TaxTMI 
TaxTMI 
2023 (3) TMI 1557
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...., 1946 and under Section 12 (1) (b)/12 (1A) of the Passport Act, 1967. 3. A police complaint had been lodged on October 2, 2014 in respect of a bomb explosion. The investigation of such police case had been handed over to the CID, West Bengal. The Ministry of Home Affairs, Government of India had transferred the investigation of such police case from CID, West Bengal to the National Investigation Agency invoking Section 6 (5) of the Act of 2008. The appellants had been convicted by the learned trial judge in such police case. 4. It has not been disputed on behalf of the parties that, an appeal against the impugned judgement of conviction and the order of sentence would be governed by the provisions of the Act of 2008 particularly Section 21 thereof. 5. Learned advocate appearing for the appellant has referred to the provisions of the Act of 2008 and the Limitation Act, 1963. He has submitted that, the provisions of the Act of 2008 do not oust the applicability of the provisions of the Limitation Act, 1963. He has submitted that, the Calcutta High Court in 2016 SCC Online Cal 4483 (Sadanala Ramkrishna and others versus National Investigation Agency) recognised the applicabi....
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....st 28, 2019. A period in excess of 90 days had elapsed from the date of the impugned judgement and order of conviction till the present appeal sought to be filed. 10. Learned advocate appearing for the National Investigation Agency has submitted that, the provisions of Section 21 of the Act of 2008 are mandatory and in support of such contention, he has relied upon 2015 SCC Online Ker 39625 (Nasir Ahammed versus National Investigation Agency). 11. Learned advocate appearing for the National Investigation Agency has contended that, provisions of Section 5 of the Limitation act, 1963 have no manner of applications and that the time period specified in Section 21 of the Act of 2008 is mandatory. An appeal filed beyond 90 days cannot be entertained. In the present case, the appellants not having filed the present appeal within the prescribed period of 90 days in terms of Section 21 of the Act of 2008, the appeal should not be entertained. 12. The issue as to whether the time period stipulated under Section 21 of the Act of 2008 is mandatory or not has received the consideration of 3 high Courts as it appears from the authorities cited at the bar. The 1st in point of time is by....
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....Department) and viii. 2010 (5) SCC 23 (Chattisgarh State Electricity Board v. Central Electricity Regulatory Commission & ors.). 15. The Delhi High Court in Farhan Shaikhm (supra) has considered Nasir Ahammed (supra). It has differed with the view of Nasir Ahammed (supra). It has held that, the prescription of limitation in Section 21 (5) of the Act of 2008 is directory and that, a High Court is empowered to entertain and consider an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal. 16. In arriving at its finding that, Section 5 of the Limitation Act, 1963 is attracted to an appeal under Section 21 of the Act of 2008, Farhan Shaikh (supra) has noticed the following authorities :- i. 1974 (2) SCC 133 (Hukumdev Narain Yadav v. Lalit Narain Mishra) ii. 2004 (4) Supreme Court Cases 252 (Gopal Sardar v. Karuna Sardar) iii. 2017 Volume 2 SCC 350 (Patel Brothers v. State of Assam) iv. 2004 (11) SCC 472 (Fairgrowth Investments Ltd. v. The Custodian) v. 2018 (3) SCC 41 ( Bengal Chemists and Druggists Association V. Kalyan Chowdhury) vi. 1975 Volume 4 SCC 22 (The Comm....
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.... 116A thereof and held that, Section 12 of the Limitation Act, 1963 would apply. 21. Shah and Co, Bombay (supra) has also held that, Section 12 of the Limitation Act, 1963 would apply in an appeal governed by the provisions of the Representation of People Act, 1951. 22. Hukudev Narain Yadav (supra) has considered the issue as to whether Section 4 to 24 of the Limitation Act, 1963 stood excluded by the provisions of the Representation of People Act, 1951 or not. It has held that, Court has to see whether scheme of special law, nature of remedy of law show that the legislature intended to limit the provisions of the Limitation Act, 1963. Even if the special law does not exclude the provisions of the Limitation Act, 1963 by express reference, Court has to examine whether and to what extent the provisions of nature, subject matter and scheme for special law exclude their operation. 23. In Parson Tools and Plants (supra) the Supreme Court has held that, Court has to give full effect to what is written in the statute. It has held that Section 10 of the UP Sales Tax Act, 1948 does not allow invocation of Section 14 (2) of the Limitation Act, 1963 in terms or in principle for excl....
