Sushila Devi and Vishwakarma Ganjhu V. Union of India through NIA and The Secretary, Government of India, Ministry of Home Affairs, CTCR Division, North Block, P.O.-North Block, P.S.-Khan Market, New Delhi

Cr.A(DB)/2168/2023

AI Insights

The case involves an appeal by Sushila Devi and Vishwakarma Ganjhu against the Union of India and the Secretary, Ministry of Home Affairs, concerning an order passed by the Special Judge, NIA, Ranchi. The appeal was directed against a decision related to a criminal case involving serious offenses under various acts including the Indian Penal Code and the Arms Act. The primary legal contention was whether the appeal could be entertained despite being filed beyond the 90-day statutory period, as stipulated by Section 21(5) of the National Investigation Agency Act, 2008. The appellants argued that the provision was directory, not mandatory, citing various high court judgments. However, the court referenced a prior decision (Cr. Appeal (DB) No.1961 of 2023) which held the provision to be mandatory, leading to the dismissal of the appeal on procedural grounds.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 800881 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 11-01-2024
• Assessment Year: misc
• Other Referred Cases: Faizal Hasamali Mirza @ Kasib Vrs. State of Maharashtra & Anr., Farhan Shaikh Vrs. State (National Investigation Agency), Nasir Ahammed Vrs. National Investigation Agency, Sheikh Rahamtulla & Ors. Vrs. National Investigation Agency
• Laws Referred To: National Investigation Agency Act, 2008, Indian Penal Code, Arms Act, CLA Act, U.A. (P) Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SAURAV KUMAR; PRASHANT PALLAV
• Assessee Lawyers: BALAJI SRINIVASAN; NIRANJAN KUMAR
• Keywords: Appeal; Condonation of delay; Limitation; Maintainability; National Investigation Agency
• Section: 20; 17; 18; 26; 21; 35; 120B; 414; 386; 387; 384; 25(1B)a; 17(1)(2)

Judgement Text

" 1 Cr.Appeal No.2168/2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.2168 of 2023 ------ 1. Sushila Devi 2. Vishwakarma Ganjhu …. …. Appellants Versus 1. Union of India through NIA. 2. The Secretary, Government of India, Ministry of Home Affairs, CTCR Division, North Block, P.O.-North Block, P.S.-Khan Market, New Delhi .... .... Respondents CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ------ For the Appellants : Mr. Balaji Srinivasan, Advocate Mr. Niranjan Kumar, Advocate For the NIA : Mr. Saurav Kumar, AC to Spl, P.P., For the Resp. No.2 : Mr. Prashant Pallav, DSGI ------ 02/Dated: 11.01.2024 Per Sujit Narayan Prasad, J. 1. Learned counsel for the appellants has requested to argue this case through online mode. 2. Accordingly, request, as has been sought for, is accepted and he has joined through Video Conferencing. 3. While, learned counsel for the respondents are present (physically) before the Court. 4. There is no complaint regarding audio and video quality. 5. The instant appeal preferred under Section 21 of the National Investigation Agency Act, 2008 (hereinafter referred to as the Act, 2008) is directed against the order dated 18.07.2023 passed by the learned A.J.C.-XVI-Cum-Special Judge, NIA, Ranchi, in connection with Special (NIA) Case No.03 of 2018, corresponding to R.C. No.06/2018/NIA/DLI 2 Cr.Appeal No.2168/2023 dated 19.01.2018 registered for the offence under section 414, 384, 386, 387 &120B of the Indian Penal Code, under sections 25(1B) a, 26, & 35 of the Arms Act, Section 17(1) (2) of the CLA Act and sections 17,18, 20 and 21 of U.A. (P) Act arising out of Tandwa P.S. Case no. 02 of 2016, whereby and whereunder, an application filed under section 25(6) of the UA (P) Act in respect of the order dated 26.03.2019 passed by the respondent no.2 in Misc. Criminal Application No.74 of 2020, has been rejected. 6. The instant case has been listed under the heading ‘For Orders’ with the office note dated 08.01.2024 that the instant case is not maintainable which is barred by limitation since the same has been filed after expiry of maximum statutory period of 90 days. 7. The reason for pointing out such defect is that the provision as contained under Section 21(5) of the Act, 2008 which provides the period of limitation to prefer an appeal if filed under Section 21(4) of the Act, 2008, as per which, the requirement to file an appeal is the maximum period of 90 days. 8 Mr. Balaji Srinivasan, learned counsel for the appellant has argued the case by contesting the said office note that Section 21(5) of the Act, 2008 cannot be said to be mandatory in nature rather it is directory/obligatory, in view of the fact that in the first proviso of Section 21(5), the word ‘may’ have been inserted which confers power upon the appellate court, i.e., the High Court to condone the delay beyond the period of 90 days. 9. As per his argument also, the requirement to file delay condonation application is there and as such, interlocutory application 3 Cr.Appeal No.2168/2023 has been filed even knowing the fact that the appeal has been filed after delay of 90 days. 10. To buttress his argument, he has relied upon the judgment passed by the Bombay High Court in the case of Faizal Hasamali Mirza @ Kasib Vrs. State of Maharashtra & Anr. passed in Cr. Appeal (Stamp) No.11931 of 2022 and Delhi High Court in the case of Farhan Shaikh Vrs. State (National Investigation Agency), reported in 2019 SCC OnLine Del 9158. 