An accused person in a terrorism case finally learns that the Special Court has granted an extension of custody—past the 90-day default bail threshold—based on a Public Prosecutor’s report placed entirely in sealed cover. The accused wants to challenge this order. But there is an obstacle: by the time the accused or their lawyer obtains a certified copy of the extension order, weeks or months have elapsed. The investigating agency took time to supply the order. The registry took time to prepare the certified copy. And now the prosecution argues that the 90-day limitation period under Section 21(5) of the National Investigation Agency Act, 2008 (NIA Act) has elapsed—and that the appeal must be dismissed in limine.

This scenario is not hypothetical. It recurs with troubling regularity in Special Courts across India. This article addresses three interconnected questions: What is the current legal position on the 90-day limitation period for filing an appeal under Section 21(5) NIA Act? How does the common law maxim actus curiae neminem gravabit (an act of the court shall prejudice no man) apply to exclude institutional delay from the limitation period? And how does the continued use of sealed cover proceedings compound the accused’s disadvantage in this computation?

This is the third and final article in a series on default bail and UAPA. Article 1 explains the foundational concepts of remand and default bail. Article 2 examines the three procedural violations in UAPA extension hearings that entitle an accused to default bail. This article addresses what happens when the accused’s challenge is delayed by institutional failures.

Section 21(5) NIA Act: The Text and the Problem

Section 21 of the NIA Act provides for appeals against judgments, sentences, and orders of the Special Court. Section 21(5) reads as follows:

“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 the period of ninety days.”

The second proviso, read literally, creates an absolute bar after 90 days. No cause, however sufficient, can secure admission of an appeal once 90 days have elapsed from the date of the impugned order. The problem is stark:

• An incarcerated accused person may not know an order has been passed against them for days or weeks.
• The jail may receive the order long after it is pronounced.
• Applying for and obtaining a certified copy from the trial court registry can take weeks, especially in overburdened Special Courts.
• Where the PP’s report was filed in sealed cover, the accused cannot frame meaningful grounds of appeal until the contents of the sealed cover are at least partially disclosed.
• The 90-day clock runs from the date of the order — not from the date the accused received a meaningful, reviewable copy of it.

The High Court Conflict and the Supreme Court’s Resolution

Courts across India have taken divergent positions on whether the 90-day outer limitation period for filing an appeal under Section 21(5) of the NIA Act is mandatory (an absolute jurisdictional bar) or directory (a “justice bar” subject to judicial discretion).

The positions taken by various High Courts are summarised below:

• Bombay High Court (2023): Held the 90-day limit is directory. Appellate courts have discretion to condone delays beyond 90 days where sufficient cause is shown. Relied on Articles 14 and 21 and the principles of access to justice.
• Telangana High Court (2024): A delay of 390 days condoned. The 90-day limit is a ‘Justice Bar’ that must apply equally to both the accused and the agency. It cannot be stretched or curtailed at will.
• Delhi, Jammu & Kashmir, and Chhattisgarh High Courts: Adopted the directory view, permitting condonation on sufficient cause.
• Kerala and Calcutta High Courts: Took the mandatory view — the second proviso is an absolute bar that High Courts lack the power to condone.

Recognising this irreconcilable conflict, the Supreme Court intervened. On 4 January 2024, a three-judge bench comprising Chief Justice Sanjiv Khanna, Justice Sanjay Kumar, and Justice K.V. Viswanathan issued the following interim direction in the reference batch:

“The appeals preferred by the accused or the victims will not be dismissed on the ground that the delay cannot be condoned beyond 90 days.”

This interim order of the Supreme Court continues to hold the field as of April 2026. The reference is yet to be finally disposed of. In practical terms, this means that no High Court can currently dismiss an NIA Act appeal on the ground that the 90-day outer limit has been exceeded. The mandatory interpretation adopted by the Kerala and Calcutta High Courts has been effectively overridden by the Supreme Court’s interim direction, pending final disposal of the reference.

