Navish Kumar @ Navi vs State Of Punjab on 20 December, 2024

Punjab-Haryana High Court

Navish Kumar @ Navi vs State Of Punjab on 20 December, 2024

Author: Sureshwar Thakur

Bench: Sureshwar Thakur

                              Neutral Citation No:=2024:PHHC:171806-DB

CRA-D-122-2024 (O & M)                                       -1-




      IN THE HIGH COURT OF PUNJAB & HARYANA
                   AT CHANDIGARH.

                                           CRA-D-122-2024 (O & M)
                                           Reserved on: 08.11.2024
                                           Pronounced on: 20.12.2024



NAVISH KUMAR @ NAVI                                         ....APPELLANT

                                  Versus

STATE OF PUNJAB                                          ....RESPONDENT


CORAM:       HON'BLE MR. JUSTICE SURESHWAR THAKUR
             HON'BLE MR. JUSTICE KULDEEP TIWARI

Argued by: Mr. Prince Sarangal, Advocate
           for the appellant.

             Mr. Maninder Singh, Sr. DAG, Punjab.

                                ****
SURESHWAR THAKUR, J.

1. The question of law which is involved in the instant

criminal appeal relates to the jurisdictional competence of this Court to

condone the delay in the filing of the instant appeal, at the instance of

the aggrieved-accused, who receives a declining order, on the apposite

bail application, whereins, became embodied offences constituted under

the Unlawful Activities Protection Act (hereinafter for short called as

the UAPA). The said declining order became passed by the learned

Special Judge concerned.

2. What is of conspicuous import, and, to which a

signification is to be imparted, is the hereafter extracted underlined last

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proviso which occurs in Section 21 (5) of the National Investigation

Agency (NIA) Act, 2008.

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 High Court
against an order of the Special Court granting or refusing bail.

(5) 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:

Provided that the High Court may entertain an appeal
after the expiry of the said period of thirty days if it is satisfied that the
appellant had sufficient cause for not preferring the appeal within the
period of thirty days:

Provided further that no appeal shall be entertained after
the expiry of period of ninety days.

3. Before proceeding to decide the instant lis, it is relevant to

extract the relevant paragraphs, as occur in the verdicts rendered by the

various High Courts, wherebys, respectively either the apposite delays

became condoned and/or wherebys the apposite delays were not

condoned, thus, in the filings of the appeals cast under Section 21 of the

NIA Act.

View of the High Court of Madras

Crl. MP. No. 19676 of 2023 in Crl. A.SR. No. 52810 of 2023

Buhari @ Kichan Buhari Vs. State

23. Thus, in a case of this nature, where a provision in the procedural law has
the effect of extinguishing a fundamental right, we may read down the

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provision. If the petitioner/appellant is denied his right of appeal in spite of
showing sufficient cause for the delay in filing the appeal, it would be denying
his fundamental right, which cannot be permitted by any Court much less a
Constitutional Court. Therefore, we are of the view that the 2 nd proviso to
Section 21(5) of the NIA Act, has to be read down, and the word ‘shall’ shall
be read as ‘may’ in respect of appeals, which, if not entertained would
amount to a violation of a fundamental right. The appeal challenging the
judgment of conviction and the appeal challenging rejection of bail, in our
view, are filed in exercise of one’s fundamental right. The other appeal that
we can think of which would involve the fundamental right of an accused is
against an order cancelling his bail. Therefore, in those types of appeals,
which are filed with a delay, the word ‘shall’, shall be read as ‘may’.

24. As stated earlier, we are doing so notwithstanding that there is no
challenge to these provisions, firstly, because the Hon’ble Supreme Court in
Kailash’s case [cited supra] read down a provision relating to the restriction
of filing the written statement beyond the period of 90 days and also because
the fundamental right of a citizen cannot be denied by a procedural law,
which has to be treated only as handmaid of justice and not its mistress. To
quote once again the observations of Justice Krishna Iyer, it can only be a
lubricant and not a resistant in the administration of justice, more so in a
case where the procedure itself has the effect of extinguishing a fundamental
right.

