9911796707
TMI Blog2023 (9) TMI 1665X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge was pleased to reject the applicant's application seeking his enlargement on bail in connection with C.R. No. 13/2014 registered initially with the Kalachowky Police Station, Mumbai, Maharashtra, for the alleged offences punishable under Sections 16, 18, 18-A, 18-B and 20 of the Unlawful Activities Prevention Act, 1967 and under Sections 420, 465, 468, 471, 201 and 120-B of the Indian Penal Code, and subsequently transferred to NIA and re-registered as RC-02/2018/NIA/Mum on 2nd August 2018 by NIA, Mumbai. >2 The question that arises for consideration in the aforesaid application is, whether the Appellate Court has the power to entertain an appeal, filed beyond the period of 90 days, in view of the 2nd proviso to Section 21(5) of the NIA Act, 2008 and accordingly, condone the delay beyond the said period ? >3 Mr. Sandesh Patil, learned Special P.P, appearing for the NIA submitted that the aforesaid application seeking condonation of delay of 838 days caused in filing the appeal is not maintainable, as the period sought to be condoned is beyond the period mandated by Section 21(5), 2nd proviso of the NIA Act, inasmuch as, the same prescribes an outer limit for condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Courts have been condoning delay caused in filing appeals under the said Acts. >6.1 Mr. Ponda submitted that the right of appeal is a statutory, substantive, fundamental and an unconditional right given to an accused. In this context, learned counsel relied on the judgment of the Apex Court in the case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. [(2007) 6 SCC 528], in particular, para 12 of the said judgment, wherein, it is held that an appeal is indisputably a statutory right and that a right of appeal from the judgment of conviction, affecting the liberty of a person, is also a fundamental right, and, that this right of appeal can neither be interfered with or impaired, nor can it be subjected to any condition. >6.2 Learned senior counsel further relied on the judgments of the Apex Court in Garikapati Veeraya v. Subbiah Choudhry [AIR 1957 SC 540], Madhav Hayawadanrao Hoskot v. State of Maharashtra [(1978) 3 SCC 544], Noor Aga v. State of Punjab [(2008) 16 SCC 417] and Sita Ram v. State of U.P. [(1979) 2 SCC 656] to buttress his submission, that the right of appeal in criminal cases is protected under Article 21 of the Constitution and that no provision, that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts have the power to condone the delay beyond 90 days, despite the language used in the second proviso to Section 21(5) of the NIA Act and that the same can be done by resorting to Section 5 of the Limitation Act, the applicability of which, is not excluded under the provisions of NIA Act, having regard to the language used in Section 21(1). >Submissions of Mr. Sharan Jagtiani, learned Sr. Advocate as Amicus : >7 Mr. Sharan Jagtiani, learned senior counsel supported the submission advanced by Mr. Ponda. He submitted that the Kerala High Court, whilst holding that the period beyond the outer limit stipulated under Section 21(5), 2nd proviso, could not be condoned being mandatory, had relied upon judgments rendered under the Customs and Excise Law, Representation of People's Act, the Sales Tax Act, under the Arbitration and Conciliation Act, under the FEMA Act, under the Electricity Act and Lease Control Act. He submitted that the constitutional scheme relating to a right of appeal in criminal matters is to be considered from a different perspective, as against appeals filed in civil matters. He submitted that the right of appeal is paramount and can be equated with Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for investigation is constituted under the NIA Act; and, there are special courts for trial of scheduled offences. He submitted that even under Section 19 of the NIA Act, the legislature provided for day-to-day trial of the scheduled offences by the Special Court and that the said trial would have precedence over the trial of any other case against the accused in any other court and that it is in this background i.e. to ensure timely disposal and finality to the proceedings, that Section 21 of the NIA was enacted. Learned counsel also relied on the judgment of the Apex Court in the case of Sadhwi Pragya Singh Thakur v. National Investigation Agency [Order dated 13/09/2013 in Cri. Mis. Petition Nos. 17570/2013 & 17571/2013]. He submitted that while deciding the said case, the Supreme Court held that the exception under Section 21(4) has been carved out to protect the life and liberty of the accused. He submitted that the intention of the legislature was to avoid undue delay in filing of bail appeal by the parties, which in turn, would delay the overall trial and finality of the proceedings and hence, the period for filing the appeal has been prescribed. He submitted that the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted that Section 21(5) does not intend to curtail the right of first appeal, and as such, a remedy is available to an accused to file an appeal against his conviction/rejection of his bail, however, only puts an upper limit to file the same. In this context, learned counsel for the respondent-NIA relied on the judgment of the Apex Court in the case of Ram Krishna Dalmi v. Justice S. R. Tendolkar [AIR 1958 SC 538], and Charjeetlaal Chaudhari v. UOI [AIR 1951 