2023 (9) TMI 1665 - HC - Indian Laws

Condonation of delay of 838 days caused in filing the appeal - power of Appellate Court to entertain an appeal filed beyond the statutory period of 90 days as stipulated in the second proviso to Section 21(5) of the National Investigation Agency Act 2008 (NIA Act) - HELD THAT - The Kerala High Court in the case of NASIR AHAMMED VERSUS NATIONAL INVESTIGATION AGENCY 2015 (5) TMI 1264 - KERALA HIGH COURT has taken the view that the Statute provides 30 days period for filing of an appeal against the judgment sentence or order and gives a discretion to the appellate Court to condone the delay subject to showing sufficient cause beyond the period of 30 days but not beyond the expiry of 90 days from the judgment sentence or order appealed from and hence the Courts cannot by entering into interpretative process re-write the mandatory provision and that if done would amount to legislation by courts. The Calcutta High Court in SHEIKH RAHAMTULLA @ SAJID @ BURHAN SHEIKH @ SUROT ALI ORS. VERSUS NATIONAL INVESTIGATION AGENCY 2023 (3) TMI 1557 - CALCUTTA HIGH COURT has after considering various judgments has held that Section 21 of the NIA Act is mandatory and as such delay beyond 90 days cannot be condoned under the 2nd proviso to sub-section (5) of Section 21. Only having regard to the statutory bar prescribed under Section 21(5) of Act an appeal is not heard the right of an accused whose personal liberty stands curtailed by the said judgment/sentence/order passed by the Special Court would stand seriously jeopardized. The accused s fundamental right to file a statutory appeal as well as his right to access to justice would also stand seriously jeopardized. All this despite the accused having sufficient cause for filing the appeal belatedly. One cannot be oblivious that it is a substantive appeal that is being considered by the Appellate Court. The right to appeal by an accused is a substantive right a right protected by Article 21 of the Constitution. Courts cannot be mute spectators or helpless and dismiss an appeal simply because it is filed beyond 90 days despite sufficient cause being shown for filing the appeal belatedly. The same is true even in cases where the prosecution has filed an appeal beyond the 90 days period. The 2nd proviso to sub-section (5) of Section 21 of the NIA Act will have to be read down so as to read shall as may and as such directory so as to vest discretion in the Appellate Court to condone delay beyond the 90 days period on sufficient cause being shown. If the provision were to be held mandatory despite sufficient cause being shown by accused the doors of justice will be shut leading to travesty of justice which cannot be permitted by Courts of Law. Conclusion - i) The Appellate Courts have the power to condone delay beyond the 90 days period despite the language of the 2nd proviso to Section 21(5) of the NIA Act and that this can be done by virtue of Section 5 of the Limitation Act 1963 the applicability of which is not excluded under the provisions of the NIA Act. Thus an application seeking to condone delay beyond 90 days in filing an appeal against the judgment sentence order not being an interlocutory order passed by a Special Court is maintainable on sufficient cause being shown. ii) The word shall in the 2nd proviso to sub-section (5) of Section 21 be read down to read as may and hence directory in nature. Application disposed off.

Summary

1. ISSUES PRESENTED and CONSIDERED

The primary legal issue considered in this judgment is whether the Appellate Court has the power to entertain an appeal filed beyond the statutory period of 90 days, as stipulated in the second proviso to Section 21(5) of the National Investigation Agency Act, 2008 (NIA Act), and whether the delay can be condoned beyond this period.

2. ISSUE-WISE DETAILED ANALYSIS

Relevant Legal Framework and Precedents:

Section 21 of the NIA Act governs appeals from judgments, sentences, or orders of a Special Court to the High Court. The second proviso to Section 21(5) specifies that no appeal shall be entertained after the expiry of 90 days. The Limitation Act, 1963, particularly Sections 3, 5, and 29, is also relevant, as it provides for the extension of the prescribed period for filing appeals if sufficient cause is shown. The judgment also references precedents from various High Courts and the Supreme Court regarding the interpretation of statutory rights to appeal and their connection to Article 21 of the Constitution, which guarantees the right to life and personal liberty.

Court's Interpretation and Reasoning:

The court analyzed whether the second proviso to Section 21(5) of the NIA Act is mandatory or directory. It considered contrasting views from different High Courts and concluded that the provision should be read as directory. The court emphasized that the NIA Act is not a complete code and does not explicitly exclude the application of the Limitation Act. The court also noted that the right to appeal is a substantive right protected under Article 21 of the Constitution, and any interpretation that limits this right must be approached with caution.

Key Evidence and Findings:

The court considered the legislative intent behind the NIA Act and compared it with other statutes like the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, which explicitly exclude the Limitation Act. The court found no such exclusion in the NIA Act, indicating that the Limitation Act applies.

Application of Law to Facts:

The court applied the principles of statutory interpretation and constitutional law to conclude that the appellate courts have the discretion to condone delays beyond 90 days if sufficient cause is shown. The applicant in this case demonstrated sufficient cause for the delay, including financial hardship and lack of awareness of legal remedies due to the COVID-19 pandemic.

Treatment of Competing Arguments:

The court considered arguments from both sides. The prosecution argued that the 90-day limit is mandatory, citing public policy and legal certainty. Conversely, the applicant and amici curiae argued for a more liberal interpretation, emphasizing the fundamental right to appeal and access to justice. The court sided with the latter, prioritizing the constitutional rights of the accused.

Conclusions:

The court concluded that the second proviso to Section 21(5) of the NIA Act is directory, allowing for the condonation of delays beyond 90 days if sufficient cause is shown. This interpretation aligns with the fundamental rights guaranteed under Article 21 of the Constitution.

3. SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning:

"The right of appeal in criminal cases is well protected under Article 21 of the Constitution; that the right to have a conviction and sentence re-examined on appeal (Statutory Appeal) is an intrinsic part of the right to fair trial."

Core Principles Established:

The judgment establishes that the right to appeal is a fundamental right linked to Article 21 of the Constitution. The courts have the discretion to condone delays in filing appeals beyond statutory limits if sufficient cause is shown, ensuring access to justice and preventing the miscarriage of justice.

Final Determinations on Each Issue:

The court determined that the second proviso to Section 21(5) of the NIA Act should be read as directory, allowing for the condonation of delays beyond 90 days. The applicant's delay of 838 days in filing the appeal was condoned based on the sufficient cause shown.