25. However, we make it clear that we cannot hold that the word, ‘shall’ shall
be read as ‘may’ in case of an appeal filed against any other order other than
what is mentioned in paragraph No.23 of this order, unless there is a
challenge to Section 21(5) of the NIA Act.

26. Therefore, we are of the view that in the instant case, the application for
condonation of delay is maintainable, and since the petitioner/appellant has
shown sufficient cause, the delay of 43 days in preferring the appeal is
condoned. The Criminal Miscellaneous Petition stands allowed.
Reasons for dis-concurring with the verdict (supra) rendered by the
Division Bench of the Madras High Court.

4. The judgment (supra) rendered by the Division Bench

of the Madras High Court, became rested, upon the premise that

when a right of appeal becomes vested in a convict, who receives a

verdict of conviction, thereupons, irrespective of the same being

barred by limitation, yet the apposite appeal is required to be

decided on merits, but after condoning the occurrence of the

relevant delay. The said premise is further grooved on the hinge,

that since the said appeal is filed, thus in the exercisings by the

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convict(s) qua their fundamental right to life, therebys, the said

constitutional right to life conferred upon the accused rather is not

required to be scuttled. However, the supra premises are mis-

founded premises, thus for the following reasons.

a) The provisions occurring in the earlier Cr.P.C.,

and now occurring in the replaced theretos THE BHARATIYA

NYAYA SANHITA, 2023 (hereinafter for short called as the BNS),

evidently do not oust the right of a convict to, beyond the

prescribed period of limitation thus, institute an appeal against the

rendition of a verdict of conviction upon him. The reason for so

stating becomes sparked from the trite factum, that there is no

provision in the earlier Cr.P.C., and now in the replaced thereto

BNS wherebys, there is an ouster of the provisions of Section 5 of

the Limitation Act. Therefore, it appears that therebys time barred

appeals directed against the verdicts of conviction, thus are

maintainable, before the Appellate Court, as the apposite delay is

permissible to become well explainable, through the filing of an

application cast under Section 5 of the Limitation Act. In sequel,

thus on an analogical application of the principles (supra) relating

to the maintainability of time barred appeals rather by the convict,

on his receiving a verdict of conviction, that a similar indefeasible

right became declared to become invested in the aggrieved from a

declining order, as becomes passed by the learned Special Judge,

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thus on the apposite bail application embodying thereins offences

constituted under the UAPA.

b) In other words, the filing of time barred appeals,

thus, becomes declared thereins to not suffer the causality of

dismissal, merely on account of any delay occurring in the filing of

an appeal against the said declining order. As such, the last proviso

(supra) was read down, therebys, facilitating the filing of an appeal

by an aggrieved from the apposite declining order, thus irrespective

of occurrence of any delay in the filing of an appeal thereagainst.

c) Consequently, reiteratedly therebys, when there is

endowment vis-a-vis the convict qua the beneficent effects of the

principles enshrined in Section 5 of the Limitation Act, for therebys

thus on sufficient cause being demonstrated by the convict-

applicant, rather precluding him to file an appeal within the

prescribed period of limitation, whereupons, the aggrieved-convicts

appeal(s) directed against the verdict of conviction, thus requires

the same being decided on merits. As but a natural corollary

thereof, the said right was also declared to become indefeasibly

vested in an unsuccessful bail applicant, who seeks the according of

indulgence of bail in respect of the apposite FIR, rather embodying

thereins offences constituted under the UAPA.

5. Be that as it may, the acceptance of sufficient causes

rather deterring the aggrieved-convict to rear an appeal against the

verdict of conviction, but naturally becomes normally accepted by

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the appellate court concerned, as unless they are accepted,

therebys, the verdict of conviction and the consequent thereto

sentences, but necessarily would remain un-reversed, whereupon,

the liberty of the convict would become unnecessarily fettered. The

ill consequence thereof, inasmuch as qua therebys thus their being

derogation from the procedure established by law, imperatively

meant to ensure that the convict does not suffer incarceration,

merely on account of his maintaining a time barred appeal, thus

would become curbed besides therebys the fundamental right to life

inhering even in an accused, thus to erase the stigma of conviction,

and, therebys to live with dignity, but would also become furthered.