SC 41]. >8.1 He submitted that NIA Act is a special law and therefore, the provisions of Sections 4 to 24 (inclusive) shall stand excluded. According to Mr. Patil, Section 5 of the Limitation Act stands excluded and for the purpose of computation extension of the period for filing an appeal, Section 21(5) of the NIA Act will have precedence. In this context, Mr. Patil relied on the judgment in the case of Hukumdev Narayan Yadav c. Lalit Mishra [(1974) 2 SCC 133] and the full bench judgment of this Court in Anjana Yashawantrao v. Yashawantrao Dudhe [(1961) 1 Cr.L.J. 637]. He submitted that the doctrine of limitation is founded on consideration of public policy and expediency and the object of the limitation statute, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 21(5) is mandatory and cannot be held as directory, as if it is held to be mandatory, it would amount to legislating and not interpretation, which is not permissible. He submitted that such a power only vests in writ jurisdiction under Article 226 of the Constitution and not while exercising appellate jurisdiction under Section 21(1) of the NIA Act. >Submissions of Mr. Mateen Shaikh, learned counsel for the Applicant : >9 Learned counsel for the applicant submitted that the applicant hails from a very poor family and that right after the impugned order dated 9th March 2020 was passed, Covid-19 was declared. He submitted that his family was completely in the dark about the remedies available and that the applicant had also lost his mother during the pandemic and that it was only much later, he was made aware of his right to file an appeal and hence, the delay. He submitted that Section 5 of the Limitation Act is only excluded, when the special law expressly excludes the applicability of the same. He submitted that when there is no such express exclusion of the Limitation Act, 1973 provided in Section 21(5) of the NIA Act, there is no bar in entertaining the delay condonat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: >Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: >Provided further that no appeal shall be entertained after the expiry of period of ninety days." >(Emphasis supplied) >12 At the outset, we would place on record, the divergent views taken by different High Courts, on Section 21(5), 2nd proviso of the NIA Act. >Kerala High Court and Calcutta High Court have held : Section 21(5), 2nd proviso of the NIA Act, is mandatory. >13 The Kerala High Court in the case of Nasir Ahammed v. National Investigating Agency [2015 SCC Online Ker 39625], 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Division Bench of Kerala High Court in the aforesaid case has interpreted the second proviso to sub-Section 5 of Section 21 of the NIA Act by relying upon the decisions rendered in the context of civil or taxing statutes and without having regard to the scope, object, context and subject matter of the NIA Act. >23 In view of the above, we are of the considered view that the word "shall" used in second proviso to subSection 5 of Section 21 of the Act must be read as "may" an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorized to investigate. Thus, the NIA Act cannot survive in its scheme/purpose, without dependence on other Statutes. Section 2(1)(b) of the NIA Act defines 'Code' to mean the Code of Criminal Procedure, 1973. The provisions of the Code are applicable to a trial under the NIA Act, in view of Section 4 of the Code of Criminal Procedure. The NIA Act is dependent on the Code for its execution. The only aspect on which NIA Act is a complete Code, is with respect to its Constitution and the terms of the special agency that has been created, which is the avowed purpose of the Act. >20 Coming to the language employed in Section 21 of the NIA Act, we now propose to examine, whether the said Section excludes the operation of the Limitation Act. In order to examine the same, and to arrive at a decision, we would like to do a comparative analysis of the legal provisions of the NIA Act vis-a-vis the provisions of the SCST Act. >21 Section 21(1) of the NIA Act commences with the words, 'Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it is consequently struck down." >24 In para 16 of Ghulam Rasool Khan and Ors. (Supra), it was held as under : >"16. The second proviso to sub-section (3) of Section 14A of the 1989 Act having been struck down by this Court in In Re : Provision of Section 14(a) of SC/ST (Prevention of Atrocities) Amendment Act, 2015 (supra), there will be no limitation to file an appeal against an order under the provisions of 1989 Act. Hence, the remedies can be availed of as provided." >25 Although, at the first blush, the provisions of the two Statutes i.e. Section 21 of the NIA Act and Section 14A of the SCST Act, appear to be analogous, but on a careful and deeper scrutiny, there are inherent differences between them. >26 Under the SCST Act, there is a specific provision under Section 20 of the said Act, which overrides other laws, which provision applies inspite of the specific analogous reference in Section 14A(3) of the SCST Act, which clearly states the legislative intent in excluding other laws. This harsh sweep of Section 14A(3) cannot be applied to the NIA Act, inasmuch as, there is no such analogous provision under the NIA Act, including under Section 21 of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod may be sufficient cause within the meaning of this section." >"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) …………………." >29 