Here’s why Gautam Navlakha was not able to make a case for default bail before the Supreme Court

Supreme Court: The bench of UU Lalit and KM Joseph*, JJ has dismissed the bail plea of activist Gautam Navlakha arrested in relation to the Bhima Koregoan riots case.

Allegedly, some activists, including Navlakha, made inflammatory speeches and provocative statements at the Elgar Parishad meet in Pune on December 31, 2017, leading to violence at Koregaon Bhima in the district the next day. 

He was arrested from his residence in Delhi on 28.08.2018, where after he moved a Writ of Habeas Corpus in the High Court of Delhi. The High Court, on the same day, not only stayed his transit remand but also put him under house arrest. The order read,

“The petitioner shall, in the meanwhile, be kept at the same place from where the was picked up with two guards of the Special Cell, Delhi Police along with local Police that was originally here to arrest the petitioner, outside the house. Barring his lawyers, and the ordinary residents of the house, the petitioner shall not meet any other persons or step out of the premises till further orders.”

It is also important to note that on the same day, about 2 hours before the High Court passed the aforementioned order, the CMM had ordered a transit remand, directing the Navlakha to be kept in Police Custody for 2 days.

On 01.10.2018, the High Court of Delhi set aside the transit remand, as the transit remand ordered by the magistrate was found illegal on the ground that detention beyond 24 hours was clearly impermissible.

Next day, a writ was filed before the Supreme Court by “five illustrious persons in their own fields” against the high-handed action of the Maharashtra Police and the arrest of five Activists from their homes. In the interim orders, the Court extended the “benefit of house arrest” of the appellant, to others as well. The order of house arrest of appellant was extended.

In the present case, Navlakha, who was kept under house arrest for 34 days in the year 2018, had sought default bail on the ground that the period of 34 days be included within the period of 90 days under Section 167 of CrPC. 

It was Navlakha’s case that when the High Court passed the order of house arrest on 28.08.2018, it modified the remand from police custody to house arrest and hence, it would fall under Section 167 of CrPC.

On the other hand, NIA had argued that the very purpose of custody under Section 167 is to enable the police to interrogate the accused and if that opportunity is not present then such period of custody as alleged would not qualify for the purpose of Section 167.

The Court held that the house arrest of the appellant was not purported to be under Section 167 and hence, cannot be included within the period of 90 days under Section 167 of CrPC. 

The Court noticed that the CMM had not ordered detention for the period after 30.08.2018. Detention was ordered by him only for two days and the appellant was to be produced on 30.08.2018. By the order of the High Court of Delhi, the transit could not take effect. Therefore, the entire period after 30.08.2018 till 01.10.2018 cannot be said to be based on the order of the magistrate. The said period in fact is covered by the order of house arrest.

The Court noticed that if the House Arrest order is perceived as an order passed under Section 167 then there would not be any detention beyond 24 hours of the arrest which could be illegal.

“The appellant was an accused in a FIR invoking cognizable offences. He stood arrested by a Police Officer. He was produced before a Magistrate. A transit remand, which was a remand, under Section 167, was passed. Police custody followed. The High Court ordered that the appellant be kept in house arrest. The setting aside of the Order of transit remand will not wipe out the Police custody or the house arrest.”

While the Court agreed that the house arrest was, undoubtedly, perceived as the softer alternative to actual incarceration, it clarified that,

“That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court.”

[Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, decided on 12.05.2021]


*Judgment by: Justice KM Joseph

For Appellant: Senior Advocates Kapil Sibal and Nitya Ramakrishnan, Advocate Shadan Farasat

For Respondent: Additional Solicitor General S.V. Raju

 

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