High Courts cannot condone delay beyond permissible limit under NIA Act: Madras High Court

The Madras High Court on Wednesday held that High Courts are not empowered to condone a delay in filing appeals under the National Investigation Agency Act, 2008 (NIA Act) beyond the permissible limit given under Section 21(5) (appeals) of the Act [Union of India and Another v. Abdul Razaak and Another].

A Bench of Justices SM Subramaniam and V Sivagnanam passed the ruling while dismissing the NIA's plea to condone a delay in filing appeals against a special court's decision to grant bail to two accused persons.

"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," the Court said.

In doing so, the Bench also held that an earlier ruling of the High Court in Buhari @ Kichan Buhari vs. State was not good law.

In the Buhari case, the benefit of condonation of delay was extended only to the accused in NIA cases. In other words, if the delay in filing an appeal was by an accused person, the Court had said that the same should be condoned. However, if the appeal was filed by the prosecution with delay, the same was to be dismissed on the ground of delay.

The NIA's counsel argued that this was a discriminatory approach that would result in serious consequences and cause prejudice to the State's interests. The NIA contended that if a delay is to be condoned at all, then the benefit should be extended to the prosecution as well and not just the accused.

The Court noted that in the Buhari case, the Bench had held that Section 21 of the NIA Act has the effect of extinguishing a fundamental right. Thus it read down the provision by interpreting the word 'shall' to be read as 'may' in respect of appeals against a conviction or the rejection/ cancellation bail (appeals that an accused may file).

It had reasoned that if Section 21 is not read down in this manner, it would result in a violation of the accused's fundamental right.

Moreover, the Court in the Buhari case also held that this benefit would not be applicable to an appeal filed by the NIA beyond the maximum permissible limit of 90 days under the NIA Act.

The Bench of Justices Subramaniam and Sivagnanam, however, disagreed with this approach.

"Such an interpretation is impossible and there cannot be two different interpretation as the period of limitation as contemplated under Section 21(5) of the NIA Act, one for the accused person and another for National Investigation Agency," the Court said in its October 30 ruling.

It added that the creation of a distinction between categories of appellants under the NIA Act for condoning delays would absolutely fall beyond the realm of the rule of interpretation.

It further took note of the Supreme Court's decision in Arup Bhuyan vs. State of Assam, in which it was observed that a law cannot be read down when the meaning of the law is plain and unambiguous and when the legislative intend is clear.

The High Court, in the present case, concluded that the law laid down in the Buhari case was not good law from this standpoint as well.

"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. 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," the Court explained.

The High Court proceeded to dismiss the NIA's appeals on the ground of delay.

Additional Solicitor General (ASG) of India AR L Sundaresan and Special Public Prosecutor R Karthikeyan appeared for the NIA.

Advocate Abdul Basith represented the respondent-accused persons.

[Read Order]