Bombay High Court
Faizal Hasamali Mirza @ Kasib vs The State Of Maharashtra And Anr on 14 September, 2023
Bench: R.P. Mohite-Dere, Gauri Godse
Digitally
signed by
SHAGUFTA
2023:BHC-AS:27039-DB
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date: 901-IA-2375-2022-J.doc
2023.09.14
11:08:06
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2375 OF 2022
IN
CRIMINAL APPEAL (STAMP) NO.11931 OF 2022
Faizal Hasamali Mirza @ Kasib,
Age 34; Occupation Electrician,
S/o Hasamali Karim Abdul Mirza,
Room No. 09, Badar Masjid Chawl,
Near Parsi Colony, Behrambaug,
Jogeshwari (West), Mumbai-400 102 ...Applicant
Versus
1. The State of Maharashtra
2. National Investigating Agency ...Respondents
Mr. Mateen Shaikh a/w Mr. Shahid Nadeem and Ms. Muskan
Shaikh for the Applicant
Mr. Aabad Ponda, Sr. Advocate as Amicus Curiae a/w Mr. Jugal
Kanani and Mr. Saurabh Mehta
Mr. Sharan Jagtiani, Sr. Advocate as Amicus Curiae a/w
Ms. Shraddha Achliya, Ms. Priyanka Kapadia, Mr. Ansh Karnavat
and Mr. Aditya Pimple
Ms. P. P. Shinde, A.P.P for the Respondent No.1 - State
Mr. Sandesh Patil, Spl. P.P. a/w Mr. Chintan Shah, Ms. Divya
Pawar and Mr. Krishnakant Deshmukh for the Respondent
No.2- NIA
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CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
RESERVED ON : 29th AUGUST 2023
PRONOUNCED ON : 14th SEPTEMBER 2023
JUDGMENT (Per Revati Mohite Dere, J.) :
1 By this interim application, the applicant seeks
condonation of delay of 838 days caused in filing the aforesaid
appeal. By the said appeal, preferred under Section 21 of the
National Investigation Agency Act (`NIA Act'), the appellant has
impugned the order dated 9th March 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
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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 2 nd 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), 2 nd proviso of the NIA Act,
inasmuch as, the same prescribes an outer limit for condonation
of delay.
4 Considering the vehement opposition by Mr.
Sandesh Patil, learned Special P.P. for NIA, and keeping in mind
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the important question raised in this application, as to whether or
not, delay can be condoned beyond the prescribed period of 90
days as stipulated in the 2 nd proviso to sub-section (5) of Section
21 of the NIA Act, we thought it fit to appoint an amicus to assist
us, in considering the question raised. Accordingly, we appointed
Mr. Ponda, learned Senior Advocate, to appear as an amicus vide
order dated 26th July 2023.
5 We may note here, that there was another connected
application filed in an appeal seeking condonation of delay of
299 days i.e. more than the period prescribed under Section 21(5)
of the NIA Act, and in that application, being Interim Application
No. 913/2023 in Appeal (Stamp) No. 3994/2023, we had
appointed Mr. Sharan Jagtiani, Senior Advocate as an amicus, to
assist the Court vide order dated 26 th July 2023. However, the
appeal alongwith the application seeking condonation of delay
was withdrawn by the applicant therein on 28 th August 2023, on
the day, the application was fixed for hearing, as the applicant
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wanted to approach the trial Court, in view of the subsequent
development i.e. grant of bail to another co-accused by the Apex
Court. Since we had appointed Mr. Sharan Jagtiani in that
application as amicus, we permitted him to address us in the
present application.
Submissions of Mr. Ponda, learned Sr. Advocate as Amicus :
6 Mr. Ponda, learned senior counsel urged before us
that the appellate Court has the power to entertain an appeal
even after the statutory period of 90 days despite the language
employed in the 2nd proviso to Section 21(5) of the NIA Act. In
this context, he submitted that Section 21(1) of the NIA Act
commences with the words, 'notwithstanding anything contained
in the Code' and as such, it excludes the Code of Criminal
Procedure and not any other law for the time being in force. He
submitted that there are analogous statutory provisions i.e.