6. Moreover, the further reasons’ as enshrined in the said

judgment, is/are founded on the premise, that when there is no

limitation prescribed to make a challenge to an order cancelling the

bail granted to an accused. Resultantly, even to an appeal reared by

an accused alleged to have commited an offence under the UAPA,

the said principle, thus is to be co-evenly applied vis-a-vis him, even

when he suffers a declining order on his apposite bail application,

and, whereafters, he outside the period of limitation prescribed in

proviso of Section 21 (5) of the NIA Act, thus proceeds to file an

appeal thereagainst.

7. However, yet the said reason is also mis-rested on the

presumption that when there is no period of limitation prescribed

in the earlier Cr.P.C., and, now in the corresponding thereto

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provisions occurring in the now enacted Bharatiya Nyaya Sanhita

(BNS), for either challenging the order rejecting the bail

application filed by the applicant, before the learned trial Judge

and/or also in a situation where there is an order cancelling the

granting of indulgence of bail to him. Since consequently, therebys,

the right to life endowed upon an accused in terms of the

constitutional principles enshrined in Article 21 of the Constitution

of India, thus would become well facilitated besides also the

majesty of the imposition of conditions upon the accused would

become ensured to become complied with, as in the event of non

compliance thereofs, rather the aggrieved-victim, thus becomes

endowed with a privilege to seek the makings of a rescinding order,

vis-a-vis the according of indulgence of bail to the accused. As such,

therebys, even the right of the victim becomes preserved.

8. Moreover, reiteratedly, since in the earlier Cr.P.C., and,

also since in the corresponding thereto provisions, as occur in the

now enacted BNS, though there may be a specific period of

limitation, thus covering the supra situations. However, the

prescription of a specific period of limitation for challenging the

supra orders rather may not require any stricto sensu compliance,

as the principles relating to condonation of delays, as manifested in

the Limitation Act but would surge forth, wherebys, the requisite

delays may become condonable.

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CRA-D-122-2024 (O & M)                                     -8-

9. In addition, when certain compliable conditions become

imposed upon the bail applicant concerned, thus requiring

compliance theretos becoming made, but within the period of time,

as spelt in the apposite order, which however upon becoming

evidently breached, therebys, from the date of arousal of the

apposite breach, thereupon, the apposite cause of action arises to

the complainant. Resultantly, if the period prescribed for the

compliable conditions, becoming satisfied by the bail applicant,

thus covers an elongated period of time, thus outside the period

prescribed in the proviso (supra), thereupon alone, there is an

endowment of a privilege to the victim-complainant to, on breach

thereof being made, to access the learned trial Judge for seeking the

rescinding of the bail order.

10. In addition, the challenge to the order rejecting bail

applications, when do not restrict the right of the accused, to re-

apply for bail, thus on emergence of changed circumstances,

therebys, such changed circumstances, do endow a right in the bail

applicant to re-file bail applications. Therefores, but obviously the

Union Parliament in its legislative wisdom, thus deemed it fit and

appropriate to not curtail the said successive rights vis-a-vis the

bail applicant, to access the learned Courts concerned, despite

earlier orders rejecting his bail rather becoming passed by the

learned Courts. As such, the profound legislative wisdom as

prevailed upon the Union Parliament, to not prescribe the period of

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limitation in the above situations, but naturally cannot be, on any

analogical application thereofs, thus made co-evenly applicable to

the instant factual scenario, as appertaining to the belated raising

of appeals, especially, when on the apposite bail applications, thus

offences embodied under the UAPA become constituted.

11. The firmest reason for stating so becomes firmly

grooved in the factum, that the Union Parliament in its legislative

wisdom, rather in respect of the stringency of the offences

constituted under the UAPA, thus has deemed it fit to prescribe in

the proviso (supra), a rigid period of limitation, for therebys the

accused availing the remedy of filing an appeal against the

declining order, as became passed by the learned Special Judge

concerned. In sequel, there is no possibility of any analogy either

emerging or its being made applicable inter-se the above situations

vis-a-vis the situation at hand, especially when the instant situation

is completely covered by the profound legislative wisdom of the

Union Parliament, in its enacting, the last proviso (supra) in Section

21 of the NIA Act.

