Madras High Court
Union Of India Represented By Its vs Abdul Razaak on 30 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
2024:MHC:3680
CRL.A.Nos.1224 & 1225 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.10.2024
PRONOUNCED ON : 30.10.2024
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
CRL.A.Nos.1224 & 1225 of 2024
Union of India represented by its
Inspector of Police,
National Investigation Agency,
No.10, Millers Road,
Purasaiwakkam, Chennai 600 010.
(RC.No.42/2022/NIA/DIL) ... Appellant
in both Crl.Appeals
Vs.
1.Abdul Razaak ... Respondent
in Crl.A.No.1224/2024
2.A.Kyzer ... Respondent
in Crl.A.No.1225/2024
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Prayer in Crl.A.No.1224/2024: Criminal Appeal filed under Section 21 (4)
of National Investigation Agency Act, 2008, to set aside the order passed by
the Learned Special Judge for NIA Cases (Special Court for Bomb Blast
Cases), Ponnamallee in Crl.M.P.No.1565 of 2023 dated 20.10.2023.
Prayer in Crl.A.No.1225/2024: Criminal Appeal filed under Section 21 (4)
of National Investigation Agency Act, 2008, to set aside the order passed by
the Learned Special Judge for NIA Cases (Special Court for Bomb Blast
Cases), Ponnamallee in Crl.M.P.No.1566 of 2023 dated 20.10.2023.
For Appellant : Mr.AR.L.Sundaresan
Additional Solicitor General of India
Assisted by Mr.R.Karthikeyan
Special Public Prosecutor
[For National Investigation Agency]
(in both Crl.As)
For Respondents : Mr.I.Abdul Basith
(in both Crl.As)
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COMMON JUDGMENT
S.M.SUBRAMANIAM, J.
Table of Contents
I. BRIEF FACTS OF THE CASE:………………………………………………………….. 4
II. BACKGROUND ON THE CRIMINAL APPEALS FILED:………………….. 5
III. LIMITATION PRESCRIBED FOR APPEALS UNDER SECTION 21(5)
OF THE NIA ACT AND THE ISSUES RAISED:……………………………………..6
IV. POINTS FOR CONSIDERATION:……………………………………………………9
V. SECTION 29(2) OF LIMITATION ACT, 1963:…………………………………10
VI. CONTRA JUDGMENTS:……………………………………………………………….12
VII. LEGAL POSITION IN RESPECT OF THE ISSUE RAISED IN THE
PRESENT CASE:………………………………………………………………………………. 13
(A) SPIRIT OF THE RULINGS:…………………………………………………….28
VIII. ANALYSIS:………………………………………………………………………………. 30
(A) RIGHT TO APPEAL:…………………………………………………………….. 30
(B) NO VIOLATION OF ARTICLE 21 OF THE CONSTITUTION:…… 33
(C) OTHER ENACTMENTS AND CONDONATION OF DELAY:…….. 35
IX. CONCLUSION:…………………………………………………………………………….41
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Under assail in the present criminal appeals are the order dated 20 th
October, 2023 passed in Crl.M.P.Nos.1565 and 1566 of 2023 in
RC.No.42/2022/NIA /DLI.
I. BRIEF FACTS OF THE CASE:
2. The bail order was passed in favour of accused persons A15 and
A18 respectively based on the order passed by this Court in the case of
Barakathullah vs. National Investigation Agency2, dated 19.10.2023. The
said judgment passed by the Division Bench of this Court was challenged
before the Hon’ble Supreme Court of India by the National Investigation
Agency and by judgment dated 22.05.2023 in CRL.A.Nos.2715 to 2719 of
2024, the Hon’ble Supreme Court was pleased to set aside the order of this
Court dated 19.10.2023. As such, the order on the basis which the Trial
Court has granted bail to the accused persons A15 and A18 herein were set
aside by the Hon’ble Supreme Court subsequently. Thus, it necessitate the
National Investigation Agency to prefer the present appeals with a delay. The
reasons are stated to condone the delay in filing the criminal appeals falls
beyond the control of the National Investigation Agency and therefore, the
delay is to be condoned.
2. CRL.A.Nos.98, 114 and 116 of 2023
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II. BACKGROUND ON THE CRIMINAL APPEALS FILED:
3. The appellant is the Union of India represented by the Inspector of
Police, National Investigation Agency (NIA), Chennai. The respondents are
the accused persons A15 and A18. The respondents filed bail petitions under
Section 439 of Criminal Procedure Code read with Section 43D of Unlawful
Activities (Prevention) Act, 1967 [hereinafter referred as ‘UA(P) Act’]. The
bail petitions were allowed on conditions. Aggrieved by the bail order, the
National Investigation Agency preferred these criminal appeals under Section
21(5) of the National Investigation Agency Act, 2008 [hereinafter referred as
‘NIA Act’]. The appeals are numbered subject to maintainability, since there
is a delay in filing the criminal appeals by the appellant.
4. The respondents raised a preliminary objection regarding
maintainability, mainly on the ground that the limitation as prescribed under
Section 21(5) of the NIA Act is applicable to the prosecution side and the
present appeals filed beyond the period of limitation is not maintainable.
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III. LIMITATION PRESCRIBED FOR APPEALS UNDER
SECTION 21(5) OF THE NIA ACT AND THE ISSUES RAISED:
5. It is brought to the notice of this Court that with reference to
preferring an appeal under Section 21(5) of the NIA Act, the delay in filing
an appeal was condoned by this Court, if the appeal is preferred by an
accused person. However, appeals filed by the prosecution is dismissed on
the ground of delay, in view of ratio laid down in the case of Buhari @
Kichan Buhari vs. State Represented by the Additional Deputy
Superintendent of Police1.