Section 14A in the Scheduled Castes and the Scheduled Tribes
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(Prevention of Atrocities) Act, 1989 ('SCST Act') and Section 17
of the Fugitive Economic Offenders Act, 2018, and that although
no appeal shall be entertained after the expiry of the period of
180 days under the 2nd proviso to Section 14A(3), and, the 2 nd
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.1, 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.
1 (2007) 6 SCC 528
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6.2 Learned senior counsel further relied on the
judgments of the Apex Court in Garikapati Veeraya v. Subbiah
Choudhry2, Madhav Hayawadanrao Hoskot v. State of
Maharashtra3, Noor Aga v. State of Punjab4 and Sita Ram v. State
of U.P.5 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 renders this right illusory or subject to
chance, can interfere with the mandate of Article 21. Mr. Ponda,
did a comparative analysis of the legal provisions under the NIA
Act, vis-a-vis the SCST Act and the Fugitive Economic Offenders
Act, to emphasize that from the language used in the sections
therein, it is clearly evident, that the legislative intent in enacting
Section 21 of the NIA Act, was not to exclude the applicability of
all laws, including the Limitation Act. He submitted that hence,
Section 21(5), 2nd proviso ought to be construed liberally, since
the legislative intent was not to exclude all other laws, other than
2 AIR 1957 SC 540
3 (1978) 3 scc 544
4 (2008) 16 scc 417
5 (1979) 2 SCC 656
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Cr.P.C. In this context, learned counsel relied on the provisions
of Sections 3 and 29 of the Limitation Act, to show that the
provisions of Section 3 r/w Section 5 of the Limitation Act, would
apply to Section 21(5) of the NIA Act.
6.3 Mr. Ponda further submitted that there is no
provision in the NIA Act, explicitly or implicitly excluding the
Limitation Act of 1963, and that the same is important by virtue
of Sections 5 and 29 of the Limitation Act.
6.4 Mr. Ponda further submitted that the provisions of
Section 21(2) of the NIA Act show that even qua appeals, the said
provision, cannot be strictly construed as mandatory vis-a-vis the
time-line stipulated therein. He submitted that the requirement
to dispose of an appeal as mandated in Section 21(2) of the NIA
Act, within three months from the date of admission, can never
be taken and interpreted as mandatory, as non-compliance of the
same would result in consequences, including release of an
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accused only because the appeal could not be disposed of in three
months.
6.5 According to Mr. Ponda, there may be cases where
the accused are incarcerated for long periods, financially unstable
to file an appeal within the prescribed period, and that despite
there being sufficient cause to justify the filing of an appeal
beyond 90 days, if the said appeal is not entertained, as it is
beyond 90 days, it would lead to travesty of justice. He
submitted that if delay is not condoned beyond the outer period
mentioned in Section 21(5) of the NIA Act, the same would be
contrary to Articles 14, 19 and 21 of the Constitution of India,
more particularly, because an appeal is an extension of the trial
and there exists a fundamental 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
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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), 2 nd 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 Article 21 and as such, the
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right of appeal cannot be taken away. Learned counsel also relied
on the judgment of the Apex Court in the case of Dilip S.
Dahanukar (Supra). Learned counsel submitted that the said
judgment of the Supreme Court indicates that a statutory right to
appeal in criminal matters, as provided by the legislation, find its
roots or origins in Article 21 of the Constitution and that the
Statute merely provides for the form and the manner in which the
said right can be exercised. He submits that even though the
right to file an appeal in criminal matters is guaranteed by Article
21, the said right is not absolute and that Article 21 itself
contemplates that a person may be deprived of his/her
fundamental right guaranteed thereunder, except in accordance
with the procedure established by law. In this context, learned
counsel relied on the judgment of the Apex Court in Maneka
Gandhi v. Union of India6, to show that the Supreme Court had
read substantive due process as the standard for determining
whether the procedure established by law is fair, just and
reasonable. Learned counsel also relied on the judgment in the
6 (1978) 1 SCC 248
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case of K.S. Puttaswamy v. Union of India 7, with respect to the
observations made by the Apex Court as to what is "procedure
established by law", in particular, paragraphs 288, 294, 295, 296,
451 and 477 of the said judgment. He submitted that the said
judgment would reveal the settled proposition i.e. that the
procedure established by law has to be reasonable, fair and just.
