K.T. Sankaran, J.:— The question involved in this Criminal Appeal (unnumbered) is whether an appeal under S. 21 of the National Investigation Agency Act, 2008 (hereinafter referred to as the “NIA Act”) can be validly filed before the High Court after the expiry of the period of ninety days from the date of judgment, sentence or order appealed from and whether the High Court can condone the delay in filing the appeal under S. 5 of the Limitation Act.
2. The Special Court for Trial of N.I.A. Cases, Kerala, Ernakularn dismissed the application filed by the appellant under S. 227 of the Code of Criminal Procedure to - discharge the accused. The order was passed by the Court on 9.5.2014. The appellant received the copy of the order on 14.5.2014. The period of thirty days expired on 13.6.2014 and the period of ninety days expired on 12.8.20.14. The appellant fileda Criminal Revision Petition on 7.10.2014 challenging the order of the court below. That. Revision was dismissed as withdrawn on 17.11.2014 with liberty to file a Criminal Appeal against the order impugned. Thereafter, the appellant filed the Criminal Appeal on 25.11.2014. The appellant filed an application to condone the delay of 164 days in filing the appeal. The learned State Prosecutor for National Investigation Agency (‘NLA’ for short) submitted that the application to condone the delay is not maintainable and that the Court has no power to condone the delay and the appellant cannot invoke S. 5 of the Limitation Act. The learned counsel for the appellant submitted that in spite of the second proviso to sub-section (5) of S. 21 of the N.I.A. Act, the power under S. 5 of the Limitation Act to condone delay is not excluded.
3. To comprehend the contentions put forward by either side, it is apposite to extract S. 21 of the N.I.A. Act:
“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 hail.
(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 hot preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of the period of ninety days.”.
4. The learned counsel for the appellant submitted that S. 29(2) of the Limitation Act will apply and that there is no express exclusion of S. 5 of the Limitation Act in the second proviso to sub-section (5) of S. 21 of the N.I.A. Act. He also submitted that if it is to be held that S. 5 of the Limitation Act is expressly excluded by the second proviso to sub-section (5) of S. 21 of the N.I.A. Act, how could it be said that Sections 4 and, 6 to 24 of the Limitation Act can be applied in a particular case. The learned counsel also submitted that it cannot be said that the time taken to get the Certified copy of the order impugned cannot be excluded and if so S. 12 of the Limitation Act has to be applied. The learned counsel submitted that the object of the N.L.A. Act, 2008 isto constitute an investigation agency at the national level to investigate and prosecute certain types of offences and it is not a complete Code by itself. Therefore, the exclusion of Sections 4 to 24 of the Limitation Act, particularly S. 5 of the Act should be made in express terms and an implied exclusion of those provisions in the N.I.A: Act is not sufficient.
5. The learned Special Prosecutor for N.I.A. submitted that the second proviso to sub-section (5) of S. 21 of the N.I.A. Act constitute an express exclusion of S. 5 of the Limitation Act. He submitted that S. 12 of the Limitation Act is not excluded and,. therefore, the time taken for obtaining the certified copy of the judgment or order can be excluded in computing the period of limitation.
6. Sub-section (2) of S. 29 of the Limitation Act reads as follows:
“29. Savings.—(1)
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”
7. The Limitation Act applies to Courts. S. 29(2) of the Limitation Act applies where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule to the Limitation Act. If this requirement is satisfied, S. 3 of the Limitation Act would apply to such suit, appeal or application as if the period provided in the special statute is the period prescribed by the Schedule to the Limitation Act. For the purpose of determining the period of limitation under the special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply unless their application is expressly excluded by such special or local law. If the authority which is to deal with the suit, appeal or application under the special law or local law is not a Court, S. 29(2) of the Limitation Act would have no application; and to confer power on such authority to condone the delay in filing the suit, appeal or application, an express provision should be available in the special or local law. On the other hand, if the authority under the special statute is a Court, then no express provision need be available in the special statute conferring on such authority the power to apply Sections 4.to 24 of the Limitation Act. In other words, the provisions of Sections 4 to 24 of the Limitation Act would automatically apply if the authority under the special Or local law is a Court and those provisions would not apply, unless expressly provided, if the authority under the special or local law is not a Court.
8. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker., (1995 (2) KLT 205 (SC) : (1995) 5 SCC 5 : AIR 1995 SC 2272), the Supreme Court considered the question whether S. 5 of the Limitation Act could be invoked to condone the delay in filing an appeal before the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act. The Supreme Court held that the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act functions as a Court and the period of limitation under S. 18 of the Rent Control Act Shall be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963 and that S. 5 of the Limitation Act can be invoked. This conclusion was arrived at on the basis that S. 29(2) of the Limitation Act would be - applicable. In Mukri Gopalan 's case, the Supreme Court held as follows:
“13…… The jurisdiction to entertain proceedings under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under, the special law. When the special law provides that the provision contained in S. 5 shall apply to the proceedings under it, it is really a conferment of the power of the Court under S. 5 to the Tribunals under the special law - whether these tribunals are Courts or not. If these tribunals under the special law should be Courts in the ordinary sense an express extension of the provision contained in S. 5 of the Limitation Act will become otiose in cases where the special law has created separate tribunals to adjudicate the rights of parties arising under the special law. That is not the intention of the legislature.