6. Learned Additional Solicitor General of India appearing on behalf of
the National Investigation Agency (NIA) would submit that the
discrimination caused in the matter of preferring an appeal by the accused
and the prosecution would result in serious consequences and cause prejudice
to the interest of the ‘State’. The period of limitation contemplated under
Section 21(5) of the NIA Act is to be implemented in stricto sensu, since the
High Court in the absence of challenging the constitutional validity of the
provision cannot read down the provision by entertaining an appeal filed by
1. 2024-1-L.W.(Crl) 189
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the accused to condone the delay and reject the appeal, if any filed by the
prosecution on the ground of delay. If at all the delay is to be condoned in
respect of an appeal preferred by an accused, benefit is to be extended to the
prosecution also.
7. The contradictions and creation of two classes of persons namely
accused and prosecution for preferring an appeal resulted in miscarriage of
justice as the prosecution alone is deprived of getting the delay condoned in
the event of preferring an appeal beyond the period of limitation
contemplated under Section 21(5) of the NIA Act.
8. In the context of the above differential approach in the matter of
condoning delay by the High Court under Section 21(5) of the NIA Act, it
became necessary to consider the issues elaborately.
9. The first question to be determined is, whether the period of
limitation contemplated under Section 21(5) of the NIA Act can be
interpreted differently, one in favour of the accused and another against the
prosecution in preferring appeals?
10. Another question is, whether NIA Act confer powers on the High
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Court to condone the delay, if any delay in preferring an appeal under Section
21(5) of the NIA Act arises?
11. The judgment relied on in Buhari @ Kichan Buhari’s case cited
supra provides the benefit of condonation only to the accused and not to the
prosecution. The discrimination caused, whether legal or otherwise is to be
examined with reference to the legal principles and the judgments on the
subject.
12. The contention of the appellant is that there cannot be any
discrimination between the accused and the prosecution in the matter of
preferring an appeal under Section 21 of the NIA Act. Therefore, the
judgment in Buhari @ Kichan Buhari’s case cited supra is not a good law
and per incuriam in the sense, it is running counter to the legal principles
settled by the Hon’ble Supreme Court of India in dealing with the period of
limitation prescribed under special enactments.
13. In Buhari @ Kichan Buhari’s case cited supra two different
criteria are fixed for condoning the delay for preferring an appeal, which
necessitate this Court to consider the issues and to find out whether the said
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judgment is per incuriam and running counter to the judgment of the Hon’ble
Supreme Court of India in the matter of period of limitation contemplated for
preferring appeals under special enactments.
IV. POINTS FOR CONSIDERATION:
14. Whether the criminal appeals filed beyond the period prescribed
under Section 21(5) of the NIA Act is maintainable or not?
15. Section 21(5) of the NIA Act provides that “Every appeal under
this Section shall be preferred within a period of 30 days from the date of
judgment, sentence or order appealed from”.
(a) Provided that the High Court may entertain an appeal after the
expiry of the said period of 30 days if its is satisfied that the appellant had
sufficient cause for nor preferring the appeal within the period of 30 days.
(b) Provided further that, no appeal shall be entertained after the expiry
of the period of 90 days.
16. Whether delay can be condoned by the High Court / the Appellate
Court beyond the period of limitation as provided under Section 21(5) of the
NIA Act and the considerations made by other High Courts across the
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Country?
17. Whether the judgment relied on by the appellant / prosecution in
Buhari @ Kichan Buhari’s case cited supra is a good law, per incuriam or
running counter to the legal position settled by the Hon’ble Supreme Court of
India, so that this Bench can independently arrive a conclusion regarding the
issues raised to condone the delay, if any criminal appeal has been filed
beyond the period of limitation as contemplated under Section 21(5) of NIA
Act?
V. SECTION 29(2) OF LIMITATION ACT, 1963:
18. Section 29(2) of the Limitation Act, 1963 provides that where any
special or local law prescribed 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 where the period prescribed by the
schedule and for the purposes of determining any period of limitation
prescribed for any suit, appeal or application by any special or local law, and
the provisions contained in Sections 4 to 24 shall apply only in so far as and
to the extent to which they are not expressly excluded by such special or local
law.
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19. As such, when a Special Law is in place and the right of appeal is
conferred under the Special Law, and the period of limitation for filing such
appeal is also provided under the special law, then it is only the said special
that will govern. The provisions of the Limitation Act would not apply.
20. The issue with regard to Section 21(5) of NIA Act itself has come
up for consideration before different High Courts. The Division Bench of the
Kerala High Court in the case of Nasir Ahamed vs. National Investigating
Agency3, has held the High Court does not have power to condone the delay
beyond the condonable limit that has been provided under the proviso to
Section 21(5).
21. The Calcutta High Court in a recent judgment in the case of
Sheikh Rahamtulla and Others vs. National Investigating Agency4, has
also taken the same view that delay beyond 90 days cannot be condoned and
provisions of Section 21(5) of the Act will prevail and the provisions of the
Limitation Act would not apply.
3. 2015 SCC Online Ker 39625
4. 2023 SCC Online Calcutta 493
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22. The Division Bench of the Meghalaya High Court in the case of
Wallam Jingsuk Barim vs. Union of India5, has held that Section 21(5) and
the proviso will be a bar for condonation of delay beyond the period
contemplated under the proviso.