He submitted that the word "shall" used in Section 21(5), second
proviso of the NIA Act be read as "may". In this context, Mr.
Jagtiani relied on the following judgments :
Chandrika Prasad Yadav v. State of Bihar 8; State of U.P v.
Manbodhan Lal Shrivastava9; Bachahan Devi v. Nagar Nigam,
Gorakhpur10 and Anant H. Ulahalkar v. Chief Election
Commissioner11.
7.1 According to Mr. Jagtiani, there are indications in the
Scheme of the Act itself, which would show that Section 21(5) of
the Act, is directory and not mandatory. He submitted that the
7 (2017) 10 SCC 1
8 AIR 2004 SC 2036
9 AIR 1957 SC 912
10 (2008) 12 SCC 372
11 (2017) 1 Mah. L. J. 431
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Scheme of the NIA Act shows; that it was the intention of the
legislature to provide speedy investigation and speedy trial of the
scheduled offences 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 12. 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
12 Order dated 13/09/2013 in Cri. Mis. Petition Nos. 17570/2013 & 17571/2013
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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 period of 90
days cannot be said to be absolute for all cases and that if the
accused is able to show sufficient cause, which prevented him
from filing/preparing his appeal, within the mandated period of
90 days, the High Court, in its judicial discretion, may well
condone the delay. According to Mr. Jagtiani, the prescription of
time under Section 21(5) of the NIA Act is only a procedural law
and does not take away the accused's right of appeal, which is a
facet of right to life under Article 21 of the Constitution of India.
7.2 Learned counsel submitted that the consequence of
reading Section 21(5) of the NIA Act as mandatory and not
directory, are drastic and would lead to violation of Article 21 of
the Constitution. He submitted that the time-line prescribed
under Section 21(5) of the NIA Act and the fundamental rights of
the accused guaranteed under Part II of the Constitution can be
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organized by the courts by reading the said provision as directory
and that the discretion vests in the courts to condone the delay
upon sufficient cause being shown. He submitted that if the
provision is read as mandatory, despite sufficient cause being
shown, the appellant would lose his right of appeal, a facet of
right to life guaranteed under Article 21 of the Constitution, in
the event, the appellant does not approach the High Court within
90 days of the judgment, sentence or order. In this context
Mr. Jagtiani submitted that generally, the rule is of strict
interpretation in respect of penal statutes and any ambiguity must
enure to the benefit of the accused, if it deprives the person of his
life and liberty by giving a strict interpretation. He submitted that
thus, it is permissible for the High Court to apply the rule of
interpretation of `reading down' of Section 21(5), 2 nd proviso of
the NIA Act and to declare the same as directory and not
mandatory.
Submissions of Mr. Sandesh Patil, learned Spl. P.P :
8 Mr. Sandesh Patil, learned Spl. P.P vehemently
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opposed the condonation of delay application. He submitted that
an appeal cannot be entertained after the expiry of 90 days and
that the legislature, in its wisdom, has consciously excluded the
power to condone delay beyond 90 days. He submitted that there
is a presumption of constitutional validity and that Section 21(5)
of the NIA Act has decided to put a full stop 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. Tendolkar13, and
Charjeetlaal Chaudhari v. UOI14.
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
13 AIR 1958 SC 538
14 AIR 1951 SC 41
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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
Mishra15 and the full bench judgment of this Court in Anjana
Yashawantrao v. Yashawantrao Dudhe16. He submitted that the
doctrine of limitation is founded on consideration of public
policy and expediency and the object of the limitation statute, is
to compel litigants to be diligent in seeking remedies in courts of
law by prohibiting stale claims. He submitted that the law of
limitation does not destroy the primary or substantive right itself,
but puts an end to the accessory right of action.
8.2 Mr. Patil further submitted that under the garb of
interpreting a provision, the court has no power to add or
subtract, even a single word, as it would not amount to an
interpretation, but legislation. In this context, learned counsel
15 (1974) 2 SCC 133
16 (1961) 1 Cr.L.J. 637
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relied on the judgment in Rohitash Kumar v. Om Prakash
Sharma17.