14. …………………
15. After repealing of Indian. Limitation Act, 1908 and its replacement by the present Limitation Act of 1963 a fundamental change was made in S. 29(2). The present S. 29(2) as already, extracted earlier clearly indicates that once the requisite conditions for its applicability to given proceedings under special or local law are attracted the provisions contained in Ss. 4 to 24 both inclusive would get attracted which obviously would bring in S. 5 which also shall apply to such proceedings unless applicability of any of the aforesaid Sections of the Limitation Act is expressly excluded by such special or local law. By this charge it is not necessary to expressly state in a special law that the provisions contained in S. 5 of the Limitation Act shall apply to the determination of the periods under it. By the general provision contained in S. 29(2) this provision is made applicable to the periods prescribed under the special laws. An express mention in the special law is necessary only for any exclusion
20. …It has to be kept in view that S. 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these Sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand……”
9. An appeal under S. 21 of the N.I.A. Act lies to the High Court. Therefore, S. 29(2) of the Limitation Act would apply and consequently, Sections 4 to 24 of the Limitation Act would apply unless their application is expressly excluded by the N.I.A. Act. The application of S. 12 of the Limitation Act is not excluded at all under the N.I.A. Act. Therefore, the time taken for obtaining the certified copy of the judgment or order passed by the N.I.A. Court is liable to be excluded in computing the period of limitation under S. 21 of the N.I.A., Act.
10. This conclusion is fortified by the Constitution Bench decision of the Supreme Court in Vidyacharan Shukla v. Khubchand Baghel, (AIR 1964 SC 1099) and the decision of a three Judges Bench of the Supreme Court in Commissioner of Sales Tax U.P. v. Madan Lal Dan & Sons, Bareilly, ((1976) 4 SCC 464 : AIR 1977 SC 523) where the Supreme Court held that for the purpose of determining the period of limitation prescribed for any application by the special or local law, the provisions contained in S. 12(2) of the Limitation Act shall apply in so far as the application is not expressly excluded by the special or local law.
11. In Commissioner of Customs and Central Excise v. Hongo India Private Limited, (2009 (3) KLT Suppl. 881 (SC) : (2009) 5 SCC 791), the Supreme Court considered the question “whether the High Court in the reference application under S. 35-H(1) of the unamended Act, has power under S. 5 of the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e. the Central Excise Act”. S. 35-H(1) of the Central Excise Act (unamended) was as follows:
“35-H. Application to High Court.-- (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under Section 35-C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees; apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.”
12. The period provided for filing the reference application to the High Court was 180 days and there was no provision for condoning the delay if the reference was made beyond the prescribed period.
13. The Supreme Court considered Section 35-H(1) along with certain other provisions in the Act and held as follows:
“27.… Here again, there is no dispute about the above proposition. The High Courts in India are having inherent and plenary powers, and as a court of record the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. However, the said principle has to be decided with the specific provisions in the enactment and in the light of the scheme of the Act, particularly in this case. Sections 35, 35-B, 35-EE, 35-G and 35-H of the unamended Central Excise Act; it would not be possible to hold that in spite of the abovementioned statutory provisions, the High Court is free to entertain a reference application even after expiry of the prescribed period of 180 days.
……………………
30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to, the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also ah additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under S. 35-G and reference application to the High Court under S. 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to. 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of S. 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
35.… In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 supports the conclusion that the timelimit prescribed under S. 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under S. 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of S. 5 of the Limitation Act.”
14. In Hukumdev Narain Yadav v. Lalit Narain Mishra, ((1974) 2 SCC 133), dealing with a case under the Representation of the People Act, 1951, the Supreme Court held thus:
“17……. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under S. 81 of the Act, S. 29(2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone, should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of. Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation”
15. In Union Of India v. Popular Construction Co.., ((2001) 8 SCC 470), the Supreme Court considered the question whether the provisions of S. 5 of the Limitation Act are applicable to an application challenging an award under S. 34 of the Arbitration and Conciliation Act, 1996. Sub-section (3) of S. 34 of the Arbitration and Conciliation Act reads as follows:
“34. Application for setting aside arbitral award.—
(1) ………………………………
(2) ………………………………
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal:
Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”
16. In Union Of India v. Popular Construction Co.., ((2001) 8 SCC 470), the Supreme Court held thus:
“12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are ‘but not thereafter’ used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, woujd render the phrase ‘but not thereafter’ wholly otiose. No principle of interpretation would justify such a result.”