12. Moreover, the further reason made by the Hon’ble

Division Bench of the Madras High Court, to read down the word

‘shall’ as directory in nature and the same being read to be not

construable to be holding any mandatory overtones, became rested

upon a verdict rendered by the Apex Court in Kailash’s case. In the

said case, the Apex Court read down a provision relating to the

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statutory restriction created against the filing of a written

statement by the defendant rather beyond the period of 90 days,

wherebys, it was declared that the said restriction, as created

through the supra procedural law, which otherwise has to be

treated only as handmaid of justice and not its mistress, thus would

unnecessarily extinguish the substantive fundamental right of a

citizen. The said placed reliance by the Division Bench of Madras

High Court, was a mis-placed reliance thereons. The reason being

that the said decision was rendered in respect of a civil suit

becoming instituted, wheretos, the written statement became

enjoined to be filed within 90 days. As such, the said provision

appears to be read down only on the score than unless the written

statement is filed by the defendant, therebys, there would be no

occasion for any issue being struck nor thus the evidence adducing

discharging onus would become rested respectively on the plaintiff

or on the defendant. Resultantly, therebys, but naturally the

purpose of holding a fair trial of the civil suit would become

completely jeopardized or would become scuttled, wherebys, but

naturally the ends of justice would also become a concomitant

causality.

13. Resultantly, it was held that the word ‘shall’ as occurs

in proviso to Section 21 (5) of the NIA Act, 2008, be in terms

thereof, thus be read down to be rather readable as ‘may’ and

therebys irrespective of the strict statutory embargo created under

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the proviso (supra), wherebys no appeal has been declared to be

entertainable after the expiry of the period of 90 days, thus became

read down to be readable as directory, than being readable as

mandatory.

View of the High Court of Madras

Crl A. Nos. 1224 & 1225 of 2024

Union of India represented by its Inspector of Police, NIA Vs.
Abdul Razaak and Another.

64. Thus, we have no hesitation in arriving at a conclusion that the judgment
of this Court in Buhari @ Kichan Buhari’s case cited supra is not a good
law and running counter to the legal principles settled by the Three Judges
Bench of the Hon’ble Supreme Court of India in Arup Bhuyan’s case cited
supra. Thus, the judgment in Buhari @ Kichan Buhari’s case denuded to lose
its status as precedent in the matter of condoning the delay in preferring
appeals under Section 21(5) of the NIA Act. Further, the High Court is not
empowered to condone the delay beyond the permissible limit contemplated
under Section 21(5) of the NIA Act.

65. 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.

14. Though in the verdict (supra), the view propounded in

Buhari @ Kichan Buhari Vs. State by the Division Bench of the

Madras High Court, was dis-concurred with, despite the earlier view

becoming also propounded by a co-equal Bench strength of the Madras

High Court. The said dis-concurrence appears to be made with a

profound wisdom, as the earlier made view by a co-equal Bench

strength of the Madras High Court, but is for reason (supra) per

incuriam the purposeful import of the last proviso, as becomes

engrafted in Section 21 (5) of the NIA Act. However, though this Court

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concurs with the verdict (surpa), but the reasons which thereins become

dealt with in extenso, are not acceptable to this Court. The reason for so

stating becomes embedded in the factum, that the sub stratum of the

said decision, becomes anchored upon a decision rendered by the Apex

Court in case titled as Arup Bhuyan Vs. State of Assam and others,

reported in (2023) 8 SCC 745. Nonetheless, the Hon’ble Supreme

Court, while making decision in the case (supra), was proceeding to

render an answer to the hereinafter extracted reference.