8.3 As far as Article 21 is concerned, Mr Patil submitted
that `reading down', the provisions of the statute cannot be
resorted to, when the meaning thereof, is plain and unambiguous
and the legislative intent, clear. He submitted that the
fundamental principle of the reading down doctrine is, that the
court must read the legislation literary and that if such intent
cannot be reasonably implied without undertaking, what,
unmistakable would be legislative exercise, the Act may be read
down to save it from unconstitutionality. He submitted that in
the present case, as there is no challenge to the vires of the Act,
the question of reading down the statute does not arise and even
otherwise, the doctrine of reading down can be applied, only
when the provisions of the statute are vague and ambiguous and
when, it is not possible to gather the intention of the Legislature.
He submitted that where there is no difficulty in understanding
17 (2013) 11 SCC 451
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the clear and unambiguous, meaning of the statute, where there
is no uncertainty in the language, there is no scope for reading
down the statute. In this context, Mr. Patil relied on the judgment
in Subramanium Swamy v. Raju18.
8.4 Mr. Patil submitted that the right to appeal is not a
fundamental right, but a statutory right, and, that even assuming
without admitting, that right to appeal is a fundamental right, the
said fundamental right can be subject to reasonable restrictions.
He submitted that right of appeal cannot be left in perpetuity, but
there is a ceiling/cap provided for exercise of that right within the
limitation prescribed in Section 21(5) of the NIA Act. He
submitted that said procedure established by law is set-out in
Section 21 (4) and (5) of the NIA Act.
8.5 Mr. Patil submitted that the period 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
18 AIR 2014 SC 1649
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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
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21(5) of the NIA Act, there is no bar in entertaining the delay
condonation application. He submitted that the personal liberty
of an individual guaranteed under Article 21 not only is with
respect to expeditious trial but also extends to filing of an appeal.
He submitted that the right of a statutory appeal in orders passed
in criminal appeals is an essential element of Article 21 and the
same can no longer be disputed and that the issue stands duly
concluded by the Apex Court in the case of M. H. Hoskot
(Supra). He further submitted that the right of appeal arises from
a right to fair trial, recognized under Article 21 of the
Constitution. He submitted that if the word "shall" used in the
second proviso to sub-section (5) of Section 21 is held as
mandatory, it would take away the right of an accused or the
prosecution, as the case may be, to avail of the remedy of an
appeal. In this context, learned counsel relied on the judgment in
State of U.P. v. Babu Ram Upadhya19 and State of W.B. v. Union of
India20.
19 (1961) 2 SCR 679
20 (1964) 1 SCR 371
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ANALYSIS :
10 Having heard the rival submissions of the learned
counsel for the respective sides, as well as, having heard Mr.
Ponda and Mr. Jagtiani, learned senior counsel appearing as
amicus, we proceed to decide a fundamental and important
question of law, which is, whether the Appellate Court can
condone delay beyond the period of 90 days, as stipulated in the
2nd proviso to Section 21(5) of the NIA Act, 2008 ?
11 Before we proceed to decide the said issue, it would
be apposite to reproduce Section 21 of the NIA Act, with which
we are concerned. Section 21 reads thus :
"21. Appeals. - (1) 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.
(2) Every appeal under sub-section (1) shall be
heard by a Bench of two Judges of the High Court and
shall, as far as possible, be disposed of within a period of
three months from the date of admission of the appeal.
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(3) Except as aforesaid, no appeal or revision
shall lie to any Court from any judgment, sentence or order
including an interlocutory order of a Special Court.
(4) Notwithstanding anything contained in sub-
section (3) of section 378 of the Code, an appeal shall lie
to the High Court against an order of the Special Court
granting or refusing bail.
(5) 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.
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13 The Kerala High Court in the case of Nasir Ahammed
v. National Investigating Agency21, 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.
14 The Calcutta High Court in Sheikh Rahamtulla @
Sajid @ Burhan Sheikh @ Surot Ali & Ors. v. National
Investigation Agency22 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 2 nd proviso
to sub-section (5) of Section 21.
21 2015 SCC Online Ker 39625
22 CRA (DB) 231/2022 dated 01.03.2023
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Delhi High Court, Jammu & Kashmir and Ladakh High
Court and Chhattisgarh High Court have held - 21(5), 2nd
proviso of the NIA Act, is not mandatory.
15 The Delhi High Court in Farhan Sheikh v. State
(NIA)23 has held that the word `shall' used in the 2 nd proviso of
sub-section (5) of Section 21 of the NIA Act, must be read in the
context and having due regard to the legislative intent and object.