The Supreme Court’s February 2025 final judgment in State by Inspector of Police v. A. Raja Mohammed (Criminal Appeals 580-582 of 2025) further clarified that Section 21 NIA Act confers the right of appeal on both the State and the accused, and that a High Court’s refusal to entertain an appeal on limitation grounds requires careful examination of the specific delay circumstances, not mechanical application of the second proviso.

Actus Curiae Neminem Gravabit: The Doctrine Explained

The Latin maxim actus curiae neminem gravabit translates as ‘an act of the court shall prejudice no man.’ It is one of the foundational maxims of equity and natural justice, reflecting the principle that a litigant should not be penalised for a failure or delay that is attributable to the court or an arm of the State — not to the litigant.

Indian courts have adopted this maxim in a series of landmark judgments:

• Jang Singh v. Brijlal, AIR 1966 SC 1631: The Supreme Court recognised the maxim as an established principle of Indian law and applied it to exclude from computation a period during which the court’s own action (or inaction) caused the delay in filing.
• R. Antulay v. R.S. Nayak, (1988) 2 SCC 602: The Supreme Court applied the maxim in the context of criminal proceedings, holding that delay attributable to court orders or court machinery cannot be charged against the accused.
• Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437: The Court applied the maxim to exclude court-caused delay from limitation computation.
• Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123: The Court held that time lost due to institutional failure or court error must be excluded when computing appeal periods, on the basis that limitation rules exist to ensure diligence — not to punish the innocent.

Applied to Section 21(5) NIA Act: where the trial court registry, or the investigating agency/NIA, takes weeks or months to supply the certified copy of the extension order to an incarcerated accused, the period attributable to this institutional delay must be excluded from the 90-day computation. The accused — confined to prison, without access to electronic legal databases, dependent on intermediaries to obtain court documents — cannot be expected to file an appeal within 90 days from an order they did not receive in reviewable form until a fraction of that period remained.

Section 12(2) of the Limitation Act, 1963: The Copy Application Exclusion

Section 12(2) of the Limitation Act, 1963 provides that in computing the period of limitation for an appeal, the day on which the judgment, decree, or order appealed from was pronounced, and the time requisite for obtaining a copy of such judgment, decree, or order, shall be excluded.

Although the NIA Act contains its own limitation provision, Section 29(2) of the Limitation Act provides that where any special or local law prescribes a period of limitation that differs from the Limitation Act, the provisions of Sections 4 to 24 of the Limitation Act shall apply only insofar as they are not expressly excluded by the special law. Section 21(5) NIA Act does not expressly exclude Section 12(2) of the Limitation Act. On the principle of harmonious construction, the copy-application exclusion under Section 12(2) should apply to NIA Act appeals.

Combining actus curiae neminem gravabit with Section 12(2) Limitation Act, the computation of the 90-day period for an incarcerated accused should proceed as follows:

• Day 0: Date of the extension order (not counted).
• Day of application for certified copy to Day of supply of certified copy: Excluded under Section 12(2) Limitation Act and actus curiae neminem gravabit.
• Where the PP’s report was in sealed cover and the accused applies to the court for at least the gist/redacted version: The period between the sealed-cover application and the court’s response should also be excluded, on the principle that the accused cannot frame grounds of appeal against a document they have not seen.
• Remaining days after copy is received: Count toward the 90-day limit.
• Any balance beyond 90 days: Currently protected by the Supreme Court’s 4 January 2024 interim order.

The Sealed Cover Compounding Problem

Where the PP’s extension report was filed entirely in sealed cover, an additional dimension arises in the limitation analysis. The accused cannot effectively challenge an extension order if the reasons for that order are entirely withheld. The right of appeal is rendered hollow if the appellant cannot know what they are appealing against.

