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CASE NO.:

Appeal (crl.) 757 of 2000

Appeal (crl.) 760 of 2000

Appeal (crl.) 763 of 2000

PETITIONER:

AMINA AHMED DOSSA & ORS.

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT: 15/01/2001

BENCH:

R.P.Sethi, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

SETHI,J.

Appearing for the respondent Mr.Mukul Rohtagi,

Additional Solicitor General has raised a preliminary

objection regarding the maintainability of the appeals in

terms of Section 18 of the Terrorists and Disruptive

Activities (Prevention) Act, 1987 (hereinafter referred to

as "the Act") in this Court on the ground that as the order

impugned is not a judgment, sentence or final order passed

by the Designated Court, the remedy of appeal is not

available to the appellants. In support of his contention

he has referred to the provisions of Section 8 of the Act

read with Sections 82 to 84 of the Code of Criminal

Procedure (hereinafter referred to as "the Code"). In

proceedings for attachment of properties under Section 8 of

the Act, the appellants herein along with some other persons

preferred claims, claiming rights and interests in the

properties sought to be attached on the prayer of the

prosecution. In a lengthy and detailed judgment, spread

over 559 pages, the Designated Court rejected their claims

and passed orders against them in terms of Section 8 of the

Act read with Section 84 of the Code. It is conceded before

us that the impugned order is neither a judgment nor a

sentence. The controversy is with respect to the nature of

the order impugned as the respondent-State submits that the

said order passed under Section 8 of the Act read with

Section 84 of the Code is an interlocutory order whereas the

appellants submit that the order is a final order so far as

parties in the appeals are concerned. Section 8 of the Act

provides: "Forfeiture of property of certain persons - (1)

Where a person has been convicted of any offence punishable

under this Act or any rule made thereunder, the Designated

Court may, in addition to awarding any punishment, by order

in writing, declare that any property, movable or immovable

or both, belonging to the accused and specified in the

order, shall stand forfeited to the Government free from all

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encumbrances.

(2) Where any person is accused of any offence under

this Act or any rule made thereunder, it shall be open to

the Designated Court trying him to pass an order that all or

any properties, movable or immovable or both belonging to

him, shall, during the period of such trial, be attached,

and where such trial ends in conviction, the properties so

attached shall stand forfeited to the Government free from

all encumbrances.

(3)(a) If upon a report in writing made by a police

officer or an officer referred to in sub- section (1) of

Section 7, any Designated Court has reason to believe that

any person, who has committed an offence punishable under

this Act or any rule made thereunder, has absconded or is

concealing himself so that he may not be apprehended, such

court may, notwithstanding anything contained in Section 82

of the Code, publish a written proclamation requiring him to

appear at a specified place and at a specified time not less

than fifteen days but not more than thirty days from the

date of publication of such proclamation.

(b) The Designated Court issuing a proclamation under

clause (a) may, at any time, order the attachment of any

property, movable or immovable or both, belonging to the

proclaimed person, and thereupon the provisions of sections

83 to 85 of the Code shall apply to such attachment as if

such attachment were made under that Code.

(c) If, within six months from the date of the

attachment, any person, whose property is, or has been, at

the disposal of the Government under sub- section (2) of

Section 85 of the Code, appears voluntarily or is

apprehended and brought under the Designated Court by whose

order the property was attached, or the Court to which such

Court is subordinate, and proves to the satisfaction of such

court that he did not abscond or conceal himself for the

purpose of avoiding apprehension and that he had not

received such notice of the proclamation as to enable him to

attend within the time specified therein, such property or,

if the same has been sold, the net proceeds of the sale and

the residue of the property, shall, after satisfying

therefrom all costs incurred in consequence of the

attachment, be delivered to him.

(4) Where any shares in a company stand forfeited to

the Government under this Section, then, the company shall

notwithstanding anything contained in the Companies Act,

1956 (1 of 1956) or the articles of association the company,

forthwith register the Government as the transferee of such

shares."

