Courts can condone delays, entertain appeals filed after 90 days of order in NIA cases: Bombay HC

The central agency had argued that as per the NIA Act, an appeal filed after more than 90 days could not be entertained by the court. However, the bench was “perplexed” by the NIA’s stand.

Pointing out an “apparent contradiction” in the stand taken by the NIA, the bench noted that in the Jammu & Kashmir and Ladakh High Court, the agency had filed a condonation application for a delay of 40 days.

“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/reason in the contradictory stand taken by the NIA before different High Courts,” the court said.

“An application seeking to condone delay beyond 90 days in filing an appeal against the judgment, sentence, order, not being an interlocutory order, passed by a Special Court is maintainable, on sufficient cause being shown” the bench held.

The court passed a judgment after hearing two appeals, one of which was filed by dismissed policeman Vinayak Shinde, an accused in the Antilia bomb scare case and the death of businessman Mansukh Hiran. The appeal was filed after a delay of 299 days.

Shinde sought bail on grounds of parity with co-accused Naresh Gaur, who got bail from the special court and it was upheld by the high court. He approached the high court after the special NIA court rejected his plea. Shinde withdrew his plea before HC.

The other appeal was filed after a delay of 838 days, by Faizal Mirza, who was arrested by the Anti-Terrirosim Squad for allegedly conspiring with Pakistan-based terror organisations to carry out attacks in Mumbai, Gujarat and Uttar Pradesh. Mirza’s case was transferred to the NIA in 2018. As per the NIA, Mirza approached the high court with an appeal after a delay of 835 days from the date his bail plea was rejected by the special NIA court. The Court condoned the 838-day delay and allowed the plea.

The high court noted that serious offences under the NIA Act are punishable with life imprisonment or the death penalty. “Thus, 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,” the bench said.

It also said that “closing the doors” to the prosecuting agency could also lead to serious consequences as the NIA law is concerned with national sovereignty, security and integrity of India and friendly relations with foreign states, among others.

Justice Mohite-Dere noted, “The right to appeal by an accused is a substantive right, a right protected by Article 21 of the Constitution. Courts cannot be mute spectators or helpless and dismiss an appeal simply because it is filed beyond 90 days, despite the sufficient cause being 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.”