CHENNAI: In an order that will have far-reaching impact, a division bench of the Madras High Court has ruled that appeals against orders of the special courts for NIA Act cases can be allowed even if they are filed beyond the prescribed period of 90 days, as it involves the right of a person under Article 21 of the Constitution.
The bench of Justices MS Ramesh and Sunder Mohan issued the ruling while allowing a petition filed by Buhari @ Kicha Buhari, an accused under Unlawful Activities (Prevention) Act (UAPA) seeking to condone 43 days of delay beyond the 90 days as provided under section 21 (5) of the National Investigation Agency (NIA) Act, to appeal against dismissal of a bail order passed by the special court for NIA Act, 2008 cases at Poonamallee.
Advocate S Manoharan, appearing for the petitioner, argued that the high courts of Delhi, Bombay and Jammu and Kashmir have taken a view that section 21 of the NIA Act does not exclude section 5 of the Limitation Act. Considering the hardship that would be caused to the litigants if the provision is considered to be mandatory, the court may condone the delay by applying Section 5 of the Limitation Act.
However, Additional Solicitor General (ASG) AR L Sundaresan, who was appointed as the amicus curiae, submitted that the reasoning given by these three high courts is ‘flawed’.
He contended that proviso to section 21 (5) of the NIA Act expressly excludes the applicability of section 5 of Limitation Act and its provisions would not be applicable to an appeal filed under the NIA Act.
However, the bench, citing various orders of the courts, including the Supreme Court, ruled in favour of allowing the appeal even if filed beyond the 90 days.
“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 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 than a Constitutional Court,” it reasoned.
“Therefore, we are of the view that the second 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,” it said.
Saying that the appeal challenging the judgment of conviction, rejection of bail and cancellation of bail are filed in exercise of one’s fundamental right, the bench said in those types of appeals, which are filed with a delay, the word ‘shall’, shall be read as ‘may’.
The bench cited a Supreme Court order holding 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.”
“Therefore, 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 judges said in the order, and directed the registry to number the criminal appeal petition.
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