Gauhati High Court
Jahnabee Saikia vs National Investigation Agency on 12 May, 2026
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010040182026
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/205/2026
JAHNABEE SAIKIA
D/O ANAND MOHAN DAS, R/O AMALAPATTY, WARD NO 7,
P.O. AND P.S. SIVASAGAR. DIST. SIVASAGAR, ASSAM,
PIN 785640 ,PH
VERSUS
NATIONAL INVESTIGATION AGENCY
REPRESENTED BY SC, NIA
Advocate for the Petitioner : MR. B D KONWAR SR. ADV., MRS J M KONWAR,
MS. B SOREN,MR H AGARWAL,MR J SINGH
Advocate for the Respondent : Mr. R.K.D. CHOUDHURY, SR. ADV.
MS. L. DEVI
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
O R D E R (CAV)
12.05.2026 (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 Page No.# 2/16 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 Page No.# 3/16 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 Page No.# 4/16 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 2 nd Proviso to Section 21(5) of the NIA Act will have to be read down, so as to read "shall" as "may", which shall make 2nd Proviso to Section 21 of the Act directory. It further held that if the provision is to be read to be mandatory despite sufficient cause being shown, the doors of justice would be shut, leading to travesty of justice, which is not permitted.
8. The Delhi High Court in the case of Farhan Shaikh vs. State (National Investigation Agency) reported in 2019 SCC OnLine Del 9158 held in paragraph 86 as follows :
"86. The prescription of a limited duration for which the Court may condone the delay and no more, irrespective of the justification for the delay, is the imposition of a statutory bar upon the power of the Court to exercise its discretion to condone the delay beyond the specified period. This kind of prescription by the legislature has to be viewed in the context of the particular right involved. In our view, if it curtails the most fundamental and basic right i.e., the right to life and personal liberty, the same has to be viewed in a completely different perspective, and it cannot be construed as mandatory."
9. The High Court of Jammu & Kashmir and Ladakh in National Investigation Agency through it's Chief Investigating Officer, Jammu vs. 3rd Additional Sessions Judge, District Court, Jammu , CrlA(D) No.46/2022 in CrlM No.1474/2022 held that there could be two views in respect Page No.# 5/16 of the provisos to Section 21(5) of the Act. The first proviso provides for the appellant to come to the Court to condone the delay beyond 30 days, but not a period of 90 days from the date of the judgment. Thus the Court cannot, by entering into interpretative process, re-write the mandatory provision, in that, it would amount to legislation by Courts. The other view is that the word "shall"
used in the 2nd Proviso must be read in it's context, having due regard to the object of the legislation. Having regard to the fair trial rights of an accused implicit in Article 21 of the Constitution of India, the word "shall" used in 2 nd Proviso to Section 21(5) of the Act must be read as "may" and on sufficient cause being shown, the Court would be well within it's powers to condone the delay for entertaining an appeal, even after the expiry of 90 days.
10. The High Court of Jammu & Kashmir and Ladakh further held that there were two views as to whether Sections 4 to 24 of the Limitation Act would be applicable for determining the period of 90 days for filing an appeal under the NIA Act in terms of Section 29(2) of the Limitation Act. One view was that the application of Section 5 of the Limitation Act was expressly excluded and the other view was that it was not excluded. The High Court held that because Section 21 of the Act has not specifically excluded the application of Sections 4 to 24, for determining the period of limitation prescribed for filing an appeal under Section 21 of the Act and in view of the first proviso to Section 21(5), which gives discretion to the High Court for entertaining an appeal after expiry of 30 days, the word "shall" used in the 2 nd proviso to Section 21(5) has to be read as "may" or else the remedy of appeal would be rendered otiose.