Section 82 of the Code authorises the Court to declare

a person absconding on existence of the circumstances

specified therein. The Court issuing a proclamation under

Section 82 may, for reasons to be recorded in writing, at

any time after the issue of proclamation, order the

attachment of any property, movable or immovable or both,

belonging to the proclaimed person in exercise of Section 83

of the Code. Any person feeling that he has a claim with

respect to the properties attached under Section 83 of the

Code can prefer claims and objections in terms of Section 84

of the Code within the time specified and if the claim or

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objection is disallowed in whole or in part, such aggrieved

person may, within a period of one year from the date of

such order, institute a suit to establish the rights which

he claims in respect of the property in dispute. Subject to

the result of such suit, if any, the order shall be

conclusive. Right of appeal under Section 19 is conferred

against such orders which are not interlocutory orders. A

combined reading of Sections 8 and 19 of the Act and Section

84(4) of the Code makes it abundantly clear that the person

not being a proclaimed offender against whom an order is

passed under Section 8 of the Act read with Section 84 of

the Code has the remedy of filing a suit which reflects the

intention of the Legislature to treat the order of the

Designated Court, in so far as it affects the third party

claimant, to be an interlocutory order. Such an order

would, however, be deemed to be a final order so far as the

prosecution, the state and the proclaimed offender are

concerned particularly in view of the provisions of Section

86 of the Code. Interlocutory order in law means, not that

which decides the cause but which only settles intervening

matter relating to the cause. Such an order is made pending

the cause and before the final hearing on the merits. It is

made to secure some end and purpose necessary and essential

to the progress of the case and generally collateral to the

issues to be settled by the court in the final judgment.

Orders summoning witnesses, adjourning cases, passing orders

for bail, calling for reports, attaching the properties

(with the exception of Section 86) and such other steps in

the aid of pending proceedings shall amount to be

interlocutory orders against which no appeal can be

preferred with the aid of Section 19 of the Act. As the

order attaching the property in so far as relates to the

claimant third party, is subject to the decision of the

civil court, it cannot be held to be a final order. The

order impugned herein has not, in any manner, finally

adjudicated the rights of the appellants entitling them to

file the appeal on the ground of their claim of the impugned

order being final. Having regard to the scheme of the Act,

read with relevant provisions of the Code, the expression

"interlocutory order" appearing in Section 19 of the Act

would have to be understood to be not deciding the rights of

the claimants finally and thus are interlocutory orders.

Giving any other interpretation would defeat the dominant

purpose of the Act and result in not only multiplicity of

litigation but ultimately conflicting verdicts. If the

impugned order is held to be not an interlocutory order and

subject to appeal, the consequence would be that despite

dismissal of the appeal by this Court, the aggrieved

claimant would be entitled to resort to the remedy of filing

the suit with the aid and under the cover of the mandate of

Sub-section (4) of Section 84 of the Code. In that event a

fresh litigation would commence, not only unnecessarily

burdening the parties and wasting the public time of the

courts but also creating embarrassing positions for the

civil courts to adjudicate afresh the claims of the parties

as finally determined by this Court in proceedings under the

Act. Such could not be the intention of the Legislature.

Upon a harmonious interpretation of the various provisions

of the Act and the Code, there is no escape from the

position that the order passed by the Designated Court under

Section 84 of the Code in so far as it relates to the third

party rights of the claimant is only an interlocutory order

and not final orders for which an appeal could be filed

under Section 19 of the Act. But if such aggrieved claimant

does not choose to challenge the order by way of a suit,

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such order would become final so far as the State is

concerned. It may be noted in this context that a suit can

be filed only at the instance of the person whose claims or

objections are disallowed. Hence, when the claims or

objections are upheld the aggrieved party can avail himself

of the remedy under Section 19 of the Act. It has been

stated at the Bar that after the impugned order the

claimants have in fact filed civil suits which are still

pending. Filing of the civil suits indicates the proper

understanding of the position of law by the appellants.

There is no gainsaying that the civil suits filed by the

claimants shall be decided on merits and in accordance with

the procedure established by law. We have noted with

concern that the Special Court has unnecessarily spent

valuable public time in writing the lengthy judgment for

disposing of the claims of the appellants which, we feel,

could have been decided by a brief but speaking orders.

Brevity of orders on application of mind and not the length

of the order is the criterion for adjudicating the rights of

the parties which are otherwise subject to the decision of a

civil court. It would be appreciated that the Designated

Courts which are otherwise over-burdened shall refrain

themselves from writing such unnecessary lengthy judgments

and pass appropriate brief orders, surely dealing with all

points, while adjudicating the claims of all the parties.

At any rate we do not appreciate such lengthy orders for

deciding interlocutory matters. Agreeing with the

preliminary objection of the Additional Solicitor General,

we hold that the present appeals are not maintainable and

are accordingly dismissed.