It held that if Section 21(5), 2 nd proviso is read to be mandatory,
it may in some cases, take away the right of the accused/the
prosecution, to avail of the remedy of an appeal. Accordingly, the
Delhi High Court opined that having regard to the rights of the
accused, including that of a fair trial, which is implicit in Article
21 of the Constitution of India, the word 'shall' used in Section
21(5), 2nd proviso, must be read as 'may' and on sufficient cause
being shown, the Appellate Court would be well within its
powers to condone the delay and entertain the appeal, even after
the expiry of the period of 90 days.
23 2019 SCC Online Del 9158
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16 The view taken by the Delhi High Court as stated
aforesaid was adopted by the Jammu & Kashmir and Ladakh
High Court in the case of National Investigation Agency Through
its Chief Investigating Officer v. 3rd Additional Sessions Judge,
District Court Jammu24, as it was a pragmatic view and furthered
the ends of justice. Accordingly, the Jammu & Kashmir and
Ladakh High Court in paras 22 to 24 has held as under:
"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 Division Bench
of Kerala High Court in the aforesaid case has interpreted
the second proviso to sub-Section 5 of Section 21 of the
24 CrIA(D) No.46/2022 (CrIM No.1474/2022) decided on 13.12.2022
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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 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 preferring the
appeal even after expiry of period of 90 days as provided
in the second proviso to sub-Section 5 of Section 21 of the
NIA Act.
24 The application of the appellant seeking
condonation of delay is held maintainable and the same,
for the reasons stated therein, is allowed. Delay in filing
appeal is, thus, condoned."
17 The Chhattisgarh High Court in the case of State of
Chhattisgarh v. Devdhar Nishad (Acquittal Appeal No. 350/2022
decided on 12.04.2023, has after considering the judgments
passed by the Delhi High Court in Farhan Shaikh (Supra) and
Jammu & Kashmir and Ladakh High Court in National
Investigation Agency Through its Chief Investigating Officer v. 3 rd
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Additional Sessions Judge, District Court Jammu (Supra) , in para
42 held as under:
"42. To sum-up the issue, the question for
consideration is answered as under:-
The second proviso appended to sub-section
(5) of Section 21 of the NIA Act barring the
entertainment of appeal preferred under Section 21(1)
after the period of 90 days would not preclude the
convict for the Scheduled Offences under the NIA Act
showing sufficient cause in case of unmerited
conviction and similarly, in case of unmerited
acquittal, it would also not preclude the aggrieved
party from preferring appeal after the period of 90
days showing sufficient cause."
18 We, for reasons stated herein-under, are in complete
agreement with the view taken by the Delhi High Court in Farhan
Sheikh (Supra), the Jammu & Kashmir and Ladakh High Court in
National Investigation Agency Through its Chief Investigating
Officer v. 3rd Additional Sessions Judge, District Court Jammu
(Supra) and the Chhattisgarh High Court in State of Chhattisgarh
(Supra), inasmuch as, it holds that the 2nd proviso to Section 21(5)
of the NIA Act, is directory.
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19 At the outset, we may note, that the NIA Act, as a
whole, cannot certainly said to be a complete Code, in itself,
inasmuch as, there are several provisions in the NIA Act, which
have to be read in conjunction with other laws. The schedule to
the Act enlists the several enactments which create offences and
prescribes punishments. It is those offences alone, that NIA is
authorized 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.
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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 words, "Notwithstanding anything contained in any
other law for the time being in force". The relevant part of
Section 14A(3) reads thus:
"14A. ......................
(2) .......................
(3) Notwithstanding anything contained in any other law
for the time being in force, every appeal under this section
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shall be preferred within a period of ninety 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 ninety days if it is
satisfied that the appellant had sufficient cause for not
preferring the appeal within the period of ninety days:
Provided further that no appeal shall be entertained
after the expiry of the period of one hundred and eighty
days.
(4) .................."