2.4 The short issue before the Bench is whether the judgments in Raneef (supra) and
Arup Bhuyan (supra), have been correctly decided and whether “active
membership” is required to be proven over and above the membership of a banned
organization under the UAPA, 1967. Another issue which is required to be
considered by this Bench is whether American decisions concerning freedom of
speech referred to in the case of Raneef (supra) to which this Court agreed could
have been relied upon while considering the right to freedom of speech available
under the Constitution of India more particularly Article 19(1)(c) and 19(4) of the
Constitution of India? Another question which is required to be considered is
whether this Court was justified in reading down of a provision (Section 10(a)(i) of
the UAPA Act, 1967) without impleading the Union of India as a party and more
particularly when the constitutional validity of the aforesaid provision was not called
in question?

xxxx

15. The answer and conclusions to the afore reference becomes

extracted hereinafter.

Conclusions

66. The abovementioned decisions are in contradistinction to the scenario in
question in India. The American decisions primarily involve indictment on the basis
of membership of political organizations or incidents of free speech advocating
overthrow of the government. However, under Indian law, it is not membership of
political organizations etc. or free speech or criticism of the government that is
sought to be banned, it is only those organizations which aim to compromise the
sovereignty and integrity of India and have been notified to be such and unlawful,
whose membership is prohibited. This is in furtherance of the objective of the
UAPA, which has been enacted to provide for the more effective prevention of
certain unlawful activities of individuals and associations and dealing with terrorist
activities and for matters connected therewith. The distinction, therefore, is clear.

16. A reading of the supra extracted reference and the answers

rendered thereto, but candidly declare that thereunders, thus did not

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become covered the subject at hand nor therebys the principles stated

thereins, could apply to the extant situation, which was also the

situation before the Division Bench of the Madras High Court.

Resultantly, the principle stated by the Apex Court in the verdict

(supra), thus have been inaptly applied by the Division Bench of the

Madras High Court, in the makings of a decision in case titled as

Union of India represented by its Inspector of Police, NIA Vs.

Abdul Razaak and Another.

View of the High Court of Jharkhand at Ranchi.

Sushila Devi and another Vs. Union of India through NIA
Cr. Appeal (DB) No. 2168 of 2023

18. The question which has been raised that the aforesaid provision if not
mandatory rather it is directory, therefore, the same is required to be
answered by this Court since the office has given the note the appeal to be
not maintainable in view of the fact that the appeal has been filed beyond the
period of 90 days, as such, the issue which requires consideration as to
whether the provision as contained under Section 21(5) of the Act, 2008 is
mandatory or directory
xxxx xxxx

40. Section 21(5) contains two provisos;

“the first proviso confers power upon the High Court with the word
that the High Court may entertain an appeal after the expiry of the
said period of thirty days if it is satisfied that the appellant had
sufficient cause for not preferring appeal within the period of thirty
days”.

The second proviso is very specific which provides “that no appeal shall be
entertained after the expiry of the period of 90 days”.
xxxx xxxx

51. The second proviso stipulates that the appellate court shall not entertain
an appeal beyond the period of 90 days.

xxxx xxxx

72. This Court, taking into consideration the very object and intent of the Act
and reading it together with both the proviso of Section 21(5), is of the view
that the aforesaid provision of filing an appeal with the maximum period of
90 days, according to our considered view, is mandatory.

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17. The above view appears to be just and fair and for the

further reasons to be assigned hereinafter, shall become accepted by this

Court.

VIEWS CONTRA-DISTINCT TO THE VIEWS TAKEN BY THIS
COURT.

High Court of Judicature at Allahabad, Lucknow Bench
Criminal Appeal Defective No. 124 of 2023
C.M. Application No. 1 of 2023
Sarfaraz Ali Jafri Vs. State of U.P. Through Principal Secy. Home

4. Right to appeal for protection of a right guaranteed under Article 21 of
the Constitution of India is concomitantly an essential part of right to fair
trial and one of the basic structure of our Constitution. The bar contemplated
under the second proviso appended to Section 21 (5) of the Act, 2008,
according to the State, is intended to oust the jurisdiction of this Court by the
Damocles sword of delay, however the said deprivation of a fundamental
right juxtaposed to law of limitation is the larger question of public
importance that has surfaced before this Court in the present appeal.

