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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 ..... ection 17 of The Unlawful Activities (Prevention) Act, 1967. 3 The case relates to large scale transfer of funds from Pakistan to India through the import of California almonds and other items via cross LoC trade facilitation centres located at Salamabad, Uri, and Chakkan-da-Bagh, Poonch, for their purported use for fomenting terrorism in J&K. It was claimed by the appellant herein in his application that during investigation, Mr. Abdul Jabbar has been found to be involved in the said LoC trade and is aware of several incriminating facts relating to the mechanism adopted by the accused to facilitate transfer of funds illegitimately for fomenting terrorism in the Union Territory of Jammu and Kashmir. It was also averred in the application that during his examination in the jail, Mr. Abdul Jabbar had expressed his willingness to make his statement under Section 164 CrPC with regard to his acquaintance with the facts and circumstances of the case under investigation. It was thus pleaded that the statement of Abdul Jabbar was required to be recorded under Section 164 CrPC for taking the investigation further. The application was considered by the trial court and the same was rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 After hearing Mr. Sharma and having gone through the record, we are of the opinion that there is another equally important question that arises for determination in this appeal which is as under:- (iii). Whether a criminal court or for that matter Special Judge NIA can refuse to issue production warrant under Section 267 CrPC when no case is pending trial or enquiry before it. In other words, whether criminal court under Section 267 CrPC can be approached for issue of production warrant for recording the statement of a person acquainted with the facts and circumstances of the crime during investigation." 8. These three questions have directly fallen for consideration and determination in this case. 9 Since the application was filed by the appellant under Section 267 CrPC before the trial court at the investigation stage, as such, obviously there could be no party or person on the opposite side. The matter before us, in essence, is not adversarial. 10 Having heard Mr. Sharma, learned DSGI appearing for the appellant and perused the material on record, it is necessary to first set out Section 21 of the NIA Act: "21. Appeals. (1) Notwithstanding anything contained in the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statute provides for filing of appeal a period of 30 days and gives discretion to the appellate court to condone the delay, subject of-course to the showing of sufficient cause, beyond the period of 30 days but not beyond the expiry of 90 days from the date of judgment, sentence or order appealed from, the courts cannot by entering into interpretative process re-write the mandatory provision, in that, it would amount to legislation by courts. 13 The other view is that the word "shall" used in the 2nd proviso must be read in its context and having due regard to the object of legislation. Interpreting the word "shall" used in second proviso to sub-section (5) as mandatory may in some cases take away the right of the accused or the prosecution, as the case may be, to avail of remedy of appeal. It is thus opined that having regard to the fair trial rights of the accused implicit in Article 21 of the Constitution of India, the word "shall" used in second proviso to sub- section (5) of Section 21 must be read as „may‟ and on sufficient cause being shown, the court would be well within its powers to condone the delay and entertained the appeal even after the expiry of peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 expressly excluded by such special or local law. 19. The point that arises for determination is, whether NIA Act, in particular Section 21 whereof expressly excludes the application of Sections 4 to 24 of the Limitation Act for determining the period of limitation for filing an appeal under NIA Act. One view is that by providing for condonation of delay after the expiry of 30 days‟ period prescribed for filing appeal, but not beyond 90 days from the date of judgment, sentence or order appealed from, the application of Section 5 of the Limitation Act is expressly excluded. The other view is that exclusion of Sections 4 to 24 must be express and not by necessary implication. We are, however, inclined to go by the later view. This is because Section 21 of the NIA Act has no where specifically excluded the application of Sections 4 to 24 (inclusive) for determining the period of limitation prescribed for filing appeal under Section 21 of the Act. There is, of course, similar provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural 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. However, in respect of matters not dealt with under the Act relating procedures, and the substantive offences, it is the provisions of the Code and the substantive laws enumerated in the schedule to the Act, which would be relevant. Even if, the Act is considered to be complete Code in so far as it provides the right of appeal, in the light of the aforesaid discussion, we are inclined to hold that the prescription of limitation in Section 21(5) of the NIA Act is directory and not mandatory and that the High Court is empowered to entertain and consider application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. The said application is maintainable". 21 The Delhi High Court has placed strong reliance upon the Full Bench Judgment of Allahabad High Court rendered in WP (Crl.).8/2018, decided on 10.10.2018, wherein the Full Bench has held similar provision contained in second proviso to Section 14 (A)(3) of the Scheduled Castes and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious 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 rendered by the Allahabad High Court in the aforesaid case and the Delhi High Court in the case of Farhan Sheikh (supra) have been rendered in the context of fair trial rights of the accused, yet Section 21 does not make any distinction between the right of the accused and the right of prosecution to file an appeal against any judgment, sentence or order. If the delay in filing the appeal by the accused beyond the period of 90 as provided in second proviso to sub-Section 5 of Section 21 of the NIA Act can be condoned by the High Court in appropriate cases, we see no reason as to why the similar treatment cannot be accorded to the prosecution. The Division Bench judgment rendered by the Kerala High Court in the case of Nasir Ahammed vs. National Investigation Agency, (2016) Cri LJ 1101 in which a contrary view is taken, has not taken into account the fair trial rights of the accused which would include right of the accused to avail the remedy of appeal. The Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered 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 and 2, it is time to advert to question No.3 i.e whether a criminal court or for that matter, a Special Judge NIA can refuse to issue production warrants under section 267 of the Code of Criminal Procedure when no case is pending trial or enquiry before it. Section 267(1) of the Cr.P.C under which the appellant had moved an application before the trial Court reads as under: "267. Power to require attendance of prisoners. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,- (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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. Had the Legislature intended to give restrictive meaning to the words "other proceeding under the Code" (Section 267, they would not have used the expression "for the purpose of any proceedings against him" in Section 267(1)(a). 29. The Apex Court in CBI v. Anupam J. Kulkarni (supra), without quoting Section 267 CrPC, clarified that if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case, they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such, situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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