VI. CONTRA JUDGMENTS:
23. However, the Division Bench of the Delhi High Court in the case of
Farhan Shaikh vs. The State (National Investigating Agency) 6, has held
that petition for condonation of delay beyond the period contemplated under
the proviso is maintainable and has condoned the delay of 314 days in filing
the appeal and 44 days in representation of the appeal.
24. The Division Bench of this Court in Buhari @ Kichan Buhari’s
case cited supra has held that the word ‘shall’ in Section 21(5) should be read
as ‘may’ and hence it should be held to be a directory provision and not a
mandatory provision. It was further held that filing of appeals against bail
and conviction should be treated differently as it involves the right to life and
liberty of the individual guaranteed under Article 21 of the Constitution.
5. 2024 SCC Online Megh 72
6. 2019 SCC Online Del 9158
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25. Thus, there are two different views expressed by different High
Courts on the above matter.
VII. LEGAL POSITION IN RESPECT OF THE ISSUE RAISED IN
THE PRESENT CASE:
26. In Nasir Ahammed’s case cited supra, the High Court of Kerala
considered the very same issue and held as follows;
“1. The question involved in this Criminal
Appeal (unnumbered) is whether an appeal under S. 21
of the National Investigation Agency Act, 2008
(hereinafter referred to as the “NIA Act”) can be validly
filed before the High Court after the expiry of the period
of ninety days from the date of judgment, sentence or
order appealed from and whether the High Court can
condone the delay in filing the appeal under S. 5 of the
Limitation Act.
………………
………………
20. In Consolidated Engg. Enterprises v.
Irrigation Department, ((2008) 7 SCC 169), a three
Judges Bench considered S. 34(3) of the Arbitration and
Conciliation Act, 1996 and held thus:
“20 When any special statute prescribes certain
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CRL.A.Nos.1224 & 1225 of 2024to specified time limit, on sufficient cause being shown,
then the period of limitation prescribed under the special
law shall prevail and to that extent the provisions of the
Limitation Act shall stand excluded. As the intention of
the legislature in enacting sub-section (3) of S. 34 of the
Act is that the application for setting aside the award
should be made within three months and the period can
be further extended on sufficient cause being shown by
another period of 30 days but not thereafter, this Court
is of the opinion that the provisions of S. 5 of the
Limitation Act would not be applicable because the
applicability of S. 5 of the Limitation Act stands
excluded because of the provisions of S. 29(2) of the
Limitation Act.”
……………….
………………
22. The N.I.A. Act is an Act to constitute an
investigation agency at the national level to investigate
and prosecute offences affecting the sovereignty,
security and integrity of India, security of State, friendly
relations with foreign States and offences under Acts
enacted to implement international treaties, agreements,
conventions and resolutions of the United Nations, its
agencies and other international organisations and for
matters connected therewith or incidental thereto. The
superintendence of the N.I.A. shall vest in the Central
Government, as provided in S. 4 of the N.I.A. Act. S. 6
provides for investigation of scheduled offences. S. 7
provides that the N.I.A. may request the State
Government to associate itself with the investigation. S.
9 mandates that the State Government shall extend all
assistance and co-operation to the Agency for
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CRL.A.Nos.1224 & 1225 of 2024are constituted under S. 1 1 for the trial of scheduled
offences. S. 15 of the N.I.A. Act provides for
appointment of Public Prosecutors and Additional
Public Prosecutors. S. 16 provides for the procedure and
powers of Special Courts. S. 19 of the N.I.A. Act states
that the trial under the Act of any offence by a Special
Court shall be held on day-to-day basis on all working
days and have precedence over the trial of any other
case against the accused in any other Court (not being a
Special Court) and shall be concluded in preference to
the trial of such other case and accordingly the trial of
such other case shall, if necessary, remain in abeyance.
Sub-section (2) of S. 21 states that 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. The scope of the
provisos to sub-section (5) of S. 21 of the N.I.A. Act has
to be considered in the light of the other provisions in the
Act. The period of limitation provided under sub section
(5) of S. 21 is thirty days. The first proviso to sub-
section (5) empowers the High Court to entertain an
appeal after the expiry of thirty days, if it is satisfied that
the appellant has sufficient cause for not preferring the
appeal within the period of thirty days. The second
proviso provides that no appeal shall be entertained after
the expiry of the period of ninety days. The first proviso
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to sub-section (5) of S. 21 itself deals with condonation
of delay in filing appeal and the delay up to sixty days
(ninety days from the date of order) can be condoned by
the High Court. By making a restriction that no appeal
shall be entertained after the expiry of the period of
ninety days, the application of S. 5 of the Limitation Act
is expressly excluded. The High Court has jurisdiction
to condone the delay in filing the appeal. But that power
is restricted under the first proviso to sub-section (5) of
S. 21. A further restriction in the second proviso is a
clear indication that the High Court cannot exercise the
power under S. 5 of the Limitation Act to condone the
delay. To that extent, it amounts to an express exclusion
of S. 5 of the Limitation Act as contemplated under S.
29(2) of the Limitation Act. For the aforesaid reasons,
we are of the view that the application for condonation
of delay is not maintainable. Accordingly, the
application for condonation of delay as well as the
Criminal, Appeal are dismissed as not maintainable.”
27. In Sheikh Rahamtulla’s case cited supra, the High Court of
Calcutta also considered the same issue relating to condonation of delay
beyond 90 days as contemplated under Section 21(5) of the NIA Act.
