Appeals under NIA Act Section 21(5) filed beyond maximum 90 days are not maintainable; delay uncondonable as provision mandatory, excluding Limitation Act Section 5 application.

JUDGMENT :

Heard learned counsel for the parties.

2. Criminal Appeal (D.B.) (Filing) No. 26650 of 2025 is directed against the order dated 17.07.2025, arising out of ATS P.S. Case No.06/2025, registered for the offences under Sections 461 (2)/113(i)(a)(iii)/152 of B.N.S. and under Sections 16/18/18B/20 of UA(P) Act and Sections 25(1-b)a/26(2)/35 of the Arms Act, whereby the learned Trial Court has been pleased to extend the period of investigation of 60 days on petition filed by the I.O., which as per the petitioner, is in violation of provision of Section 187(2) of the B.N.S.S. Act.

3. After filing of the present appeal, an objection has been raised by the Registry that the Criminal Appeals (D.B.) has been filed after expiry of maximum statutory period of 90 days as provided under Section 21(5) of the National Investigation Agency Act, 2008 (for short “the NIA Act, 2008”).

4. Under the aforesaid facts and circumstances and in view of Sections 21(1) and 21(4) of NIA Act, the matter of maintainability was referred to this Bench.

5. Pursuant thereto, the instant appeal has been listed under the heading ‘For Orders’ with the said objection that the case is barred by limitation since the same has been filed after maximum statutory period of 90 days.

6. Md. Mokhtar Khan, learned counsel appearing for the appellant vehemently argued the matter and submits that Section 21(5) of the NIA Act, 2008 is not applicable; rather, Section 5 of the Limitation Act will be applicable. He further submits that (5) of the NIA Act, 2008 cannot be said to be mandatory in nature rather; it is directory/ obligatory, in view of the fact that in the first proviso of (5), the word ‘may’ has been inserted which confers power upon the appellate court i.e. the High Court to condone the delay beyond the period of 90 days.

7. He further referred to the decision of Delhi High Court in Farhan Shaikh VS State (NIA) reported in 2019 SCC Online Delhi 9108 and also the decision of Jammu & Kashmir High Court rendered in the Case of Chief Investigating Officer, Jammu Vs. Addl. Sessions Judge, District Court, Jammu ; [Cr. A (D) No. 46 of 2022 dated 13-12 2022].

Mr. Khan vehemently contended that both the High Courts have taken a view that Section-21 of NIA Act does not exclude the Limitation Act and further held that the word ‘may’ has been inserted which confers power upon the appellate court i.e. the High Court to condone the delay beyond the period of 90 days and accordingly in the 2^nd proviso to Section 21(5) of the Act, “Shall” should be read as “May”.

Accordingly, the defects pointed out by the Registry should be ignored and the same is baseless.

8. In reply to the same, learned Special P.P. representing the NIA submits that the issue with regard to maintainability and also the contention raised by the Ld. Counsel for the Petitioner that Section 21 of the NIA Act, 2008, does not exclude the Limitation Act and the words ‘shall’ may be read as ‘may’ has been considered by the co-ordinate Bench of this Court in the case of Vimal Kumar Paswan @ Vimal Paswan Vs. the State of Jharkhand Cr. App. (D.B.) No. 1961 of 2023, decided on 09.01.2024 , wherein the Division Bench of this Court has dealt the entire issue in details and also the judgments/Orders passed by various High Courts including the judgment/order of Delhi High Court in Farhan Shaikh VS State (NIA) and of Jammu & Kashm