SC to hear Gautam Navlakha’s ‘Default Bail’ Petition rejected by Bombay High Court

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On Monday, the Supreme Court agreed to hear activist Gautam Navlakha’s petition on March 22 challenging the Bombay high court’s ruling that rejected his plea for ‘default bail’.

Navlakha had petitioned the Bombay high court in February on the grounds that he was eligible for bail since the 34-day period period he had spent under house arrest in 2018 could be termed as judicial custody.

The division bench comprising of Justice U.U. Lalit and Justice K.M. Joseph meanwhile granted time to the National Investigation Agency (NIA) to file its counter-affidavit to Navlakha’s plea by March 19, while scheduling the next hearing in the matter to March 22.

Navlakha’s counsel, Kapil Sibal, however, objected to the counter-affidavit by NIA as it was only a matter of law, and hence it was not required. The court then told additional solicitor general S.V. Raju to expedite the matter, as it pertains to a man under custody.

“It is only a question of law whether the house-arrest period is to be included for the purposes of Section 167 CrPC [Criminal Procedure Code],” the division bench contended with Sibal’s point of view while reiterating that NIA should file its affidavit by March 19.

Navlakha has been in prison since his surrender on April 14, 2020. In his bail plea before the Bombay high court, Navlakha had sought bail on the grounds that the NIA had failed to file a chargesheet in the Bhima Koregaon case within the stipulated time period.

On February 8, the high court had held that the 34-day house arrest of Navlakha cannot be included for computing the period for filing chargesheet for the purposes of default bail.

While noting that the period of house arrest was unlawful custody, referring to an earlier Delhi high court ruling, the Bombay high court said it was on account of breach of mandatory conditions for arrest and remand.

The Bombay high court held that such period of unlawful custody cannot be included while computing the 90 days period prescribed for grant of default bail under Section 167(2) of the Criminal Procedure Code (CrPC).

The Bombay high court in rejecting Navlakha’s plea had said that no doubt that he was under house arrest, during which time he was only allowed to interact with his family members and lawyers. However, investigation agencies did not have access to him for interrogation, as the high court had had ordered police to keep Navlakha from where he was picked up.

The high court further added that Section 167 (2) assumes that the detention is authorised by a magistrate, and 90 days from that day can be used to calculate the period of detention to qualify for ‘default bail’.

“However, once the authorisation by the Magistrate is declared illegal consequently rendering the detention itself illegal, the said period (house arrest) cannot be construed to be an authorised custody within the meaning of Section 167(2) of CrPC”, the high court had ruled, rejecting his Navlakha’s bail plea.

The Bombay high court bench relied on the decision of Chaganti Satyanarayan and others v State of Andhra Pradesh where the Supreme Court held that the period of 90 days or 60 days, as the case may be, will commence running only from the date of remand and not from any anterior date in spite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty.

Several activists have been accused of making inflammatory speeches at the Elgar Parishad conclave held at Shaniwar Wada in Pune on December 31, 2017, which the authorities claim triggered violence at Bhima-Koregaon war memorial the next day. Navlakha did not speak at the event.

The Centre transferred the case to the NIA in January after the Bharatiya Janata Party government led by Devendra Fadnavis in Maharashtra was defeated. A coalition government of the Shiv Sena, Nationalist Congress Party and Congress came to power in the state in November 2019.

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