11. On the other hand, Mr. Amit Kumar Das, learned counsel appearing for the respondent-NIA has seriously contested the case by taking aid of the provision of Section 21(5) of the NIA Act, 2008. 12. Learned counsel appearing for the National Investigation Agency has pointed out that the instant appeal is not maintainable in view of the office note dated 08.01.2024 on the ground that the appeal has been filed beyond the maximum period of 90 days under section 21(4) of the National Investigation Agency Act, 2008. 13. It has further been pointed on behalf of the NIA that issue of filing an appeal within a period of 90 days have been dealt with by the Division Bench of this Court in the Case of Cr. Appeal (DB) No.1961 of 2023 holding therein the nature of Section 21(5) of having maximum period of 90 days to file an appeal, has been held to be mandatory and as such the instant appeal may also be disposed of in terms of the said order holding the instant appeal to be not maintainable. 14. Learned counsel appearing for the respondent-NIA has also put his reliance upon the judgments passed by the Kerala High Court in the case of Nasir Ahammed Vrs. National Investigation Agency, 4 Cr.Appeal No.2168/2023 reported in 2015 SCC OnLine Ker 39625 and Calcutta High Court in the case of Sheikh Rahamtulla & Ors. Vrs. National Investigation Agency, reported in 2023 SCC OnLine Cal 493 15. We have heard the learned counsel for the parties and appreciated their arguments. It is evident from record that this Court is hearing an appeal filed under Section 21(4) of the Act, 2008 against the order passed by the learned Court in criminal appeal no. 74 of 2020. 16. This Court, in order to appreciate the arguments as advanced by the learned counsel for the parties, deems it fit and proper to refer the relevant provision of section 21 (5) of the Act. “(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.” 17. The question herein as has been pointed out by contesting the office note that the appeal is also to be filed beyond the period of 90 days, since, Section 21(5) cannot be said to be mandatory, rather, it is directory. 18. The question which has been raised that the aforesaid provision if not mandatory rather it is directory, therefore, the same is required to be answered by this Court since the office has given the note the appeal to be not maintainable in view of the fact that the appeal has been filed beyond the period of 90 days, as such, the 5 Cr.Appeal No.2168/2023 issue which requires consideration as to whether the provision as contained under Section 21(5) of the Act, 2008 is mandatory or directory. 19. This Court has decided the said issue in the case of Cr. Appeal (DB) No.1961 of 2023 which was disposed of on 09.01.2024 wherein while discussing the core of the Article 21 of the constitution of India the Division Bench of this Court has held that the nature of Section 21(5) of having maximum period of 90 days to file an appeal is mandatory in nature. 20. It is pertinent to mention here that the Division Bench of this court, while passing the order in aforesaid criminal appeal, has already taken note of the judgment passed by the different high courts which have been referred by the learned counsels for the parties. For ready reference, the relevant paragraphs of Cr. Appeal (DB) No. 1961 of 2023 are being quoted herein under: “21. The law is well settled that any statutory provision if legislates the same in the background of its object and intent so as to the very purpose of the Act be achieved, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685 wherein at paragraph 32 it has been held as under “32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.” 6 Cr.Appeal No.2168/2023 22. This Court in the light of the aforesaid proposition of law is now proceeding to refer the basic object and reason upon which the Act, 2008 has been enacted. 23. The basic object and reason of this Act is that the country has been the victim of large-scale terrorism sponsored from across the borders. There have been innumerable incidents of terrorist attacks, not only in the militancy and insurgency affected areas and areas affected by Extremism, but also in the form of terrorist attacks and bomb blasts, etc., in various parts of the country and major cities. 