IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.2163 OF 2018 CONNECTED WITH CRIMINAL APPEAL NO.2145 OF 2018 IN CRIMINAL APPEAL NO.2163 OF 2018: BETWEEN:
SRI RAJENDRA PATIL @ DESAI AGED ABOUT 53 YEARS, SON OF SRI BAPU, RESIDING AT RAIBAG VILLAGE, RAIBAG TALUK, GUNDWAD, BELAGAVI DISTRICT, KARNATAKA STATE-591 311.
... APPELLANT (BY SRI GOPI N., ADVOCATE) AND:
STATE BY NATIONAL INVESTIGATION AGENCY DELHI, NIA MUMBAI BRANCH, REPRESENTED BY PUBLIC PROSECUTOR, NIA BENGALURU, BENGALURU-560 001.
(BY SRI P. PRASANNA KUMAR, ADVOCATE) ...RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21(4) OF NATIONAL INVESTIGATION AGENCY ACT 2008 PRAYING TO RELEASE THE APPELLANT ON BAIL IN SPL.C.C.NO.386 OF 2018 (RC.12/2018) FOR ALLEGED OFFENCE PUNISHABLE UNDER SECTION 489B, 489C, 120B AND 201 READ WITH 34 OF IPC, RESPONDENT NATIONAL INVESTIGATION AGENCY, MUMBAI, PENDING ON THE FILE OF THE LEARNED XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, NIA SPECIAL COURT, (CCH-50), BENGALURU.
IN CRIMINAL APPEAL NO.2145 OF 2018: BETWEEN:
DALIM MIA @ JALIM @ YASIN MULLA @ DALU @ GHARYA, SON OF NOHUL ISLAM, AGED ABOUT 20 YEARS, RESIDENT OF PHAD DEONPUR, SABDALPURCHAK, BOSTAN NAGAR (T), MALDA DISTRICT, STATE WEST BENGAL-732 101.
(BY SRI SYED AKBAR PASHA, ADVOCATE) ... APPELLANT AND:
STATE OF KARNATAKA ITS REPRESENTATION BY SPECIAL PUBLIC PROSECUTOR FOR NATIONAL INVESTIGATION AGENCY, DELHI (NIA) MUMBAI BRANCH, BENGALURU-560 001.
... RESPONDENT (BY SRI P. PRASANNA KUMAR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21(4) NATIONAL INVESTIGATION ACT 2008 PRAYING TO GRANT REGULAR BAIL TO THE APPELLANT IN SPL.C.C.NO.386 OF 2018, FIR OF CRIME IN R.C.NO.12 OF 2018, REGISTERED BY THE NIA MUMBAI BRANCH FOR THE OFFENCE PUNISHABLE UNDER SECTION 489B, 489C, 120B AND READ WITH 34 OF IPC, WHICH IS PENDING IN THE FILE OF XLIX ADDITIONAL CITY CIVIL AND SESSIONS COURT (SPECIAL COURT FOR TRIAL OF NIA CASES) AT BENGALURU.
***** THESE CRIMINAL APPEALS COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Criminal Appeal No.2145 of 2018 is filed by accused No.1 and Criminal Appeal No.2163 of 2018 is filed by accused No.3, under Section 21(4) of the National Investigation Agency Act, 2008 (‘NIA Act’ for short) seeking grant of bail in Special C.C.No.386 of 2018 registered by the National Investigation Agency, Mumbai branch.
2. An application was filed by the appellant in Criminal Appeal No.2145 of 2018, before the XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) at Bengaluru, seeking bail. By the order dated 25.07.2018, the aforesaid application was rejected. Thereafter, Accused No.1 filed Criminal Petition No.6212 of 2018 before this court seeking bail. On 27.11.2018, a memo was filed for withdrawal of the petition. The same was allowed and the petition was dismissed as withdrawn. Thereafter, Criminal Appeal No.2145 of 2018 was filed on 06.12.2018, along with I.A.No.1 of 2018 seeking condonation of delay of 103 days in filing the appeal by accused No.1.
