Delay U/S 21(5) NIA Act Condonable Only If Accused Files Appeal & Uncondonable If It’s Filed By NIA: Madras HC

The Madras High Court held that the delay under Section 21(5) of the National Investigation Agency Act, 2008 (NIA Act) is condonable only if the accused files an appeal and uncondonable if the same is filed by NIA.

The Court held thus in criminal appeals filed under Section 21(4) of NIA Act, seeking to set aside the order of the Special Judge for NIA Cases.

A Division Bench comprising Justice S.M. Subramaniam and Justice V. Sivagnanam observed, “In respect of the judgment of Division Bench of this Court in Buhari @ Kichan Buhari's case cited supra, it is held that delay under Section 21(5) of the NIA Act is condonable only if any appeal is filed by an accused and uncondonable, if such an appeal has been preferred by the National Investigation Agency.”

Additional Solicitor General (ASG) AR.L. Sundaresan represented the appellant while Advocate I. Abdul Basith represented the respondents.

Facts of the Case -

A bail order was passed in favour of the accused persons (respondents) based on the order of the High Court in the case of Barakathullah v. National Investigation Agency (CRL.A.Nos.98, 114 and 116 of 2023). The said judgment was challenged before the Supreme Court by NIA and the Apex Court set aside the same. As such, the order on the basis of which the Trial Court granted bail to the accused persons were set aside by the Supreme Court subsequently. Thus, it necessitated the NIA to prefer the appeals with a delay.

The reasons are stated to condone the delay in filing the criminal appeals falls beyond the control of NIA and therefore, the delay is to be condoned. The respondents filed bail petitions under Section 439 of the Criminal Procedure Code (CrPC) read with Section 43D of Unlawful Activities (Prevention) Act, 1967 (UAPA). The said petitions were allowed on conditions and being aggrieved, the NIA was before the High Court.

The High Court after hearing the arguments from both sides, said, “Since the Three Judges Bench of the Hon'ble Supreme Court of India in Arup Bhuyan's case cited supra ruled that “reading down doctrine cannot be resorted to when the meaning of the provision is plain and unambiguous and the legislative intend is clear”. Further it is held that “reading down of the provision of a Statute without hearing the Union of India and / or without giving any opportunity to the Union of India.”

The Court elucidated that, in the absence of challenging the constitutional validity of any provision of an enactment, Courts cannot read down the provision differently than that of the language employed in the particular provision and that the Courts are expected to read the provision as it is and on the intention of the legislature.

“Section 21(5) of the NIA Act is unambiguous and the intention of the Parliament is also explicit. There is no further scope to expand the interpretation in the matter of preferring an appeal and to condone the delay under Section 21(5) of the NIA Act. Courts creating distinction between appellant under Section 21(5) of the NIA Act for condoning the delay in preferring an appeal, would absolutely fall beyond the realm of the rule of interpretation. Parliament intended and prescribed limitation expressly under the enactment. Reading down the provision will defeat the legislative intention in the absence of challenge regarding the constitutional validity of the said provision”, it added.

The Court further observed that the High Court is not empowered to condone the delay beyond the permissible limit contemplated under Section 21(5) of the NIA Act.

“Accordingly, we hold that the High Court is not empowered to condone the delay beyond the permissible limit contemplated under Section 21(5) of the National Investigation Agency Act, 2008. Consequently, the Criminal Appeals on hand stand dismissed on the ground of limitation. However, dismissal of the present criminal appeals under Section 21(5) of the NIA Act would not be a bar for an aggrieved person to approach the Trial Court, if it is otherwise permissible under law”, it held.

Cause Title- Union of India v. Abdul Razaak & Anr. (Neutral Citation: 2024:MHC:3680)

Appearance:

Appellant: ASG AR.L. Sundaresan and Special Public Prosecutor (SPP) R. Karthikeyan.

Respondents: Advocate I. Abdul Basith

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