(emphasis supplied)
22 It is pertinent to note, that the said provision of the
SCST Act with respect to the bar of entertainment of an appeal
after the stipulated period and its constitutionality came up for
consideration before the Allahabad High Court in-
(i) Re : Provision of Section 14A of SC/ST (Prevention of
Atrocities) Amendment Act, 201525;
(ii) Ghulam Rasool Khan and Ors. v. State of U.P. and Ors. 26
25 2018 SCC Online All 2087
26 28.07.2022 - ALL HC : MANU/UP/2312/2022
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23 The Allahabad High Court (Lucknow Bench) in para
15 of Ghulam Rasool Khan (Supra) has extracted the relevant
paragraphs of Re : Provision of Section 14A of SC/ST (Prevention
of Atrocities) Amendment Act, 2015 (Supra), as under:
"55. ........... It has left an aggrieved person without
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.
xxxx
62. While we reject the challenge to section
14A(2), we declare that the second proviso to Section
14A(3) is violative of Articles 14 and 21 of the
Constitution and 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
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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.
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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 force" in Section 21 of the NIA Act. The words
used in Section 21(1) are 'Notwithstanding the provisions
contained in the Code..........'. Section 2(b) defines, "Code"
means the Code of Criminal Procedure, 1973. Thus, the
language employed in Section 14A(3) of the SCST Act, would
reveal that the provisions of the Limitation Act, 1963, do not
apply in cases under the SCST Act, having regard to the 1 st
proviso to Section 14A(3). Section 21 of the NIA Act, omits the
words found in Section 14A(3) of the SCST Act and as such, it
appears, that the legislative intent was not to exclude the
applicability of Section 5 of the Limitation Act and other
provisions of the said Act, whilst dealing with cases under the
NIA Act. This clear distinction between the said provisions i.e.
between Section 21 and Section 14A(3), makes the legislative
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intent clear i.e. one must be liberal in construing the provisions of
Section 21(5), since the said provision, does not exclude the
applicability of all other laws, other than the Criminal Procedure
Code.
28 In this context, it would be apposite to reproduce the
relevant provisions of the Limitation Act, 1963, with which we
are concerned i.e. Section 3, 5 and 29. Relevant portion of the
said Sections read thus :
"3. Bar of limitation.-- (1) Subject to the provisions
contained in sections 4 to 24 (inclusive), every suit instituted,
appeal preferred, and application made after the prescribed
period shall be dismissed, although limitation has not been set
up as a defence.
(2) ....................."
"5. Extension of prescribed period in certain cases.--Any
appeal or any application, other than an application under any
of the provisions of Order XXI of the Code of Civil
Procedure, 1908 (5 of 1908), may be admitted after the
prescribed period, if the appellant or the applicant satisfies the
court that he had sufficient cause for not preferring the appeal
or making the application within such period.
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Explanation.-- The fact that the appellant or the
applicant was misled by any order, practice or judgment of the
High Court in ascertaining or computing the prescribed
period 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 N.
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Balakrishnan v. M. Krishnamurthy27, 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 span for such legal remedy for
the redress of the legal injury so suffered. Time is precious
and wasted time would never revisit. During the efflux of
time, newer causes would sprout up necessitating newer
persons to seek legal remedy by approaching the courts.
So a life span must be fixed for each remedy. Unending
period for launching the remedy may lead to unending
uncertainty and consequential anarchy. The law of
limitation is thus founded on public policy. It is enshrined
in the maxim interest reipublicae up sit finis litium (it is
for the general welfare that a period be put to litigation).
Rules of limitation are not meant to destroy the rights of
the parties. They are meant to see that parties do not
resort to dilatory tactics but seek their remedy promptly.
The idea is that every legal remedy must be kept alive for
a legislatively fixed period of time."
30 Having perused the Kerala High Court judgment in
Nasir Ahammed (Supra) and the judgments relied upon by the
Kerala High Court, on which strong reliance is placed by
27 (1998) 7 SCC 123
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Mr. Patil, learned Special P.P, we find that the judgments relied
upon by the Kerala High Court, in coming to a conclusion, that
an appeal filed beyond 90 days is not maintainable, has, infact,
relied on all civil cases arising out of tax matters, 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. We may note, the
consequences that arise out of civil and criminal cases are distinct
and different, inasmuch as, the concept of personal liberty and
Article 21 of the Constitution, being the touchstone of criminal
cases, the considerations arising in criminal cases would differ
from civil cases.