8. It is true that the right to life and personal liberty as embodied under
Article 21 of the Constitution of India conferred to the citizenry is
fundamental but the security of the State is of equal paramount significance.
xxxx

10. In a recent decision rendered by Hon’ble the Apex Court in the case
of Union of India versus K.A. Najeeb reported in (2021) 3 SCC 713, it
would be profitable to extract para 17 which for ready reference reads as
under.

18. It is thus clear to us that the presence of statutory
restrictions like Section 43−D (5) of UAPA per−se does not oust
the ability of Constitutional Courts to grant bail on grounds of
violation of Part III of the Constitution. Indeed, both the
restrictions under a Statue as well as the powers exercisable
under Constitutional Jurisdiction can be well harmonised.
Whereas at commencement of proceedings, the Courts are
expected to appreciate the legislative policy against grant of
bail but the rigours of such provisions will melt down where
there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like Section 43−D (5) of UAPA being
used as the sole metric for denial of bail or for wholesale
breach of constitutional right to speedy trial.
The position in the case at hand is somewhat similar.
Defeating the right to appeal within the scope of procedure as postulated
under the second proviso appended to Section 21 (5) of the NIA Act, even if

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it is understood that the same does not render an aggrieved party altogether
remediless, due to the remedy available under Article 136 of the
Constitution of India i.e. the appellate jurisdiction of the Supreme Court
against a judgment or order. However, if the Hon’ble Apex Court within
exercise of its appellate jurisdiction can go into the adjudication of the
surviving rights protected under Article 21 of the Constitution of India, the
ouster of High Court jurisdiction due to the bar of limitation of 90 days
imposed by the statute is far from fair and reasonable, especially when the
Hon’ble Apex Court has held in K.A. Najeeb case (supra), that the presence
of statutory restriction perse does not oust the ability of Constitutional
Courts to grant bail on grounds of violation of Part III of the Constitution.

xxxxx

14. In any view of the matter, the Apex Court being seized of the issue in
the case of State (NIA) versus Farhan Sheikh would soon resolve the
conflicting opinions and settle the law on the point.

15. Until an authoritative view is pronounced by the Supreme Court of
India, the order passed by this Court on 4.4.2023 in our considered opinion,
is the good law. Accordingly, the application for condonation of delay is
allowed.

18. Though the operation of the said decision has not been

stayed by the Apex Court, but when the said decision has been

challenged through the filing of an apposite SLP, SLP whereof has been

tagged alongwith SLP (Criminal) Diary No.41439 of 2019, as becomes

filed against the final judgment and order dated 16.07.2019, passed in

CRLMA No.30949/2018, thus by the High Court of Delhi, whereovers

the Apex Court has stayed the operation of the verdict (supra),

whereins, an expostulation of law similar to the one, as carried in the

verdict (supra), thus has been rendered. Consequently, therebys

irrespective of no specific order of stay becoming passed, thus against

the operation of the verdict (supra) pronounced by the Allahabad High

Court, rather yet when the SLP challenging the supra decision, thus has

been tagged alongwith SLP (Criminal) Diary No.41439 of 2019,

whereins, there is an order staying the operation of the apposite

impugned verdict passed by the Delhi High Court, therebys, it appears

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that impliedly the force of the apposite stay (supra) rendered in SLP

(Criminal) Diary No.41439/2019, is also applicable to the verdict

(supra) rendered by the Allahabad High Court.

19. In consequence, since at this stage, the Hon’ble Supreme

Court had stayed the operation of the verdict passed by the Delhi High

Court, whereins, an expostulation of law has been made, that the last

proviso as occurs in Section 21 (5) of the NIA Act, does not stricto

sensu create a bar of limitation against the filing of a time barred appeal

by the aggrieved, from the apposite declining order, thereupons, the

supra verdicts cannot, at this stage become firmly vindicated by this

Court. In consequence, this Court proceeds to record the hereinafter

inferences.

Inferences of this Court.