The Supreme Court’s ruling in Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366 rejected ‘absolute immunity from disclosure’ as antithetical to a transparent and accountable system. In P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161, the Court recognised the accused’s right to access investigation material as a component of the right to a fair trial under Article 21. These principles, taken together, support the argument that the limitation period under Section 21(5) NIA Act cannot begin to run against an accused who has not received any of the reasoning behind the order they wish to challenge.

The practical approach in such cases is to file, simultaneously: (a) an application to the Special Court seeking supply of the PP’s report in at least redacted/gist form, citing Madhyamam Broadcasting; and (b) a Section 21(5) NIA Act appeal accompanied by a detailed condonation application. The condonation application should record, day by day, the timeline of the institutional delay, and invoke the three pillars discussed above: actus curiae neminem gravabit, Section 12(2) Limitation Act, and the Supreme Court’s 4 January 2024 interim order.

Drafting the Condonation Application: Essential Averments

A well-drafted condonation application under Section 21(5) NIA Act, where institutional delay is the basis, should include the following averments:

• The exact date of the impugned extension order.
• The date on which the accused or counsel first became aware of the order (distinguishing awareness from receipt of a reviewable certified copy).
• The date of application for a certified copy to the trial court registry.
• The date on which the certified copy was actually supplied — with the registry’s stamp and date clearly exhibited.
• A statement that the PP’s extension report was placed in sealed cover and was not, as of the date of filing, accessible to the accused in any form.
• An application (if not already filed) seeking supply of the PP’s report in redacted/gist form, relying on Madhyamam Broadcasting.
• Specific invocation of: (a) actus curiae neminem gravabit — citing Jang Singh v. Brijlal, A.R. Antulay v. R.S. Nayak, and N. Balakrishnan v. M. Krishnamurthy; (b) Section 12(2) Limitation Act; and (c) the Supreme Court’s 4 January 2024 interim order in the Section 21(5) NIA Act reference batch.
• Reliance on Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 for the proposition that substantial justice must prevail over technical bars, especially where the delay is institutional.
• Reliance on Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649 for the proposition that a liberal approach to condonation is warranted where delay is attributable to institutional factors beyond the litigant’s control.

The condonation application is not a formality — it is a substantive document that must persuade the High Court that the delay was not the appellant’s fault and that substantive justice requires the appeal to be heard on its merits. The stronger the factual record of institutional delay, the more compelling the application.

Procedural Sequencing: The Default Bail Application and the NIA Act Appeal

The default bail application and the Section 21(5) NIA Act appeal serve different functions and operate at different stages. They are not mutually exclusive, and both should be prepared and filed as appropriate:

• Default bail application: Filed before the Special Court, invoking the procedural violations in the extension hearing (non-production, PP as post office, sealed cover). Must be filed before the charge-sheet is filed — once the charge-sheet is on record, the right to default bail is extinguished (Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616; M. Ravindran v. Intelligence Officer, (2021) 2 SCC 485).
• Section 21(5) NIA Act appeal: Filed before the High Court, challenging the extension order on the same grounds. Serves as a parallel track and a safety net if the default bail application is rejected by the Special Court.

The two applications reinforce each other. The default bail application preserves the indefeasible right while the charge-sheet has not been filed. The NIA Act appeal challenges the legal validity of the extension order itself, with the result that if the appeal succeeds, the accused’s right to default bail is restored even after the charge-sheet has been filed.