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11. The High Court of Jammu & Kashmir and Ladakh in CrlM No.719/2014 in CrlA(D) No.35/2024 (Union Territory Th. SHO Police Station Tral vs. Shahid Nazir Bhat & Others, while referring to the above earlier judgment held that the word "shall" used in the 2 nd Proviso to Sub-Section 5 of Section 21 of the Act must be read as "may" and that the High Court shall have the discretion to condone the delay even beyond 90 days in appropriate cases, provided sufficient cause is shown. It further held that it would be a travesty of justice if delay was not condoned which could result in some meritorious cases being thrown out at the very threshold.
12. The High Court of Telangana in the case of Samiuddin vs. State, reported in 2024 SCC OnLine TS 2066 held that the wording of Section 14A(3) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) (SC/ST (PoA) Act, 1989 was far more strict than the 2 nd Proviso to Section 21(5) of the NIA Act. Section 14A(3) of the SC/ST (PoA), Act 1989 excluded the application of any other law. However, there was absence of any express exclusion of the Indian Limitation Act in Section 21(5) of the Act. Section 14A(3) of the SC/ST (PoA), Act 1989 is reproduced hereinbelow as follows :
"14A(3) Notwithstanding anything contained in any other law or the time being in force, every appeal under this Section shall be preferred within a period of ninety 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 ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:
Page No.# 7/16 Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days."
B. Condonation beyond 90 days is barred under the 2nd Proviso to Section 21 of the Act.
13. In the case of Union of India vs. Abdul Razaak, reported in 2024 Supreme(Mad) 2047, the Madras High Court held that the NIA Court is a Court in itself. When all procedures and processes are created through a statute enacted by Parliament, the life and liberty is not taken away otherwise by the authority of law. The question of invoking Article 21 of the Constitution in the presence of a special enactment to deal with offences would not arise at all. Section 21(5) of the Act is not under challenge. Therefore, the High Court while exercising it's jurisdiction as an Appellate Forum conferred on it by the act of Parliament, cannot read down the provision in the absence of any challenge regarding the constitutionality of the said provision. When the Parliament itself has conferred the appellate jurisdiction to the High Court under the special enactment, the High Court is not expected to expand the scope of jurisdiction, while acting as an Appellate Forum. Further, it observed that the Supreme Court in the case of Arup Bhuyan vs. State of Assam & Another, reported in (2023) 8 SCC 745, held that "reading down" doctrine cannot be resorted to, when the meaning of the provision is plain and unambiguous and the legislative intent is clear. The Madras High Court further held that in the absence of a challenge to the constitutional validity of any provision of an enactment, the Courts cannot read down the provision differently than that of the language employed in the particular provision. It also held that Section 21(5) of the Act is unambiguous and the intention of the Parliament was explicit.
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14. The Meghalaya High Court in the case of Wallam Jingsuk Barim vs. The Union of India & Others , reported in 2024 Supreme (Megh) 21, held that when the substantial law prescribed an outer time limit, the Appellate Court cannot extend the time, on the reasoning that it would amount to legislation by Court itself, which is not permissible. For example, under the Employees Provident Fund Act, 1952 read with Rule 7(2) of the Tribunal (Procedure) Rules, 1997, an outer time limit of 120 days is prescribed under Section 7-I in preferring the appeal beyond which the Tribunal would become functus officio. Similarly under the Payment of Gratuity Act, 1972, the maximum period of 120 days is prescribed to prefer an appeal before the Appellate Authority against the order of the Controlling Authority, beyond which the Appellate Authority has no power to entertain the same. The Meghalaya High further held in paragraph 16 as follows :
"16. At this point of time, we feel it appropriate to refer to the maxim ―Ut res magis valeat quam pereat, which means that the statutes must be construed so as to make them effective and constructive and not ineffective or destructive. The Legislature was aware about the provisions contained in Section 5 of the Limitation Act, yet with an intention to curb the delay, legislature left it to the Rule making authority to make a provision for limitation under the NIA Act, 2008. The provisions of the Limitation Act is expressly excluded, as a specific provision is made under the NIA Act, 2008. There is no bar for the petitioner to file any number of bail applications before the Special Court and if aggrieved by any order to be passed by the said Court, an appeal can also be preferred before the Higher Forum within the time prescribed under the NIA Act, 2008 and the Court is empowered to take up the matter, provided the appeal is filed well within 120 days."