3. The learned counsel for the appellant in Criminal Appeal No.2145 of 2018, contends that the delay has to be reckoned by excluding the time spent by the appellant in prosecuting Criminal Petition No.6212 of 2018 by invoking Section-14 of the Limitation Act. The trial Court rejected his application for bail on 25.07.2018. On 10.08.2018, Criminal Petition No.6212 of 2018 was filed which was dismissed as withdrawn on 27.11.2018. The present appeal was filed on 06.12.2018. Therefore, the time spent in Criminal Petition No.6212 of 2018 has to be reckoned and if so considered, there is no delay.
4. Sri P. Prasanna Kumar, learned counsel appearing for the respondent opposes the above proposition. He places reliance on Section 21 of the NIA Act. He contends that the second proviso to Section 21 of the NIA Act mandates that no appeal shall be entertained, after the expiry of a period of 90 days. Admittedly, there is a delay of 103 days in filing Criminal Appeal No.2145 of 2018. Therefore, the appeal has to be rejected on the ground of delay. He further pleads that the question of applying Section 14 of the Limitation Act would not arise for consideration. That in terms of Section 29(2) of the Limitation Act, provisions of Sections 4 to 24 shall not apply to a special enactment. Therefore, it is pleaded that the application for condonation of delay be dismissed.
5. In terms of Section-21(5) of the NIA Act, an appeal under this Section should be preferred within a period of 30 days from the date of the Judgment, sentence or order appealed from. The second proviso would read that no appeal shall be entertained after the expiry of a period of 90 days. Therefore, the limitation initially provided is for a period of 30 days. The first proviso confers discretion to the High Court to entertain an appeal after the period of 30 days, provided the appellant had sufficient cause for not preferring the appeal within a period of 30 days. Therefore, if the appeal is not filed within a period of 30 days, but thereafter, on sufficient cause being shown, the delay in filing the appeal could be condoned upto a period of 90 days in terms of the second proviso to sub-Section-(5) of Section-21 of NIA Act. Therefore, beyond a period of 90 days, even assuming that sufficient cause is shown, the appeal would be barred by law.
6. The learned counsel for the respondents relies on the judgment of the Hon’ble Supreme Court in the case of FAIRGROWTH INVESTMENTS LIMITED VS. CUSTODIAN, reported in (2004) 11 SCC 472. Therein the Hon’ble Supreme Court were concerned with the condonation of delay in filing the petition under Section-4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. In considering the said provisions, the Hon’ble Supreme Court held at para–24 that Section- 29(2) of the Limitation Act 1996, does not apply to the proceedings under Sections-4(2) of the said Act. He pleads that the provisions of the said Act are para-materia to the NIA Act and therefore the same principles apply herein.
7. The Hon’ble Supreme Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VS. HONGO INDIA PRIVATE LIMITED AND ANOTHER, reported in 2009 (5) SCC 791, held at para Nos.35 and 36 as follows:
“35. It was 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. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is 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 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 time-limit prescribed under Section-35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 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 Section 5 of the Limitation Act.”
8. Therefore, following the aforesaid judgment, the Court is entitled to examine as to what extent the nature of the provisions or the nature of the subject matter and the scheme of the special law excludes the Limitation Act. The provisions of the Limitation Act have not been specifically excluded under the NIA Act. Therefore, the applicability of the provisions of the Limitation Act are not to be judged in terms of the Limitation Act, but the provisions of the special act, with regard to limitation. If that is to be understood, it is quite clear that the legislative intent with reference to the NIA Act, would clearly exclude the provisions of Section-5 of the Limitation Act. The language used in Section-21 of the NIA Act would therefore have to be respected by the Court and therefore no appeal could be entertained after the expiry of 90 days.
9. We have also considered the judgment of the Division Bench of High Court of Kerala in the case of NASIR AHAMMED VS. NATIONAL INVESTIGATION AGENCY, ERNAKULAM, reported in 2016 CRL.L.J. 1101, wherein at para-21 it was held as follows :
21.“xxx 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.”
10. We are in complete agreement with the reasons assigned by the High Court of Kerala in the aforesaid judgment. However, what is of concern in the present appeal, is not an application under Section-5 of Limitation Act, but the applicability of Section-14 of the Limitation Act. Holding that Section-5 of the Limitation Act cannot be applied to an appeal filed under Section-21(5) of the NIA Act, does not necessarily exclude Section-14 of the Limitation Act. The principles that govern Section-5 and 14 of the Limitation Act are quite separate and distinct. The judgment of the Hon’ble Supreme Court in the case of FAIRGROWTH INVESTMENTS LIMITED VS. CUSTODIAN, reported in (2004) 11 SCC 472, as well as that of the High Court of Kerala in the case of NASIR AHAMMED VS. NATIONAL INVESTIGATION AGENCY, ERNAKULAM, reported in 2016 CRL.L.J. 1101, do not pertain to the applicability of Section-14 of the Limitation Act. Neither counsels appearing for the parties have placed on record any judgment regarding applicability of Section-14 of the Limitation Act.