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28. The High Court of Calcutta has considered all the judgments for
and against including the judgment of Kerala High Court in Nasir
Ahammed’s case cited supra and the judgment in Farhan Shaikh’s case in
paragraphs 14 and 15. The judgments considered by the Calcutta High Court
are elaborately discussed as under;
“14. Mr.Sharma submits that the application of
Section 5 of the Limitation Act to the present situation is
excluded on the plain reading of Section 21(5) of the
NIA Act. The power of the Court to condone delay by
resort to Section 5 of the Limitation Act is curtailed in
its scope, and the said power cannot be exercised to
condone delay beyond 60 days.
15. Mr.Sharma relies on Nasir Ahammed v.
National Investigation Agency, 2016 Cri LJ 1101,
wherein, a Division Bench of the Kerala High Court has
held that the restriction imposed by the 2 nd proviso to
section 21(5) of the NIA Act is a clear indication that
the High Court cannot resort to the power under section
5 of the Limitation Act, 1963 to condone the delay in
filing an appeal under the NIA Act beyond the period of
60 days.
16. He also relies upon Gopal Sardar v. Karuna
Sardar, (2004) 4 SCC 252. In this case, the Supreme
Court considered whether Section 5 of the Limitation
Act was applicable to an application made under
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Section 8 of the West Bengal Land Reforms Act, 1955.
Section 8 of the said Act vested a right of pre-emption,
which was sought to be enforced belatedly by moving an
application under Section 5 of the Limitation Act. The
Supreme Court held that the said Act was a self
contained code in relation to enforcement of rights of
pre-emption. It held that an application for enforcement
of rights of pre-emption under Section 8 of the Act is in
the nature of a suit. Consequently, Section 5 of the
Limitation Act was held to be not attracted to
proceedings initiated under Section 8 of the said Act.
The Supreme Court held that Section 8 of the said Act
does not speak of application of Section 5 of the
Limitation Act, or its principles. It held that the
legislature had consciously and expressly made Section
5 of the Limitation Act, or its principles, applicable to
other proceedings under the Act – such as appeal or a
revision, etc., but the same had not been made
applicable to initiation of proceedings under Section 8 of
the Act. Consequently, it necessarily follows that the
legislature did not intend to give benefit of Section 5 of
the Limitation Act to a proceeding under Section 8,
having regard to the nature of right of pre-emption,
which is considered a weak right. The Supreme Court
also held that the right of pre-emption must be exercised
within the period specified under Section 8 of the Act, so
that the rights of purchasers of land are not eclipsed for a
long time.”
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29. After considering the judgments for and against as narrated above
the Calcutta further considered, the principles as under;
“39. The Supreme Court went on to observe:
“51……..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.”
40. Mr.Aggarwal also relies on Dilip S.
Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC
528. In this decision the Supreme Court observed:
“12… Right to 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”
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30. In paragraphs 49, 50 and 51, the Calcutta High Court considered
the spirit of Section 21 of the NIA Act and reads as under;
49. The Supreme Court held that the time limit of
60 days laid down in Section 417(4) of the Code is a
special law of limitation, and it did not find anything in
the said special law, which expressly excludes the
applicability of Section 5. It observed:
“…….It is true that the language of sub-
section (4) of Section 417 is mandatory and
compulsive, in that it provides in no uncertain terms
that no application for grant of special leave to
appeal from an order of acquittal shall be
entertained by the High Court after the expiry of
sixty days from the date of that order of acquittal.
But that would be the language of every provision
prescribing a period of limitation. It is because a bar
against entertainment of an application beyond the
period of limitation is created by a special or local
law that it becomes necessary to invoke the aid of
Section 5 in order that the application may be
entertained despite such bar. Mere provision of a
period of limitation in howsoever peremptory or
imperative language is not sufficient to displace the
applicability of Section 5. The conclusion is,
therefore, irresistible that in a case where an
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Limitation Act, 1963, Section 5 would be available to
the applicant and if he can show that he had
sufficient cause for not preferring the application
within the time limit of sixty days prescribed in
subsection (4) of Section 417, the application would
not be barred and despite the expiration of the time
limit of sixty days, the High Court would have the
power to entertain it…”
50. Mr. Aggarwal submits that the aforesaid
decision has been followed by this Court in Saj
Properties Pvt. Ltd. v. Virender, 2015 Cri LJ 2772.
51. Mr. Aggarwal submits that the objects and
reasons, as well as the debates undertaken at the time of
the introduction of the NIA Act in the Parliament, shows
that the mandatory/strict construction of the second
Proviso to Section 21(5) of that Act has no nexus to the
objects and reasons of the NIA Act. It is argued that the
consequences which flow for the accused/convict from
the applicability of the NIA Act, being serious, second
Proviso to Section 21(5) of the NIA Act calls for liberal
interpretation so as to subserve Article 21 of the
Constitution of India.
52. Mr. Aggarwal further submits that the full
bench of Allahabad High Court in In Re Provision of
Section 14A of SC/ST (Prevention of Atrocities)
Amendment Act, 2015, WP (Crl.) 8/2018 decided onPage 21 of 44
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CRL.A.Nos.1224 & 1225 of 202410.10.2018, has struck down an identical provision i.e.,
Section 14A(3) of the Scheduled Castes and the
Scheduled tribes (Prevention of Atrocities) Act, 1989 as
being unconstitutional. The period of limitation to file
an appeal under Section 14A(3) of the SC/ST
(Prevention of Atrocities) Amendment Act, 2015,
(hereinafter referred to as the SC/ST Act) is ninety days.