24. The Government after due consideration and to deal with such situation proposes to enact a legislation to make provisions for establishment of a National Investigation Agency in a concurrent jurisdiction framework, with provisions for taking up specific cases under specific Acts for investigation, provisions for setting up of Special Courts and or other related matters. 25. Therefore, the National Investigation Agency Bill, 2008 has been placed before the parliament. 26. The bill has been concurred by the majority of the parliamentarians was taken shape of the enactment known as “National Investigation Agency Act, 2008. 27. Further, the purpose of legislating this Act is to facilitate the speedy investigation and prosecution of Scheduled Offences, including those committed outside India against the Indian citizens or affecting the interest of India and to insert certain new offences in the schedule to the Act as Scheduled Offences which adversely affect the national security, it has become necessary to amend certain provisions of the Act therefore, certain amendment has been carved out by way of National Investigation Agency (Amendment) Act, 7 Cr.Appeal No.2168/2023 2019. 28. The aforesaid Act has been acted upon by the constitution of National Investigation Agency. 29. The power has been conferred to the Central Government vis-à-vis the State Government to investigate the Scheduled Offence, as would appear from the provision so made under Chapter-III of the Act, 2008. 30. The trial is mandated to be conducted by the Special Courts as per the provision contained under Chapter-IV thereof. 31. The purpose of constituting the Special Courts is to have the speedy trial without any hindrance, so that, the very object and intent of the Act, 2008, be given full enforceability in order to maintain the integrity of the country. 32. The National Investigation Agency Act has also contains a Schedule as referred under Section 2(1))(f), by which, certain offence has been brought under the purview of the Scheduled Offence, which is being referred as under:- “2(1)(f) “Schedule” means the Schedule to this Act” 33. Section 2(1)(f) deals with the definition of ‘Schedule’ which means the Schedule to this Act and all the scheduled offences as provided under Section 2(1)(g) is to be tried by the Special Court and is to be investigated by the National Investigating Agency as per the provision made under Section 6 thereof, which provides provision conferring power upon the Central Government to take up the investigation to be conducted by the National Investigating Agency on the report if furnished by the State Government, or the Central Government has also got suo motu power to take over the investigation but simultaneous to the aforesaid 8 Cr.Appeal No.2168/2023 provision, Section 10 is also there which confers power upon the State Government to investigate Scheduled Offences also. 34. Thus, it is evident that the very purpose of constituting National Investigating Agency, 2008 is to deal primarily the Scheduled Offences which has got gravity so far as the nature of allegation is concerned including the U.A.(P) Act, Explosive Substance Act etc. 35. The Act, 2008 has been made to be the self- contained act also provided for the forum of appeal as under Section 21 thereof, the said provision starts with the non-obstante clause that 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. 36. Sub-Section (2) of Section 21 provides 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. 37. Sub-section (3) of Section 21 provides that no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court. 38. Sub-section (4) of Section 21 provides that an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. 39. But the rider has been put for filing such appeal either as per the provision as referred under Section 21(1) or Section 21(4) within the period of 30 days from the date of the judgment, sentence or order. 40. Section 21(5) contains two provisos; “the first proviso confers power upon the High Court 9 Cr.Appeal No.2168/2023 with the word 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 appeal within the period of thirty days”. The second proviso is very specific which provides “that no appeal shall be entertained after the expiry of the period of 90 days”. 41. The very purpose of the enactment of the Act, 2008 as referred hereinabove is to provide a forum of trial as also the forum of appeal to conclude the trial of the Scheduled offences, as referred under Section 2(1)(g) of the Act, 2008. 42. The very purpose of constituting the Special Court is to expedite the trial and further the legislation has been made as the provision of Section 21(1) and 21(3) as also the Section 21(4) by which the forum has been provided. 44. Further, in some of the Scheduled Offences for example, the U.A.