# Sarfaraz Ali Jafri v. State of U.P

- **Citation:** (2023) 5 ILRA 454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Criminal Appeal Defective No. 124 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarfaraz-ali-jafri-v-state-of-u-p-50223
- **Pages:** 6

## Headnote

Civil Law - National Investigation Agency
Act, 2008-Section 21-Appeal filed after delayArticle 21 of the Constitution cannot be silenced
under any circumstance-any statutory restriction
is subservient to the mandate of part-III of the
Constitution-section 21 mandates the High
Court to decide every appeal filed under subsection (1) , whereas IInd proviso appended to
sub-section (5) oust the jurisdiction of the High
Court beyond 90 days-two provisions had to
read harmoniously.

Application
for
condonation
of
delay
allowed. (E-9)

List of Cases cited:

## Text

454 INDIAN LAW REPORTS ALLAHABAD SERIES
या धमकी नहीं देर्ा न ही उनसे कोई वायदा
करेर्ा, ण्जसके कारर् उन्हें न्यायालय में र्थ्यों
को उजार्र करने से ववरर् रहना पिे
ी़
।

उपरोक्र् शर्ों में से ककसी के
उल्लंघन के मामले में, परीक्षर् न्यायालय
आवेदक की जमानर् यनयमानुसार रद्द करने
को स्वर्ंत्र है।

10. यह बहुर् ही आश्चयतजनक है कक
कधर्र् पीडड़र्ा ददनांक 12.01.2016को अवर
न्यायालय में पक्षद्रोही हो र्यी र्र्ा अवर
न्यायालय में यह वाद ववर्र् 9 वषों से ववचारर्
में चल रहा है, अभी र्क सत्र परीक्षर् का
यनस्र्ारर् नहीं हुआ है। इस ववलंब का
खालमयाजा आवेदक को भुर्र्ना पड़ रहा है।
जबकक न्याययक प्रकक्रया का लसंद्धार् है कक सौ
अपराधी भले छूट जाय, ककंर्ु एक यनदोष
व्यण्क्र् को सजा नहीं होनी चादहए। इसललए
मामले के र्थ्यों एवं पररण्स्र्यों को देखर्े हुए
अवर न्यायालय को यनदेलशर् ककया जार्ा है कक
इस मामले से संबंधधर् सत्र परीक्षर् का
यनस्र्ारर् ददन प्रयर् ददन सुनवाई के आधार पर
आज से 06 माह के अंदर करना सुयनण्श्चर्
ककया जाय।
----------
(2023) 5 ILRA 454
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.05.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Criminal Appeal Defective No. 124 of 2023

Sarfaraz Ali Jafri ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Ajeet Pratap Singh, Zia Ul Qayuim

Counsel for the Respondent:
G.A.

Civil Law - National Investigation Agency
Act, 2008-Section 21-Appeal filed after delayArticle 21 of the Constitution cannot be silenced
under any circumstance-any statutory restriction
is subservient to the mandate of part-III of the
Constitution-section 21 mandates the High
Court to decide every appeal filed under subsection (1) , whereas IInd proviso appended to
sub-section (5) oust the jurisdiction of the High
Court beyond 90 days-two provisions had to
read harmoniously.

Application
for
condonation
of
delay
allowed. (E-9)

List of Cases cited:

1. National Investigation Agency through its
Chief Investigating Officer, Jammu versus 3rd
Additional Sessions Judge District Court Jammu
& Delhi High Court in the case of Farhan Shaikh
versus
St.(National
Investigation
Agency)
reported in 2019 SCC OnLine Del 9158

2. Nasir Ahmad Vs National Investigation
Agency 2015 SCC Online Ker 39625

3. Sheikh Rahamtulla & ors. Vs National
Investigation Agency reported in 2023 SCC
Online Cal 493.

4.
In
Re
Provision
of
Section
14A
of
SC/ST(Prevention of Atrocities Amendment Act,
2005 versus Nil along with other connected
matters in Criminal Writ Public Interest Litigation
No. 8 of 2018

5. St.(NIA) versus Farhan Shaikh-Special Leave
Petition(Criminal) Diary No(s). 41439 of 2019 on
2.12.2019.

6. Messrs. Mela Ram & Sons Vs Commissioner
of Income Tax, Punjab, 1956 SC 367 AIR

7. U.O.I. Vs K.A. Najeeb reported in (2021)3
SCC 713
5 All. Sarfaraz Ali Jafri Vs. State of U.P.
455
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Mr. Ajeet Pratap Singh and
Sri Zia Ul Qayuim learned counsel for the
appellant and learned A.G.A. for the State.