Key Cases at a Glance

• Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 — Default bail is a fundamental right under Article 21; must be claimed before charge-sheet is filed.
• Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 — Indefeasible right preserved on filing of application, regardless of subsequent charge-sheet.
• Sanjay Dutt v. State through C.B.I., Bombay, (1994) 5 SCC 410 — Production of accused before court is mandatory when PP’s extension report is considered.
• Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 — PP must independently apply mind; cannot be a post office for the IO.
• Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, Crl.A. 1656/2022 (SC, 23.09.2022) — Non-production vitiates extension; accused entitled to default bail.
• State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, 2024 INSC 11 — PP’s report with genuine disclosed reasons (pending sanction, FSL, national security connections) justifies extension; does not address non-production or sealed cover.
• Madhyamam Broadcasting Ltd. v. Union of India, 2023 SCC OnLine SC 366 — Sealed cover proceedings violate natural justice; Public Interest Immunity procedure is the constitutionally compliant alternative.
• Supreme Court interim order, 4 January 2024 (Section 21(5) NIA Act reference) — Appeals under NIA Act cannot be dismissed on the ground that the delay exceeds 90 days, pending final disposal of the reference.
• Jang Singh v. Brijlal, AIR 1966 SC 1631 — Actus curiae neminem gravabit applies in India; court-caused delay excluded from limitation.
• Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 — Substantial justice over technical bars in limitation matters.
• Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 — Institutional failure must be excluded from limitation computation.
• R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 — Actus curiae: court-caused delay in criminal proceedings cannot be charged against the accused.

Conclusion

The Section 21(5) NIA Act appeal limitation problem is a microcosm of a broader structural inequity: the accused, already in custody and often without reliable access to legal materials, is expected to navigate a procedural deadline that begins running from a date they may not have been informed of, based on an order whose reasoning may be entirely withheld from them. The law, properly read, does not permit this outcome.

Three converging doctrines — the Supreme Court’s 4 January 2024 interim order neutralising the absolute bar, the actus curiae neminem gravabit maxim requiring exclusion of institutional delay, and the Section 12(2) Limitation Act copy-application exclusion — together ensure that an incarcerated accused is not permanently barred from challenging a procedurally invalid extension order simply because the State’s own machinery was slow in supplying the relevant documents.

The practitioner’s task is to build the factual record methodically: document every date, every application, every response, every delay. The legal framework is supportive. The Supreme Court has, in its interim order, already signalled that the Justice Bar cannot be wielded to shut out the accused entirely. The merits of the appeal — grounded in the procedural violations analysed in Article 2 of this series — deserve to be heard.

FAQs: 

1. What is the limitation period for filing an appeal under Section 21(5) NIA Act?

An appeal must be filed within 30 days from the date of the order. The High Court may condone delay up to 90 days, subject to sufficient cause.

2. Is the 90-day limitation period for filing an appeal under Section 21(5) of the NIA Act absolute?

Not entirely. Although the provision suggests an outer limit of 90 days, the Supreme Court (interim order dated 4 January 2024) has clarified that appeals should not be dismissed solely on the ground that delay exceeds 90 days.

3. Can delay beyond 90 days be condoned in NIA Act appeals?

Yes, as of now. In light of the Supreme Court’s interim direction, High Courts are permitted to entertain appeals even beyond 90 days, depending on the facts and reasons for delay.

4. Does delay in obtaining a certified copy affect limitation under Section 21(5)?

Yes. Under Section 12(2) of the Limitation Act, 1963, the time required to obtain a certified copy of the order is excluded from the limitation period.

5. What is the role of “actus curiae neminem gravabit” in limitation computation?

This principle means that a litigant should not suffer due to court delay. If the delay is caused by the registry or court process, that period should be excluded from limitation.

6. How do sealed cover proceedings impact the right to appeal?

Sealed cover proceedings can delay the accused’s ability to file an effective appeal, as they are unable to access the reasons for the order. Courts have recognised that this may justify exclusion of time or condonation of delay.

7. When does the limitation period actually begin for an accused in custody?

Although technically counted from the date of the order, courts may consider the date of knowledge or receipt of a certified copy while assessing delay and condonation.

8. What should be included in a condonation of delay application under Section 21(5) NIA Act?

It should include:

• Dates of order, knowledge, and copy application
• Date of receipt of certified copy
• Details of institutional delay
• Grounds invoking Section 12(2) Limitation Act and actus curiae principle

9. Can an accused challenge a custody extension order after the charge-sheet is filed?

Yes, through a Section 21(5) NIA Act appeal, even though the right to default bail may no longer be available.

