National Investigation Agency Act | High Court Can't Condone Delay In Filing Appeal Beyond 90 Days, S.21(5) Mandatory: Punjab & Haryana HC
The Punjab & Haryana High Court has said that the High Court is not empowered to condone delay in filing appeal under National Investigation Agency Act (NIA) beyond 90 days and provision of Section 21(5) is "mandatory" in nature.
As per Section 21 of the Act, an appeal has to be made within 30 days of the date of the order or judgment. The Section allows the High Courts to entertain an appeal even after expiry of 30 days but not beyond 90 days if it is satisfied that there was a sufficient cause for delay.
Justice Sureshwar Thakur and Justice Kuldeep Tiwari said, "an appeal as preferred against a verdict of conviction, and even if filed beyond the period of limitation, if is not permitted to be reversed in a time barred appeal, thereupon, it would lead to the ill consequence of the convict becoming punished without adherence to the procedure established by law."
The Court was considering the question, whether the court is empowered to condone the delay, at the instance of accused, in filling the appeal, against the declining order of granting of bail, when the accused is booked for the offences under Unlawful Activities Protection Act.
The bench agreed with the view of the Madras High Court in Union of India v Abdul Razak and Others wherein it was held that when there is no constitutional challenge to an enactment, the courts could not read down the provision differently than what the constitution had intended. The court added that the language employed in the provision under the NIA Act was unambiguous and thus the courts could not condone the delay beyond the permissible limits.
“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,” said the Madras High Court.
Speaking for the bench Justice Sureshwar Thakur said, the necessity of assigning a mandatory overtone to the provision supra becomes also borrowed from the fact that the supra statutory provision in the instant Special Act, has thereins created a special provision governing the period of limitation, within which an appeal against the passing of a declining order, on the apposite bail application, thus is to be entertained.
The specificity of the period of limitation mentioned in the proviso (Section 21(5) of NIA Act), is to ensure that a prompt remedy becomes canvassed by an aggrieved from the passing of the apposite declining order. The legislative wisdom which infuses the proviso, is plain speaking to the fullest effect, that therebys becomes curtailed the applicability of Section 5 or of Section 14 of the Limitation Act, said the Court.
The bench also added that the right to appeal is a statutory right and not a fundamental right. So, reading the limitation period as "mandatory" will not be curtailing of the liberty of the accused.
"The right of appeal, thus, if is restricted by the said proviso therebys too, prima facie, there would not occur any ill curtailing of the liberty of the accused, nor therebys, there would be any prima facie infringement of the fundamental right of appeal, as invested in any citizen, under Article 21 of the Constitution of India, who would also be the accused."
The bench concluded that since the aforesaid proviso is mandatory in nature, therebys, the High Court is not empowered to condone the delay beyond the permissible period of 90 days, as contemplated under Section 21 (5) of the NIA Act, 2008.
Mr.PrinceSarangal,Advocate for the appellant.
Mr. Maninder Singh, Sr. DAG, Punjab.
Title: NAVISH KUMAR @ NAVI v. STATE OF PUNJAB
Citation: 2024 LiveLaw (PH) 426