2. The delay in filing the present
appeal was wrongly reported by the Stamp
reporter. A fresh report on the delay was
called for and as per the corrected report
marked on the back of page no. 7 of the
memo of appeal, the appeal is delayed by
368 days.

3. This Court on the objection of
delay raised in Criminal Appeal Defective
No. 214 of 2022 while disposing of the
delay condonation application by order
dated 4.4.2023 observed as under :-

"Learned
counsel
for
the
respondent in reply to the application for
condonation of delay has pointed out that
there is a statutory bar appended in the 2nd
proviso to Section 21 (5) of the National
Investigation Agency Act, 2008 not to
entertain any appeal beyond the expiry of
90 days.

Suffice it to say that the right to
life and personal liberty guaranteed under
Article 21 of the Constitution of India
cannot be restricted and abridged on the
strength of a procedural provision which is
to serve the purpose of law. Such a bar is
not
absolute,therefore,
we
are
not
convinced to reject the appeal on the
ground of limitation particularly when the
right of personal liberty is to be agitated
through an appeal only as against the
judgment, sentence or order".

The impugned order giving rise
to the present appeal was passed on
22.3.2022, which was received on behalf of
the appellant on 23.3.2022, yet the appeal
has been filed after a delay of one year. The
plea that a recently filed application for
correction of the impugned order was
disposed of on 19.4.2023 is unconvincing
as the application itself was filed beyond
the period of 90 days and secondly, the
correction of any typographical mistake
will relate back to the date when the order
was initially passed, therefore, it shall be of
no help against the statutory objection
raised.

4. Right to appeal for protection of a
right guaranteed under Article 21 of the
Constitution of India is concomitantly an
essential part of right to fair trial and one of
the basic structure of our Constitution. The
bar contemplated under the second proviso
appended to Section 21(5) of the Act, 2008,
according to the State, is intended to oust
the jurisdiction of this Court by the
Damocles sword of delay, however the said
deprivation
of
a
fundamental
right
juxtaposed to law of limitation is the larger
question of public importance that has
surfaced before this Court in the present
appeal. The precisely worded order passed
by this Court on 4.4.2023, mentioned
above, does not approve of the bar in
absolute terms.

5. There are conflicting views on the
point as is reflected in the judgment
rendered by the High Court of Jammu and
Kashmir
in
the
case
of
National
Investigation Agency through its Chief
Investigating Officer, Jammu versus 3rd
Additional Sessions Judge District Court
Jammu and Delhi High Court in the case
of Farhan Shaikh versus State(National
Investigation Agency) reported in 2019
SCC OnLine Del 9158 viz a viz Kerala
High Court in the case of Nasir Ahmad vs.
National Investigation Agency reported
in 2015 SCC Online Ker 39625 and
Calcutta High Court in the case of Sheikh
456 INDIAN LAW REPORTS ALLAHABAD SERIES
Rahamtulla and others versus National
Investigation Agency reported in 2023
SCC Online Cal 493.

6. This Court in the order extracted
above passed in Criminal Appeal Defective
No. 214 of 2022 has taken a view in line
with the sanctity of Article 21 of the
Constitution of India and keeping in view
the ratio decidendi of the full Bench
Judgment rendered by this Court in the case
of In Re Provision of Section 14A of
SC/ST(Prevention
of
Atrocities
Amendment Act, 2005 versus Nil along
with
other
connected
matters
in
Criminal Writ Public Interest Litigation
No. 8 of 2018.

7. It is to be noted that the full Bench
Judgment of this Court passed in the case
of In Re Provision of Section 14A of
SC/ST(Prevention
of
Atrocities
Amendment Act, 2005 versus Nil along
with
other
connected
matters
in
Criminal Writ Public Interest Litigation
No. 8 of 2018 does offer support to our
view of reading the procedure fairly but in
absence of a challenge to the statutory bar
enacted under the IInd proviso appended to
Section 21(5) of the NIA Act, 2008, by any
party till date, the State has reiterated its
stand by laying emphasis on the judgments
rendered by Calcutta and Kerala High
Courts as well as the interim stay order
passed by the Apex Court in the case of
State(NIA) versus Farhan Shaikh-Special
Leave Petition(Criminal) Diary No(s).
41439 of 2019 on 2.12.2019.

8. It is true that the right to life and
personal liberty as embodied under Article
21 of the Constitution of India conferred to
the citizenry is fundamental but the security
of the State is of equal paramount
significance. The former is guaranteed to
the people as fundamental, whereas, the
later is an essential facet of duty which the
welfare State owes to the collective
peaceful existence of people within a
sovereign State.

