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Supreme Court: The Court has extended the interim protection from arrest to activist Gautam Navlakha by four more weeks in Bhima Koregaon case. The two-judge bench headed by Justice Arun Mishra allowed him to approach trial court for pre-arrest bail. Navlakha has to apply for pre-arrest bail in the meantime. The lawyer appearing for Maharashtra government, however, objected to granting of any interim protection from arrest to Navlakha.

The Court had, on October 4, extended the interim protection from arrest to Gautam Navlakha till October 15 in the matter.
Chief Justice Ranjan Gogoi, Justice S Ravindra Bhat and a bench of Justices NVmRamana, R Subhash Reddy, and BR Gavai had earlier recused themselves from hearing Navlakha’s plea seeking quashing of an FIR registered against him in the case.

Navlakha was booked under provisions of the Unlawful Activities (Prevention) Act (UAPA) and various sections of the Indian Penal Code (IPC), including waging a war and sedition. He is accused of having links with banned Naxal  groups.

By its recent judgment, the Bombay High Court had arrived at the prima facie conclusion that there is sufficient material for the investigation to continue against Navlakha. The High Court had, however, said that the observations made in its order are only prima facie in nature and that they should not influence the trial court’s decision in the matter.

The High Court had also extended the interim protection from arrest given to Navlakha giving time to him to approach the Supreme Court.
The Maharashtra government has also filed a caveat petition in the matter seeking to be heard before any orders are passed by the apex court.

(Source: ANI)

Case BriefsHigh Courts

Bombay High Court: The Division Bench comprising of Ranjit More and Bharati H. Dangre, JJ. addressed a petition filed by Gautam Navlakha an accused in the Bhima – Koregaon Case, in order to quash the proceedings of FIR registered on 08-01-2018 qua him.

Sequence of events

The FIR was registered pertaining to a complaint, initially, for the offence punishable under Sections 153 A, 505(l) (b), 117 read with Section 34 of Penal Code, 1860. FIR proceeds on the lines that fist informant came to know through social networking sites that there is a programme at Shaniwarwada organised by Elgar Parishad and he attended the same.

Further, he stated that some of the performers at the programme enacted shot-plays, dances and songs which were provocative in nature and had the effect of creating communal disharmony. Few objectionable books and other literature were kept at the venue for sale. In the FIR it was also alleged that the banned organisation CO (Maoist) was inciting violence.

Adding to the stated, the allegation that members of Kabir-Kala Manch spread hatred through their songs, plays and speeches causing enmity between different communities and as a result thereof, there were incidents of violence, arson and stone pelting near Bhima – Koregaon causing loss of lives and public money.

January 1st 2018 – Events occurring at Bhima – Koregaon had wide repercussions throughout the State of Maharashtra, law and order was affected. The investigation revealed that there was deep-rooted conspiracy to create communal disharmony and accordingly Section 120-B was added.

May 17th 2018 – Provisions of Unlawful Activities (Prevention) Act, 1967 were invoked. Sections 13, 16, 17, 18, 18 B, 20, 38, 39 and 40 of the said Act were added to the subject FIR.

August 28th 2018 – Petitioner along with four others came to be arrested from their houses in Delhi and was immediately taken to the Court of CJM, Delhi, who granted two days transit remand to Pune police. On the very same day, a habeas corpus petition was filed on behalf of the petitioner in the Delhi High Court and the Court directed that the petitioner will not be moved from Delhi till further orders. In the evening of the same day, Delhi High Court stayed the mentioned order and directed the house arrest.

August 29th 2018 – Five academicians filed a PIL in the Supreme Court praying for Court-monitored SIT. Supreme Court extended the interim protection granted to the petitioner by Delhi High Court from 28-08-2018.

September 28th 2018 – Supreme Court by majority of 2:1 declined to order a Court-monitored investigation but extended the house arrest.

October 1st 2018 – Delhi High Court quashed the petitioner’s arrest and ordered his release from the house arrest. In pursuance to the liberty granted by the Supreme Court to the petitioner, the present petition is filed. Petition was finally heard on 26-07-2019 and the order was reserved.

Background of the facts

Petitioner claims to be the human right activist for decades and his outspoken views on political issues are claimed to be well within the constitutional guarantee of free speech. He was called upon by the State to assist in securing the release of officials abducted by left-wing extremists in 2011. Petitioner adds that he has been an open critic of left-wing extremist violence.

