NATIONAL INVESTIGATION AGENCY Vs. MOHAMMED AYUB

JUDGEMENT

(1.) The trial court has passed an order under Section 306 of Cr.P.C on an application filed by the appellant herein who was the complainant in Special C.C.No.223/2017 on the file of the XLIX Additional City Civil Judge & Special Judge for NIA cases. Appeal provision is provided under Section 21 of the National Investigation Agency Act, 2008, which reads as follows:

(2.) It is worth to mention here, a decision of the full bench of the Hon'ble Apex Court in the case of STATE OF UP VS. KAILASH NATH AGARWAL & OTHERS, 1973 1 SCC 751, wherein the Hon'ble Apex Court while dealing with the old provisions of Sections 337 and 338 of Cr.P.C., which governs the procedure regarding tender of pardon by the Magistrates, has held that, any order passed by the Magistrate on the application for tendering pardon, is not an interlocutory order and the same is revisable. At paragraphs 20 and 21, the Hon'ble Apex Court has dealt with this particular aspect, which reads thus:

(3.) On a plain reading of the above said provision, it clearly discloses that no appeal or revision shall lie against an interlocutory order passed by the Special Court. In an application filed under Section 306 Cr.PC., a substantive right was claimed by the complainant to bring one of the witnesses as an approver to the case so as to prove its case during the course of the trial against the accused persons. This right of filing the application under Section 306, in our opinion is a substantive claim as per the provision under Section 306 of Cr.P.C. The consequence of allowing the application or dismissing the application is a decisive factor so far as such right is concerned, to consider whether it is an interlocutory order or it really affects the right of any person. Dismissal of the application consequently, completely wash out the right of the complainant or the person who seeks to bring that man as an approver to the Court. Allowing of the said application also benefits the claimant, so that he will not become an accused in the given case.