Is 90-Day Limitation For Appeal Under Sec.21(5) NIA Act Directory Or Mandatory? Supreme Court To Settle Conflicting Views Of HCs

The Supreme Court on Friday (April 5) agreed to decide the issue whether the upper limit of 90 days prescribed under Section 21(5) National Investigation Agency Act to file appeal against an order of the trial court  is directory or mandatory.

The Court noted that there are conflicting opinions rendered by the High Courts on this point.

The bench led by CJI DY Chandrachud comprising Justices JB Pardiwala and Manoj Misra was hearing a challenge by the State of Uttar Pradesh against the decision of Allahabad High Court condoning a delay of 368 days in filing an appeal under S.21(4) of the NIA Act.

The Court observed :

"There is a divergence of views between different High Courts. While the High Courts of Allahabad, Bombay, J&K and Ladakh and Delhi have held that the 90-days' time limit is directory, a contrary view is taken by the High Courts of Calcutta and Kerala." 

S. 21(4) of the NIA Act provides that notwithstanding the law under S. 378 of the CrPC (appeal in case of acquittal), an appeal can be made to the High Court against the order of the Special Court regarding grant or refusal of bail. 

The time limit for such appeals is prescribed under S. 21(5) as following : 

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  

Directory v. Mandatory Interpretation By High Courts - Understanding The Differing Views  

While some High Courts of  Bombay, Delhi, J&K &Ladakh, Madras, Allahabad have read the expression "shall" under S. 21(5) of NIA Act as directory, the High Courts of Calcutta and Kerala have ruled to construe the provision as mandatory in nature.  

Recently the Madras High Court bench of Justice MS Ramesh and Justice Sunder Mohan read the proviso under S. 21(5) NIA Act to be directory in character by interpreting "shall" as "may".

The bench observed that the right of appeal against conviction and the appeal against rejection of bail is a fundamental right and a procedural law could not extinguish a fundamental right. Thus, it was of the opinion that reading the proviso to be directory in nature would be necessary for preserving substantial rights of personal liberty.  

"When a right of an appeal against conviction is a fundamental right, there cannot be any doubt that the right to file an appeal against the rejection of bail is also a fundamental right. A procedural law cannot be allowed to extinguish a fundamental right,” the court observed.

In September 2023, Bombay High Court held that an appeal against a trial court's order can be entertained by the appellate court even after the lapse of statutory period of 90 days under Section 21(5) of the National Investigating Agency (NIA) Act, 2008. The division bench of Justices Revati Mohite Dere and Gauri Godse read down the 2nd proviso to Section 21 (5) of the NIA Act and allowed an application filed by a terror accused seeking to condone the delay of 838 days in filing his bail appeal in High Court. 

The High Court in ruling so, observed : 

"Courts exist to do justice. Access to justice is a fundamental right and cannot be diluted. If despite 'sufficient cause' being shown, if an appeal under Section 21(5), 2nd proviso cannot be entertained, this would lead to depriving an accused of his fundamental right guaranteed to him under Article 21 of the Constitution." 

“If the provision were to be held mandatory…the doors of justice will be shut, leading to the travesty of justice, which cannot be permitted by Courts of Law,”  

A similar view is also taken by the Delhi High Court in its decision in Farhan Shaikh v State (National Investigation Agency), where the Court took a liberal approach in extending the time period for appeal beyond 90 days. Allowing a delay of 44 days beyond the 90-day prescription, the Court held that there was no prejudice caused to the State and that sufficient cause exists in allowing the case. 

"93. We ask ourselves, what is the advantage to be gained by the appellant in delaying the filing of the appeal? At the same time, what is the prejudice suffered by the State on account of this delayed filing of the appeal? The answer to both these questions is “None”. The delay in filing the appeal is not so grave that the respondents could claim that it has destroyed its record. That is not even a plea taken by the respondent. It is the appellant, who continues to suffer incarceration. Therefore, it is he, who has suffered prejudice on account of his own delay. The respondent has not suffered any prejudice due to the said delay." 

On the other hand, the Kerala High Court in Nasir Ahammed v. National Investigation Agency held that the scope of S. 21(5) NIA Act was rather mandatory. It held that the reference to the expression 'shall'  and the absence of any clause allowing for condonation of delay is enough to establish that the said provision has excluded the application of S.5 of the Limitation Act.  S. 5 of the Limitation Act provides the specific provision for condoning delay. The provision provides courts with discretionary power to condone a delay beyond the prescribed period if there exist genuine or sufficient reasonable grounds. 

By making a re- striction 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 con- done 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 ex- tent, 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, Appeal are dismissed as not maintainable.

The Supreme Court has issued notice in the present case, directing it to be tagged with a similar pending SLP on the same question of law as discussed above. 

"Moreover bearing in mind notice has already been issued by this court already in one case, issue notice and direct that the SLP be tagged with SLP (Crl) Diary No. 41439/ 2019" 

Case Details : THE STATE OF UTTAR PRADESH vs. SARFARAZ ALI JAFRI Diary No.- 5217 - 2024