Access to justice a fundamental right, delay in filing appeals in NIA cases can be condoned: Bombay HC

Bombay High Court. File Pic

Access to justice is a fundamental right and it cannot be rendered illusory or subject to chance, the Bombay High Court on Thursday said, ruling that appellate courts can condone delays and hear appeals filed beyond the mandatory 90-day period under the NIA Act.

Under section 21 (5) of the National Investigation Agency (NIA) Act, no appeal shall be entertained after an expiry of period of 90 days from the date of the order under challenge.

A division bench of Justices Revati Mohite Dere and Gauri Godse allowed a plea filed by one Faizal Mirza, arrested by the NIA, seeking condonation of delay of 838 days in filing appeal seeking bail.

Mirza had filed an appeal challenging a March 2020 order passed by a special NIA court rejecting his bail plea.

The high court in its judgment noted the NIA Act has to be read in conjunction with other laws and cannot be said to be a complete code in itself.

The bench also expressed its displeasure with the contradictory stand taken by the NIA. The HC noted that while in this plea filed by the accused the agency said delay cannot be condoned, but in other HCs the agency had itself filed petitions seeking condonation of delay in appeal filed by it.

"NIA, being a central investigating agency, is expected to take one stand, either ways, for or against. The stand cannot change to suit its needs. We are unable to see any merit/reason, in the contradictory stand taken by the NIA before different high courts," the Bombay HC said.
The right of an accused to file an appeal against his conviction is linked to Article 21 of the Constitution of India, it said.

"Presumption of innocence is a human right and the said principle forms the basis of criminal jurisprudence in India. Presumption of innocence, being a facet of Article 21, the same enures to the benefit of the accused," the HC said.

"An appeal being an extension of the trial, there exists a fundamental right to file an appeal and this right cannot be rendered illusory or subject to chance," it added.

Courts exist to do justice. Access to justice is a fundamental right and cannot be diluted, the HC said.
"Time and again, courts have held that 'access to justice', an invaluable human right, is also recognised as a fundamental right," the bench said in its judgment.

In India, 'access to justice' has been recognised as a valuable right by courts, even before the Constitution came into force, the bench said.

"An accused stands nothing to gain by filing an appeal belatedly, in as much as, it is the accused who continues to suffer incarceration, and it is the accused who will stand prejudiced by filing an appeal belatedly. The NIA suffers no prejudice," the court said.

The HC said that not just 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.

"...as even closing the doors to the prosecuting agency can also lead to serious consequences, as the NIA Act is concerned with the national sovereignty, security and integrity of India, friendly relations with foreign State and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations," the HC said.

The high court held that if this provision was held to be mandatory, then it would lead to travesty of justice, even in cases where the accused is able to show 'sufficient cause' for not filing an appeal, within the prescribed period as stipulated.

The reasons for not filing appeal on time could be several like financial condition of the accused to engage a lawyer, lack of legal knowledge, of his right to file an appeal, no member of the family to assist/help engage a lawyer for the accused and having no family member and so on, it said.

Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilised societies around the globe, the court noted.

"The right is so basic and inalienable that no system of governance can possibly ignore its importance/significance, leave alone afford to deny the same to its citizens," it added.

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