10. Is filing both a default bail application and an NIA Act appeal necessary?

Yes. Both remedies serve different purposes and should be used strategically together to protect the accused’s rights.

References and Legal Citations

[1] National Investigation Agency Act, 2008 — Section 21(5): Limitation period for appeals  https://www.nia.gov.in/national-investigation-agency-act-2008.htm

[2] Supreme Court of India — Interim Order, 4 January 2024 (Section 21(5) NIA Act reference batch) — Appeals not to be dismissed beyond 90 days  https://courtbook.in/posts/supreme-court-appeals-under-nia-act-cannot-be-dismissed-due-to-delay-beyond-90-days

[3] Supreme Court of India — State by Inspector of Police v. A. Raja Mohammed, Criminal Appeals 580-582 of 2025 (decided 4 February 2025)  https://www.sci.gov.in/sci-get-pdf/?diary_no=203372018&type=o&order_date=2025-02-04&from=latest_judgements_order

[4] Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 — Default bail as fundamental right  https://main.sci.gov.in/supremecourt/2020/4337/4337_2020_36_1501_24283_Judgement_12-Oct-2020.pdf

[5] M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, (2021) 2 SCC 485 — Indefeasible right preserved on filing  https://indiankanoon.org/doc/82481898/

[6] Sanjay Dutt v. State through C.B.I., Bombay, (1994) 5 SCC 410 — Production of accused mandatory  https://indiankanoon.org/doc/1655328/

[7] Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 — PP independence  https://cjp.org.in/wp-content/uploads/2022/07/Hitendra-Vishnu-Thakur-Ors.-vs.-State-of-Maharashtra-Ors.-1994-4-SCC-602.pdf

[8] Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, Criminal Appeal No. 1656 of 2022 (SC, 23.09.2022)  https://api.sci.gov.in/supremecourt/2021/23563/23563_2021_3_1501_38491_Judgement_23-Sep-2022.pdf

[9] State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, 2024 INSC 11 — Sufficiency of disclosed reasons  https://api.sci.gov.in/supremecourt/2021/6064/6064_2021_8_1505_49160_Judgement_03-Jan-2024.pdf

[10] Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366 — Sealed cover violates natural justice  https://api.sci.gov.in/supremecourt/2022/6825/6825_2022_1_1501_43332_Judgement_05-Apr-2023.pdf

[11] P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161 — Accused’s right to access investigation material  https://indiankanoon.org/doc/140533153/

[12] Jang Singh v. Brijlal, AIR 1966 SC 1631 — Actus curiae neminem gravabit adopted in India  https://indiankanoon.org/doc/471822/

[13] A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 — Actus curiae in criminal proceedings  https://indiankanoon.org/doc/1748811/

[14] Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437 — Actus curiae and limitation  https://indiankanoon.org/doc/120373929/

[15] N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 — Institutional failure excluded from limitation  https://indiankanoon.org/doc/615066/

[16] Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 — Substantial justice over technical bars  https://indiankanoon.org/doc/756491/

[17] Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 12 SCC 649 — Liberal approach to condonation for institutional delay  https://indiankanoon.org/doc/116605034/

[18] Limitation Act, 1963 — Section 12(2): Exclusion of time for obtaining certified copy  https://legislative.gov.in/sites/default/files/A1963-36.pdf

[19] SCC Online Blog: Timeline of 90 days under Section 21 NIA Act — Telangana HC (September 2024)  https://www.scconline.com/blog/post/2024/09/30/timeline-of-90-days-for-filing-appeal-prescribed-under-s-21-nia-act-to-be-applied-equally/

[20] LiveLaw: Is 90-Day Limitation for Appeal Under Section 21(5) NIA Act Directory or Mandatory? Supreme Court to Decide  https://www.livelaw.in/top-stories/is-90-day-limitation-for-appeal-under-sec215-nia-act-directory-or-mandatory-supreme-court-to-consider

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