JUDGMENT :

Sanjay K. Agrawal, J.

1. This acquittal appeal preferred under Section 21(1) of the National Investigation Agency Act, 2008 (for short, ‘the NIA Act’) is directed against the impugned judgment dated 5-2-2022 passed by the Special Judge (NIA Act) Scheduled Offences, Kanker, Distt. North Bastar Kanker in Special Sessions Trial No.21/2021 by which the respondent herein has been acquitted of the charges under Sections 489A read with Section 34, 489B read with Section 34 & 489D read with Section 34 of the IPC (Scheduled Offences under the NIA Act).

Brief facts: -

2. By virtue of sub-section (5) of Section 21 of the NIA Act, appeal under Section 21 has to be preferred within a period of thirty days from the date of the judgment, but since this appeal has been preferred by the appellant herein admittedly after 30 days from the date of judgment i.e. the date of judgment is 5-2-2022, whereas the appeal has been preferred on 20-12-2022 and by the first proviso to sub-section (5) of Section 21, delay in filing the appeal after the period of limitation of 30 days can be condoned and appeal can be entertained if the court is satisfied that the appellant has sufficient cause for not preferring the appeal within the period of 30 days, but the second proviso to sub-section (5) further limits that no appeal shall be entertained after the expiry of period of ninety days. As such, only 60 days’ delay in filing the appeal under Section 21(1) of the NIA Act can be condoned by the appellate court against the appeal preferred under Section 21(1). Since against the judgment dated 5-2-2022, appeal has been preferred on 20-12-2022 and though the application for condonation of delay in filing the appeal has been filed, but since it is after the expiry of 90 days, the matter has been placed before the Bench holding that appeal is not maintainable as per Section 21(5) of the NIA Act.

Question involved: -

3. The short question for consideration in this appeal would be, whether appeal under Section 21(1) of the NIA Act can be entertained after the expiry of the period of 90 days in view of the second proviso to sub-section (5) of Section 21 of the NIA Act?

Contentions of the appellant/State and the Amicus Curiae : -

4. Mr. Satish Chandra Verma, learned Advocate General ably assisted by Mr. Ashish Tiwari, learned Government Advocate appearing for the State / appellant, would submit with respect to the issue of maintainability of the instant acquittal appeal in light of the bar imposed under the second proviso to Section 21(5) of the NIA Act, as under: -

1. Right to appeal, especially under criminal administration of justice, cannot be fettered with or made subject to any onerous condition or prerequisite.

2. The word “shall” as stated in the second proviso to Section 21(5) of the NIA Act ought to be read as “may” and be treated as directory and not mandatory in nature for the said provision imposes complete restriction on the entertainment of appeal before a higher court of law which has been recognised as a right by the Supreme Court in the matters of Madhav Hayawadanrao Hoskot v. State of Maharashtra, (1978) 3 SCC 544 and Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and another, (2007) 6 SCC 528.

3. The provision of Section 5 of the Limitation Act, 1963 is not excluded from its application under the NIA Act and therefore the appeal accompanied with the application for condonation of delay under Section 5 of the Limitation Act, 1963 can be considered by this Court for deciding on the limitation aspect and the explanation rendered in the application ought to be looked into by this Court to condone the delay even beyond 90 days as provided under the second proviso to Section 21(5) of the NIA Act.

4. The language of the second proviso to Section 21(5) of the NIA Act takes away the power of judicial review from the Court without conferring any discretion and thus, even in appropriate cases where the delay exceeds even by one day or one week, in both cases, the