(P) Act, 1967, there is no provision of pre-arrest bail in view of the specific embargo put under Section 43(D)(5) of the U.A.(P) Act, 1967. Therefore, the legislature has brought some of the Scheduled Offences from the purview of the privilege of pre-arrest bail and hence, in order to consider the propriety of the order passed by the Special Court which pertains to Article 21 of the Constitution of India of a person concerned, who has been taken into custody but such arrayed accused person cannot be in a position to file pre-arrest bail in the circumstances if he has been taken into custody for custodial interrogation and when the prayer for regular bail if being rejected, then the same is to be heard by the 10 Cr.Appeal No.2168/2023 Division Bench. 45. While, carving out such mechanism, the principle as laid down under Article 21 of the Constitution of India has also been taken into consideration. But the law is also settled merely on the ground of Article 21 of the Constitution of India if a person has committed offence which is coming under the fold of the Scheduled Offences, then, the personal liberty will not be allowed to prevail upon the commission of crime in order to maintain the balance and the enforcement of Rule of law in the country. 46. Admittedly, Article 21 of the Constitution of India being the fundamental right is to be preserved of an individual but such preservation depends upon facts to each case and if a person has been found to have committed serious offences like Scheduled Offences, then the question of maintaining Rule of law will be said to be prevailed upon the right to liberty as enshrined under Article 21 of the Constitution of India. 47. The question of declaring the provision of Section 21(5) to be directory and not mandatory is the basic question herein. 48. It is not in dispute that the Section 21(5) contains two provisions, the first proviso which reads hereunder as:- “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:” “49. In the first proviso, the word ‘may’ is there, which according to the appellant, is considered to be directory and not mandatory as per which, the appeal is to be filed within the period of 30 days and if the 11 Cr.Appeal No.2168/2023 sufficient cause will be shown then, the appellate court will have the power to condone the delay. 50. The second proviso is also there which reads as under:- “Provided further that no appeal shall be entertained after the expiry of period of ninety days.” 51. The second proviso stipulates that the appellate court shall not entertain an appeal beyond the period of 90 days. 52. The matter would have been different if Section 21(5) will have with only one proviso, i.e., the first proviso but the same has been added with the second proviso, wherein, the specific provision has been made by putting embargo of not entertaining an appeal beyond the period of 90 days by using the word ‘shall’. 53. The aforesaid two proviso, if read together, then according to the considered view of this Court, Section 21(5), providing the period of limitation to file an appeal within the period of 90 days will be said to be mandatory. 72. This Court, taking into consideration the very object and intent of the Act and reading it together with both the proviso of Section 21(5), is of the view that the aforesaid provision of filing an appeal with the maximum period of 90 days, according to our considered view, is mandatory. 73. This Court has considered the judgments passed by the different High Courts on the issue, i.e., passed by the Kerala High Court in the case of Nasir Ahammed Vrs. National Investigation Agency, reported in 2015 SCC OnLine Ker 39625, wherein, the issue involved in the appeal was that Section 21 of the Act, 2008, the appeal can be filed after expiry of the period of 90 days from the date of judgment, sentence or order and 12 Cr.Appeal No.2168/2023 whether the High Court can condone the delay in filing the appeal under Section 5 of the Limitation Act. 74. The Kerala High Court has answered the said issue by taking into consideration the very object of the Act, as would appear from paragraph-22 thereof and has been pleased to come to the conclusion that Section 5 of the Limitation Act will not be applicable holding the period of limitation of 90 days as provided under Section 21(5) of the Act, 2008 is mandatory, for ready reference, paragraph-22 of the said judgment is being referred as under:- “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 Scheduleddd 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 Scheduleddd offences. Special courts are constituted under S. 1 1 for the trial of Scheduleddd 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 13 Cr.Appeal No.2168/2023 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, 14 Cr.Appeal No.2168/2023 Appeal are dismissed as not maintainable.” 