The first proviso to section 14A(3) empowers the High
Court to entertain an appeal after the expiry of ninety
days, if it is satisfied that the appellant has sufficient
cause for not preferring the appeal within the period of
ninety days. The second proviso provides that no appeal
shall be entertained after the expiry of 180 days. He
submits that section 21(5) of the NIA Act and section
14A(3) of the SC/ST Act are para materia. He submits
that like section 14A(3) of the SC/ST Act, the 2 nd
proviso of section 21(5) also impinges on the right of
first appeal, which has been recognised to be an integral
facet of fair procedure enshrined in Article 21 of the
Constitution. Thus, to save Section 21(5) of the NIA
Act from being declared ultra vires the Constitution of
India, this Court must read down and interpret the said
provision as directory and, as not creating a bar on the
power of the Court to condone the delay in filing of an
appeal under NIA Act, if sufficient cause is shown.
……………………..
……………………..
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68. When one examines the issue – as to whether
Section 5 of the Limitation Act can be invoked while
belatedly preferring an appeal under Section 21 of the
NIA Act, in the context that the right of appeal of an
accused/convict is a substantive right; is a facet of right
of fair trial and substantive due procedure, and; is a
right which is protected by Article 21 of the
Constitution, the only conclusion that we can draw is
that application of Section 5 of the Limitation Act to
Section 21(5) of the NIA Act cannot be excluded.
69. Our view is strengthened by the decision of
the Supreme Court in Mangu Ram (supra). Pertinently,
Mangu Ram (supra) was a case where the application to
seek Special Leave of Appeal against a judgement of
acquittal passed by the learned Judicial Magistrate was
filed belatedly with an application under Section 5 of the
Limitation Act. The Supreme Court rejected the
argument that the time limit of 60 days prescribed under
Sub Section (4) of Section 417 of the Code for
preferring an application to seek Special Leave under
Sub Section (3) of the said Section was mandatory, even
though, the provision was couched in a mandatory
language – like in the present case. Thus, even in respect
of an order or judgement of acquittal, the Supreme
Court held that the application to seek Special Leave,
even if filed belatedly, could be entertained with an
application under Section 5 of the Limitation Act.
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70. Here, we are dealing with the right of an
accused/convict, whose personal liberty stands curtailed
by the conviction and the impugned order on sentence
passed by the Special Court. In our view, it would lead
to travesty of justice if the appellant’s substantive appeal
is not heard on merits, and is rejected at the threshold
only on account of bar of limitation prescribed under
Section 21(5) of the Act, particularly, when he has
moved the application under Section 5 of the Limitation
Act.
71. We must now consider the two decisions –
one relied upon by Mr. Sharma in the case of Nasir
Ahammed (supra) and the other relied upon by Mr.
Aggarwal in In Re Provision of Section 14A of SC/ST
(Prevention of Atrocities) Amendment Act, 2015
(supra).”
31. Finally, the Kerala High Court arrived at a conclusion that “An
appeal sought to be filed after expiry of the period of 90 days from the date of
the judgment or order or sentence under Section 21 of the NIA Act cannot be
entertained. The period of 90 days from the date of judgment or order or
sentence has to be calculated on the principles analogous to Section 12 of the
Limitation Act, 1963”.
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32. The Calcutta High Court considered all the judgments of various
High Courts including the judgments delivered by Kerala High Court and
Delhi High Court.
33. Pertinently, the Three Judges Bench of the Hon’ble Supreme Court
of India in the case of Arup Bhuyan vs. State of Assam and Another 7,
considered the legal principles, more specifically, the Hon’ble Supreme Court
considered the correctness of the decisions of the Apex Court in the case of
State of Kerala vs. Raneef 8, Arup Bhuyan’s case cited supra and Indra Das
vs. State of Assam9. While considering the correctness of the decision of the
Hon’ble Supreme Court in the above said three cases, the Hon’ble Three
Judges Bench of the Hon’ble Supreme Court ruled as follows;
“59. Now so far as the reading down of
Section 10(a)(i) of the UAPA, 1967 by this Court in
the case of Arup Bhuyan (supra) is concerned, at the
outset it is required to be noted that such reading
down of the provision of a statute could not have
been made without hearing the Union of India
and/or without giving any opportunity to the Union
of India.
60. When any provision of Parliamentary
7. (2023) 8 SCC 745
8. (2011) 1 SCC 784
9. (2011) 3 SCC 380
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legislation is read down in the absence of Union of India
it is likely to cause enormous harm to the interest of the
State. If the opportunity would have been given to the
Union of India to put forward its case on the provisions
of Section 10(a)(i) of the UAPA, 1967, the Union of
India would have made submissions in favour of Section
10(a)(i) of the UAPA including the object and purpose
for enactment of such a provision and even the object
and purpose of UAPA. The submission made by Shri
Parikh, learned Senior Counsel relying upon the
decision of this Court in the case of Sanjeev Coke
(supra) that it is ultimately for the Court to interpret and
read down the provision to save any provision from
declaring as unconstitutional is concerned, it is true that
it is ultimately for the Court to interpret the law and/or
particular statute. However, the question is not the
power of the Courts. The question is whether can it be
done without hearing the Union of India?
61. Even otherwise in absence of any challenge
to the constitutional validity of Section 10(a)(i) of the
UAPA there was no question of reading down of the
said provision by this Court. Therefore, in absence of
any challenge to the constitutional validity of Section
10(a)(i) of UAPA, 1967 there was no occasion for this
Court to read down the said provision.
62. Even otherwise as observed and held by this
Court in the case of Subramanian Swamy and others vs.
