90 days limitation for appeal under NIA Act not mandatory in nature, Delhi HC

The Delhi High Court has held that the application of Section 5 of the Limitation Act extends to Section 21(5) of the National Investigation Agency Act, 2008 and thus the prescription of limitation of 90 days for filing an appeal under Section 21(5) of the NIA Act is directory and not mandatory..The Judgment was passed by a Division Bench of Justices Vipin Sanghi and IS Mehta in an appeal by one Farhan Shaikh against his conviction by a Delhi NIA Court..The NIA Court had convicted the appellant for the offences punishable under Section 120B IPC and Section 18, 20, 38 and 40 of the Unlawful Activities Prevention Act, 1997. The appellant had thus moved an appeal under Section 374 and 375 of the Code of Criminal Procedure, 1973 read with Section 21 of the National Investigation Agency Act, 2008..Along with the appeal, the appellant also moved applications for condonation of 314 days in filing the present appeal, and condonation of further 44 days in re-filing the appeal..The prosecution challenged the appeal on the ground that they were not maintainable since the appellant was seeking condonation of delay for a period far beyond the period for which the same could be condoned by the Court under Section 21 of the NIA Act..It was submitted that as per the second proviso to Section 21(5), the power of the High Court to condone the delay was only to the extent of 90 days..The prosecution further argued that the application of Section 5 of the Limitation Act to the present situation was excluded from the plain reading of Section 21(5) of the NIA Act..The appellant, on the other hand, argued that the second proviso to section 21(5) of the NIA Act was not mandatory in nature and that the statutory remedy of appeal against the conviction and sentence under NIA Act could not be denied on the basis of delay..After hearing the parties and examining the scheme of the NIA Act, the Court concluded that scope of Section 5 of the Limitation Act could not be said to exclude Section 21(5) of the NIA Act..“When one examines the issue – as to whether Section 5 of the Limitation Act can be invoked while belatedly preferring an appeal under Section 21 of the NIA Act, in the context that the right of appeal of an accused/ convict is a substantive right; is a facet of right of fair trial and substantive due procedure, and; is a right which is protected by Article 21 of the Constitution, the only conclusion that we can draw is that application of Section 5 of the Limitation Act to Section 21(5) of the NIA Act cannot be excluded.”.To support its opinion, the Court emphasized the consequences of a contrary opinion of the personal liberty of the accused..“Here, we are dealing with the right of an accused/ convict, whose personal liberty stands curtailed by the conviction and the impugned order on sentence passed by the Special Court. In our view, it would lead to travesty of justice if the appellant’s substantive appeal is not heard on merits, and is rejected at the threshold only on account of bar of limitation prescribed under Section 21(5) of the Act, particularly, when he has moved the application under Section 5 of the Limitation Act.”.The Court recorded that the law of limitation generally bars the remedy and not extinguish the right itself..It further stated that any prescription on the Court’s discretion to condone the delay beyond the specified period by the legislature has to be viewed in the context of the particular right involved..If it curtails the most fundamental and basic right i.e., the right to life and personal liberty, the same has to be viewed in a completely different perspective, and it cannot be construed as mandatory, it added,.The Court thus held that the prescription of limitation in Section 21(5) of the NIA Act was directory and not mandatory and that the High Court was empowered to entertain and consider an application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal..While considering the facts at hand, the Court recorded that the appellant was incarcerated when he was sentenced by the Special NIA Court and in that situation, he was heavily dependent on his family and friends to file his appeal..It further noted that the appellant was in a state of depression for six months after being convicted and once he started looking for avenues, his confinement in a high-security section of the jail made it difficult for him to arrange the documents..In the meantime, the special NIA Court also shifted which also delayed the procurement of documents. The appeal was filed with the help of the appellant’s uncle from Maharashtra and an NGO. Since the appellant did not have the complete papers relating to the case in his possession, there was a delay in re-filing as well, it added..In view of these circumstances, the Court questioned,.“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”..”.Stating that the appellant had shown sufficient cause for the delay in filing and re-filing the appeal, the Court observed,.“It is not difficult to imagine the difficulty that a person, who is incarcerated in a high security prison, faces in either communicating with the outside world or in being able to arrange the necessary documents so that his appeal could be prepared and filed in time..”.The Court, therefore, allowed the application and condoned the delay in filing and re-filing the appeal..The appellant was represented by advocates Siddharth Aggarwal with Rupali Samuel and Vishakh Ranjit..NIA was represented by Special Public Prosecutor Amit Sharma, Public Prosecutor Abhishek Bagai and advocate Ahmad Ziad..Read the Judgment: