NIA Act | Restriction On Filing Appeals After 90 Days Despite Showing Sufficient Cause For Delay Against Fundamental Right: Madras High Court

The Madras High Court recently held that the word “Shall” used in Section 21(5) of the National Investigation Agency Act be read as “May” in appeals challenging the judgments of conviction and appeals challenging rejection of bail. Section 21(5) of the NIA Act reads “Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from.” The section further bars the High Court from entertaining an appeal beyond a period of 90 days. Justice MS Ramesh and Justice Sunder Mohan observed that the right of appeal against conviction and the appeal against rejection of bail is a fundamental right and a procedural law could not extinguish a fundamental right. “When a right of an appeal against conviction is a fundamental right, there cannot be any doubt that the right to file an appeal against the rejection of bail is also a fundamental right. A procedural law cannot be allowed to extinguish a fundamental right,” the court observed. The court noted that when a provision in a procedural law had the effect of extinguishing a fundamental right, it could be read down by the courts. The court added that if a person, having sufficient cause, was denied his right of appeal, it would be denying his fundamental right. The court also agreed with the observations of the Apex Court which held that a procedural law could only be treated as a handmaid of justice and not its mistress. The court quoted the observations of Justice Krishna Iyer who observed that the procedural law was only a lubricant and not a resistance in the administration of Justice more so in a case where the procedure itself has the effect of extinguishing a fundamental right. The court made the observations in a plea seeking to condone the delay of 43 days in preferring an appeal against the dismissal of bail under the NDPS Act. The appellants relied on the decisions of the Delhi High Court and Jammu & Kashmir High Court which had observed that Section 21 of the NIA Act did not exclude Section 5 of the Limitation Act and thus the word “Shall” be read as “May” in the second proviso of Section 21(5) of the Act. The ASG, who was assisting the court, however, submitted that the applicability of the Limitation Act was excluded by virtue of Section 29(2) of the Limitation Act. He added that in the absence of a challenge to the proviso to Section 21(5) of the NIA Act, the courts could not read down the section. He thus submitted that though a hardship could be caused to the accused, there could not be any interpretation which was contrary to the plain reading of the language of the statute. Pointing to the parliamentary debates, the Additional Public Prosecutor submitted that the restrictions for the grant of bail would not bind the High Courts and the Supreme Court and would only apply to the trial courts.' Going through the provisions of the Act and observations of various High Courts, the court observed that the two provisions were included to exclude condonation of delay beyond 90 days. Thus, the court noted that the NIA Act had expressly excluded the applicability of Section 5 of the Limitation Act. The court also agreed that when a specific challenge was not made to the constitutional validity of the proviso, the courts could not read down the provision when the language was unambiguous and the intent of the legislature was clear. The court observed that though the statute can place restrictions on the statutory right of appeal, the right to appeal from a judgment of conviction affecting the personal liberty was a fundamental right read into Article 21 of the Constitution. In the present case, since the court was satisfied that there was sufficient cause for the delay, the court allowed the application and condoned the delay. Counsel for the Petitioner: Mr.S.Manoharan Counsel for the Respondents: Mr.E.Raj Thilak, Additional Public Prosecutor Amicus Curiae: Mr.AR.L.Sundaresan, Sr. Counsel Additional Solicitor General of India, assisted by Mr.R.Karthikeyan Citation: 2024 LiveLaw (Mad) 69 Case Title: Buhari @ Kichan Buhari v State Case No: Crl.MP.No.19676 of 2023 in Crl.A.SR.No.52810 of 2023Click here to read/download the judgment

NIA Act | Restriction On Filing Appeals After 90 Days Despite Showing Sufficient Cause For Delay Against Fundamental Right: Madras High Court

Upasana Sajeev

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