To what extent general provision of criminal law are applicable to prosecution under National Investigation Agency Act?

 What is held by the Division Bench of Delhi High Court in Farhan Sheikh‟s case (supra) is condensed in para (89) of the judgment which reads thus:

“89. Thus, so far as the constitution of NIA is concerned, it a complete code. However, the same cannot be said about the substantive offences, and the procedural laws which would be applicable for the purpose of investigation and conduct of trial of such offences. To the extent that Section 16 of the NIA Act prescribes powers of Special Courts, the same would prevail. However, in respect of matters not dealt with under the Act relating procedures, and the substantive offences, it is the provisions of the Code and the substantive laws enumerated in the schedule to the Act, which would be relevant. Even if, the Act is considered to be complete Code in so far as it provides the right of appeal, in the light of the aforesaid discussion, we are inclined to hold that the prescription of limitation in Section 21(5) of the NIA Act is directory and not mandatory and that the High Court is empowered to entertain and consider application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. The said application is maintainable”.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

Print Page

Does S 21 of the NIA Act exclude the application of S 4 to 24 of the Limitation Act for determining the limitation period for filing an appeal under the NIA Act?

  The point that arises for determination is, whether NIA Act, in particular Section 21 whereof expressly excludes the application of Sections 4 to 24 of the Limitation Act for determining the period of limitation for filing an appeal under NIA Act. One view is that by providing for condonation of delay after the expiry of 30 days‟ period prescribed for filing appeal, but not beyond 90 days from the date of judgment, sentence or order appealed from, the application of Section 5 of the Limitation Act is expressly excluded. The other view is that exclusion of Sections 4 to 24 must be express and not by necessary implication. We are, however, inclined to go by the later view. This is because Section 21 of the NIA Act has no where specifically excluded the application of Sections 4 to 24 (inclusive) for determining the period of limitation prescribed for filing appeal under Section 21 of the Act. There is, of course, similar provision in first proviso to Section 21(5) which gives discretion to the High Court to entertain an entertain an appeal after expiry of period of limitation of 30 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within a period of 30 days. However, second proviso to Section 21(5) of the Act ordains that no appeal shall be entertained after the expiry of period of 90 days. {Para 19}

20 Having regard to the object of the NIA Act and the right of the accused to fair trial, the word “shall” used in second proviso to Section 21(5) of the Act deserves to be read as “may”, else the right of appeal given to the accused against his conviction would become a causality if the doors of the Appellate Court are shut to him on the ground of limitation. The right to fair trial is a right vested in the accused under Article 21 of the Constitution. The right of appeal, wherever it is provided, is a matter of substance and essentially a remedial right. If this remedy is put in jeopardy by creating bar of limitation and leaving no discretion in the Court to condone the delay even in well deserving cases, it would render the remedy otiose. We, therefore, cannot put any construction or interpretation on a provision that has the effect of taking away the fair trial right of the accused. It is in this context, we must hold that right of the accused to avail the remedy of appeal is a substantive and concomitant right of fair trial. This is in this background, the Delhi High Court in the case of Farhan Sheikh vs. State (National Investigation Agency), 2019(7) AD (Delhi) 233, has taken the view that the word “shall” used in second proviso to Section 21(5) shall be read as “may” and that the second proviso is directory in nature. The Court further observed that the High Court shall have the discretion to condone the delay in appropriate cases even after expiry of period of 90 days. The Delhi High Court rightly did not agree to lift and apply decisions based on the interpretation of civil provisions, rendered in the context of civil and taxing statutes.

35 We have already held that the provisions of second proviso to sub-section 5 of Section 21 of the Act are directory in nature and, therefore, an application for condonation of delay under Section 5 of the Limitation Act is maintainable.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

Print Page

Whether investigating officer can seek Production warrant U/S 267 of CRPC for recording statement of a witness during investigation?

 Section 267(1) of the Cr.P.C under which the appellant had moved an application before the trial Court reads as under: 

“267. Power to require attendance of prisoners. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,- (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. (2)…………………………………………………………………..

(3)………………………………………………………………….

30 Form a plain reading of Section 267(1), it clearly transpires that a Criminal Court, in the course of an enquiry, trial or other proceedings under the Code of Criminal Procedure, can direct a person confined or detained in a prison to be produced before the Court for answering to a charge of an offence or for the purpose of any proceedings against him. The criminal Court is further empowered to direct the officer in-charge of the prison to produce any person who is required to be examined as a witness for the purpose of giving evidence.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

Print Page

Whether a criminal court can refuse to issue production warrant U/S 267 CrPC when no case is pending trial or enquiry before it?

 In view of what we have discussed herein above we answer the question referred to us as under:-

"The Police can seek permission to remove an accused from judicial custody to police custody for completion of investigation in another case and for this purpose production warrant under Section 267 CrPC. can be issued. The expression "other proceeding" used in Section 267(1) and "for the purpose of any proceedings" occurring in Section 267(1)(a) would include "investigation" as defined under Section 2(h) CrPC.{Para 31}

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022

Print Page

Whether Magistrate can seek production of accused who is in prison for another offence for investigation of crime?

However, in State of Maharashtra v. Yadav Kohachade (supra), the learned Single Judge of this Court dealt with the relevant provisions of Section 267 and came to conclusion that the Magistrate was competent to issue warrant of production of accused confined in prison for the purpose of considering the request of the investigating officer for police custody in another case. The learned Single Judge observed as follows in para 24:

Proceedings" would mean and include an action or prosecution and sometimes as meaning a step in an action and, therefore, it includes all steps taken in furtherance of prosecution, i.e., arrest, remand, interrogation and investigation. The judicial Magistrate, First Class, 2nd Court, was, therefore, justified in passing an order under Section 267 of the Criminal Procedure Code and issuing warrant as per Form No. 36 of Second schedule addressed to the officer-in-charge of Central Prison, Nagpur, to produce before him the non-applicant accused for the purpose of proceedings, i.e., remand. The legislature has used the words "other proceedings and any proceedings under the Code" in Section 267 of the Criminal Procedure Code and not judicial proceedings and, therefore, seeking production of the accused for remand under Section 267 of the Criminal Procedure Code cannot be faulted. There can be no quarrel over the decision in B.S. Rawat's case (cited supra) relied upon by Mr. Manohar, as what the Court observed was that the order under Section 267 of the Criminal Procedure Code cannot be passed to produce a person for the purpose of investigation before the agency which is engaged in the investigation; as in the said case, the warrant was sought or production of the accused before the Custom Officer for the purposes of investigation. Therefore, it cannot be said that the Magistrate was not competent to issue such a warrant of production of the accused confined or detained in a prison, before him, for the purposes of considering the request of the Investigating Officer to order his detention is police custody.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition Nos. 1951 of 2007, 57 and 108 of 2008

Decided On: 20.01.2010

Susan Abraham Vs.  State of Maharahtra 

Hon'ble Judges/Coram:

F.I. Rebello and J.H. Bhatia, JJ.

Citation: 2010 (2) MHLJ 560

Print Page