Case Note & Summary
The matter concerned an interim application seeking condonation of 838 days delay in filing an appeal under Section 21 of the National Investigation Agency Act, 2008. The applicant, Faizal Hasamali Mirza, had filed the appeal to challenge the rejection of his bail application by the Special Judge under the Unlawful Activities Prevention Act, 1967 and the Indian Penal Code. The appeal was filed beyond the period prescribed under Section 21(5) of the NIA Act, which permits an appeal within 30 days and an extended period of up to 90 days. The second proviso to Section 21(5) states that no appeal shall be entertained after the expiry of 90 days. The applicant contended that the delay ought to be condoned, while the NIA opposed the application, arguing that the outer limit of 90 days was absolute and the court lacked jurisdiction to condone any delay beyond that period. The core legal issue before the Bombay High Court was whether the appellate court has the power to entertain an appeal and condone delay beyond the statutory 90-day period in view of the second proviso. The court appointed two senior advocates as amici curiae to assist on this significant question. Mr. Aabad Ponda, senior counsel, submitted that the right to appeal in criminal cases is a fundamental right rooted in Article 21 of the Constitution, and that any provision that takes away this right must be scrutinized for fairness. He argued that the NIA Act, by commencing with 'notwithstanding anything contained in the Code', excluded only the Code of Criminal Procedure and not other laws like the Limitation Act. He contended that Sections 3 and 5 of the Limitation Act apply to the NIA Act by virtue of Section 29(2) thereof, as there is no express exclusion. Mr. Ponda drew parallels with the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the Fugitive Economic Offenders Act, where similar outer limits have been relaxed. He also pointed out that the time limit for disposal of appeals under Section 21(2) is directory, and that a strict construction would lead to injustice, especially for incarcerated and indigent accused. Mr. Sharan Jagtiani, senior counsel, supplemented these submissions by urging that the word 'shall' in the second proviso should be read as 'may' to align with constitutional principles. He cited Maneka Gandhi v. Union of India and K.S. Puttaswamy v. Union of India to emphasize that procedure established by law must be just, fair, and reasonable. He argued that the right to appeal, being an extension of the trial, cannot be taken away by a rigid deadline. The court heard extensive arguments from both amici and the prosecution, reserving the matter for judgment. The application raised a critical issue balancing statutory interpretation, the right to personal liberty, and the legislative intent behind time limits in special criminal laws. The judgment was eventually pronounced on 14 September 2023, but the outcome is not detailed in the provided excerpt.
Headnote
A) Criminal Procedure - Appeal - Condonation of Delay - National Investigation Agency Act, 2008, Section 21(5) - The second proviso to Section 21(5) provides that no appeal shall be entertained after expiry of 90 days; the question arose whether this proviso is mandatory or directory, and whether delay beyond 90 days can be condoned - Court considered the submissions of amici on the interplay between the right to appeal and statutory limitation. (Paras 2-7)
B) Constitutional Law - Right to Appeal - Constitution of India, Article 21 - Right to appeal in criminal cases is a substantive fundamental right and any provision that renders this right illusory or subject to chance may violate Article 21 - Court examined whether a rigid interpretation of the second proviso would impair the right to appeal and conflict with the principle of fair procedure established by law. (Paras 6.1, 6.2, 7)
C) Limitation - Applicability of Limitation Act - Limitation Act, 1963, Sections 3, 5, 29 - The NIA Act does not expressly exclude the Limitation Act; it was argued that by virtue of Sections 5 and 29(2) of the Limitation Act, delay beyond 90 days may be condoned if sufficient cause is shown - Court heard detailed arguments on the scheme and language of the NIA Act vis-à-vis other special statutes. (Paras 6.2, 6.3)
D) Statutory Interpretation - Mandatory vs Directory Provisions - National Investigation Agency Act, 2008, Section 21(5) - The use of 'shall' in the second proviso does not necessarily make it mandatory, particularly when a contrary interpretation would extinguish a fundamental right - Reliance was placed on precedents where 'shall' was read as 'may' to avoid unconstitutional results - Court noted the submission and the need for harmonious construction. (Paras 7, 7.1)
Issue of Consideration
Whether the Appellate Court has the power to entertain an appeal filed beyond the period of 90 days, in view of the second proviso to Section 21(5) of the National Investigation Agency Act, 2008, and accordingly condone the delay beyond the said period.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Right to appeal in criminal cases is a fundamental right under Article 21
- statutory provisions must be interpreted in light of constitutional safeguards
- the Limitation Act applies where not expressly excluded
- the word 'shall' in a proviso may be read as 'may' to protect fundamental rights
Case Details
2023 LawText (BOM) (09) 81
IA No. 2375 of 2022 in Criminal Appeal (Stamp) No. 11931 of 2022
Revati Mohite Dere, Gauri Godse
Citation not available, 2023:BHC-AS:27039-DB
Mr. Mateen Shaikh a/w Mr. Shahid Nadeem and Ms. Muskan Shaikh for the Applicant; Mr. Aabad Ponda, Sr. Advocate as Amicus Curiae a/w Mr. Jugal Kanani and Mr. Saurabh Mehta; Mr. Sharan Jagtiani, Sr. Advocate as Amicus Curiae a/w Ms. Shraddha Achliya, Ms. Priyanka Kapadia, Mr. Ansh Karnavat and Mr. Aditya Pimple; Ms. P.P. Shinde, A.P.P for the Respondent No.1 – State; Mr. Sandesh Patil, Spl. P.P. a/w Mr. Chintan Shah, Ms. Divya Pawar and Mr. Krishnakant Deshmukh for the Respondent No.2– NIA
Faizal Hasamali Mirza @ Kasib
The State of Maharashtra and National Investigating Agency
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Nature of Litigation
Criminal appeal against rejection of bail under the Unlawful Activities Prevention Act, 1967 and Indian Penal Code, with an interim application for condonation of 838 days delay in filing the appeal.
