Telangana High Court: In a case wherein, appellant-Accused 2 prays for condonation of delay of 390 days in filing the criminal appeals against the orders dated 27-02-2023 passed by the IV Additional Metropolitan Sessions Judge-cum-Special Court for NIA Cases, Nampally, at Hyderabad. The Division Bench of Moushumi Bhattacharya* and Nagesh Bheemapaka, JJ., opined that the prescribed period under Section 21(5) of the National Investigation Agency Act, 2008 (‘NIA Act’), read with two provisos, was 90 days from the date of the judgment/order and that the “Justice Bar” could not be stretched or curtailed at will and must remain of equal length regardless of the litigant at both ends of the spectrum. The Court thus held that the appeals were maintainable and the delay of 390 days in filing of the appeals should be condoned.
Background
In the present case, the petition was filed by the Investigating Officer (ACP), Special Investigation Team, under Sections 18, 18-B, and 20 of the Unlawful Activities (Prevention) Act, 1967, which was allowed by the impugned order dated 27-02-2023 extending the judicial remand of Accused 1 to 3 up to 180 days. The Investigating Agency was directed to take appropriate steps to complete the investigation within 180 days and the Special Court for NIA cases dismissed the petition filed by Accused 1 to 3 for default bail under Section 167(2)1 of the Criminal Procedure Code, 1973.
Analysis, Law, and Decision
The issue for consideration was “whether the appeals filed against the impugned orders could be allowed after the expiry of the statutory period stipulated under Section 21 of NIA Act?” and more particularly “whether Section 21(5) of NIA Act read with the two provisos thereunder, permitted condonation of delay as prescribed under Section 5 of the Limitation Act, 1963 (‘the 1963 Act’)?”.
The Court opined that the perceived statutory bar against extension of timelines as contained in Section 21(5) of NIA Act, read with the first and second provisos, beyond 90 days from the date of the judgment/order, might be described as a “Justice Bar” to filing of appeals beyond the statutory window or more appropriately the “Bar to Justice” when inconsistently applied.
The Court opined that the timeline must be applied to one and all in equal measure irrespective of whether appellant was an accused or an “Agency” as constituted under Section 3 of NIA Act. The Court stated that Section 21 of NIA Act was an entity-neutral provision and provided for mechanism of filing of appeals and Section 21 did not differentiate between an accused and the “Agency” and simply provided for the forum, the constitution of the forum, and the timeline within which the appeal was to be filed.
The Court stated that NIA construed Section 21(5) of NIA Act according to its convenience and taken diametrically opposite stands to suit its purpose. The Court opined that it did not intend to sermonize on the sanctity of the laws framed by the Legislature, including Special Laws with a stated objective, equal application of the laws regardless of standing and privilege was the grundnorm and selective application of the laws was bound to impinge on the rights guaranteed under the Constitution.
The Court opined that Article 14 of the Constitution that is, the right not to be discriminated against, was an inalienable right of every person given the flip-flop on the part of the NIA and the inconsistent rulings of the Courts in respect of Section 21(5) of NIA Act. The Court further opined that equality before the law and equal protection of the laws within the territory of India was as fundamental and inviolable as Article 21 of the Constitution which protected a person from being deprived of his/her life or personal liberty except according to the procedure established by law.
The Court opined that the “Justice Bar” could not be stretched or curtailed at will and must remain of equal length regardless of the litigant at both ends of the spectrum. The doors of justice also could not selectively be shut to a few and not to others, particularly where the life and liberty of the accused was at stake. If justice could be likened to the consistency of a pendulum, the certainty of the motion could not be reduced to a whimsical swing for self-serving reasons.
The Court stated that Section 5 of the 1963 Act permitted applications and appeals under Order XXI of the Civil Procedure Code, 1908 to be admitted after the prescribed period of limitation upon the Court being satisfied of the sufficiency of cause shown by appellant in not preferring the appeal or making the application within the prescribed period. The Court opined that the prescribed period under Section 21(5), read with two provisos, was 90 days from the date of the judgment/order. Therefore, application of Section 5 of the 1963 Act, could not be wished away from a reading of the two provisos under section 21(5) of NIA Act. Also, the Court stated that Section 29(2) of the 1963 Act contemplated prescription of a different timeline in a special law and presumed application of Section 5 unless expressly excluded by the special law.
The Court thus held that the appeals were maintainable and the delay of 390 days in filing of the appeals should be condoned.
The Court clarified that its decision would be subject to the judgment/order pronounced by the Supreme Court in the matter of extension of time under Section 21(5) of NIA Act read with the provisos. The Court relied on State of U.P. v. Sarfaraz Ali Jafri, Special Leave Petition (Criminal) Diary No(s). 5217 of 2024, where the Supreme Court noted that pendency of proceedings before the Supreme Court shall not operate as a stay on any proceedings before the High Court.
[Samiuddin Sami v. State of Telangana, 2024 SCC OnLine TS 2066, decided on 27-09-2024]
*Judgment authored by: Justice Moushumi Bhattacharya
Advocates who appeared in this case:
For the Appellant: Shaik Mohammed Rizwan Akhtar, Counsel
For the Respondent: P. Vishnuvardhana Reddy, Special Public Prosecutor
1. Section 187(2) of the Nagarik Suraksha Sanhita, 2023
Buy Code of Criminal Procedure, 1973 HERE
