The NIA Act expressly excludes the applicability of Section 5 of the Limitation Act, and the word 'shall' in the proviso to Section 21(5) should be read as 'may' in certain appeals to avoid violation of fundamental rights.

ORDER :

(Sunder Mohan, J.) :

(Prayer : Criminal Miscellaneous Petition filed under Section 5 of the Limitation Act, to condone the delay of 43 days in preferring the above appeal against the judgment passed in Crl.M.P.No.645 of 2023 on the file of the Special Court, under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Chennai at Poonamallee dated 24.07.2023.)

This instant Criminal Miscellaneous Petition has been filed seeking to condone the delay of 43 days in preferring the appeal beyond the period of 90 days against the judgment passed in Crl.M.P.No.645 of 2023 on the file of the Special Court, under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Chennai at Poonamallee, dated 09.05.2023.

2. As per Section 21(5) of the National Investigation Agency Act, 2008 (hereinafter referred to as the 'NIA Act'), the High Court shall not entertain any appeal beyond the period of 90 days.

3. The challenge is to the dismissal of a bail order. In view of Section 21(4) of the NIA Act and the judgment of the Hon'ble Apex Court interpreting the said provision, the petitioner/appellant is also not entitled to file an application under Section 439 of the Cr.P.C. If the petitioner/appellant is denied the right of appeal and thereby the right of bail, because of the procedural restriction, it would amount to a violation of his fundamental right under Article 21 of the Constitution of India. Therefore, considering the importance of the issue and in the light of the conflicting views expressed by different High Courts, we requested Mr.AR.L.Sundaresan, the learned Senior counsel and the Additional Solicitor General of India to act as an Amicus Curiae to assist us in deciding this issue. We also requested Mr.E.Raj Thilak, the learned Additional Public Prosecutor, to render assistance in the matter.

4. The learned counsel for the petitioner/appellant submitted that the Delhi High Court and the Jammu & Kashmir High Court in Farhan Shaikh Vs. State (National Investigation Agency), reported in 2019 SCC OnLine Del 9158 and Chief Investigating Officer, Jammu Vs. 3rd Additional Sessons Judge District Court, Jammu [Crl.A(D) No.46/2022 dated 13.12.2022], respectively, have taken a view that Section 21 of the NIA Act, does not exclude Section 5 of the Limitation Act and further held that the word 'shall' shall be read as 'may' in the 2nd proviso to Section 21(5) of the NIA Act, considering the hardship that would be caused to the litigants if the provision is considered to be mandatory. Therefore, the learned counsel submitted that this Court may condone the delay by applying Section 5 of the Limitation Act, since the word 'shall' has to be read as 'may'.

5 (i) Mr.AR.L.Sundaresan, learned Senior counsel submitted that the Calcutta High Court and Kerala High Court, in Sheikh Rahamtulla @ Sajid @ Buhan Sajid @ Burhan Sheikh @ Surot Ali vs. National Investigation Agency [CRA (DB) 231/2022 dated 01.03.2023] and Nasir Ahammed Vs. National Investigation Agency [2015 SCC OnLine Ker 39625], respectively, took a view that Section 21(5) of the NIA Act is mandatory.

(ii) The learned Senior Counsel further submitted that Delhi High Court and Jammu & Kashmir High Court, have taken a view that Section 5 of the Limitation Act would be applicable, and the word 'shall' used in the 2nd proviso of Section 21(5) has to be read as 'may' and the Appellate Court would be well within its powers to condone the delay and entertain the appeal, even after the expiry of 90 days.

(iii) The learned Senior counsel further pointed out the judgment of the Bombay High Court in Faizal Hasamali Mirza Vs. State of Maharashtra, reported in 2023 SCC OnLine Bom 1936, wherein the Bombay High Court had considered all the judgments and held that the applicability of Section 5 of the Limitation Act is not ruled out under the provisions of the NIA Act and that the word 'shall' should be read as 'may'.