The Telangana High Court on Friday, September 27, rebuked the National Investigation Agency (NIA) for not applying the ‘justice bar’ to all charged under the NIA Act equally. The two- judge bench made the statement while considering if appeals challenging a trial court’s orders can be allowed after the expiry of the statutory period stipulated under Section 21 of the NIA Act.
The observations were made by Justices Moushumi Bhattacharya and Nagesh Bheemapaka while hearing a plea filed by three accused in a UAPA case seeking condonation of a 390-day delay in filing criminal appeals against February 2023 orders of the Additional Metropolitan Sessions Judge-cum-Special Court for NIA cases.
The Assistant Commissioner of Police (SIT), NIA, had filed a petition against three accused under Sections 18 (punishment for conspiracy to commit terrorist act), 18 (B) (punishment for recruiting people to commit terrorist act) and 20 (being a member of a terrorist organisation) of the Unlawful Activities (Prevention) Act (UAPA), extending their judicial remand to 180 days. The NIA was directed to complete the investigation within these 180 days.
The Special Court for NIA cases, however, dismissed the petition filed by the accused for default bail, despite the NIA not completing the investigation within the stipulated time. It is in this context that the accused approached the Telangana HC about the delay.
The accused argued that Section 5 of the Limitation Act should be read into Section 21(5) of the NIA Act. Section 5 permits applications and appeals to be admitted after the prescribed period of limitation only if the court is satisfied that sufficient cause is shown.
The NIA argued that Section 21(5) itself provides for condonation of delay and hence any further extension of the time limit would be contrary to the object of a special statute like the NIA Act.
Section 21 deals with the filing of appeals, wherein the second proviso 21(5) states that "no appeal shall be entertained after the expiry of the period of 90 days”. The HC said that the statutory timeline of 90 days must be applied to one and all in equal measure, irrespective of whether the appellant is an accused or an “agency” constituted under Section 3 of the NIA Act".
The bench condoned the accused’s 390-days delay in filing appeals by citing similar extensions that the NIA had been allowed previously. The bench observed that each argument made by the NIA against allowing the delay pleas had already been reversed before the Jammu & Kashmir High Court and the Chhattisgarh High Court in two cases. In both these cases, it was the NIA who was the appellant and the agency had been permitted to file their appeals beyond the statutory timelines.
Terming the statutory bar on filing an appeal against a court decision beyond 90 days under the NIA Act as the ‘justice bar’, the bench noted that it was "perplexing" that the NIA had construed Section 21(5) of the NIA Act according to its "convenience and taken diametrically-opposite stands to suit its purpose". “We accordingly hold that the appeals are maintainable,” the court observed.
The court however clarified that its decision will be subject to the judgement/order pronounced by the Supreme Court in a Special Leave Petition (SLP) concerning the extension of time under Section 21(5) NIA Act, read with the provisos.