20. Now for all the above stated reasons, besides for the

reasons stated hereafter, this Court dis-agrees with the view

propounded by the Madras High Court in Buhari @ Kichan

Buhari Vs. State (supra) and with the view propounded by the

Allahabad High Court in Sarfaraz Ali Jafri Vs. State of U.P.

Through Principal Secy. Home (supra), besides excepting, the sub

stratum of the apposite decision, thus also agrees with the view

propounded by the Madras High Court in case Union of India

represented by its Inspector of Police, NIA Vs. Abdul Razaak and

Another (supra) and also agrees with the view propounded by the

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High Court of Jharkhand at Ranchi in case Sushila Devi Vs. Union

of India through NIA.

21. The reason for this Court being compelled to hold, that

the proviso (supra) with the supra thereins strict statutory

embargo, vis-a-vis, the aggrieved being barred to outside the period

of limitation prescribed thereins, thus to raise an appeal against a

declining order, as becomes passed by the learned Special Court

concerned, upon, the apposite bail application, thus ensues from

this Court declaring that the same is overloaded with a mandatory

overtone, rather than the proviso (supra) being couched in a

discretionary genre, besides the said provision explicitly ousting the

provisions of Section 5 of the Limitation Act, thus becomes hinged

inter alia on the hereafter premises.

22. a) Firstly, the statue whereunders the said proviso

exists, is a special statue and is meant for facing a special

circumstance, inasmuch as, for curbing the proliferation of

insurgency in various territories of the Union of India. Resultantly,

the holistic purpose behind the special statute (supra), which

ultimately is to decimate the accruals of endangerment(s) to the

security of the nation, but obviously is required to be well

maneuvered towards the purpose (supra). The well maneuverings

of the well purpose of the special statute (supra), whereins, the

supra proviso exists, which limits and curtails the right of filing of

appeal, to an aggrieved from a declining order, as becomes passed

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by the learned Special Judge, on the apposite bail application, thus

would occur only, when a strict mandatory overtone is assigned to

the mandate which occurs in the last proviso to Section 21(5) of the

NIA Act, 2008. The said proviso whereof carries thereins the

mandatory phrase ‘shall’.

b) The necessity of assigning a mandatory overtone

to the provision supra becomes also borrowed from the fact that the

supra statutory provision in the instant Special Act, has thereins

created a special provision governing the period of limitation,

within which an appeal against the passing of a declining order, on

the apposite bail application, thus is to be entertained. The

specificity of the period of limitation mentioned in the proviso

(supra), is to ensure that a prompt remedy becomes canvassed by

an aggrieved from the passing of the apposite declining order. The

legislative wisdom which infuses the (supra) proviso, is plain

speaking to the fullest effect, that therebys becomes curtailed the

applicability of Section 5 or of Section 14 of the Limitation Act. If

the said proviso had not occurred, therebys, prima facie, the earlier

thereto proviso may have been construed, to thus enable the Courts

of Law, to borrow the principles stated either in Section 5 or in

Section 14 of the Limitation Act. Contrarily, with the occurrence

thereins of the last proviso (supra), therebys, but necessarily there

is a complete ouster of the workability of Section 5 and of Section

14 of the Limitation Act, vis-a-vis the apposite time barred appeals,

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thereupons, but a mandatory overtone is to be assigned theretos,

than assigning theretos a directory overtone nor the said provision

is to be read down, as the reading down of the said provision would

defeat the employment of the legislative wisdom to engraft the

same.

c) The right of appeal, thus, if is restricted by the

said proviso therebys too, prima facie, there would not occur any ill

curtailing of the liberty of the accused, nor therebys, there would be

any prima facie infringement of the fundamental right of appeal, as

invested in any citizen, under Article 21 of the Constitution of

India, who would also be the accused. However, the imposition of

restrictions on the right of life, as envisaged in Article 21, may be so

made through a well meaning besides a purposeful restriction

thereto becoming made, thus through the employment of an

insightful wisdom by the Union Parliament. The carvings of the

well meaning and purposeful restriction thereto, would ensue from

the said restriction becoming sanctified with the requisite halo, thus

premised qua the same becoming quartered within the domain of

the procedure established by law.

