Section 5 of Limitation Act applicable to Appeal against order of granting or dismissal of bail under NIA Act: Calcutta HC [Read Judgment]

In a significant decision, the Division Bench of the High Court of Calcutta, comprising Justice Aniruddha Bose and Justice Sankar Acharyya, contrary to the argument of the counsel for the National Investigation Agency, held that Section 5 of the Limitation Act, 1963 is applicable in the appeal filed under section 21 of the NIA Act, which provides for filing appeal to the High Court against the order of granting or dismissal of bail applications. The Court also observed in the appeals filed by the accused alleged to have been involved in extremist activities being the members of the banned Communist Party of India (Maoist), that the time taken for getting the certified copy of the order has to be excluded from the period of thirty days. Section 21 of the NIA Act stipulates that the appeals are to be filed within 30 days of the date of such order. The offenses alleged against them, inter alia, are Section 18, 20, 40(1)(b) (c) of the Unlawful Activities (Prevention) Act, 1967. The Court observed hereunder:

Thirty days’ time prescribed by the legislature in Section 21(5) of the 2008 Act, within which an appeal can be preferred, is intended to give a potential appellant time for decision making and completion of preparation for instituting the appeal. Time taken for obtaining the certificate copy ought to be deducted from the prescribed period of thirty days, as without the certified copy, the potential appellant would not be in a position to take an informed decision as to whether an appeal would be preferred or not.

Section 21 of the NIA Act also provides for filing the appeal beyond the period of thirty days in case there is sufficient cause for not filing within the stipulated time. The Court has observed that the time consumed for getting the certified copy need not be included in considering the reason for the ‘sufficient cause’ for not filing the appeal within thirty days; as such a ground would make the consideration of appeal a discretionary one. The Court observed that: 

Now if a potential appellant is to apply to the appellate forum in substance for leave to maintain the appeal with prayer for treating the time lost in obtaining certified copy as “sufficient cause”, then he would lose his substantive right to appeal. It would be then within the discretionary jurisdiction of the appellate forum to decide whether to permit filing of the appeal or not. That would defeat the legislative intent.

However, the Court has dismissed the appeals, as Section 43D of the UA (P) Act makes complete ban on granting bail, when there is prima facie evidence against the accused and there were sufficient materials for constituting the accusation against the appellants to be prima facie true.

Read the Judgment here.