Delay Beyond 90 Days For Appeal Under NIA Act Can Be Condoned, Rules Bombay High Court; Disagrees With Views Of Kerala & Calcutta HCs

In a significant judgement, the Bombay High Court has 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 2^nd 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 HC.

“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 travesty of justice, which cannot be permitted by Courts of Law,” the court added.

For context, Section 21(5) of the NIA Act prescribes that an appeal against a judgment of the trial court should be filed within a period of thirty day from the date of the judgment. The first proviso to Section 21(5) says that High Court may entertain an appeal after thirty days, if the appellant shows sufficient cause for delay. The second proviso to this Section states that no appeal shall be entertained after the expiry of period of ninety days.

The High Court has now held-

1. that the Appellate Courts have the power to condone delay beyond the 90 days period, despite the language of the 2nd proviso to Section 21(5) of the NIA Act and that this can be done by virtue of Section 5 of the Limitation Act, 1963, the applicability of which is not excluded under the provisions of the NIA Act. Thus, an application seeking to condone delay beyond 90 days in filing an appeal against the judgment, sentence, order, not being an interlocutory order, passed by a Special Court is maintainable, on sufficient cause being shown;
2. that the word `shall’ in the 2nd proviso to sub-section (5) of Section 21, be read down, to read as `may’, and hence, directory in nature.

The Case

The appellant Faizal Mirza filed an appeal in the High Court against an order dated March 9, 2020 of the Special NIA Court rejecting his bail application. He is accused of being an LeT operative and booked under terror related Sections of the Unlawful Activities (Prevention) Act and the IPC.

He sought condonation of delay of 838 days in filing the appeal in HC. Represented by advocates Mateen Shaikh, Shahid Nadeem and Muskan Shaikh he cited his poverty-stricken background, the Covid-19 pandemic and his ignorance against the right to appeal.

Observations by the Court

The court held that access to justice is and has been recognized as a part and parcel of right to life in India and in all civilized societies around the globe.

“The right is so basic and inalienable that no system of governance can possibly ignore its importance/significance, leave alone afford to deny the same to its citizens.”

It added that the “accused stands nothing to gain by filing an appeal belatedly, inasmuch as, it is the accused who continues to suffer incarceration, and it is the accused who will stand prejudiced by filing an appeal belatedly. The NIA suffers no prejudice.”

“The right to appeal by an accused is a substantive right, a right protected by Article 21 of the Constitution. Courts cannot be mute spectators or helpless and dismiss an appeal, simply because it is filed beyond 90 days…”

Arguments

Advocate Sandesh Patil for NIA opposed the application on the ground of proviso 2 to Section 21 (5) of the NIA Act which states that the outer limit for filing an appeal against a trial court order was 90 days. He further said there was a presumption of constitutional validity of the Section.

The court sought the assistance of Senior Advocates Aabad Ponda and Sharan Jagtiani in the matter.

Ponda submitted that an appeal even after 90 days could be entertained despite the proviso as delays have been condoned in analogous statutory provisions i.e. Section 14A in the Scheduled Castes and the Scheduled Tribes Act, 1989 (‘SCST Act’) and Section 17 of the Fugitive Economic Offenders Act, 2018. He presented a comparative study between the Acts.

“The right of appeal is a statutory, substantive, fundamental and an unconditional right given to an accused,” Ponda argued. He pointed out situations wherein there may be sufficient cause for condonation.

Senior Advocate Sharan Jagtiani supported the argument and said that the right of appeal is paramount and can be equated with Article 21 and as such right of appeal cannot be taken away.

The court held that the “right of an accused to file an appeal against his conviction, is linked to Article 21 of the Constitution of India.”

Observations

“Presumption of innocence is a human right and the said principle forms the basis of criminal jurisprudence in India. Presumption of innocence, being a facet of Article 21, the same ensures to the benefit of the accused. An appeal being an extension of the trial, there exists a fundamental right to file an appeal and this right cannot be rendered illusory or subject to chance.”

Moreover, in India, ‘access to justice’ has been recognized as a valuable right by Courts in India, even before the Constitution came into force.

The court noted that judgements of the Kerala and Calcutta HC held the 90-day period as mandatory and a Delhi HC judgement held the period as not mandatory. The Delhi HC judgement was followed by the J&K and Ladakh HC and the Chattisgarh High Court.

It also observed the NIA Act is not a complete code in itself and needed to be read in conjunction with other Acts. Section 5 of the Limitation Act would be applicable in this case. It allows condonation of delay beyond the prescribed period if grounds are made out.

Regarding facts of the present case, the court said sufficient grounds were made out for condoning delay. “The applicant has stated that the applicant hails from a very poor family; that right after the impugned order dated 9th March 2020 was passed, lock-down was declared in April 2021, due to Covid-19 pandemic; that his family was completely in the dark about the remedies available; that the applicant had also lost his mother during the pandemic and that it was only much later, he was made aware of his right to file an appeal and hence, the delay.”

"Having regard to the discussions as stated aforesaid, we are firmly of the opinion that the 2nd proviso to sub-section (5) of Section 21 of the NIA Act, will have to be read down, so as to read ‘shall’ as ‘may’, and as such directory, so as to vest discretion in the Appellate Court, to condone delay, beyond the 90 days period on sufficient cause being shown", the Court said.

Case : Faizal Hasamali Mirza @ Kasib v. State of Maharashtra

Click here to read the order