NIA Act | High Court Can Condone Delay In Filing Appeal Even Beyond 90 Days In Appropriate Cases: JKL High Court

Ruling that the word "shall" used in second proviso to sub-Section 5 of Section 21 of the National Investigation Agency (NIA) Act must be read as "may", the J&K&L High Court recently said that High Court shall have the discretion to condone the delay in filing appeal 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.

The division bench of Justices Sanjeev Kumar and Mohan Lal agreed with the same view taken earlier by Delhi High Court in Farhan Sheikh vs. State (National Investigation Agency), while answering a question as to whether delay beyond the period of ninety (90) days in filing an appeal under Section 21 of the National Investigation Agency Act can be condoned.

"We have considered the entire issue with the benefit of having gone through both the contrary views and we are of the opinion that the view taken by the Delhi High Court is more pragmatic and furthers the ends of justice," said the court.

Deliberating on the issue, the bench observed that a perusal of Section 21 clearly reveals that the provision has an overriding effect on the Code of Criminal Procedure 1973 and provides unequivocally that an appeal shall lie from any judgment, sentence or order, not being an interlocutory order passed by Special Court to the High Court both on facts and law.

The bench further recorded that Section 21 of the NIA Act does not contain any provision akin to Section 5 of the Limitation Act whereunder the High Court under Section 21 of the Act can exercise its discretion to condone the delay beyond the period of 90 days. It further observed that Section 21 of the NIA Act provides a period of limitation for filing the appeal different from the period prescribed for filing the appeal by the Schedule of the Limitation Act.

Pointing out to proviso to Section 21(5) which gives discretion to the High Court to entertain an appeal after expiry of period of limitation of 30 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within a period of 30 days, the bench observed that the second proviso to Section 21(5) of the Act ordains that no appeal shall be entertained after the expiry of period of 90 days.

However, taking into context the legislative intent and the object of the NIA Act, the court said the word 'shall' used in second proviso to Section 21(5) of the Act deserves to be read as 'may'.

"... else the right of appeal given to the accused against his conviction would become a causality if the doors of the Appellate Court are shut to him on the ground of limitation. The right to fair trial is a right vested in the accused under Article 21 of the Constitution. The right of appeal, wherever it is provided, is a matter of substance and essentially a remedial right," said the court.

Elaborating on the paramountcy of the right of fair trial, the bench said:

"If this remedy is put in jeopardy by creating bar of limitation and leaving no discretion in the Court to condone the delay even in well deserving cases, it would render the remedy otiose. We, therefore, cannot put any construction or interpretation on a provision that has the effect of taking away the fair trial right of the accused. It is in this context, we must hold that right of the accused to avail the remedy of appeal is a substantive and concomitant right of fair trial."

The court further said that Kerala High Court's contrary view in Nasir Ahammed vs. National Investigation Agency does not take into account the fair trial rights of the accused which would include the right of the accused to avail the remedy of appeal.

"The Division Bench of Kerala High Court in the aforesaid case has interpreted the second proviso to sub-Section 5 of Section 21 of the NIA Act by relying upon the decisions rendered in the context of civil or taxing statutes and without having regard to the scope, object, context and subject matter of the NIA Act," it added.

Case Title : National Investigation Agency Vs 3rd ADJ Jammu.

Citation : 2022 LiveLaw (JKL) 261

Coram : Justice Sanjeev Kumar and Justice Mohan Lal

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