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TMI Blog2023 (9) TMI 1665X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 passed below Exhibit 30 by the learned Special Judge, by which, the learned Judge 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the 2nd proviso to Section 14A(3), and, the 2nd proviso to Section 17(2), Appellate 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al right to file an appeal. Hence, he submits that the appellate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being tried under this Act; that a special agency 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p to the remedy of appeal, beyond 90 days. He 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 90 days stipulated in Section 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 entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every 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, sentence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" and that the High Court shall have th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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, whereas, Section 14A(3) of the SCST Act uses the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said Act. 27 The words used in Section 14A(3) of the SCST Act, would reveal the legislative intent for not incorporating the words "Notwithstanding anything contained in any other law for the time being in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule, 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 N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123], has observed in para 11 as under : "11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 chance, can interfere with the mandate of Article 21. It was further held in paras 31, 41, 42 and 51 as under: "31. When an accused is acquitted by the trial court, the initial presumption of innocence in his favour is reinforced by the factum of acquittal. If this reinforced innocence is not only reversed in appeal but the extreme penalty of death is imposed on him by the High Court, it stands to reason that it requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argement 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 Rights provides for the Right to a fair trial. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land." 36 In Dilip S. Dahanukar (Supra), the Apex Court, linked the right of appeal against an order of conviction, as being a fundamental right enshrined in Article 21 of the Constitution. Releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the appeal belatedly, his appeal would necessarily have to be dismissed. This would most certainly lead to travesty of justice. 40 Courts exist to do justice. Access to justice is a fundamental right and cannot be diluted. If despite 'sufficient cause' being shown, if an appeal under Section 21(5), 2nd proviso cannot be entertained, this would lead to depriving an accused of his fundamental right guaranteed to him under Article 21 of the Constitution. 41 Time and again, Courts have held that 'access to justice', an invaluable human right, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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. 45 It is pertinent to note, from a perusal of the Schedule specified in the NIA Act, that the "Scheduled Offence" means an offence specified in the Schedule. The Schedule specified in the NIA Act states as under : "THE SCHEDULE [See section 2(1) (f)] 1. The Atomic Energy Act, 1962 (33 of 1962); 2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967); 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that no appeal beyond 90 days can be entertained, in view of the statutory bar. The contradiction in the stand taken by the NIA, is apparent. It is pertinent to note, that in the appeal filed by the NIA before the Jammu & Kashmir and Ladakh High Court in National Investigation Agency Through its Chief Investigating Officer v. 3 rd Additional Sessions Judge, District Court Jammu (Supra), the NIA had filed a delay condonation application, there being a delay of 40 days. The NIA urged before the said Court that the 2nd proviso to Section 21(5) of the NIA Act was directory. The Jammu & Kashmir and Ladakh High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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