Remedy Sought
The applicant sought condonation of delay in filing the appeal to enable the appellate court to entertain the appeal and consider the challenge to the rejection of his bail application.
Filing Reason
The applicant's bail application was rejected by the Special Judge on 9 March 2020, and the appeal was filed 838 days later due to circumstances including financial instability and incarceration, necessitating a condonation application.
Previous Decisions
The learned Special Judge rejected the applicant's bail application on 9 March 2020 in connection with C.R. No. 13/2014 (later re-registered as RC-02/2018/NIA/Mum). A co-accused was subsequently granted bail by the Supreme Court, which prompted the present application.
Issues
Whether the Appellate Court has the power to entertain an appeal filed beyond the period of 90 days, in view of the second proviso to Section 21(5) of the National Investigation Agency Act, 2008, and condone delay beyond that period.
Whether Section 21(5) second proviso is mandatory or directory.
Whether the Limitation Act, 1963 applies to condone delay under the NIA Act.
Whether a rigid interpretation of the second proviso would violate the right to appeal under Article 21 of the Constitution.
Submissions/Arguments
Mr. Ponda argued that the appellate court has power to entertain appeal beyond 90 days despite the language of the second proviso. He submitted that the right to appeal in criminal cases is a fundamental right under Article 21 and any provision that renders this right illusory is impermissible. He contended that Section 21(1) of the NIA Act excludes only the Code of Criminal Procedure, not the Limitation Act, and that Sections 3 and 5 of the Limitation Act apply by virtue of Section 29(2) as there is no express exclusion in the NIA Act. He placed reliance on Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and other decisions to assert that an appeal affecting personal liberty cannot be subjected to a rigid deadline. He also pointed out that other special statutes like the SC/ST Act and Fugitive Economic Offenders Act have similar outer limits yet courts have condoned delays beyond those periods.
Mr. Jagtiani supported Mr. Ponda and added that the word 'shall' in the second proviso should be read as 'may' to avoid unconstitutionality. He submitted that the procedure established by law must be fair, just, and reasonable as per Maneka Gandhi and Puttaswamy, and a strict interpretation that completely extinguishes the right to appeal would fail that test. He argued that the scheme of the Act itself indicated that the time limit in Section 21(5) is directory and not mandatory, relying on several Supreme Court decisions on interpretation.
Ratio Decidendi
Ratio not explicitly mentioned
Judgment Excerpts
The question that arises for consideration in the aforesaid application is, whether the Appellate Court has the power to entertain an appeal, filed beyond the period of 90 days, in view of the 2nd proviso to Section 21(5) of the NIA Act, 2008 and accordingly, condone the delay beyond the said period ?
Mr. Ponda, learned senior counsel urged before us that the appellate Court has the power to entertain an appeal even after the statutory period of 90 days despite the language employed in the 2nd proviso to Section 21(5) of the NIA Act.
Mr. Ponda submitted that the right of appeal is a statutory, substantive, fundamental and an unconditional right given to an accused.
Mr. Sharan Jagtiani, learned senior counsel supported the submission advanced by Mr. Ponda. He submitted that the constitutional scheme relating to a right of appeal in criminal matters is to be considered from a different perspective, as against appeals filed in civil matters.
Procedural History
The applicant filed a bail application before the Special Judge, which was rejected on 9 March 2020. The applicant then filed an appeal under Section 21 of the National Investigation Agency Act, 2008, but with a delay of 838 days. Along with the appeal, an interim application for condonation of delay was filed. The NIA opposed the condonation application, contending that the delay beyond 90 days could not be condoned. The Bombay High Court, considering the important question of law, appointed two senior advocates as amici curiae on 26 July 2023. The matter was reserved for judgment on 29 August 2023 and pronounced on 14 September 2023.
Acts & Sections
- National Investigation Agency Act, 2008: Section 21(1), Section 21(2), Section 21(5)
- Unlawful Activities Prevention Act, 1967: Sections 16, 18, 18-A, 18-B, 20
- Indian Penal Code: Sections 420, 465, 468, 471, 201, 120-B
- Limitation Act, 1963: Sections 3, 5, 29
- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989: Section 14A
- Fugitive Economic Offenders Act, 2018: Section 17
- Constitution of India: Articles 14, 19, 21