75. The Calcutta High Court has also considered the same issue in the case of Sheikh Rahamtulla & Ors. Vrs. National Investigation Agency, reported in 2023 SCC OnLine Cal 493, wherein, also the issue of filing an appeal under Section 21 of the N.I.A. Act, 2008 beyond 90 days can be condoned under Section 5 of the Limitation Act, 1963. 76. We, after going through the said judgment has found that the Act, 2008 has been considered to be a special law governing proceedings relating to offences which Special Courts recognised under the Act of 2008 and further, by making reference of the settled position of 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, for ready reference paragraphs-67 and 69 of the said judgment are being referred as under:- “67. As has been discussed above, the Act of 2008 is a special law governing proceedings relating to offences which Special Courts recognised under the Act of 2008 are entrusted to decide in relation to offences enumerate it in the Scheduledd to the Act of 2008. 69. 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 15 Cr.Appeal No.2168/2023 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.” 77. The Bombay High Court has also delved upon the same issue as to whether, the appellate court has the power to entertain an appeal filed beyond the period of 90 days in view of the second proviso of Section 21(5) of the Act, 2008. 78. The said issue has been answered by taking into consideration the very spirit of Article 21 of the Constitution of India and came to the conclusion that Section 21(5) cannot be held to be mandatory otherwise the same will lead to travesty of justice. Such conclusion has been arrived at that if the provision of Section 21(5) will be said to be mandatory, the same will lead to travesty of justice. 79. The Delhi has taken the same view as has been taken by the Bombay High court in the case of Farhan Shaikh Vrs. State (National Investigation Agency), reported in 2019 SCC OnLine Del 9158. 80. At this juncture it will profitable to discuss the settled connotation of law that the judgment passed by the different High Courts is not having binding effect rather it is persuasive in nature and it is also settled position of law that if a High Court is not concurring with the view of the different High Courts or another High Court, then a reason is required to be assigned by the concerned High Court as to why the judgment rendered by the another High Court is not having the persuasive value, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Pradip J. Mehta v. Commissioner of Income Tax, Ahmedabad, (2008) 14 SCC 283, wherein, at 16 Cr.Appeal No.2168/2023 paragraph-23, it has been held which reads as under:— “23. Although, the judgments referred to above were cited at the Bar in the High Court, which were taken note of by the learned Judges of the Bench of the High Court, but without either recording its agreement or dissent, it answered the two questions referred to it in favour of the Revenue. Judicial decorum, propriety and discipline required that the High Court should, especially in the event of its contra view or dissent, have discussed the aforesaid judgments of the different High Courts and recorded its own reasons for its contra view. We quite see the fact that the judgments given by a High Court are not binding on the other High Court(s), but all the same, they have persuasive value. Another High Court would be within its right to differ with the view taken by the other High Courts but, in all fairness, the High Court should record its dissent with reasons therefor. The judgment of the other High Courts, though not binding, have persuasive value which should be taken note of and dissented from by recording its own reasons.” 81. We are now proceeding to examine the judgment rendered by the different Courts, i.e., the Bombay High Court, Kerala High Court, Calcutta High Court and Delhi High Court, as to whether which judgment has got persuasive value for the purpose of issue involved herein. 82. We, after going through the judgments passed by the Kerala High Court, Calcutta High Court, Bombay High Court and Delhi High Court, have found that the Bombay High Court and Delhi High Court had considered that if the appeal will not be allowed to file beyond the period of 90 days, it will lead to travesty of justice and ultimately, it will be in the teeth of Article 21 of the Constitution of India. 