Srinagar: Can a high court entertain an appeal filed after 90 days from the date of sentence by a special court under the National Investigation Agency (NIA) Act?
This question has arisen once again as the NIA has approached Delhi high court almost a year after Kashmiri separatist leader and chief of the proscribed Jammu and Kashmir Liberation Front (JKLF) was sentenced to life imprisonment by a special NIA court. The NIA has sought the death sentence for Malik – a prayer that was rejected by the special NIA court in May 2022.
What the NIA Act says
The NIA Act, 2008 stipulates that the high court shall not entertain an appeal after a period of 90 days from the date of the judgment, sentence or order.
Section 21 of NIA Act states:
Section 21:
(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.
A simple reading of the second proviso to sub-section (5) of Section 21 makes it clear that a high court cannot entertain an appeal after 90 days.
Conflicting judgments by high courts
The issue is whether an appeal can be validly filed before a high court after the expiry period of 90 days and whether delay can be condoned under the Limitation Act.
According to Section 5 of the Limitation Act, an appeal may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that they had sufficient cause for not making the application within such a period.
While the Kerala and Calcutta high courts have held that the time period of 90 days stipulated in Section 21 of the NIA Act is mandatory, the Delhi and Jammu and Kashmir and Ladakh high courts have said that high courts can condone a delay in filing of an appeal after 90 days.
In its judgment on March 22, 2015 (Nasir Ahammed versus National Investigation Agency), the Kerala high court said that the NIA Act itself deals with condonation of delay in filing appeal, and a delay up to 60 days can be condoned by the high court.
It said that the high court has the jurisdiction to condone a delay in filing an appeal, but that power is restricted under the first proviso to sub-section(5) of Section 21 of the NIA Act.
It said that “further restriction in the second proviso of sub-section (5) of Section 21 of NIA Act-2008 is a clear indication that the High Court cannot exercise powers under the Section 5 of Limitation Act to condone the delay”.
On July 7, 2019, Delhi high court in Farhan Shaikh versus State (National Investigation Agency) ruled that an application for condonation of delay is maintainable in an appeal governed by the NIA Act of 2008.
The court said that it would lead to a travesty of justice if the substantive appeal was not heard on merits and rejected at the threshold only on account of the bar of limitation prescribed under Section 21 (5) of the NIA Act.
In its verdict delivered on December 13, 2022, the High Court of J&K and Ladakh said it is of the considered view that the word “shall” used in the second proviso to sub-Section 5 of Section 21 of the Act must be read as “may” and that the high court shall have the discretion to condone the delay even beyond the period of 90 days in appropriate cases, provided the appellant satisfies the court that they had sufficient cause for not preferring the appeal even after expiry of period of 90 days as provided in the second proviso to sub-Section 5 of Section 21 of the NIA Act.
The Calcutta high court on March 1, 2023 ruled that an appeal sought to be filed after expiry of the period of 90 days from the date of the judgment or order or sentence, under Section 21 of the Act of 2008, cannot be entertained.
“It is trite law that, the statute is an edict of the legislature and that the conventional way of interpreting or construing a statute is to seek the intention of the legislature. The intention of the legislature must be found by reading the statute as a whole. Where the words of the statute are clear, plain or unambiguous, the courts are bound to give effect to that meaning irrespective of the consequences. It is wrong and dangerous to substitute some other words for the words of the statute. The rules of interpretation do not permit courts to add words unless the section as it stands is meaningless or of doubtful meaning,” the high court said.
“The 2nd proviso to sub-Section (5) of Section 21 of the Act of 2008 is plain, clear and unambiguous in its meaning. It has prohibited entertainment of any appeal after the expiry of a period of 90 days. To read section 5 of the Limitation Act, 1963 into section 21 (5) 2nd proviso would require substituting the word “no” appearing in such proviso with the word “an”. Such substitution would render the entirety of the 2nd proviso otiose and superfluous,” it continued.
Who is Yasin Malik?
Born in 1966 in the Maisuma locality of the Civil Lines area of Srinagar, Muhammad Yasin Malik started his career as a young political activist with the Islamic Students League (ISL), which was created in the 1980s.
In the 1987 election, Malik campaigned for MUF candidate Mohammad Yusuf Shah. But the elections were rigged and despite having won, Shah was declared to have lost and the National Conference-Congress alliance was declared the winner. Once out of jail, Shah crossed the Line of Control and would later become United Jehad Council chief Syed Salah-ud-Din. Malik was among the first few young men to cross the border for arms training.
Malik was arrested in August 1990 and was released in 1994. After being out of jail, Malik declared a ceasefire and announced that he would adopt peaceful means for resolution of the Kashmir issue. In 2006, he also met then Prime Minister Manmohan Singh when the Congress-led UPA government held talks with Kashmiri separatist leaders.
In April 2019, Malik was arrested by the NIA in a terror funding case registered in 2017 by it against separatist and militant groups in J&K. In May 2022, the special NIA Court in Delhi sentenced him to life imprisonment after he pleaded guilty to the charges and did not contest the case.
The court rejected the NIA’s prayer for death sentence for Malik, saying that the crime in question would fail the test of rarest of rare case as laid down by the Supreme Court.
Jammu and Kashmir mainstream parties have cautioned New Delhi against awarding the death penalty to Malik, saying the “NIA’s plea is dangerous” and “justice isn’t a path taken vindictively”.
Umer Maqbool is an independent journalist based in Kashmir. He writes on politics, governance, human rights and legal issues.