Raju through Member, Juvenile Justice Board and Anr.,
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(2014) 8 SCC 390 reading down the provision of a
statute cannot be resorted to when the meaning of a
provision is plain and unambiguous and the legislative
intent is clear. This Court has thereafter laid down the
fundamental principle of “reading down doctrine” as
under: (SCC p.420, para61)
“64. …….Courts must read the legislation literally
in the first instance. If on such reading and
understanding the vice of unconstitutionality is
attracted, the courts must explore whether there has been
an unintended legislative omission. If such an
intendment can be reasonably implied without
undertaking what, unmistakably, would be a legislative
exercise, the Act may be read down to save it from
unconstitutionality. At the cost of repetition, it is
observed that reading down a particular statute even to
save it from unconstitutionality is not permissible unless
and until the constitutional validity of such provision is
under challenge and the opportunity is given to the
Union of India to defend a particular parliamentary
statute”.
63. In view of the above in all the aforesaid three
decisions, this Court ought not to have read down
Section 10(a)(i) of the UAPA, 1967 more particularly
when neither the constitutional validity of Section
10(a)(i) of the UAPA, 1967 was under challenge nor the
Union of India was heard.”
34. The legal principles settled by the Three Judges Bench of the
Hon’ble Suprme Court of India in Arup Bhuyan’s case cited supra and Indra
Das’s case cited supra would be binding on all Courts across the Country. It
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is needless to state that any judgment of any High Court running counter to
the principles settled by the Hon’ble Supreme Court of India, denuded to lose
its status as precedent including the judgment now relied on by the
respondent in Buhari @ Kichan Buhari’s case cited supra.
(A) SPIRIT OF THE RULINGS:
35. Let us now understand the spirit of the rulings made by the Hon’ble
Apex Court in Arup Bhuyan’s case cited supra. The Hon’ble Supreme Court
while considering the correctness of its own earlier decision formed an
opinion that “it is required to be noted that reading down of the provision of a
Statute could not have been made without hearing the Union of India and / or
without giving any opportunity to the Union of India”.
36. In paragraph 60 the likelihood of causing enormous harm to the
interest of the State is also considered.
37. In paragraph 61, the Hon’ble Supreme Court said that in the
absence of any challenge to the constitutional validity of Section 10(a)(i) of
the UA(P) Act there was no question of reading down of the said provision
by this Court. Therefore, in the absence of any challenge to the constitutional
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validity of Section 10(a)(i) of the UA(P) Act there was no occasion for the
Court to read down the provision.
38. In the case of Subramanian Swamy vs. Raju10, the Hon’ble Apex
Court held that “reading down the provision of a statute cannot be restored to
when the meaning of a provision is plain and unambiguous and the legislative
intent is clear”.
39. The Hon’ble Supreme Court laid down the fundamental principles
of “reading down doctrine” as under;
“64. …….Courts must read the legislation literally
in the first instance. If on such reading and
understanding the vice of unconstitutionality is
attracted, the courts must explore whether there has been
an unintended legislative omission. If such an
intendment can be reasonably implied without
undertaking what, unmistakably, would be a legislative
exercise, the Act may be read down to save it from
unconstitutionality. At the cost of repetition, it is
observed that reading down a particular statute even to
save it from unconstitutionality is not permissible unless
and until the constitutional validity of such provision is
under challenge and the opportunity is given to the
10. (2014) 8 SCC 390
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Union of India to defend a particular parliamentary
statute”.
Therefore, reading down the doctrine is now settled by the Hon’ble Supreme
Court and it is permissible only if the constitutional validity of a particular
provision is under challenge in any proceedings.
VIII. ANALYSIS:
40. National Investigation Agency Act, 2008 is a special enactment,
enacted by the Parliament to deal with serious offences involving the
sovereignty and security of the Nation and the citizens. It deals with the
offences punishable under the Unlawful Activities (Prevention) Act, 1967
relating to serious crime such as terrorist organisation, or act of terrorism, etc.
The Parliament in its wisdom thought that normal procedure and normal
rights as available under the general law would be insufficient to handle the
situation so as to ensure sovereignty and security of the Nation and the
citizens are protected through special enactments. Special enactment will
prevail over general law.
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(A) RIGHT TO APPEAL:
41. There is no inherent right for any citizen to prefer an appeal before
the Appellate Forum. Right to appeal is created through an enactment. Such
right is to be conferred by a Statute. In the absence of any such right
conferred under the Statute, no right of appeal would arise. When right to
appeal is a Statutory Right, it cannot be construed as an inherent right.
Consequently, such right of appeal would be available in accordance with the
conditions stipulated for preferring an appeal including the period of
limitation contemplated.
42. Under NIA Act, right of appeal is created as conferred under
Section 21 of the Act.
43. Sub Section (2) to Section 21 stipulates “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”.
44. Sub Section (5) to Section 21 stipulates “Every appeal under this
Section shall be preferred within a period of thirty days from the date of the
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judgment, sentence or order appealed from”.
(a) 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
(b) Provided further that no appeal shall be entertained after the expiry
of period of ninety days.
45. The negative that is prescribed under the second proviso would
control the first proviso. As such any appeal, it to be preferred after the
period of 30 days provided for such appeal, cannot be entertained beyond the
period of 90 days. As such, reading Section 21(5) of the Act together with the
two provisos, it is clear that the intention of the Parliament is that the period
of limitation prescribed therein is mandatory and not directory.