17. In Popular Construction Company's case, the Supreme Court relied on the decision in Hukumdev Narain Yadav v. Lalit Narain Mishra, ((1974) 2 SCC 133).
18. In Kelan V. Parekh v. Special Director, Directorate of Enforcement, (2012 (1) KLT SN 15 (C. No. 13) SC : (2011) 15 SCC 30), the Supreme Court considered the question whether the High Court can entertain an appeal under S. 35 of the Foreign Exchange Management Act beyond the period of 120 days. S. 35 of the Foreign Exchange Management Act reads as follows:
“35. Appeal to High Court.--Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.”
19. In Ketan V. Parekh v. Special Director, Directorate of Enforcement, (2012 (1) KLT SN 15 (C. No. 13) SC : (2011) 15 SCC 30), the Supreme Court held:
“18. The question whether the High Court can entertain an appeal under S. 35 of the Act beyond 120 days does not require much debate and has to be answered against the appellants in view of the law laid down in Union of India v; Popular Construction Co., ((2001) 8 SCC 470), Singh Enterprises v. C.C.E., (2008 (1) KLT SN 62 (C. No. 65) SC : (2008) 3 SCC 70), C.C.E. & Customs v. Punjab Fibres Ltd., (2008 (4) KLT Suppl. 265 (SC) : (2008) 3 SCC 73), Consolidated Engg. Enterprises v. Irrigation Department, ((2008) 7 SCC 169); C.C.E. & Customs v. Hongo India (P) Ltd., (2009 (3) KLT Suppl. 881 (SC) : (2009) 5 SCC 791) and Chhattisgarh S.E.B. v. Central Electricity Regulatory Commission, (2010 (2) KLT SN 34 (C. No. 43) SC : (2010) 5 SCC 23).”
20. In Consolidated Engg. Enterprises v. Irrigation Department, ((2008) 7 SCC 169), a three Judges Bench considered S. 34(3) of the Arbitration and Conciliation Act, 1996 and held thus:
“20 When any special statute prescribes certain period of limitation as well as provision for extension up to specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub-section (3) of S. 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of S. 5 of the Limitation Act would not be applicable because the applicability of S. 5 of the Limitation Act stands excluded because of the provisions of S. 29(2) of the Limitation Act.”
21. In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission, (2010 (2) KLT SN 34 (C. No. 43) SC : (2010) 5 SCC 23), the Supreme Court held thus:
“32. In view of the above discussion, we hold that S. 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in S. 125 of the Electricity Act and its proviso. Any interpretation of S. 125 of the Electricity Act which may attract the applicability of S. 5 of the Limitation Act read with S. 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and the proviso to S. 125 will become nugatory.”
22. The N.I.A. Act is an Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and formatters connected therewith or incidental thereto. The superintendence of the N.I.A. shall vest in the Central Government, as provided in S. 4 of the N.I.A. Act. S. 6 provides for investigation of scheduled offences. S. 7 provides that the N.I.A. may request the State Government to associate itself with the investigation. S. 9 mandates that the State Government shall extend all assistance and co-operation to the Agency for investigation of the scheduled offences. Special courts are constituted under S. 1 1 for the trial of scheduled offences. S. 15 of the N.I.A. Act provides for appointment of Public Prosecutors and Additional Public Prosecutors. S. 16 provides for the procedure and powers of Special Courts. S. 19 of the N.I.A. Act states that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence oyer the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance. Sub-section (2) of S. 21 states that 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. The scope of the provisos to sub-section (5) of S. 21 of the N.I.A. Act has to be considered in the light of the other provisions in the Act. The period of limitation provided under sub section (5) of S. 21 is thirty days. The first proviso to sub-section (5) empowers the High Court to entertain an appeal after the expiry of thirty days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within the period of thirty days. The second proviso provides that no appeal shall be entertained after the expiry of the period of ninety days. The first proviso to sub-section (5) of S. 21 itself deals with condonation of delay in filing appeal and the delay up to sixty days (ninety days from the date of order) can be condoned by the High Court. By making a restriction that no appeal shall be entertained after the expiry of the period of ninety days, the application of S. 5 of the Limitation Act is expressly excluded. The High Court has jurisdiction to condone the delay in filing the appeal. But that power is restricted under the first proviso to sub-section (5) of S. 21. A further restriction in the second proviso is a clear indication that the High Court cannot exercise the power under S. 5 of the Limitation Act to condone the delay. To that extent, it amounts to an express exclusion of S. 5 of the Limitation Act as contemplated under S. 29(2) of the Limitation Act. For the aforesaid reasons, we are of the view that the application for condonation of delay is not maintainable. Accordingly, the application for condonation of delay as well as the Criminal, Appeal are dismissed as not maintainable.