Mumbai: “Access to justice” is a fundamental right and it cannot be rendered “illusory” or “subject to chance”, the Bombay High Court said on Thursday while ruling that appellate courts can condone delays and hear appeals filed beyond the mandatory 90-day period under the National Investigation Agency (NIA) Act.
As per section 21 (5) of the NIA Act, no appeal ‘shall’ be entertained after an expiry of a period of 90 days from the date of the order under challenge.
A division bench of Justices Revati Mohite-Dere and Gauri Godse allowed a plea filed by one Faizal Mirza, seeking condonation of delay of 838 days in filing appeal against the NIA Court order denying him bail.
Mirza was arrested in 2018 by Anti Terrorism Squad for allegedly conspiring with Pakistan-based terrorist organisations to carry out attacks in Mumbai, Gujarat and Uttar Pradesh. The special court had rejected Mirza’s bail in March 2020. The court said that the NIA Act has to be read in conjunction with other laws and cannot be said to be a complete code in itself.
Right to file an appeal
The judges said that the right of an accused to file an appeal against his conviction is linked to Article 21 of the Constitution of India, it said.
It further added, “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," it added.
The court said that an accused would gain nothing by filing appeal belatedly and would continue to stay incarcerated. “… and it is the accused who will stand prejudiced by filing an appeal belatedly. The NIA suffers no prejudice,” it added.
The judges reasoned that not just the accused, but also the prosecution, should be able to approach the appellate court after expiry of 90 days, after showing grounds for delay. “...as even closing the doors to the prosecuting agency can also lead to serious consequences, as the NIA Act is concerned with the national sovereignty, security and integrity of India,” it added.
NIA’s stand was perplexing: HC
If this provision was held to be mandatory, then 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. Saying that the NIA’s stand was “perplexing”, the HC said that agency should “one stand” and it cannot be changed to “suit its needs”.
The NIA had opposed Mirza’s plea, however, the investigating agency’s plea seeking delay condonation was accepted by two other high courts.
