Madras HC discourages appellants breaching time limit under NIA Act

CHENNAI: The Madras High Court held that the order of a division bench allowing accused persons to file an appeal beyond the permissible time stipulated under National Investigation Agency (NIA) Act, 2008, is bad in law and said the High Court cannot read down a provision differently when it is unambiguous and the intention enacting the provision is explicit.

Courts are expected to read the provision as it is and on the intention of the legislature, it cannot read down the provision differently or else it will defeat the legislative intention, wrote a division bench of Justice SM Subramaniam and Justice V Sivagnanam while dismissing the appeal of NIA.

The investigation agency NIA preferred the appeal challenging the order passed by the special court for NIA cases, granting bail to two accused persons Abdul Razak and A Kyzer, who were arrested by the agency under the Unlawful Activities (Prevention) Act, 1967.

The NIA claimed that the special court granted the bail based on the judgment of the bench in Barakathullah vs. NIA case, 2023, which was later set aside by the Supreme Court. Hence the bail should be set aside, it said.

On the other hand, Additional Solicitor General (ASG) ARL Sundaresan sought the bench to condone the delay in filing the appeal within the stipulated time under Section 21 (5) of the NIA Act.

The ASG referred to the judgment of a division bench of Justice MS Ramesh and Justice Sunder Mohan in Buhari vs additional deputy superintendent of police case, caused discrimination in preferring an appeal since it allowed the accused can move an appeal beyond the stipulated time, which is 90 days, whereas the prosecution cannot be given liberty to file an appeal beyond the scope stipulated in Section 21 (5) of the NIA Act.

The prosecution will result in serious consequences and cause prejudice to the interest of the State, said ASG.

The contradictions and creation of two classes of persons namely accused and prosecution for preferring an appeal resulted in miscarriage of justice as the prosecution alone is deprived, added the ASG and sought to condone the delay in preferring the present appeal.

In February this year, a division bench of Justices MS Ramesh and Sunder Mohan, while hearing an appeal of an accused challenging the rejection of his bail order, the bench held that the appeals against the orders of the special courts for NIA Act cases can be allowed even if they are filed beyond the prescribed period of 90 days, to protect the fundamental rights of the accused persons under Article 21 of the Constitution.

However, the present bench formed a contradictory opinion that the previous bench’s view of allowing the accused to file appeal beyond the prescribed time is running counter to the legal principles settled by a three judges bench of Supreme Court in Arup Bhuyan’s case.