NIA Act, 2008-Supreme Court To Consider Plea By Kin Of 2007 Mecca Masjid Mosque Bomb Challenging Proviso To Section 21(5)

The Supreme Court today considered the Special Leave Petition filed by the kin of 2007 Mecca Masjid Mosque Bomb blast seeking to declare proviso to section 21(5) of the NIA Act, 2008  as arbitrary, illegal and violative of Article 14 and 21 of the Constitution of India.

The bench of Justices SK Kaul and MM Sundresh while granting leave in their order said,

"Applications for exemption from filing C/C of the impugned judgment and exemption from filing affidavit are allowed. Leave granted. Tag with Criminal Appeal Nos.1824-1826/2019."

Senior Advocate Nitya Ramakrishnan appeared for the petitioner and the SLP was drafted by Advocate on Record Prasanna S.

Under the impugned provision, an appeal can be preferred before the High Court within a period of 30 days from the date of judgment, sentence, or order passed by the Special NIA Court. The High Court may entertain the appeal after the expiry of the period of 30 days if it is satisfied that the appellant had a sufficient cause for not preferring the appeal but no appeal can be entertained after the expiry of the period of 90 days.

Preferred by the victim's father and wife, the petitioners had assailed Telangana High Court's order dated April 26, 2021 in which the High Court had dismissed the petitioner's writ assailing the impugned provision.

It was argued in the SLP that the Impugned provision violated Article 21 by placing unreasonable restrictions on the right of appeal and that the window of 90 days was too narrow to be considered reasonable and does not allow the right to a first appeal to be exercised in its true spirit.

"A plain reading of the provision shows that the right to a first appeal against any Impugned Order or Judgement or sentence is entirely extinguished when the 90 days period lapses/expires. The impugned proviso of Section 21(5) of the N.I.A. Act, 2008, considerably dilutes the inherent power of the Court. The Court has been vested with the power to secure the ends of justice. The Constitutional Scheme envisages an independent and free judiciary that may exercise this power as per its discretion. Condonation of delay is essential to this power. The High Court also exists as a court of appeal; this jurisdiction cannot be impeded upon or excluded by any legislation," the petition stated.

Telangana High Court Order

The petitioners had preferred an appeal before the High Court assailing the order of Special NIA Court dated April 16, 2018 wherein the Trial Court had acquitted 5 accused(s) when they got to know that the NIA had not preferred an appeal against acquittal.

The same was however dismissed by the High Court since N.I.A. took the objection that the appeal was not maintainable since there was a delay of 97 days.

Accordingly, the petitioners filed a writ petition challenging the constitutionality of the impugned provision which was dismissed by the High Court on April 26, 2021. While dismissing the High Court had directed the Petitioner to wait for the decision of the Top Court in State (National Investigation Agency) Versus Farhan Shaikh vide Criminal Appeal no. 1824-1826/2019.

Case Title: Osman Shareef & Anr. V. Union Of India & Ors.| SLP(Crl) No. 9840/2021

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