW89 and the same was provided to PW90 for extraction of data. It is pertinent to note that there is no serious challenge regarding the documentary evidence available on record and therefore, we find no reason to disagree with the finding of the trial court that the re-examination of PWs 89 and 90 is necessary for the just decision of the case on merit.

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In State of Andhra Pradesh v. Mohd.Hussain ((2014)

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1 SCC 258), the Hon'ble Supreme Court held thus :

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“17. There is no difficulty in accepting the submission on behalf of the appellant that an order granting or refusing bail is an interlocutory order. The point however to be noted is that as provided under Section 21(4) of the NIA Act, the appeal against such an order lies to the High Court only, and to no other court as laid down in Section 21(3). Thus it is only the interlocutory orders granting or refusing bail which are made appealable, and no other interlocutory orders, which is made clear in Section 21(1), which lays down that an appeal shall lie to the High Court from any judgment, sentence or order, not being an

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interlocutory order of a Special Court. Thus other interlocutory orders are not appealable at all. This is because as provided under Section 19 of the Act, the trial is to proceed on day-to-day basis. It is to be conducted expeditiously. Therefore, no appeal is provided against any of the interlocutory orders passed by the Special Court. The only exception to this provision is that orders either granting or refusing bail are made appealable under Section 21(4). This is because those orders are concerning the liberty of the accused, and therefore although other interlocutory orders are not appealable, an appeal is provided against the order granting or refusing the bail. Section 21(4), thus carves out an exception to the exclusion of interlocutory orders, which are not appealable under Section 21(1). The order granting or refusing the bail is therefore very much an order against which an appeal is permitted under Section 21(1) of the Act.”

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7. In Sethuraman v. Rajamanickam ((2009) 5 SCC 153,

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the Hon'ble Supreme Court held that the orders passed by the trial court refusing to call the documents and rejecting the application under Section 311 of the Cr.P.C were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. It is clear from Section 21 of the Act that an appeal is not maintainable against an interlocutory order and since the impugned order herein is an interlocutory

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order, we find that this appeal is not maintainable.

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Learned counsel for the appellant brought to our notice

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that the reasons for recalling PWs 89 and 90 were stated in paragraph one of the petition and that there is an attempt on the part of the prosecution to re-examine the said witnesses on matters not stated in paragraph one of the petition and that the court below while allowing the petition has specified only that the questions put to the witnesses shall confine only to the aspect made mentioned in paragraph three of the petition wherein only the serial number of the witnesses and purpose of the examination is mentioned and therefore, while dismissing the appeal as not maintainable, we also deem it necessary to clarify that the re-examination of PWs 89 and 90 shall be confined to the matters specified in paragraphs one and three of the petition.

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With the above observation, the appeal is dismissed.

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Sd/- P.B.SURESH KUMAR, JUDGE.

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Sd/- JOHNSON JOHN, JUDGE.

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amk

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