46. The holistic reading of all the Sub Sections to Section 21 would
amplify the legislative intention and the power conferred to regulate
preferring an appeal including the period of limitation and period for disposal
of such appeals. Sub Section (2) to Section 21 prescribe three months for the
disposal of appeal from the date of admission. First proviso in Sub Section
(5) to Section 21 stipulates that High Court can condone the delay and
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entertain appeal within a period of 90 days. The second proviso
unambiguously stipulates that no appeal shall be entertained after the expiry
of period of 90 days. Therefore, the provision is crystal clear and the intention
of the Parliament is explicit and unambiguous. The Scope for further
interpretation of the said provision is not made available on account of the
clarity explicitly made under Section 21 of the NIA Act in entirety. Reading
down the said provision in the absence of challenge would not arise at all. In
the event of reading down the provision it will result in an anomalous
situation and there is a possibility of taking two different opinions on
different circumstances, which will result in inconsistency leading to
miscarriage of justice.
47. As far as the case relied on i.e., Buhari @ Kichan Buhari’s case
cited supra, the Division Bench of the Madras High Court held that delay is
condonable, if any appeal has been preferred by an accused, but not
condonable, if any appeal is filed by National Investigation Agency /
prosecution. Such an interpretation is impossible and there cannot be two
different interpretation as the period of limitation as contemplated under
Section 21(5) of the NIA Act, one for the accused person and another for
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National Investigation Agency (NIA).
(B) NO VIOLATION OF ARTICLE 21 OF THE CONSTITUTION:
48. One of the arguments advanced by the respondents in the present
case on hand is that the Division Bench in Buhari @ Kichan Buhari’s case
cited supra considered the personal liberty ensured under Article 21 of the
Constitution of India. Therefore, there cannot be law of limitation and delay
is to be condoned.
49. In this context, Article 21 of the Constitution only provides that no
person shall be deprived of his life and liberty otherwise than by due
procedure of law. NIA Act is a code in itself. It contemplates offences,
mechanism for prosecution and also the procedures to be followed. When all
such procedures and processes are created through a Statute enacted by the
Parliament, the life and liberty is not taken away otherwise by the Authority
of Law.
50. Question of invoking Article 21 of the Constitution in the presence
of a special enactment to deal with offences would not arise at all. The
provision is not under challenge, therefore, High Court while exercising its
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jurisdiction as an Appellate Forum conferred on it by the Act of Parliament,
cannot read down the provision in the absence of any challenge regarding the
constitutionality of the said provision. When the Parliament itself has
conferred the appellate jurisdiction to the High Court under the special
enactment, the High Court is not expected to expand the scope of jurisdiction,
while acting as an Appellate Forum.
(C) OTHER ENACTMENTS AND CONDONATION OF DELAY:
51. There are several other enactments in which provisions for
condonation of delay and the limit of number of days up to which the delay
can be condoned has been prescribed. The said provisions are considered and
held to be mandatory by the Courts.
52. In the case of Union of India vs. Popular Construction
Company11, the Hon’ble Supreme Court of India has held that the time limit
that has been prescribed under Section 34(3) and proviso of the Arbitration
and Conciliation Act, 1996 is mandatory and no petition for setting aside of
the Arbitral Award can be filed beyond the time that is permitted therein and
Section 29(2) of the Limitation Act would bar the application of the
11. 2001 (8) SCC 470
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provisions of the Limitation Act.
53. In the case of Commissioner of Customs and Central Excise vs.
Hongo India Private Limited12. The Hon’ble Supreme Court, while
considering the limitation for filing appeals under Section 35(H) of the
Central Excise Act has held that the High Court has no power to condone the
delay beyond period specified in Section 35(H) of the Act and Section 29(2)
of the Limitation Act would bar the application of Section 5 of the Limitation
Act for condoning the delay beyond the said period.
54. In the case of Chhattishgarh State Electricity Board vs. Central
Electricity Regulatory Commission and Others13, the same principle has
been applied by the Hon’ble Supreme Court, while dealing with the appeals
under the Electricity Act 2003.
55. The Telangana High Court in I.A.No.1of 2024 in Crl.A.No.421 of
2024 and I.A.No.1 of 2024 in Crl.A.No. 425 of 2024 has held that the delay
can be condoned beyond the period, if sufficient cause is shown. But,
however, has held that the power of condonation of delay should be applied
12. 2009 (5) SCC 791
13. 2010 (5) SCC 23
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equally, both for the citizen as well as the agency. The Telangana High Court
proceeded on the basis that the provisions in Section 14(A)(iii) of the SCST
(Prevention of Atrocities) Act, 1989 which contains a similar provision for
condonation of delay and fixing the maximum period for such condonation is
stricter than the provision contained in NIA Act and therefore, the judgments
under the SCST Act would not be applicable and therefore, Section 21(5) can
be considered liberally. The said reasoning is with all due respects contrary to
law as (i) NIA Act is a special legislation; (ii) Even in Section 21(5), Section
21(1) uses the word 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. Section 21(4) of the Act also uses the word ‘notwithstanding’, while
saying 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, Section 21(5) provides that every
appeal under this section shall be preferred within a period of 30 days from
the date of judgment, sentence or order appealed from and contains two
provisos. Therefore, reading Section 21(1), 21(4) and 21(5), the Parliament
has made it clear that the non obstante clause here will be applicable despite
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the fact that it is different from the other enactments.
