Prohibition On Entertaining Appeal Beyond 90 Days Under NIA Act Is "Justice Bar," Must Apply Equally To Accused And Agency: Telangana HC

The Telangana High Court on Friday observed that the statutory bar on filing an appeal against a decision beyond 90 days under the National Investigation Agency (NIA) Act can be termed the "Justice Bar", adding that the doors of justice cannot be selectively shut to a few especially where life and liberty are at stake. 

The observations were made while the high court was considering whether appeals challenging the trial court's orders could be allowed after the expiry of the statutory period stipulated under section 21 of the NIA Act. For context, Section 21 pertains to the filing of appeals, wherein the second proviso to 21(5) states that "no appeal shall be entertained after the expiry of the period of ninety days”.

A division bench of Justice Moushumi Bhattacharya and Justice Nagesh Bheemapaka in its order observed, "The perceived statutory bar against extension of timelines as contained in section 21(5) of the NIA Act, read with the first and second provisos, beyond 90 days from the date of the judgment/order, may be described as a “Justice Bar” to filing of Appeals beyond the statutory window or - more appropriately -the “Bar to Justice” when inconsistently applied. The timeline must be applied to one and all in equal measure irrespective of whether the appellant is an accused or an “Agency” as constituted under section 3 of the NIA Act". 

"The 'Justice Bar' cannot be stretched or curtailed at will and must remain of equal length regardless of the litigant at both ends of the spectrum. The doors of justice also cannot selectively be shut to a few and not to others particularly where the life and liberty of the accused is at stake. If justice can be likened to the consistency of a pendulum, the certainty of the motion cannot be reduced to a whimsical swing for self-serving reasons," the bench underscored. 

The bench further observed that Section 21 is an "entity-neutral provision" and provides for the mechanism of filing of Appeals. The court said that the provision does "not differentiate" between an accused and the “Agency” (NIA) and simply provides for the forum, the constitution of the forum and the timeline within which the Appeal is to be filed.

The bench thereafter said that it was "perplexing" to find that the NIA had construed section 21(5) of the NIA Act according to its "convenience and taken diametrically-opposite stands to suit its purpose". 

Background

The observation came while the court was hearing a plea moved by an accused seeking condonation of delay of 390 days in filing the Criminal Appeals against February 2023 orders of the Additional Metropolitan Sessions Judge-cum-Special Court for NIA Cases. The special court had dismissed the bail of three accused persons for default. The appellant-accused before the high court argued that section 5 of The Limitation Act should be read into section 21(5) of the NIA Act.

Meanwhile, the NIA argued that Section 21(5)  itself provides for condonation of delay and hence any further extension of the time limit would be contrary to the object of a special statute like the NIA Act.

For context, Section 5 Limitation Act permits applications and Appeals under Order XXI CPC to be admitted after the prescribed period of limitation if the Court is satisfied with the sufficiency of cause shown by the applicant/appellant in not moving the Appeal or application within the prescribed period. 

Findings

The bench said that the issues pertaining to the statutory timeframe for filing of Appeals under section 21, each and every argument made by the agency against allowing the delay pleas had already been reversed before the Jammu & Kashmir High Court and the Chattisgarh High Court in two cases. The bench noted that in both these cases where NIA was the appellant it was permitted by the two other high courts to file their appeals beyond the statutory timelines. 

The bench said that does not wish to sermonize on the sanctity of the laws framed by the Legislature, however "equal application of the laws regardless of standing and privilege is the grundnorm" and its selective application is bound to "impinge on the rights guaranteed under the Constitution". 

"Curiously enough, in the decisions shown to us, the Courts decided that the right of Appeal is an indispensable part of the right to life and liberty under Article 21 of the Constitution. We also find it necessary to add Article 14 of the Constitution that is, the right not to be discriminated against, as being an inalienable right of every person given the flip-flop 11 on the part of the NIA and the inconsistent rulings of the Courts in respect of section 21(5) of the NIA Act. Equality before the law and equal protection of the laws within the territory of India is as fundamental and inviolable as Article 21 of the Constitution which protects a person from being deprived of his/her life or personal liberty except according to the procedure established by law," the bench emphasized. 

On Section 5 Limitation Act the bench said that its application cannot be wished away from a reading of the provisos under section 21(5) NIA Act. It further said that it had not been shown any Supreme Court decision which had conclusively settled that the timeframe under section 21(5) NIA Act, read with the provisos, cannot be extended or that section 5 of The Limitation Act cannot be read into the former. 

"We are in any event satisfied with the sufficiency of the cause shown by the petitioner in I.A.No.1 of 2024 and we are persuaded to hold that the delay in filing of the Appeals should be condoned. We accordingly hold that the Appeals are maintainable," it said.  

Allowing the condonation of delay applications the bench condoned a delay of 390 days in filing the appeals. The court however clarified that its decision will be subject to the judgment/order pronounced by the Supreme Court in an SLP concerning the extension of time under section 21(5) NIA Act read with the provisos.

"We have been shown The State of Uttar Pradesh v. Sarfaraz Ali Jafri (Special Leave Petition (Criminal) Diary No(s). 5217/2024), where the Supreme Court noted that pendency of proceedings before the Supreme Court shall not operate as a stay on any proceedings before the High Court," the bench noted. 

Case title: Samiuddin @ Sami v/s State

I.A.No.1 of 2024 in Crl.A.No.421 of 2024 and I.A.No.1 of 2024 in Crl. A. No.425 of 2024

Counsel for petitioner: Advocate Shaik Mohammed Rizwan Akhtar

Counsel for NIA: Special Public Prosecutor for NIA Sri P. Vishnuvardhana Reddy

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