11. The aforesaid judgments of the Hon’ble Supreme Court do not make any reference to Section-14 of the Limitation Act. The condonation of delay in terms of Section-5 of the Limitation Act is quite distinct from the provisions of Section-14 of the Limitation Act. Section-5 of the Limitation Act postulates condonation of delay, provided the court is satisfied that the delay has been explained by sufficient cause. However, Section–14 is for proceedings which have been initiated bonafide in a court without jurisdiction. Therefore, we are of the considered view that firstly, Section – 5 of the Limitation Act cannot be applied to appeals filed under the NIA Act. Secondly, the same does not exclude the applicability of section-14 of the Limitation Act. Section-14 of the Act is a provision intended to ensure that the rights of a litigant are not extinguished, even though he has been bonafidely prosecuting his case in a wrong court. It is for the court to decide whether the prosecution of the matter before the court without jurisdiction, is bonafide or not. If the court is of the view that it is not bonafide, then the litigant would not get the benefit of Section-14. However, if the court is of the view that the litigant was prosecuting his case in a court without jurisdiction, but in a bonafide manner, then necessarily, Section-14 would come to his aid. Beyond this, none of the other provisions of the Limitation Act could be made applicable to the NIA Act. Therefore, we reiterate that the provisions of Section-5 of the Limitation Act cannot be held applicable to appeals filed under Section-21 of the NIA Act. However based on the facts and circumstances involved, the provisions of Section-14 of the Limitation Act could be made applicable to an appeal filed under Section-21 of the NIA Act.
12. In the instant case, the impugned order of the Trial Court in Spl.C.C.No.386 of 2018, was passed on 25.07.2018, wherein the bail application filed by accused No.1 was rejected. Thereafter, Criminal Petition No.6212 of 2018 was filed before the High Court of Karnataka on 10.08.2018, which was dismissed as withdrawn on 27.11.2018. Hence, the time spent by the appellant before this Court in Criminal Petition No.6212 of 2018, is 109 days. Thereafter, Criminal Appeal No.2145 of 2018 was filed on 06.12.2018. In terms of Section-21(5) of the NIA Act, the limitation period prescribed for filing an appeal is 30 days from the date of the order appealed against. In the present case, the total days spent by the appellant between the date of rejection of the bail application i.e., from 25.07.2018 till the date of filing of this criminal appeal on 06.12.2018 is 134 days, wherein 109 days were spent by the appellant before this court in prosecuting the criminal petition. The initial limitation is 30 days. If the time spent in prosecuting the Criminal Petition is excluded, the time spent in filing the instant appeal is 25 days, which is within the limitation period prescribed under Section-21(5) of the NIA Act. Therefore, the present appeal is filed within the limitation of 30 days and hence there is no delay.
13. The time spent by the appellant in prosecuting the Criminal Petition No. 6212 of 2018, before the High Court of Karnataka, was under a bonafide impression that the criminal petition is maintainable. There was no intent to delay any proceeding. The appellant was bonafidely in good faith, prosecuting the criminal petition in a Court without jurisdiction. Having realised the mistake he sought leave to withdraw the same, ostensibly on the ground to approach the jurisdictional Court. Therefore, we hold that sufficient bonafides have been shown in prosecuting the aforesaid criminal petition. The same is not deliberate and is unintentional and in good faith. Under these circumstances, while applying Section-14 of the Limitation Act, we hold that the time spent in prosecuting criminal petition No.6212 of 2018, requires to be excluded while calculating the period of limitation. If the said period is excluded, then, the appeal would necessarily be within the limitation as specified under Section-21 of NIA Act. Therefore, we hold that there is no delay in filing the aforesaid appeal. Hence, I.A.No.1 of 2018, for condonation of delay in filing Criminal Appeal No.2145 of 2018 is accordingly disposed off.
