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By J. Venkatesan
A Bench, comprising Justice S.N. Variava and Justice Brijesh Kumar, without going into the merits of the case held that the High Court should have refused to interfere with the special court's order as no appeal would lie under Sec. 34 of POTA against interlocutory orders. The appeal filed by the accused, S.A.R. Geelani, Shaukat Hussain alias Guru, Mohd. Afzal and Navjot Sandhu alias Afsan Guru against their conviction is being heard by a Division Bench of the High Court. The prosecution had contended in the appeal that intercepts made in pursuance of Chapter 5 of POTA were automatically admissible as relevant evidence unlike evidence of intercepts collected under the Telegraph Act. It was argued on behalf of the accused that as interception of telephonic conversations was not made under POTA, the safeguard under this law was bypassed by police and hence the same could not be admissible as evidence under POTA. The special court on July 11 last had held that the intercepted conversation between Geelani, Hussain and his wife Afsan was an admissible evidence under POTA. But on appeal from the accused, the Delhi High Court by an order on October 30 last rejected it and the present appeal was directed against this order. Allowing the appeal, the Bench said that by the time the impugned order was passed the evidence had already been recorded. Thus there was no abuse of process of court which now could be prevented. The Bench felt that the High Court should have directed the respondents to raise all such points in the statutory appeal. It pointed out that there was no miscarriage of justice or palpable illegality which required immediate interference and the High Court should not have exercise its powers either under Article 227 of the Constitution or the inherent powers under Sec. 482 Cr.P.C. in entertaining the appeal from the respondents. The Bench while quashing the impugned order asked all the parties to urge all questions in the pending appeals before the Division Bench of the High court and declined to go into the merits of the case.
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