Courts can condone delay in filing appeal under NIA Act beyond 90 days if sufficient cause exists: Bombay High Court

The Bombay High Court on Thursday ruled that appellate courts have the power to condone delay and entertain appeals filed under the National Investigation Agency Act (NIA Act) beyond a period of 90 days, if sufficient cause for the delay is shown. [Faizal Hasamali Mirza v. State of Maharashtra & NIA].Section 21 of the NIA Act deals with appeals against special NIA court orders that can be filed before the High Court. Sub-section (5) stipulates that “no appeal shall be entertained after an expiry of period of 90 days from the date of the order under challenge”. .A Bench of Justices Revati Mohite Dere and Gauri Godse read down the word 'shall' in Section 21(5) to read as ‘may’, thus making the time limit directory in nature. The Court reasoned,“If the provision were to be held mandatory, despite sufficient cause being shown by the accused, the doors of justice will be shut, leading to travesty of justice, which cannot be permitted by courts of law.".The Bench also opined that the personal liberty of accused may stand prejudiced if belated appeals are not allowed. “If at the threshold, only having regard to the statutory bar prescribed under Section 21(5) of the NIA Act, an appeal is not heard, the right of an accused, whose personal liberty stands curtailed by a judgment/sentence/order passed by the Special Court, would stand seriously jeopardized. The accused’s fundamental right to file a statutory appeal, as well as his right to access to justice, would also stand seriously jeopardized. All this, despite the accused having sufficient cause for filing the appeal belatedly,” the judgment stated..The question before the Court arose after a man named Faizan Mirza moved an application against an order of the special court denying him bail after a period of 838 days.He had been arrested by the Anti-Terrorism Squad of Maharashtra for conspiring with Pakistan-based terror organisations to carry out attacks in Mumbai, Gujarat and Uttar Pradesh. The Bench was also informed by the applicant and the NIA that there were multiple judgments of different High Courts with varying opinions on the question of condoning delay in filing appeals.To conclusively decide the issue, Senior Advocates Aabad Ponda and Sharan Jagtiani were appointed as amici curiae to assist the Court.In Mirza's appeal, the Court found that the applicant had shown sufficient cause to condone delay in filing an appeal..In its judgment, the Court opined that appeals under Section 21 were a substantive right of either of the parties - accused and agency.It elaborated that the offences in the Schedule of the NIA Act were punishable with imprisonment for life or death penalty, because of the seriousness of the offences. "It is all the more necessary to ensure that an accused/the prosecution gets a right to test the correctness of the order passed by the Special Court in appeal, lest, injustice is caused to either of the parties, due to an unmerited order. Not only the accused, but even the prosecution should be able to approach the Appellate Court after the expiry of 90 days, on sufficient cause being shown for delay, as even closing the doors to the prosecuting agency can also lead to serious consequences, as the NIA Act is concerned with the national sovereignty, security and integrity of India.".The Bench was also perplexed at the stand taken by NIA opposing the condonation of delay. It was informed of an appeal filed by the NIA before the Jammu & Kashmir High Court, in which the agency had filed an accompanying application seeking condonation of delay in filing the appeal, which had been allowed.“NIA being a Central Investigating Agency, is expected to take one stand, either way, for or against. The stand cannot change to suit its needs. We are unable to see any merit/reason, in the contradictory stand taken by the NIA before different High Courts”, the Court remarked. .It went on to opine that in this case, it was the accused who stood severely prejudiced and not the agency.“An 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.".Advocates Mateen Shaikh, Shahid Nadeem and Muskan Shaikh represented the applicant.Advocates Jugal Kanani and Saurabh Mehta assisted Ponda in his role as amicus.Advocates Shraddha Achliya, Priyanka Kapadia, Ansh Karnavat and Aditya Pimple assited Jagtiani.Advocate PP Shinde appeared for the State.Advocates Sandesh Patil, Chintan Shah, Divya Pawar and Krishnakant Deshmukh appeared for the NIA..[Read judgment]