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TMI Blog2022 (12) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under NIA Act? - HELD THAT:- Having regard to the object of the NIA Act and the right of the accused to fair trial, the word shall used in second proviso to Section 21(5) of the Act deserves to be read as may , else the right of appeal given to the accused against his conviction would become a causality if the doors of the Appellate Court are shut to him on the ground of limitation. The right to fair trial is a right vested in the accused under Article 21 of the Constitution. The right of appeal, wherever it is provided, is a matter of substance and essentially a remedial right. If this remedy is put in jeopardy by creating bar of limitation and leaving no discretion in the Court to condone the delay even in well deserving cases, it would render the remedy otiose - the right of the accused to avail the remedy of appeal is a substantive and concomitant right of fair trial. The word shall used in second proviso to sub-Section 5 of Section 21 of the Act must be read as may and that the High Court shall have the discretion to condone the delay even beyond the period of 90 days in appropriate cases, provided the appellant satisfies the Court that he had sufficient cause for not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the trial Court, therefore, is not sustainable in law. The order impugned passed by the trial Court cannot be termed as mere interlocutory and, therefore, we hold the appeal under Section 21 of the NIA Act maintainable against the impugned order - the provisions of second proviso to subsection 5 of Section 21 of the Act are directory in nature and, therefore, an application for condonation of delay under Section 5 of the Limitation Act is maintainable. The order passed by the trial Court is quashed - appeal allowed. - HON BLE MR. JUSTICE SANJEEV KUMAR, JUDGE AND HON BLE MR. JUSTICE MOHAN LAL, JUDGE For the Appellant : Mr. Vishal Sharma, DSGI. For the Respondent : None JUDGMENT Sanjeev Kumar, J. 1 Chief Investigating Officer of National Investigating Agency (NIA) Sanjay Nagpal along-with public prosecutor filed an application under Section 267 of CrPC before the Court of Special Judge U/S 11 of the NIA Act (3rd Additional Sessions Judge) [ the trial court for short] seeking production warrant against one Abdul Jabbar @ Jabbar S/o Abdul Habib R/o H. No. 3919 Urdu Bazar near Jagat Cinema Chandni Chowk Delhi lodged in judicial custody in District Jail Bilaspur in FIR No. 288/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matter is at the stage of investigation which is being carried out by NIA in the crime registered as RC-17/2016/NIA/DLI dated 16th December 2016. The appellant has preferred this appeal under Section 21 of the NIA Act which prescribes or lays down 30 days period for filing an appeal with discretion given to the court to condone the delay on the sufficient cause being shown but not beyond the period of 90 days. Indisputably, in the instant case, the appeal is preferred beyond the period of 90 days and therefore the same is accompanied by an application for condonation of delay of 40 days. We find that the appellant has sufficiently explained the delay of 40 days beyond the period of 90 days provided under second proviso and, therefore, condone the same. 5 After hearing Mr. Vishal Sharma, learned DSGI, this court vide its order dated 9th November 2022 asked him to come prepared on following two aspects:- i) Whether delay beyond the period of ninety (90) days in filing appeal under Section 21 of the National Investigation Agency Act can be condoned? ii) Whether the order passed by the Special Judge NIA court rejecting application of the appellant seeking production warrants agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days. 11 From plain reading of Section 21, it clearly transpires that this Section has overriding effect on the Code of Criminal Procedure 1973 and provides unequivocally that an appeal shall lie from any judgment, sentence or order, not being an interlocutory order passed by Special Court to the High Court both on facts and law. 12 With regard to limitation, sub-section (5) of Section 21 clearly prescribes a period of 30 days for filing appeal from the date of judgment, sentence or order appealed from. The High Court is, however, given discretion to entertain an appeal after the expiry of said period of 30 days if it is satisfied that appellant had sufficient cause for not preferring the appeal within the period of 30 days. This is so provided in the first proviso to sub-section (5). However, the second proviso to sub-section (5) curtails the discretion of the High Court to entertain appeal after the expiry of period of 90 days. The expression shall used in second proviso prima facie indicates that the provision is mandatory in nature. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads thus: 29. Savings 1 (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law . 