A plea for statutory bail, filed by activist Gautam Navlakha, which was a challenge of the Bombay High Court’s rejection of his plea, was today dismissed by the Supreme Court. Navlakha has been allegedly involved in the Bhima Koreagon violence case.
The rejection of the bail order was given by the bench of Justices U.U. Lalit, K.M. Joseph and Indira Banerjee. The Bombay High Court, in its February 8 rejection of his application, had upheld the special court’s bail rejection order.
The High Court had said that no infirmity could be found in the order of learned Special Judge, National Investigation Agency and affirmed the order of NIA Court, rejecting the bail of Gautam Navlakha, passed on July 12, 2020.
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Senior Advocate Kapil Sibal represented Gautam Navlakha in court. The appeal was filed against the dismissal order of bail, wherein Navlakha filed the application, seeking statutory bail under Section 167(2) of the Code of Criminal Procedure, 1973 read with Section 43 of the Unlawful Activities Prevention Act, 1967.
Gautam Navlakha is a civil rights activist, writer and journalist associated with Economic and Political Weekly and other publications. He was arrested from his residence in Delhi on October 28, 2018 and charged under Sections 121, 124-A, 153-A, 5051(1)(b), 117, 120-B, r/w section 34 of IPC and also under Sections 13,16,17,18, 18-B, 20,38, 39,40 of Unlawful Activities (Prevention) Act.
Transit remand proceedings of Navlakha were stayed by the Delhi High Court on August 28, 2018 and he was kept under house arrest. Moreover, Navlakha approached the High Court of Delhi challenging his arbitrary arrest and his arrest was quashed. The Maharashtra Government moved the Supreme Court to transfer further proceedings to the NIA.
Gautam preferred Writ for quashing of FIR, which got dismissed on November 20, 2019 and subsequently the appellant challenged the order of cancellation of anticipatory bail before the apex court. Thereafter, Gautam was granted four weeks of protection, with liberty to file pre-arrest bail before the concerned court.
The primary issue raised by the Counsel for Gautam Navlakha was that custody period of 90 days had exceeded and no charge sheet had been filed, apart from that, no further extension of time sought for filing charge sheet on behalf of the state, and as such, Navakha is entitled for statutory bail under Section 167 CrPc read with Section 43 of IPC.
The substantial question of law arose before the High Court, “Whether the house arrest of the Appellant Gautam Navlakha during the period from August 28, 2018 to October 1, 2018 i.e. 34 days constitutes custody within the meaning of Section 167 (2) of the CrPC for the purpose of computing 90 days period for grant of default bail. If this period of 34 days is to be included in the 90 days period and construed as period of custody, then of course the appellant’s total custody would exceed 90 days.”
The Division Bench of High Court determined the period of 34 days (August 28, 2018 to October 1, 2018) in which Gautam was under house arrest to be taken into count and regarded as custody and also observed that since transit remand order had stayed by the Delhi High court, it cannot be said that Gautam was under police detention for investigation.
In Para 49 of its judgement, the two-Judge Bench of High Court of Bombay held, “It is not in dispute that thereafter the appellant applied for anticipatory bail which came to rejected at all stages and ultimately the appellant surrendered on April 14, 2020. It is only consequent to the surrender that the Magistrate then authorise the police custody.”
The order of the Bombay High Court made certain observations regarding scope of 167 (2) CrPc, “The Section presupposes a detention authorised by a Magistrate, for only then the said period of authorised detention can count towards calculating 90 days period of custody prescribed under Section (2) of Section 167 of CrPC for the purpose of default bail.”
Read order below
4836_2021_33_1502_28011_Judgement_12-May-2021