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15. The High Court of Jharkhand at Ranchi in the case of Sushila Devi vs. Union of India, reported in 2024 Supreme (Jhk) 29 held in paragraph 85 as follows :
"85. The judgment rendered by the Kerala High Court, according to our considered view, will have the persuasive value due to the following reasons:
--
(i) If The principle to condone the delay under Section 21(5) is based upon the sufficient cause, then in such circumstances, if a person has been convicted under the Scheduled Offence, then he will file an appeal even after inordinate delay by giving justification of sufficient cause for condoning the delay, then what will happen to the very object and intent for the purpose for which, the Act has been enacted.
(ii) Further, when the individual claiming the fundamental right of liberty as enshrined under Article 21 of the Constitution of India, if not filed an appeal, within the maximum period of 90 days then in such circumstance the said individual cannot be allowed to take plea of the violation of the spirit of Article 21 of the Constitution, for the reason that when the statute itself taken into consideration the fact that the appeal is to be filed within the maximum period of 90 days so that the issue be decided by the appellate court, will be said to be consideration of Article 21 of the Constitution of India and if the appeal will be filed beyond the period of 90 days, how can such individual be allowed to take the plea of violation of Article 21 of the Constitution of India.
(iii) It is, thus, evident that the twin test in order to achieve the object of the Act on the one hand and to secure the principle of Article 21 of the Constitution of India, will be said to be fulfilled only when the act will be read in entirety and the same will be said to be achieved its intent, if the due adherence is to be given to the statutory provision.
(iv) The period of 90 days which has been provided to file an appeal is for the purpose of providing an opportunity to the aggrieved to prefer an appeal so that an opportunity be available at an early date to look into the perversity if available in the impugned order or judgment or sentence or the order rejecting the prayer for bail, so as to achieve the .
16. The Calcutta High Court in the case of Sheikh Rahamtulla @ Sajid @ Page No.# 10/16 Burhan Sheikh @ Surot Ali & Others vs. National Investigation Agency, reported in 2023 Supreme (Cal) 192 held in paragraph 52 and 70 as follows :
"52. It has been recognised by different authorities that, the doctrine of limitation is founded on considerations of public policy and expediency. Statutes of limitation do not create new obligations but only provide periods within which action must be brought to Court. The object of limitation statute is to compel litigants to be diligent in seeking remedies in Courts of law by prohibiting stale claims. The law of limitation does not destroy the primary or substantive right itself but puts an end to the accessory right of action. The judicial remedy is barred but the substantive right itself survives and continues to be available. The rules of limitation are not meant to destroy the rights of the parties."
"70. The 2nd proviso to sub-Section (5) of Section 21 of the Act of 2008 is plain, clear and unambiguous in its meaning. It has prohibited entertainment of any appeal after the expiry of a period of 90 days. To read Section 5 of the Limitation Act, 1963 into Section 21 (5) 2nd proviso would require substituting the word "no" appearing in such proviso with the word "an". Such substitution would render the entirety of the 2nd proviso otiose and superfluous."
17. The High Court of Karnataka High Court in the case of The Deputy Commissioner and Special Land Acquisition Officer, reported in 2019 Supreme (Kar) 1798 has, while considering whether an appeal could be filed beyond 120 days in view Section 74(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation in Resettlement Act, 2013 (hereinafter referred to as the "2013 Act"), wherein period of 60 days was provided for filing an appeal which could be extended not beyond another 60 days, the High Court held that Section 74(1) of the 2013 Act excluded Section 5 Page No.# 11/16 of the Limitation Act.