3 4 18. From a plain reading of Section 29 (2) of the Limitation Act, it is abundantly clear that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply, as if such period were prescribed by the Schedule. For the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent they are not expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive and concomitant right of fair trial. This is in this background, the Delhi High Court in the case of Farhan Sheikh vs. State (National Investigation Agency), 2019(7) AD (Delhi) 233, has taken the view that the word shall used in second proviso to Section 21(5) shall be read as may and that the second proviso is directory in nature. The Court further observed that the High Court shall have the discretion to condone the delay in appropriate cases even after expiry of period of 90 days. The Delhi High Court rightly did not agree to lift and apply decisions based on the interpretation of civil provisions, rendered in the context of civil and taxing statutes. What is held by the Division Bench of Delhi High Court in Farhan Sheikh‟s case (supra) is condensed in para (89) of the judgment which reads thus: 89. Thus, so far as the constitution of NIA is concerned, it a complete code. However, the same cannot be said about the substantive offences, and the procedural laws which would be applicable for the purpose of investigation and conduct of trial of such offences. To the extent that Section 16 of the NIA Act prescribes powers of Special Courts, the same would prevail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The submission that the second proviso to sub section (3) is in furtherance of the primary legislative objective of a speedy trial though attractive at first blush, clearly pales in comparison when we weigh in the balance the chilling consequences which are bound to follow on the curtains falling upon the expiry of 180 days against the avowed legislative policy of a speedy conclusion of proceedings under the 1989 Act. Bearing in mind the principles enunciated in Shayara Bano, we are constrained to hold that in failing to preserve the right to seek condonation of delay that too at the stage of a first appeal, the legislature has clearly acted capriciously and irrationally. It has left an aggrieved person without a remedy of even a first appeal against any judgment, sentence or order passed under the 1989 Act on the expiry of 180 days. As we contemplate the fatal consequences which would visit an aggrieved person on the expiry of 180 days, we shudder at the deleterious impact that it would have and find ourselves unable to sustain the second proviso which must necessarily be struck down, as we do, being in violation of Article 14 and 21 of the Constitution. 22 Although the judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentence and order not being an interlocutory order. The NIA Act does not define the term interlocutory orders . The interlocutory orders would mean and include orders which are not the final orders and do not determine the vital rights of the parties. 27 In the instant case, the appellant is seeking production warrants against the witness for recording his statement under section 164 Cr.P.C which, as per the appellant, is essential to take the investigation further . The rejection of the application has terminated the controversy before the Court and has adversely affected the vital right of the investigating agency to effectively investigate the matter and take the investigation to logical end. Such orders which affect the vital rights of the parties cannot be said to mere interlocutory orders. Nor the impugned order has been passed by the trial Court at any interlocutory stage in the trial. 28 Viewed from the aforesaid angle, we are of the considered opinion that the impugned order is not an interlocutory order within the meaning of the term used in sub-Section (1) of Section 21 and, therefore, hold the appeal against such order maintainable. 29 Having answered the questions 1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude arrest, remand, interrogation and the investigation. 31 A Single Bench of Delhi High Court in the case of Harshad S. Mehta vs. CBI, 1992(3) CCR 2793 has taken a contrary view and has held that an investigation by the police is excluded from the expression or for the purpose of any other proceedings . However, the entire issue was considered by the Full Bench of Rajasthan High Court in a case of State of Rajasthan vs. Santosh Yadav, 2005 (2) Crimes 272 and the Full Bench of Rajasthan, after surveying the entire case law on the issue, concluded its opinion as under: 28. A bare reading of Section 2(h) CrPC would show that all the proceedings conducted by a police officer for collecting evidence come under the definition of investigation . The words all the proceedings referred in Section 2(h) in our considered opinion would also include the expression used in the words other proceeding under this Code (Section 267(1), for the purpose of any proceedings against him (Section 267(1)(a) and for the purpose of such proceeding (last portion of Section 267(1)). In order to further the ends of justice wider meaning is required to be given to the word proceeding used in Section 267 CrPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case on hand. The trial Court has rejected the application of the appellant seeking production warrants against Abdul Jabar lodged in District Jail Bilaspur in connection with FIR No. 288/2017 for the purpose of recording his statement under Section 164 CrPC. The application was moved by the appellant under Section 267 CrPC during the course of investigation. The application has been rejected solely on the ground that no production warrant as prayed for by the appellant under Section 267 CPC could be issued by the Court when no case is pending adjudication against such person in the said Court. 34 We have already held that the expression other proceedings which occurs in Section 267 CrPC includes investigation and, therefore, a Criminal Court within whose jurisdiction the crime is committed and in respect whereof a production warrant is sought, cannot reject the application for production warrant simply on the ground that no case is pending before it. The order of the trial Court, therefore, is not sustainable in law. The order impugned passed by the trial Court, as held above, cannot be termed as mere interlocutory and, therefore, we hold the appeal under Section 21 of the NIA A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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