It is worthwhile to note, that unlike Section 14A(3) of the SCST Act, there is no implied or express exclusion of the Limitation Act, in the NIA Act. Hence, Section 3 r/w Section 5 of the Limitation Act, will apply to Section 21(5) of the NIA Act. It is pertinent to note, that the Apex Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), has in para 23 opined, that the right of appeal is not a mere matter of procedure, but is a substantive right, and, that the right of appeal is a vested right. >33 In M. H. Hoskot (Supra), the Apex Court in para 11 has held as under: >"11. One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in Article 21. >34 In Sita Ram (Supra), the Apex Court while considering the constitutional validity of a Supreme Court Rule that permitted summary dismissal of appeals under Article 134(2) of the Constitution held, that the right of appeal in Criminal Cases is protected under Article 21 of the Constitution and that no provision, that renders this right illusory or subject to ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s within the Court's power but where it pares down prejudicially the very right, carving the kernal out, it violates the provision creating the right. Appeal is a remedial right and if the remedy is reduced to a husk by procedural excess, the right became a casualty. That cannot be." >"51. Ordinarily, save where nothing is served by fuller hearing notice must go. If every appeal under Article 134(1)(a) and (b) or Section 2(a) of the Enlargement Act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between Art. 134 and Art. 136 may be judicially eroded and Parliament stultified. Maybe, many of the appeals after fuller examination by this Court may fail. But the minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. To be peeved by this need is to offend against the fair play of the Constitution. The horizon of human rights jurisprudence after Maneka Gandhi case (supra) has many hues." >35 Similarly, in Noor Aga (Supra), the Apex Court has in para 114, observed as under : >"114. Article 12 of the Universal Declaration of Human R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. Presumption of innocence is a human right and the said principle forms the basis of criminal jurisprudence in India. Presumption of innocence, being a facet of Article 21, the same enures to the benefit of the accused. An appeal being an extension of the trial, there exists a fundamental right to file an appeal and this right cannot be rendered illusory or subject to chance. >39 If the 2nd proviso to sub-section (5) of Section 21 of the NIA Act, is held to be mandatory, it would lead to travesty of justice, even in cases, where the accused is able to show 'sufficient cause' for not filing an appeal, within the prescribed period, as stipulated. The reasons could be several and the list exhaustive. For example, financial condition of the accused to engage a lawyer; lack of legal knowledge, of his right to file an appeal; no member of the family to assist/help engage a lawyer for the accused; having no family member and so on. If the 2nd proviso to sub-section (5) of Section 21, is held to be mandatory, even if the accused is able to show `sufficient cause' for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to see that there is no injustice caused to them for want of them being unrepresented before the appropriate forum. >43 An accused stands nothing to gain by filing an appeal belatedly, inasmuch as, it is the accused who continues to suffer incarceration, and it is the accused who will stand prejudiced by filing an appeal belatedly. The NIA suffers no prejudice. >44 If at the threshold, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he doors to the prosecuting agency can also lead to serious consequences, as the NIA Act is concerned with the national sovereignty, security and integrity of India, friendly relations with foreign State and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other International organizations. >47 Having regard to the discussions as stated aforesaid, we are firmly of the opinion that 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. >48 It is perplexing to note, the stand of the NIA. As noted earlier, Mr. Patil, learned Spl.P.P vehemently opposed the delay condonation application, on the premise that the 2nd proviso to sub-section (5) of Section 21 was mandatory and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication 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) that 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. >50 Now, coming to the facts of the present case, we find that the applicant/accused has spelt out sufficient cause for condoning the delay. The applicant has stated that the applicant hails from a very poor family; that right after the impugned order dated 9th March 2020 was passed, lock-down was declared in April 2021, due to Covid-19 pandemic; that his family was completely in the dark about the remedies available; that the applicant had also lost his mother during the pandemic and that it was only much later, he was made aware of his right to file an appeal and hence, the delay. In this context, learned counsel for the applicant relied on the order passed by the Supreme Court, by which, the period of limitation came to be extended for a certain period. >51 Accordingly, the delay of 838 days caused in filing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
