“The National Investigation Agency (NIA), being a central investigating agency, is expected to take one stand, either ways, for or against. The stand cannot change to suit its needs. We are unable to see any merit or reason in the contradictory stand taken by the NIA before different high courts,” the Bench highlighted.
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IN a significant ruling, the Bombay High Court has declared the second proviso to Section 21(5) of the National Investigation Agency (NIA) Act, 2008 is directory in nature.
While reading down the word “shall” as “may” in the second proviso of Section 21(5), the division Bench of Justices Revati Mohite Dere and Gauri Gode observed that appellate courts have power to condone delay in filing an appeal even after the period of 90 days has expired “on sufficient cause being shown”.
Background
A special judge had passed an Order on March 9, 2022 rejecting the bail preferred by the appellant for the offences punishable under Sections 16, 18, 18-A, 18-B and 20 of the Unlawful Activities Prevention Act, 1967 and under Sections 120B, 201, 420, 465, 468 and 471 of the Indian Penal Code, 1860.
The accused had belatedly filed an appeal in the high court, seeking condonation of a delay of 838 days in filing an appeal against the Order of the special judge.
The NIA vehemently opposed the delay condonation application filed by the accused.
The Bombay High Court granted the condonation of delay to the accused-appellant.
The court noted that the accused hailed from a very poor family and that soon after the impugned Order was passed on March 9, 2020, a lockdown was declared in April 2021 due to Covid pandemic.
The court also noted that the family of the accused-appellant was completely in the dark about the remedies available; and the accused-appellant had also lost his mother during the pandemic.
It was only much later that he became aware of his right to file an appeal, hence the delay.
The high court held that courts cannot mechanically dismiss an appeal simply because it is filed beyond the stipulated 90 days even when sufficient cause is shown for filing the appeal belatedly.
“The same is true even in cases where the prosecution has filed an appeal beyond the 90 days period,” the Bench added.
Section 21 of the NIA Act
As per Section 21 of the NIA Act, an appeal lies from any judgment, sentence or Order, not being an interlocutory Order, of a special court to the high court both on facts and on the law.
Section 21(5) reads as follows:
“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 a period of ninety days.”
The issue before the high court was whether the second proviso is mandatory.
The Bench refused to follow the view taken by the Kerala High Court in Nasir Ahammed versus National Investigation Agency and the Calcutta High Court in Sheikh Rahamtulla @ Sajid @ Burhan Sheikh @ Surot Ali & Ors. versus The National Investigation Agency, to the effect that the said proviso is mandatory.
Instead, the Bench chose to follow the view taken by the Delhi High Court in Farhan Sheikh v. State (National Investigation Agency); the Jammu & Kashmir and Ladakh High Court in National Investigation Agency Through its Chief Investigating Officer versus 3rd Additional Sessions Judge, District Court Jammu and the Chhattisgarh High Court in the case of State of Chhattisgarh versus Devdhar Nishad.
These three high courts have held that the second proviso is directory and not mandatory.
In support of its ruling, the Bombay High Court opined that the right of appeal in criminal cases is well protected under Article 21 of the Constitution.
The court stated that the right to have a conviction and sentence re-examined on appeal (statutory appeal) is an intrinsic part of the right to fair trial, covered not only under Article 21 of the Constitution of India but also under Article 14(5) of the International Covenant on Civil and Political Rights, 1966.
“At least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilised jurisprudence,” the court observed.
The high court further observed that the 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, ensures to benefit 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,” the Bench ruled.
The Bench further held that if the second proviso to Section 21(5) of the NIA Act is held to be mandatory, it would lead to travesty of justice, even in cases, where the accused is able to show “sufficient cause” for not filing an appeal, within the prescribed period, as stipulated.
“The reasons could be several and the list exhaustive. For example, the financial condition of the accused to engage a lawyer; lack of legal knowledge of his right to file an appeal; no member of the family to assist or help engage a lawyer for the accused; having no family member and so on.
“If the second proviso to sub-section (5) of Section 21 is held to be mandatory, even if the accused is able to show ‘sufficient cause’ for filing the appeal belatedly, his appeal would necessarily have to be dismissed. This would most certainly lead to travesty of justice,” the Bench underscored.
The high court remarked that courts exist to do justice. “Access to justice is a fundamental right and cannot be diluted,” the Bench said.
The Bench also observed that an accused stands nothing to gain by filing an appeal belatedly— 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 such prejudice.
Dual stand taken by the National Investigation Agency
The Bench berated the NIA for taking a dual stand on the second proviso to Section 21(5) of the NIA Act.
When an accused prefers an appeal beyond the period of 90 days, the NIA argues that the proviso is mandatory, the Bench noted.
But the same NIA took a stand in the Jammu and Kashmir High Court that the second proviso to Section 21(5) was not mandatory, the Bench underlined.
The NIA had filed a delay condonation application, there being a delay of 40 days.
Similarly, before the Chhattisgarh High Court, the NIA had filed an appeal against acquittal along with an application seeking condonation of delay of 228 days, the Bench noted.
In that case, the NIA had urged that the provision in question, i.e., the second proviso to Section 21(5) of the NIA Act, was directory in nature and not mandatory.
“[The] NIA, being a central investigating agency, is expected to take one stand, either ways, for or against. The stand cannot change to suit its needs. We are unable to see any merit or reason in the contradictory stand taken by the NIA before different high courts,” the Bench highlighted.
Click here to read the Judgment.