Right of Appeal in Criminal Cases :
31 The right of an accused to file an appeal against his
conviction, is linked to Article 21 of the Constitution of India.
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32 The Apex Court in Garikapati Veeraya (Supra), 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
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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 thorough
examination by the Supreme Court. A similar reasoning
applies to cases falling under Article 134(1)(b). When
the High Court trying a case sentences a man to death a
higher court must examine the merits to satisfy that a
human life shall not be haltered without an appellate
review. The next step is whether a hearing that is to be
extended or the review that has to be made by the
Supreme Court in such circumstances can be narrowed
down to a consideration, in a summary fashion, of the
necessarily limited record then available before the
Court and total dismissal of the appeal if on such a
prima facie examination nothing flawsome is brought
out by the appellant to the satisfaction of the Court. A
single right of appeal is more or less a universal
requirement of the guarantee of life and liberty rooted
in the conception that men are fallible, that Judges are
men and that making assurance doubly sure, before
irrevocable deprivation of life or liberty comes to pass, a
full-scale re-examination of the facts and the law is
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made an integral part of fundamental fairness or
procedure."
"41. Going to the basics, an appeal "is the right
of entering a superior court and invoking its aid and
interposition to redress the error of the court
below." .... An appeal, strictly so called, is one "in which
the question is, whether the order of the court from
which the appeal is brought was right on the materials
which that court had before it" (per Lord Davey,
Ponnamma v. Arumogam, (1905) A.C. at p.390) .... A
right of appeal, where it exists, is a matter of substance,
and not of procedure (Colonial Sugar Refining Co. v.
Irving, (1905) AC 369; Newman v. Klausner, (1922) 1
K.B. 228. Thus, the right of appeal is paramount, the
procedure for hearing canalises so that extravagant
prolixity or abuse of process can be avoided and a fair
workability provided. Amputation is not procedure
while pruning may be."
"42. Of course, procedure is 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
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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.
Relevant paras 12 and 66 are reproduced herein-under, to
understand the purport of this judgment :
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"12. An appeal is indisputably a statutory right and an
offender who has been convicted is entitled to avail the
right of appeal which is provided for under Section 374 of
the Code. Right of Appeal from a judgment of conviction
affecting the liberty of a person keeping in view the
expansive definition of Article 21 is also a Fundamental
Right. Right of Appeal, thus, can neither be interfered with
or impaired, nor can it be subjected to any condition."
"66. The right to appeal from a judgment of conviction
vis-a-vis the provisions of Section 357 of the Code of
Criminal Procedure and other provisions thereof, as
mentioned hereinbefore, must be considered having regard
to the fundamental right of an accused enshrined under
Article 21 of the Constitution of India as also the
international covenants operating in the field."
37 The Apex Court, in conclusion, opined in para 72(ii)
as under:
"72. We, therefore, are of the opinion :
(i) ...................
(ii) The Appellate Court, however, while suspending the
sentence, was entitled to put the appellant on terms.
However, no such term could be put as a condition
precedent for entertaining the appeal which is a
constitutional and statutory right;
(iii) to (v) ........................."
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38 The aforesaid judgments clearly and unequivocally
state that 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, covered not
only under Article 21 of the Constitution of India, but even under
Article 14(5) of the International Covenant on Civil and Political
Rights, 1966; and, that atleast a single right of appeal 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.
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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 2 nd 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), 2 nd proviso
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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, is also recognized as a
fundamental right.
42 Professor M. Cappelletti Rabel, a noted jurist in his
book 'Access to Justice' (Volume I) has explained the importance
of access to justice in the following words;
"The right of effective access to justice has emerged
with the new social rights. Indeed, it is of paramount
importance among these new rights since, clearly, the
enjoyment of traditional as well as new social rights
presupposes mechanisms for their effective protection.
Such protection, moreover, is best assured by a workable
remedy within the framework of the judicial system.
Effective access to justice can thus be seen as the most
basic requirement - the most 'basic human right' - of a
system which purports to guarantee legal right.
In India, 'access to justice' has been recognized as a
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valuable right by Courts in India, even before the Constitution
came into force.
We may note, that the Apex Court in the case of
Hussainara Khatoon v. State of Bihar 28, has declared speedy trial
to be an integral and essential part of the fundamental right to life
and liberty as enshrined in Article 21. Article 39A makes free
legal service an inalienable element of a reasonable, fair and just
procedure and that the right to such services is said to be implicit
in the guarantee of Article 21.
