2022 (12) TMI 1548 - HC - Indian Laws

High Court allows appeal beyond 90-day limit under Section 21 NIA Act to protect fair trial rights

The J&K and Ladakh HC held that delay beyond 90 days in filing appeal under Section 21 of NIA Act can be condoned, interpreting 'shall' as 'may' to ... Condonation of delay beyond the period of ninety (90) days in filing appeal under Section 21 of the National Investigation Agency Act - order passed by the Special Judge NIA court rejecting application of the appellant seeking production warrants against witness is an interlocutory order or not - appealable order or not - criminal court under Section 267 CrPC can be approached for issue of production warrant for recording the statement of a person acquainted with the facts and circumstances of the crime during investigation or not. Condonation of delay beyond the period of ninety (90) days in filing appeal under Section 21 of the National Investigation Agency Act - Whether NIA Act, in particular Section 21 whereof expressly excludes the application of Sections 4 to 24 of the Limitation Act for determining the period of limitation for filing an appeal under NIA Act? - HELD THAT:- Having regard to the object of the NIA Act and the right of the accused to fair trial, 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. 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 - the right of the accused to avail the remedy of appeal is a substantive and concomitant right of fair trial. 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. 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. Whether the order passed by the Special Judge, NIA Court rejecting application of the applicant seeking production warrant against witness is an interlocutory order and, therefore, not appealable under Section 21 of the NIA Act? - HELD THAT:- In the instant case, the appellant is seeking production warrants against the witness for recording his statement under section 164 Cr.P.C which, as per the appellant, is essential to take the investigation further . The rejection of the application has terminated the controversy before the Court and has adversely affected the vital right of the investigating agency to effectively investigate the matter and take the investigation to logical end. Such orders which affect the vital rights of the parties cannot be said to mere interlocutory orders. Nor the impugned order has been passed by the trial Court at any interlocutory stage in the trial - the impugned order is not an interlocutory order within the meaning of the term used in sub-Section (1) of Section 21 and, therefore, hold the appeal against such order maintainable. Whether a criminal court or for that matter, a Special Judge NIA can refuse to issue production warrants under section 267 of the Code of Criminal Procedure when no case is pending trial or enquiry before it? - HELD THAT:- The word “proceedings” used in Section 267 is of paramount importance and, therefore, before we proceed further, it is necessary to analyse its meaning, ambit and scope. Section 2(h) of the Cr.PC clearly provides that the word “investigation” includes all proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than Magistrate) who is authorized by a Magistrate in this behalf - The expression “other proceedings” which occurs in Section 267 CrPC includes investigation and, therefore, a Criminal Court within whose jurisdiction the crime is committed and in respect whereof a production warrant is sought, cannot reject the application for production warrant simply on the ground that no case is pending before it. The order of the trial Court, therefore, is not sustainable in law. The order impugned passed by the trial Court cannot be termed as mere interlocutory and, therefore, we hold the appeal under Section 21 of the NIA Act maintainable against the impugned order - the provisions of second proviso to subsection 5 of Section 21 of the Act are directory in nature and, therefore, an application for condonation of delay under Section 5 of the Limitation Act is maintainable. The order passed by the trial Court is quashed - appeal allowed. Issues Involved:1. Whether delay beyond ninety days in filing an appeal under Section 21 of the National Investigation Agency Act can be condoned.2. Whether the order rejecting the application for production warrants is an interlocutory order and thus not appealable under Section 21 of the NIA Act.3. Whether a criminal court can refuse to issue a production warrant under Section 267 CrPC when no case is pending trial or enquiry before it.Detailed Analysis:Issue 1: Condonation of Delay Beyond Ninety DaysThe court examined whether the delay beyond ninety days in filing an appeal under Section 21 of the NIA Act can be condoned. Section 21(5) of the NIA Act prescribes a 30-day period for filing an appeal, with a provision for condoning the delay up to 90 days. The court noted differing interpretations regarding the mandatory nature of the 90-day limit. While the Kerala High Court viewed the limit as mandatory, the Delhi High Court interpreted it as directory, allowing for condonation beyond 90 days in the interest of justice. The court favored the Delhi High Court's interpretation, emphasizing the right to a fair trial under Article 21 of the Constitution. It held that the word 'shall' in the second proviso to Section 21(5) should be read as 'may,' allowing the High Court discretion to condone delays beyond 90 days if sufficient cause is shown. Consequently, the court condoned the 40-day delay in this case, allowing the appeal to proceed.Issue 2: Interlocutory Nature of the OrderThe court addressed whether the order rejecting the application for production warrants was interlocutory and thus not appealable under Section 21 of the NIA Act. The NIA Act allows appeals from any judgment, sentence, or order, excluding interlocutory orders. The court determined that the order in question affected the vital rights of the investigating agency to conduct an effective investigation, thus not qualifying as interlocutory. Consequently, the appeal against such an order was deemed maintainable.Issue 3: Issuance of Production Warrant Under Section 267 CrPCThe court considered whether a criminal court can refuse to issue a production warrant under Section 267 CrPC when no case is pending trial or enquiry before it. Section 267(1) allows a criminal court to require the attendance of a prisoner for proceedings, including as a witness. The term 'proceedings' was interpreted broadly to include investigation, as per Section 2(h) of the CrPC. The court sided with the Rajasthan High Court's view that 'other proceedings' in Section 267 encompasses investigation. Therefore, a court can issue a production warrant during an investigation, even if no trial or enquiry is pending. The trial court's rejection of the application for a production warrant on the ground that no case was pending was found unsustainable. The court quashed the trial court's order and directed it to reconsider the application for a production warrant in accordance with the law.In conclusion, the appeal was allowed, the delay was condoned, and the trial court's order was quashed, with directions for reconsideration of the application for a production warrant.