An appeal cannot be filed after the expiration of the statutory 90-day limit under Section 21(5) of the NIA Act, even if justified reasons are presented.

JUDGMENT

P.V.BALAKRISHNAN,J Crl.M.A No.2 of 2025 This is a petition filed under Section 5 of the Limitation Act to condone the delay of 57 days in filing the appeal.

2. The petitioner is the 9^th accused in SC No.4 of 2021/NIA on the files of the Special Court for trial of NIA cases, Ernakulam, Kerala. He has filed the Criminal Appeal challenging the order dated 27.06.2025, dismissing Crl.M.P No.82/2025, a petition filed by him to expunge some witnesses from the prosecution list of the witnesses' schedule.

3. The reasons stated by the petitioner for condoning the delay are that the petitioner, being an under-trial prisoner, his access to legal assistance is severely limited due to custodial restrictions. It is averred that the petitioner is handicapped by lack of means of communication within the prison, and it caused an unavoidable delay in conveying instructions, for filing the present appeal. It is also stated that the petitioner is suffering from multiple severe health issues, such as hypertension, dyslipidemia, tuberculosis, various heart diseases, etc., which led to his significant incapacitation and made him unable to take timely action.

4. Heard Adv.Ajit Joy, the learned counsel appearing for the petitioner, and Adv. O.M.Shaleena, the learned CGC appearing for the respondent.

5. The learned counsel for the petitioner reiterated the grounds raised in the petition and contended that there are sufficient reasons for condoning the delay. He argued that even though the appeal is preferred after the prescribed period of limitation under Section 21 (5) of the National Investigation Agency Act, 2008 ('The NIA Act' for short), this Court has ample power to condone the delay by invoking Section 5 of the Limitation Act , since the right of the accused to file a statutory appeal is a substantive right, protected under Article 21 of the Constitution of India. He also relied on a Division Bench decision of the Bombay High Court inFaizal Hasamali Mirza v. The State of Maharashtra & Ors [ 2023(4) BomCR(Cri)330 ] in support of his afore contentions.

6. Per contra, the learned Central Government Counsel submitted that the delay of 57 days as stated in the petition is not correct, and the same is much more. She argued that, as per provisos to Section 21 (5), no appeal can be entertained after the expiry of the period of 90 days from the date of passing of the judgment/order. She, by relying on the decision of this Court in Nasir Ahammed v. National Investigation Agency [ 2015 (3) KLT 320 ], submitted that this question has been elaborately considered by a Division Bench of this Court and has categorically held that no appeal shall be entertained after the expiry of the period of 90 days. She further submitted that the reasons stated for condoning the delay lacks bona fide and that the petitioner is prosecuting the case through a counsel of his choice diligently, all through. She further contended that the medical records produced by the petitioner itself would go to show that he is in a good state of health and is not suffering from any ailments inhibiting him from filing the appeal in time.

7. On an anxious consideration of the rival submissions and the materials on record, we are of the considered view that there is some force in the submissions made by the learned CGC. It is to be seen that even though the period of delay, as stated by the petitioner in the petition, is not correct, admittedly, the appeal has been filed beyond the period of 90 days, from the date of the judgment. Even if the time taken for obtaining a certified copy of the order passed by the NIA Court is excluded in computing the period of limitation under Section 21 (5) of the NIA Act, it