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....itation Act, 1955 could not be applicable. 32. Fairgrowth Investments Ltd (supra) has held that, the provisions of limitation prescribed in Section 4 (2) of the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 was mandatory as it was a special statute and that, allowing invocation of Section 5 of the Limitation Act, 1963 would defeat the intention of the legislature. 33. Dilip S. Dhanukar (supra) has held that, right to appeal from a judgement of conviction is a fundamental right. It is an absolute right and can neither be interfered with nor impaired nor can it be subjected to any condition. It has rendered such observations in respect of an appeal relating to a proceeding under the Negotiable Instruments Act, 1881. 34. Noor Aga (supra) has observed that, the right to appeal where it exist, is a matter of substance and not of procedure. It has made those observations in the light of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. 35. Consolidated Engineering Enterprises (supra) has held that, the period of limitation prescribed under Section 34 (3) of the Arbitration and Conciliation Act, 1991 was mandatory....
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....ant to shut out a consideration of the case on merits on grounds of limitation or any other technicality. 41. Patel Brothers (supra) has held that, Section 5 of the Limitation Act, 1963 was not applicable to a revision petition filed before the High Court under Section 81 of the Assam Value Added Tax Act, 2003. It has observed that, Courts cannot interpret a statute the way they have developed the common law which in a constitutional sense means judicially developed equity in abrogating/modifying rule of common law. The Courts exercise the power of creation that has built up the common law through its existence by judges of the past. The Courts can exercise no such power in respect of statutes. 42. Bengal Chemists and Druggists Association (supra) has held that, Section 5 of the Limitation Act, 1963 cannot be invoked to extend the period of limitation prescribed in Section 421 (3) of the Companies Act, 2013 since it was a special statute and expressly barred invocation of Section 5 of the Limitation Act, 1963. 43. As has been noted above, investigation relating to a First Information Report dated October 2, 2014 lodged by the police was transferred to the National Investig....
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....s under the Acts specified in the schedule. The Act of 2008 has a schedule prescribing the Acts which the specialised agency namely, National Investigation Agency is required to investigate under the Act of 2008. 47. The Act of 2008 is a special statute governing specified criminal offences punishable under various statutes including those of the Indian Penal Code, 1860. 48. Section 21 of the Act of 2008 has stipulated as follows:- "21 Appeals. - (1) 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. (2) 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. (3) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub- Section (3) of Section 378 of the Code, an appeal shall lie to the ....
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....erring the appeal within the period of 30 days. The second proviso has stipulated that, no appeal shall be entertained after the expiry of the period of 90 days. 51. The time period that has been stipulated in Section 21 of the Act of 2008 is the bone of contention in the present proceedings since the appellants are seeking to prefer an appeal which is beyond 90 days from the date of the impugned judgement and order of the Special Court. The impugned judgement and order of the Special Court is otherwise appealable in view of the same having finally disposed of the trial, convicting the appellants and sentencing the appellants to imprisonment. 52. It has been recognised by different authorities that, the doctrine of limitation is founded on considerations of public policy and expediency. Statutes of limitation do not create new obligations but only provide periods within which action must be brought to Court. The object of limitation statute is to compel litigants to be diligent in seeking remedies in Courts of law by prohibiting stale claims. The law of limitation does not destroy the primary or substantive right itself but puts an end to the accessory right of action. The ju....
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....ce of the Special Court, the appeal is unfettered, unconditional and is not subject to any restriction. Fundamental right to prefer the appeal in a case of conviction affecting personal liberty has not been interfered with, trampled upon or subjected to any restriction for the first 30 days from the date of the impugned judgement, order or sentence. 59. The vires of Section 21 of the Act of 2008 has not been assailed in the instant proceedings. However, as the Section stands, it cannot be said that, fundamental right to appeal against a judgement, order or sentence of the Special Court has been infringed upon. 60. For the period beyond 30 days and subject to the maximum of 90 days, albeit satisfaction of the High Court as to the existence of sufficient cause for not preferring the appeal within the first 30 days, the appellant can prefer an appeal against a judgement, order or sentence under Section 21 of the Act of 2008. 61. The 2nd proviso to subSection (5) of Section 21 of the Act of 2008 has prescribed that no appeal shall be entertained after the expiry of the period of 90 days. 62. It would be apposite to refer to Section 29 (2) of the Limitation Act, 1963 which i....
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....ot be invoked in order to condone the delay in view of the express bar and the statute being of special nature. Again in Fairgrowth Investments Ltd (supra) the Supreme Court has noted that, Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 being a special statute, Section 5 of the Limitation Act, 1963 would defeat the intention of the legislature. 66. The contention that, the words "expressly excluded" appearing in Section 29 (2) of the Limitation Act, 1963 would mean that there must be an express reference made in the special local law to the specific provisions of the Limitation Act, 1963 of which the operation is to be excluded, has been negated in Hukumdev Narain Yadav (supra), Popular Construction Company (supra), Hongo India Private Limited (supra) and Chhattisgarh State Electricity Board (supra). They have observed that, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act, 1963 by an express reference, it would nonetheless be open to the Court to examine whether and to what extent, the nature of those provisions or the nature of the subject matter and scheme of the special law exc....