9. This Court under the changed
circumstances would have relegated the
matter back to the trial court for fresh
consideration of bail but on a careful
consideration of the legal provisions, the
impugned order being a final order under
the NIA Act is amenable only to the
appellate jurisdiction of this Court, as the
power to review/reconsider is not conferred
upon the trial court. The bar akin to Section
362 Cr.P.C., therefore, operates for want of
an enabling provision to review. Resorting
to the recourse of remedy under Article
226/227 of the Constitution of India or
inherent powers of this Court, in ordinary
circumstances, is discouraged due to
availability of the appellate remedy as has
been well discussed in the full Bench
Judgment of this Court mentioned supra.
The answer to question B in the full Bench
judgment makes the point clear and the
same is reproduced below :-

"B. Whether in view of the
provisions contained in Section 14-A of the
Amending Act, a petition under the
provisions of Article 226/227 of the
Constitution of India or a revision under
Section 397 of the Code of Criminal
Procedure (in short 'Cr.P.C.) or a petition
under Section 482 Cr.P.C., is maintainable.
OR in other words, whether by virtue of
Section 14-A of the Amending Act, the
powers of High Court under Article
226/227 of the Constitution or its revisional
powers or the powers under Section 482
Cr.P.C. shall stand ousted ?"

At the outset, our answer to the
first part of the question is in the negative.
5 All. Sarfaraz Ali Jafri Vs. State of U.P.
457
In other words, where an appeal under
sub-section (1) and/or sub-section (2) of
Section 14A of the Amending Act is
maintainable
against
any
judgment,
sentence or order, not being interlocutory
in nature, a petition under the provisions of
Articles 226/227 of the Constitution of
India or a revision under Section 397
Cr.P.C. or a petition under Section 482
Cr.P.C. would not be maintainable. We
deal with this question bearing in mind our
opinion on the first question. In other
words, we deal with this question conscious
that the powers of this Court to entertain
an appeal even after expiry of the period of
180 days from the date of the judgment,
sentence or order appealed from, if it is
satisfied that the appellant had sufficient
cause for not preferring the appeal within
the said period are retained".

Moreover,
this
Court
lacks
concurrent jurisdiction for grant of bail
under the NIA, Act like under Section
439/438 Cr.P.C. and the power is conferred
to this Court through appellate jurisdiction
alone. Thus, the embargo of limitation of
90 days virtually renders an aggrieved
person remediless which in the matter of
rights guaranteed under Article 21 of the
Constitution of India cannot be weighed
lightly. Deprivation of a right guaranteed
under Article 21 of the Constitution of
India through procedure is not the purpose
of law and the right to life and personal
liberty, in ordinary circumstances, cannot
be irrationally barred even for a sufferer
who seems indolent. The Court in this
regard would hasten to take note of the
Supreme Court decision reported in 1956
SC 367 AIR(Messrs. Mela Ram & Sons
versus Commissioner of Income Tax,
Punjab). Bar on a remedy does not deprive
a person of his rights is the ratio decidendi
of the above judgment.

10. In a recent decision rendered by
Hon'ble the Apex Court in the case of
Union of India versus K.A. Najeeb
reported in (2021)3 SCC 713, it would be
profitable to extract para 17 which for
ready reference reads as under :-

17. It is thus clear to us that the
presence of statutory restrictions like
Section 43-D(5) of UAPA per-se does not
oust the ability of Constitutional Courts to
grant bail on grounds of violation of Part
III of the Constitution. Indeed, both the
restrictions under a Statute as well as the
powers exercisable under Constitutional
Jurisdiction can be well harmonised.
Whereas at commencement of proceedings,
the courts are expected to appreciate the
legislative policy against grant of bail but
the rigours of such provisions will melt
down where there is no likelihood of trial
being completed within a reasonable time
and the period of incarceration already
undergone has exceeded a substantial part
of the prescribed sentence. Such an
approach would safeguard against the
possibility of provisions like Section 43D(5) of UAPA being used as the sole metric
for denial of bail or for wholesale breach
of constitutional right to speedy trial".