56. The consideration and the deliberations made by us with reference
to the judgments discussed above, the legal principles settled are that in the
absence of challenge to the constitutional validity of a provision, High Court
cannot read down the provision. The holistic reading of Section 21 is crystal
clear that the period of limitation is prescribed not only for entertaining an
appeal under Section 21(5) of the NIA Act, but also for disposal of the appeal
under Sub Section (2) within a period of three months from the date of
admission of the appeal. Appeal to the High Court itself is a creation of
Statute. High Court is acting as an Appellate Forum under Section 21 of the
NIA Act. Sub Section (5) first proviso states that High Court may entertain
an appeal after expiry of the period of 30 days if sufficient cause for not
preferring an appeal within a period of 30 days is provided. Second proviso to
Sub Section (5) stipulates that no appeal shall be entertained after the expiry
of the period of 90 days.
57. Since negative provision has been enacted by the Parliament not to
entertain any appeal after the expiry of period of 90 days, there is no
ambiguity or doubt on the intention of the Parliament. When the intention of
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the Parliament is explicitly projected in the proviso Clause to Sub Section (5)
to Section 21, it is unnecessary for the High Court to traverse beyond the
scope of the provisions, since the High Court cannot read down the provision
which would not only run counter to the legislative intention but would result
in inconsistency in entertaining criminal appeals under Section 21 of the NIA
Act.
58. In respect of the judgment of Division Bench of this Court in
Buhari @ Kichan Buhari’s case cited supra, it is held that delay under
Section 21(5) of the NIA Act is condonable only if any appeal is filed by an
accused and uncondonable, if such an appeal has been preferred by the
National Investigation Agency.
59. In paragraph 23 of the Division Bench of this Court held that the
provision under Section 21 is the procedural law has the effect of
extinguishing a fundamental right, we may read down the provision.
Accordingly, the Division Bench has taken a view that second proviso to
Section 21(5) of the NIA Act, has to be read down, and the word ‘shall’, shall
be read as ‘may’ in respect of appeals, which, if not entertained would amount
to a violation of a fundamental right. The appeal challenging the judgment of
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conviction and the appeal challenging rejection of bail, in our view, are filed
in exercise of one’s fundamental right. The other appeal that we can think of
which would involve the fundamental right of an accused is against an order
cancelling his bail. Therefore, in those types of appeals, which are filed with a
delay, the word ‘shall’, shall be read as ‘may’.
60. Plain reading of the decision arrived by the Division Bench of this
Court in Buhari @ Kichan Buhari’s case cited supra would reveal that
Section 21(5) has been read down to the extent that the word shall in a
provision shall be read as ‘may’.
61. The Division Bench opined that appeal after 90 days if any filed by
the National Investigation Agency for cancellation of the period is not
entertainable, if it is filed beyond the period of limitation contemplated under
Section 21(5) of NIA Act.
62. Since the Three Judges Bench of the Hon’ble Supreme Court
of India in Arup Bhuyan’s case cited supra ruled that “reading down
doctrine cannot be resorted to when the meaning of the provision is plain
and unambiguous and the legislative intend is clear”. Further it is held
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that “reading down of the provision of a Statute without hearing the
Union of India and / or without giving any opportunity to the Union of
India”.
63. In the absence of challenging the constitutional validity of any
provision of an enactment, Courts cannot read down the provision differently
than that of the language employed in the particular provision. Courts are
expected to read the provision as it is and on the intention of the legislature.
Section 21(5) of the NIA Act is unambiguous and the intention of the
Parliament is also explicit. There is no further scope to expand the
interpretation in the matter of preferring an appeal and to condone the delay
under Section 21(5) of the NIA Act. Courts creating distinction between
appellant under Section 21(5) of the NIA Act for condoning the delay in
preferring an appeal, would absolutely fall beyond the realm of the rule of
interpretation. Parliament intended and prescribed limitation expressly under
the enactment. Reading down the provision will defeat the legislative
intention in the absence of challenge regarding the constitutional validity of
the said provision.
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IX. CONCLUSION:
64. Thus, we have no hesitation in arriving at a conclusion that the
judgment of this Court in Buhari @ Kichan Buhari’s case cited supra is not
a good law and running counter to the legal principles settled by the Three
Judges Bench of the Hon’ble Supreme Court of India in Arup Bhuyan’s case
cited supra. Thus, the judgment in Buhari @ Kichan Buhari’s case denuded
to lose its status as precedent in the matter of condoning the delay in
preferring appeals under Section 21(5) of the NIA Act. Further, the High
Court is not empowered to condone the delay beyond the permissible limit
contemplated under Section 21(5) of the NIA Act.
65. Accordingly, we hold that the High Court is not empowered to
condone the delay beyond the permissible limit contemplated under Section
21(5) of the National Investigation Agency Act, 2008. Consequently, the
Criminal Appeals on hand stand dismissed on the ground of limitation.
However, dismissal of the present criminal appeals under Section 21(5) of the
NIA Act would not be a bar for an aggrieved person to approach the Trial
Court, if it is otherwise permissible under law.
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[S.M.S., J.] [V.S.G., J.]
30.10.2024
(1/2)
Jeni
Index : Yes
Speaking order
Neutral Citation : Yes
To
1.The District and Sessions Judge,
Special Court under the National Investigation Agency Act, 2008,
Sessions Court for Exclusive Trial of Bomb Blast/POTA Cases,
Poonamallee, Chennai.
2.The Special Public Prosecutor,
High Court of Madras,
Chennai – 600 104.
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S.M.SUBRAMANIAM, J.
and
V.SIVAGNANAM, J.
Jeni
CRL.A.Nos.1224 & 1225 of 2024
30.10.2024
(1/2)
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