Thus, access to justice is and has been recognized as a
part and parcel of right to life in India and in all civilized societies
around the globe. The right is so basic and inalienable that no
system of governance can possibly ignore its
importance/significance, leave alone afford to deny the same to its
citizens. The accused have a right to get free legal advise and for
appointment of a lawyer from the Legal Services Authority to
28 (1980) 1 SCC 81
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espouse their cause and all this is a part of `access to justice', so as
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
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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. The Anti-Hijacking Act, 1982 (65 of 1982);
4. The Suppression of Unlawful Acts against Safety of Civil
Aviation Act, 1982 (66 of 1982);
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5. The SAARC Convention (Suppression of Terrorism) Act,
1993 (36 of 1993);
6. The Suppression of Unlawful Acts Against Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf Act, 2002
(69 of 2002);
7. The Weapons of Mass Destruction and their Delivery
Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of
2005);
8. Offences under--
(a) Chapter VI of the Indian Penal Code (45 of 1860) [sections
121 to 130 (both inclusive)];
(b) Sections 489-A to 489-E (both inclusive) of the Indian
Penal Code (45 of 1860);
(c) Sections 489-A to 489-E (both inclusive) of the Indian
Penal Code (45 of 1860);
(d) Sub-section (1AA) of section 25 of Chapter V of the Arms
Act, 1959 (54 of 1959);
(e) Section 66F of Chapter XI of the Information Technology
Act, 2000 (21 of 2000)."
46 A careful perusal of the Schedule specified in the NIA
Act, would show that the offences enumerated in the said Schedule
are serious in nature and most of the offences are punishable with
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imprisonment for life and considering the seriousness of the
offences, the jurisdiction to try the offences under the NIA Act
has been vested with the Designate Special Court, constituted
under Section 11 of the NIA Act. Thus, it is all the more
necessary to ensure that an accused/the prosecution gets a right to
test the correctness of the order passed by the Special Court in
appeal, lest, injustice is caused to either of the parties, due to an
unmerited order. Not only the accused, but even the prosecution
should be able to approach the Appellate Court after expiry of 90
days, on sufficient cause being shown for delay, as even closing
the 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.
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47 Having regard to the discussions as stated aforesaid,
we are firmly of the opinion that the 2 nd 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 2 nd
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
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National Investigation Agency Through its Chief Investigating
Officer v. 3rd 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 Court, relying on the
Delhi High Court judgment in Farhan Sheikh (Supra), held that
the 2nd proviso to Section 21(5) was directory and as such,
condoned the said delay of 40 days (beyond the 90 days
prescribed) caused in filing the appeal by the NIA and
consequently, allowed the NIA's appeal. Similarly, in State of
Chhattisgarh (Supra) before the Chhattisgarh High Court, NIA
had filed an appeal against acquittal along with an application
seeking condonation of delay of 228 days. NIA, whilst seeking to
condone the delay of 228 days, had urged that the provision in
question i.e. 2nd proviso to Section 21(5) of the NIA Act, was
directory. The Chhattisgarh High Court accepted the submission
of the NIA that 2nd proviso to Section 21(5) of the NIA Act was
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directory in nature and accordingly, condoned the delay caused
in filing the appeal against acquittal. NIA being a Central
Investigating Agency, is expected to take one stand, either ways,
for or against. The stand cannot change to suit its needs. We are
unable to see any merit/reason, in the contradictory stand taken
by the NIA before different High Courts. Infact, reliance placed
by Mr. Patil, learned Special P.P for NIA on Hukumdev Narain
Yadav (Supra), and the full bench judgment of this Court in
Anjana Yashawantrao (Supra) are clearly misplaced, inasmuch as,
the said cases are clearly distinguishable.
49 Accordingly, for the reasons set-out in detail herein-
above, we hold -
(i) that 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
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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) that the word `shall' in the 2 nd 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
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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
appeal is condoned. The application is disposed of.
52 Before we part, we must record a word of
appreciation for the able assistance provided and the efforts taken
by learned senior counsel Mr. Ponda and Mr. Jagtiani.
53 All concerned to act on the authenticated copy of this
order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
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