14. Therefore, we proceed to hear the appeals on merit.
15. These appeals arise out of Crime No.104 of 2018, registered by the Chikkodi Police. Criminal Appeal No.2145 of 2018 is filed by accused No.1 and Criminal Appeal No.2163 of 2018, is filed by accused No.3 seeking grant of bail.
16. The case of the prosecution is that one Milind M. Khate, Police Inspector, National Investigation Agency (‘NIA’ for short), Mumbai Branch, lodged a complaint before the Chikodi Police, alleging that NIA has credible information about delivery and circulation of counterfeit currency notes in Nippani, Chikkodi and other areas of Karnataka. On 12.03.2019, at about 2.15 p.m., the Police detained accused No.1 at Nipani Bus Stand.
17. During investigation, it was found that accused No.1 had delivered Fake Indian Currency Notes (‘FICN’ for short) to accused No.2 at Nipani and further that Accused No.1 is going to travel to Howrah by train. Thereafter, accused No.2 was arrested on 13.03.2018. Accused No.1 further disclosed that on 06.03.2018, he came from West Bengal and handed over Rs.3.5 lakhs of FICN to accused No.2, who is a regular receiver of fake currency.
18. A complaint was lodged by Sri.Milind M. Khate, Police Inspector, NIA, Mumbai Branch in Crime No.104 of 2018, for the offence punishable under Section–489B, 489C, 120B, read with Section-34 of IPC before the Chikkodi Police Station, against the two accused. On the basis of the disclosure made by accused No.1, the residence of accused No.2 was searched on 13.03.2018. Accused No.2 disclosed that out of 3.5 lakhs, Rs.1 lakh was given to accused No.3. Thereafter, accused No.3 was arrested on 13.08.2018 and further investigation was taken up. The investigation was transferred by the orders of the Central Government to NIA. Thereafter, NIA completed the investigation. The charge-sheet was filed.
19. Thereafter, accused No.3 filed an application under Section–439 of Cr.P.C., before the Trial Court seeking bail. By an order dated 09.10.2018, the bail application was rejected. Hence, Criminal Appeal No.2163 of 2018 by accused No.3. Accused Nos.1 and 2 also filed a similar bail application under section-439 of Cr.P.C. and by an order dated 25.07.2018, their bail application was rejected. Hence, Criminal Appeal No.2145 of 2018 by accused No.1.
20. The learned counsel for accused No.1 submits that there is no material to implicate accused No.1. That there is no recovery from him. Therefore, the prosecution at this stage cannot state to have any prima-facie case against accused No.1. Hence, he pleads that bail be granted.
21. The learned counsel for accused No.3 contends that the prosecution has failed to prove any prima-facie case against him. That the entire case against accused No.3 is that he was transporting the currency notes. That the prosecution has failed to show any material to indicate that accused No.3 was involved in transporting FICN. Hence, he pleads that bail be granted.
22. The same is opposed by Sri.P.Prasanna Kumar, learned counsel appearing for respondent-NIA. He pleads that substantial material has been laid in the charge-sheet to implicate all the accused. That the telephone calls has been intercepted. Messages have been recorded that would indicate complete involvement of all the accused in the offence alleged against them. He pleads that the contention of the appellants that there is no material is incorrect. That there is substantial material led-in that would ultimately lead to the conviction of all the accused.
23. Heard learned counsels.
24. The material as produced by the prosecution in filing of the charge-sheet would clearly indicate that various telephone calls were intercepted pertaining to the accused. They would indicate that FICN were circulated not only in Karnataka State, but throughout the country.
That the accused were involved in transportation of huge sums of money throughout the country. That in the instant case, a sum of Rs.3.5 lakhs of FICN was recovered. That it is only the tip of the iceberg, in which all the accused are involved.
25. The material which are undisputed would indicate that there are various other cases also pertaining to the accused, which are pending trial. Therefore, the involvement of these accused is clear and cogent. That the contention of the learned counsel for the appellants that there is lack of material to implicate the accused cannot be accepted. This is not a case where the accused are being wrongly implicated. That there are substantial material collected by the prosecution in order to show the involvement of all these accused. There is a prima facie case against the accused.
26. Under these facts and circumstances, we are of the view that the prosecution has made out a prima-facie case against the accused. Hence, we find no ground to enlarge them on bail. Accordingly, the appeals are dismissed.
Sd/- Sd/-
JUDGE JUDGE JJ