d) Now the clue for rendering an answer, whether

any meaningful and purposeful restriction, thus to right to life, as

envisaged in Article 21, has been so done, through the creation of

the embargo (supra), thus is readily available from the factum, that

since neither the special legislation (supra) nor the proviso (supra),

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as engrafted thereins has resulted in the vires thereof becoming

invalidated. In sequel, the procedure established thereunders for

restricting the right to life, but naturally assumes a halo of

constitutional sanctity and/or is deemed to be a well meaning

purposeful restriction. Resultantly the said procedure as engrafted

in last proviso (supra) but requires that theretos a mandatory

overtone becoming employed.

23. The further sequel thereof, is that, since upon an

accused suffering a detention order and when during the period of

his suffering a detention order, especially, when he is alleged to

have committed an offence under the UAPA, which becomes placed

on the Rule book, only for ensuring the security of the nation, as

may become threatened on account of insurgency activities, being

carried out in the various regions of the country. Consequently, if to

the proviso (supra), any liberal interpretation is assigned or if it is

declared to be directory in nature, therebys, the supra purpose will

be defeated. Moreover, a further natural corollary thereof, is that,

since all the aggrieved from the passing of the apposite declining

order, are deemed to become intimated about the decisions made on

their bail applications, thus, respectively by the Superintendents of

the jails concerned, besides by the respectively counsels engaged by

them. Therefore, if they yet omit to within the prescribed period of

limitation, thus exercise the right of appeal against the declining

orders, merely on the ground that the provision (supra) is to be

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assigned a directory overtone, therebys, the latter would not be a

well made espousal.

24. In any case, an appeal as preferred against a verdict of

conviction, and even if filed beyond the period of limitation, if is not

permitted to be reversed in a time barred appeal, thereupon, it

would lead to the ill consequence of the convict becoming punished

without adherence to the procedure established by law.

Conspicuously, when the hearing of the merits of the appeal besides

the passing of a judgment on the merits of the appeal, rather is the

pre-requisite procedural norm, for therebys adherence being

ensured to be made to Article 21 of the Constitution of India.

However, when a declining order becoming passed upon the

apposite application, remains un appealed within the prescribed

period of limitation, therebys, it is but not obviously co-equal to the

passing of a verdict of conviction. Resultantly therebys too, there

can be no analogy inter-se the right to a convict to appeal against

the verdict of conviction, on the premise that the said being an

indefeasible constitutional right, irrespective of fetters of limitation,

but thus with the statutory limitations of the time being created vis-

a-vis the accused, on his receiving a declining order on the apposite

bail application.

25. Be that as it may, since the passing of a declining order

against the accused who is alleged to commit offences, under the

penal statutes, other than the UAPA, are endowed a privilege, to

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post the passing of the declining order, on the apposite bail

application, thus re-institute bail applications. Naturally, the said

privilege becomes rested on “the change of circumstances”.

Therefore, the said change of circumstance is also required to be

endowed to an accused of an offence under the UAPA, and who

prior to the change of circumstance, but has received a declining

order on the apposite bail application. The reason for so stating

arises from the factum that in case such changed circumstances,

disclose exculpatory circumstances emerging vis-a-vis the accused,

who is alleged to have committed an offence under the UAPA,

therebys, if such evidently emerging exculpatory changed

circumstances, do not become permitted to be availed by the

accused for an offence under the UAPA, therebys, there would be

an impermissible incarceration of the accused, which would impign

upon his right to life as enshrined in Article 21 of the Constitution

of India.

26. In aftermath, we hold that since the aforesaid proviso is
mandatory in nature, therebys, the High Court is not empowered to
condone the delay beyond the permissible period of 90 days, as
contemplated under Section 21 (5) of the NIA Act, 2008.

27. Consequently, the criminal appeal is dismissed on the
ground that the same is not maintainable.

(SURESHWAR THAKUR)
JUDGE

(KULDEEP TIWARI)
20.12.2024 JUDGE
kavneet singh Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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