Case BriefsSupreme 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

 

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]