O R D E R (CAV)

(M. Zothankhuma, J)

1. Heard Mr. J. Singh, learned counsel for the applicant and Mr. R.K.D. Choudhury, learned Senior Counsel and Dy. SGI for the National Investigation Agency assisted by Ms. L. Devi, learned counsel.

2. This is an application for condoning the delay of 152 days in filing the appeal against the impugned order dated 26.08.2025 passed by the learned Special Judge (NIA), Assam, Guwahati in Misc. (NIA) Case No.617/2025, arising out of Special NIA Case No.2/2019.

3. The issue to be decided is as to whether a delay beyond 90 days in filing an appeal can be condoned by this Court, keeping in view the second Proviso to Section 21(5) of the National Investigation Agency Act, 2008 (hereinafter referred to as the “Act”).

4. The counsel for the applicant submits that a delay beyond 90 days can be condoned under Section 21(5) of the Act. In support of his submission, the learned counsel has relied upon the judgments of Allahabad High Court, Bombay High Court, Jammu & Kashmir and Ladakh High Court, Delhi High Court and the Gauhati High Court.

5. On the other hand, the learned Senior Counsel & Dy. SGI submits that delay beyond 90 days in filing an appeal cannot be condoned in terms of second Proviso to Section 21(5) of the Act. In support of his submission, the learned Senior Counsel has relied upon the judgments of Calcutta High Court, Jharkhand High Court, Karnataka High Court, Madras High Court, Meghalaya High Court and Kerala High Court.

6. Section 21 of the Act states as follows :

“21. Appeals -(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

(2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.

(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.

(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.

(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:

Provided further that no appeal shall be entertained after the expiry of period of ninety days.”

A. Judgments in support of the applicant/appellant to the effect that a delay beyond 90 days can be condoned.

7. The Bombay High Court in Interim Application No. 2375/2022 in Criminal appeal (Stamp) No.11931/2022 (Faizal Hasamali Mirza @ Kasib vs. The State of Maharashtra) has held that the offences enumerated in the Schedule as defined in paragraph 2(f) of the Act are serious offences, it is necessary to ensure that the accused persons get a right to test the correctness of an order passed by the Special Court in appeal, lest injustice is caused to either parties, due to an unmerited order. Not only the accused but even the prosecution should be able to approach the Appellate Court after expiry of 90 days, on sufficient cause being shown for the delay. It held that an appeal under Section 21(5) of the Act is a substantive appeal and a right which is protected by Article 21 of the Constitution. Thus, Courts cannot be mute or helpless spectators, simply because an appeal is filed beyond 90 days, despite sufficient cause being shown. Further, no prejudice is caused to anybody. Thus the 2nd Proviso to Section 21(5) of the NIA Act will have to be read down, so as to read “shall” as “may”, which