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Synopsis

The Bombay High Court has asserted that appellate courts have the authority to condone delays and consider appeals filed under the National Investigation Agency Act (NIA Act) beyond the prescribed 90-day limit, provided sufficient cause for the delay is demonstrated.

Section 21(5) of the NIA Act outlines the time frame for filing appeals against special NIA court orders, stating that "no appeal shall be entertained after an expiry of the period of 90 days from the date of the order under challenge."

A Bench comprising Justices Revati Mohite Dere and Gauri Godse interpreted the word 'shall' in Section 21(5) to be read as 'may,' making the time limit directory rather than mandatory. The Court emphasized that treating the provision as mandatory would unjustly shut the doors of justice and potentially violate the personal liberty of accused individuals.

The ruling came in response to a case filed by Faizan Mirza, who sought bail after an order from a special court denied him bail after 838 days of incarceration. Mirza had been arrested by the Anti-Terrorism Squad of Maharashtra on charges of conspiring with Pakistan-based terror organizations to plan attacks in Mumbai, Gujarat, and Uttar Pradesh.

The Court was also made aware of varying opinions from different High Courts on the issue of condoning delays in filing appeals, prompting the appointment of Senior Advocates Aabad Ponda and Sharan Jagtiani as amici curiae to assist the Court.

In its judgment, the Bombay High Court stated that appeals under Section 21 are a substantive right for both the accused and the prosecuting agency. Given the gravity of the offenses listed in the NIA Act, which carry life imprisonment or the death penalty, ensuring that both parties have the right to challenge the special court's order is essential.

The Court expressed surprise at the National Investigation Agency's (NIA) inconsistent stance on condoning delays. While opposing condonation of delay in this case, the NIA had previously filed an appeal before the Jammu & Kashmir High Court, accompanied by an application seeking condonation of delay, which was granted.

The Bombay High Court emphasized that it was the accused who would be severely prejudiced by not allowing the appeal, as they would continue to suffer incarceration. In contrast, the NIA would not suffer any prejudice.

This ruling by the Bombay High Court underscores the principle of access to justice and equitable treatment of all parties involved in cases under the NIA Act, reaffirming the importance of considering appeals beyond the 90-day limit when sufficient cause is demonstrated.

Case Title: Faizal Hasamali Mirza @ Kasib Vs. The State of Maharashtra & Anr.