The position in the case at hand is
somewhat similar. Defeating the right to
appeal within the scope of procedure as
postulated
under
the
second
proviso
appended to Section 21(5) of the NIA Act,
even if it is understood that the same does
not render an aggrieved party altogether
remediless, due to the remedy available
under Article 136 of the Constitution of
India i.e. the appellate jurisdiction of the
Supreme Court against a judgment or order.
However, if the Hon'ble Apex Court within
exercise of its appellate jurisdiction can go
into the adjudication of the surviving rights
protected
under
Article
21
of
the
458 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India, the ouster of High
Court jurisdiction due to the bar of
limitation of 90 days imposed by the statute
is far from fair and reasonable, especially
when the Hon'ble Apex Court has held in
K.A.
Najeeb
case(supra),
that
the
presence of statutory restriction perse does
not oust the ability of Constitutional Courts
to grant bail on grounds of violation of Part
III of the Constitution.

11. This Court cannot be oblivious of
the fact that the law relating to limitation is
procedural in nature, whereas the law
relating to right of Appeal, even though
remedial is substantive in nature. Section
21 of the NIA Act, 2008 is reproduced
below :-

21 Appeals. - (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 subsection (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.

The appeal as a remedy by virtue
of Section 21(1) of NIA Act, 2008 enables
this Court to go into both issues of
questions of fact and law. Moreover, the
NIA Act, 2008 takes special care of
expediency while providing for the disposal
of appeals within three months from the
date of admission, therefore, the intention
of legislature to defeat the purpose of law
and the right to personal liberty under the
cloak of limitation period could not be the
essence and spirit of the rule of law and the
legislature would ordinarily not have
intended to defeat the sanctity of Article 21
of the Constitution of India on that account.
The process of law in the matter of Article
21 of the Constitution of India under any
circumstances, irrespective of the form in
which remedy is provided, cannot be
silenced and that is how it is a part and
parcel of the basic structure of the
Constitution of India inclusive of fair
procedure. The question of challenge to a
statutory provision does not arise for it is
well settled that any statutory restriction is
subservient to the mandate of part-III of the
Constitution of India and no part of it can
be read to override the sanctity and essence
of Article 21 of the Constitution of India in
particular.

12. Further, it is also interesting to
note that Section 21(2) of the NIA Act,
2008 mandates the High Court to decide
'every' appeal filed under Sub-section(1),
whereas, IInd proviso appended to Subsection(5) ousts the jurisdiction of the High
5 All. Ram Ratan & Ors. Vs. State of U.P.
459
Court beyond 90 days, therefore, the two
provisions have to be read harmoniously.
Needless to say that every appeal brought
to the High Court can only be decided on
merit provided the provision of limitation is
understood not to oust the power of this
Court to condone the delay. Any other
interpretation of the provision would not
only do violence to the rights guaranteed
under Part III of our Constitution, but
would also be at variance with the
fundamental right of personal liberty,
which lies at the heart of the notion of a fair
procedure guaranteed under Article 14 and
21 of our Constitution.

13. In the result, we have no
hesitation to put on record that the rejection
of the objection raised by the State in our
order dated 4.4.2023 is nothing but a fair
and harmonious reading of the proviso. The
reasoning advanced and strengthened by
the High Court of Jammu and Kashmir in
the case of National Investigation Agency
through its Chief Investigating Officer,
Jammu versus 3rd Additional Sessions
Judge District Court Jammu proceeds in
furtherance of the object and sanctity of
Article 21 of the Constitution of India and
is harmoniously balanced between an
individual right of a citizen with the interest
of the State to secure law and order for its
citizen.

14. In any view of the matter, the
Apex Court being seized of the issue in the
case of State (NIA) versus Farhan Sheikh
would soon resolve the conflicting opinions
and settle the law on the point.

15. Until an authoritative view is
pronounced by the Supreme Court of India,
the order passed by this Court on 4.4.2023
in our considered opinion, is the good law.
Accordingly,
the
application
for
condonation of delay is allowed. The
appeal may be registered and assigned a
regular number.

16. Admit.

17. Let the objection be filed within
two weeks.
----------
(2023) 5 ILRA 459
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 234 of 1981
And
Government Appeal No. 748 of 1981
And
Criminal Revision No. 261 of 1981

Ram Ratan & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.V. Goshwami, Sri A.M. Tripathi, Sri
Rajeev
Goswami,
Sri
Sudhir
Kumar
Kulshrestha, Sri Suresh Chandra Tripathi

Counsel for the Respondent:
D.G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 374(2) - Indian Penal
Code, 1860-Sections 148 - 302/149Challenge
to-Conviction-
the
autopsy
report of the deceased wherein incised
wounds along with punctured wounds and
abrasions have been found on the body of
the deceased ,doctor P.W.3 has opined
that the injuries to the deceased were
probably caused by use of spade and
spear hence, the weapon carrying by the
accused was used in the commission of
the crime hence, ocular version is fully