18. The Kerala High Court in the case of Nasir Ahammed vs. National Investigation Agency, reported in 2015 Supreme(Ker) 386 held that -
".......The scope of the provisos to sub-Section (5) of Section 21 of the N.I.A. Act has to be considered in the light of the other provisions in the Act. The period of limitation provided under sub Section (5) of Section 21 is thirty days. The first proviso to sub-Section (5) empowers the High Court to entertain an appeal after the expiry of thirty days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within the period of thirty days. The second proviso provides that no appeal shall be entertained after the expiry of the period of ninety days. The first proviso to sub-Section (5) of Section 21 itself deals with condonation of delay in filing appeal and the delay up to sixty days (ninety days from the date of order) can be condoned by the High Court. By making a restriction that no appeal shall be entertained after the expiry of the period of ninety days, the application of Section 5 of the Limitation Act is expressly excluded. The High Court has jurisdiction to condone the delay in filing the appeal. But that power is restricted under the first proviso to sub- Section (5) of Section 21. A further restriction in the second proviso is a clear indication that the High Court cannot exercise the power under Section 5 of the Limitation Act to condone the delay. To that extent, it amounts to an express exclusion of Section 5 of the Limitation Act as contemplated under S. 29(2) of the Limitation Act."
19. As can be seen from the judgments of the High Courts which hold that delay beyond 90 days can be condoned by the Appellate Court, the same has been done by reading down the 2 nd Proviso to Section 21(5) of the Act and holding that the word "shall" shall be read as "may" or else there would be travesty of justice, if a case having merit could not be considered by an Page No.# 12/16 Appellate Authority. On the other hand, it has been held by other High Courts with the contrary view that when the words of a statute are clear and ambiguous, the Courts cannot give a different meaning than what is already there. Further, the Supreme Court in the case of Arup Bhuyan (supra) has clearly held that "reading down" doctrine cannot be resorted to when the meaning of the provision is plain and ambiguous and the legislative intent is clear. Also, there is no challenge to the constitutional validity of the 2 nd proviso to Section 21(5) of the Act, to give any opportunity to the Courts to read down the provisions differently. When the legislative intent is clear and the meaning of the provision is plain and unambiguous, we are of the view that the proviso to Section 21(5) of the Act cannot be "read down", so as to interpret the word "shall" as "may".
The 2nd Proviso to Section 21(5) of the Act would in any event be applicable to not only an accused person, but also to the Enforcement Agency. Keeping in view the fact that the right to speedy trial/justice is an essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution, the same would require all the parties to be vigilant so that public confidence is maintained in the judicial system. A perusal of Section 29(2) of the Limitation Act read with the provisions of the Act also leads us to believe that Sections 2 to 24 of the Limitation Act cannot be applied to the Act.
20. The above being said, the Coordinate Bench of this Court in the case of Gopendra Singh vs. National Investigation Agency [I.A.(Crl.) 56/2026] had, vide order dated 12.03.2026, condoned the delay of 150 days in preferring an appeal against an order passed by the learned Special Judge, Page No.# 13/16 NIA, Assam. The Coordinate Bench held that " the rigour of Section 21(5) does stand clarified by a constitutional reading. Such an interpretation harmonises the statutory provision with the guarantee of life and personal liberty under Article 21 of the Constitution of India, which encompasses the right to fair procedural and meaningful access to justice. Procedural prescription, however stringent, cannot be construed in a manner that extinguishes substantive rights or results in manifest injustice, though at the same time, finality of litigation has always been a concern. Thus, such power is to be exercised with circumspection and, in our view, only when there is a case of denial of access to justice and Section 21(5) must be read in consonance with constitutional guarantees, rather than an exclusionary clause." The Co-ordinate Bench held that the question is not merely of limitation, but of the Courts duty to ensure the justice is not defeated by procedural constraints. The Coordinate Bench thus held that in matters relating to personal liberty, a liberal approach in condonation is not only permissible but warranted. To non-suit the appellant on the ground of delay would amount to foreclosing a valuable right of appeal.