Contentions

Counsel for the petitioner, Dr Choudhary submitted that the FIR does not disclose any offence under the provisions of UAPA Act. Petitioner had nothing to do with either Elgar Parishad or the organisation of the event as mentioned above, either as the member of the said Parishad or as a participant in the event. Neither the petitioner was present nor involved in the violence of Bhima-Koregaon, therefore, subject FIR is manifestly unjust and is liable to be quashed.

References in the computer of a third party are being used against the petitioner, which is not legally permissible. Mere references by name is insufficient for adding someone in the FIR. Counsel also added to his submissions that even if the allegations made in the FIR are taken at face value, they do not make out a case against the petitioner and therefore the subject FIR deserves to be quashed qua the petitioner.

Learned APP, Mrs Pai submitted that the petitioner is found to be working and is an active member of a banned terrorist organisation, namely, Communist Party of India (Moist). Petitioner was also found providing strategic inputs in furtherance of the objective of armed rebellion as per the strategic document of the banned terrorist organisation.

Conclusion

The High Court on perusal of the material filed, contentions, facts and the documents recovered from the electronic devices of the petitioner and others relied upon by the prosecution as disclosed in the charge-sheet, are satisfied that the investigating agency has material to connect the petitioner in the subject crime.

Court stated that in respect to the nature and magnitude of the conspiracy, the investigating agency is required to be given sufficient time to unearth the evidence against the petitioner, especially when the scope of investigation is not restricted to Bhima-Koregaon incident but activities leading to the incident and subsequent activities as well are the subject matter of investigation.

Therefore, the present petition in view of the above is without any merit and the same is accordingly dismissed. [Gautam P. Navlakha v. State of Maharashtra, 2019 SCC OnLine Bom 1866, decided on 13-09-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjay Kishan Kaul, JJ has set aside the Bombay High Court decision refusing the Maharashtra Police a ninety-day extension to file the charge-sheet under the Unlawful Activities Prevention Act, 1967 against the human rights activists in Bhima Koregaon violence case.

Background of the case:

The activists Surendra Gadling, Mahesh Raut, Rona Wilson, Professor Shoma Sen and Sudhir Dhawale were arrested after an FIR was lodged alleging that members of the ‘Kabir Kala Manch’, under the head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of the Elgar Parishad, where active members of CPI (Maoist) supposedly raised inflammatory slogans and engaged in certain other allied activities, with the intention to conspire, incite and abet the commission of terrorist acts and other unlawful activities by using violent means, thus, promoting enmity between different groups, which ultimately culminated 2 in the break-out of violent riots on 1.1.2018, at a place popularly known as Bhima Koregaon, where a large population of people was said to have gathered to celebrate the 200th anniversary of the battle at Bhima Koregaon.

Alleged non-compliance of the proviso to Section 43D(2)(b) of the Unlawful Activities Prevention Act, 1967:

On the question that whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application for extension of a period of 90 days, for further investigation and filing of charge-sheet in the said crime, the Court explained that there are certain requirements that need to be fulfilled, for its proper application of the proviso to Section 43D(2)(b). These are as under:

  1. It has not been possible to complete the investigation within the period of 90 days.
  2. A report to be submitted by the Public Prosecutor.
  3. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.
  4. Satisfaction of the Court in respect of the report of the Public Prosecutor.

After perusing the material placed before it, the Court said that it cannot accept the argument that the material set out in the document does not meet with the requirements of the proviso, insofar as the reasons for seeking extension for the period of investigation are concerned. It, however, said that there is no doubt that the report/application of the public prosecutor, setting out the reasons for extension of 90 days of custody to complete investigation leaves something to be desired.

It was, however, noticed:

“The first document, purporting to be the application of the IO, contains the reasons for such extended period of investigation but the second document details out the grounds in extenso and cannot be said to be only a mere reproduction of what is stated in the first document. It cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.”

Ruling:

The Court, hence, set aside the Bombay High Court order and held that the respondents would not be entitled to the benefit of default bail. The Court, however, clarified that since charge-sheet has been filed, the observations made in the present order wouldn’t affect the right of accused to seek regular bail.

[State of Maharashtra v. Surendra Pundlik Gadling, 2019 SCC OnLine SC 188, decided on 13.02.2019]