83. But, we are in respectful disagreement with the 17 Cr.Appeal No.2168/2023 said view on the basis of the reason that if the statutory mandate has provided a provision to file an appeal within the maximum period of 90 days, then the appeal is to be filed within the maximum period of 90 days and in these circumstances, if a person is in custody in course of investigation or in custody after the judgment of conviction, then the appeal if required to be filed within the maximum period 90 days that will lead to achieve the very object and intent of Article 21 of the Constitution of India. It is for the reason that if there is any perversity in the judgment of conviction or any order which is adversely affecting the individual concerned, then the same is to be filed immediately within the specific period. 85. The judgment rendered by the Kerala High Court, according to our considered view, will have the persuasive value due to the following reasons:- (i) If The principle to condone the delay under Section 21(5) is based upon the sufficient cause, then in such circumstances, if a person has been convicted under the Scheduled Offence, then he will file an appeal even after inordinate delay by giving justification of sufficient cause for condoning the delay, then what will happen to the very object and intent for the purpose for which, the Act has been enacted. (ii) Further, when the individual claiming the fundamental right of liberty as enshrined under Article 21 of the Constitution of India, if not filed an appeal, within the maximum period of 90 days then in such circumstance the said individual cannot be allowed to take plea of the violation of the spirit of Article 21 of the Constitution, for the reason that when the statute itself taken into consideration the fact that the appeal is to be filed within the maximum period of 90 days so that the issue be decided by the appellate court, will be said to be 18 Cr.Appeal No.2168/2023 consideration of Article 21 of the Constitution of India and if the appeal will be filed beyond the period of 90 days, how can such individual be allowed to take the plea of violation of Article 21 of the Constitution of India. (iii) It is, thus, evident that the twin test in order to achieve the object of the Act on the one hand and to secure the principle of Article 21 of the Constitution of India, will be said to be fulfilled only when the act will be read in entirety and the same will be said to be achieved its intent, if the due adherence is to be given to the statutory provision. (iv) The period of 90 days which has been provided to file an appeal is for the purpose of providing an opportunity to the aggrieved to prefer an appeal so that an opportunity be available at an early date to look into the perversity if available in the impugned order or judgment or sentence or the order rejecting the prayer for bail, so as to achieve the 86. This Court, therefore, is of the view that the provision as contained under Section 21(5) of the Act, 2008 mandating to file an appeal within the maximum period of 90 days, will be said to achieve the very purpose of Article 21 of the Constitution of India for the sufferers. 87. This Court, on the basis of the discussion made hereinabove, is in due agreement with the view taken by the Kerala High Court and the Calcutta High Court. 88. Further, the judgment passed by the Bombay High Court and Delhi High Court, is according to the considered view of this Court and with all due respects to the concerned High Courts, is of the view that the aforesaid judgments are not being considered to have the persuasive value due to the reason, upon which, the judgments passed by the Kerala High Court and Calcutta 19 Cr.Appeal No.2168/2023 High Court have been accepted to have the persuasive value as per the reason referred hereinabove. 89. It also requires to refer herein that in course of hearing, it has been informed at Bar that the judgment passed by the Delhi High Court has been kept in abeyance by the Hon’ble Apex Court. 90. We, on scrutiny of the same, have found that the judgment passed by the Delhi High Court has been kept in abeyance by the Hon’ble Apex Court vide order dated 02-12-2019 passed in Special Leave Petition (Criminal) Diary No(s). 41439/2019. 91. Accordingly, and based upon the discussion made hereinabove, this Court is of the view that office note raising the objection of maintainability of the instant appeal in view of the fact that the appeal has been filed after expiry of maximum statutory period of 90 days, is hereby sustained. 92. In the result, the instant appeal fails and is dismissed on the ground of maintainability.” 21. This Court, in view of the aforesaid discussion, as has been made hereinabove as also the similar issue involved herein has already been decided in Cr. Appeal (DB) No.1961 of 2023, therefore, is of the view that the instant appeal deserves to be dismissed on the ground of maintainability. 22. Accordingly, the instant appeal fails and is dismissed on the ground of maintainability. 23. In consequence thereof, I.A. No.278 of 2024 stands disposed of. (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Rohit/-A.F.R. "