21. The Act was brought into force to constitute an investigation agency at the national level to investigate and prosecute offences affecting, amongst others, the sovereignty, security and integrity of India, the security of the State, and friendly relations with foreign States. A special agency to be called the National Investigation Agency has been brought into existence under the provisions of this Act for the investigation and prosecution of offences under the Acts specified in the Schedule. The Schedule includes the following Acts:
1. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
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3. The Anti-Hijacking Act, 1982 (65 of 1982);
4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);
8. Offences under-- (a) Chapter VI of the Indian Penal Code (45 of 1860) [sections 121 to 130 (both inclusive)]; (b) Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860)
22. The nature of the offences identified by the Act, which can be investigated by the agency brought into existence by the Act and the time frame laid down in the Act, demonstrate the intention of the legislature to ensure that promptness and independence of investigation, prosecution and trial are ensured when offences under the Scheduled Acts are concerned. The Special Court have been given authority and competence to decide issues relating to the procedural aspects of the concerned trial. It has also been provided that trials under the Act shall assume precedence over the trial of any other case against the accused in any other court.
23. A perusal of the different provisions of the Act reveals that each of the provisions has received the attention of the Legislature, so also for the Page No.# 15/16 provisions relating to the filing and disposal of appeals preferred by persons who suffer due to the judgment, sentence or order, not being an interlocutory order, rendered by the Special Court under the Act.
24. The Act provides for every appeal to be, as far as possible, disposed of within a period of three months from the date of admission of the appeal. While Section 21(5) sets the time limit of filing appeals to thirty days, the first proviso allows for a discretion to be exercised by the High Court, by empowering it to condone delay beyond 30 days on being satisfied that there are sufficient grounds for the delay. It is, thereafter, by the second proviso, that an embargo is introduced, by providing that no appeal shall be entertained if filed beyond a period of 90 days from the date of the order being assailed. The Legislature, in its wisdom, which is not questioned in the present litigation, has imposed the embargo of 90 days after bestowing the power to consider appeals if filed after 30 days, but with sufficient cause being shown for such delay.
25. We are unable to bring ourselves to presume that the Legislature, while enacting the provisions of the Act, was either unaware or had ignored the repercussions that a convict or the Enforcement Agencies may face if an outer limit for filing an appeal is imposed. The embargo on filing appeals under the Act is not absolute and a convict under the provisions of the Act is not deprived of the right to file an appeal, albeit he does the same within a certain time limit. To our understanding, the proviso does not bar the Right to appeal, thereby infringing the fundamental right under Article 21 of the Constitution. It merely limits the expectation of a convict that his appeal can Page No.# 16/16 be entertained even after 90 days, even if he can put forth sufficient cause for the delay, which may convince the appellate forum to condone the delay. The Act also bars appeals and revisions from interlocutory orders of the Special Courts, thus indicating the intent of the legislature to curtail prolongation of the trial.
26. When the intent of the Act is to bring finality to the Trial proceedings within the shortest possible time, a liberal interpretation, allowing convicts or the Enforcement Agencies to resort to appeals even after a delay of 90 days, in our considered opinion, would hit at the very intent of the Act to bring about speedy finality (Justice) to a case. We are not inclined to resort to such liberal interpretation, more so when the Act aims to deal with offences which have global effects, affecting, amongst others, the sovereignty, security and integrity of India, the security of the State and friendly relations with foreign States.
27. As we hold a different view to that of the Coordinate Bench of this Court, inasmuch as, we hold that condonation of delay beyond the permissible limit cannot be granted/entertained by this Court, in view of the 2 nd Proviso to Section 21(5) of the Act, the matter be referred to a larger Bench for it's decision. Registry to send the case record to the Hon'ble Chief Justice for a decision on the issue.
JUDGE JUDGE Comparing Assistant