Bhima Koregaon Case: Delhi HC Brings Gautam Navlakha’s House Arrest To An End, Holds Order Granting Transit Remand Unsustainable [Read Order]

Taking strict view of a series of non-compliances of various mandatory legal requirements, the Delhi High Court on Monday set aside the August 28 order of the Chief Metropolitan Magistrate (CMM) granting transit remand of Gautam Navlakha, one of five rights activists under house arrest in the Bhima Koregaon case, to the Maharashtra Police.A bench of Justices S Muralidhar and Vinod Goel set aside the CMM’s order granting Navlakha’s transit remand to the Maharashtra Police while also refusing to extend his house arrest as it noted that neither the CMM took into account material available with the police to necessitate Navlakha’s arrest nor was Navlakha informed about grounds of his arrest.These, the court said, were legal requirements which could not be diluted under any circumstance.“With there being several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Sections 57 and 41(1)(ba) of the CrPC, which are mandatory in nature, it is obvious to this Court that the order passed by the learned CMM on 28th August 2018 granting transit remand to the Petitioner is unsustainable in law. The said order is accordingly hereby set aside,” the bench ordered.“In view of Section 56 read with Section 57 CrPC, in the absence of the remand order of the learned CMM, the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, the house arrest of the Petitioner comes to an end as of now,” it ordered.At this, advocate Vinay Navare, appearing for the state for Maharashtra, submitted that the court should extend Navlakha’s house arrest by two more days since the Supreme Court had itself extended his house arrest for four weeks, the bench said, “This submission overlooks the fact that the Supreme Court had extended the Petitioner’s house arrest only in order to enable him to avail of the remedies that were permissible to him in accordance with law.”The house arrest comes to an end two days after the Supreme Court by 2:1 majority disposed of the petition seeking court-monitored SIT probe into the case. Navlakha had moved court on August 28.He was arrested from his house at Nehru Enclave in Delhi. Before passing Monday’s order, the court noted that on August 28, when Navlakha’s petition had come before it, the Additional Solicitor General had informed it that necessary documents including FIR etc., were in Marathi language and their translation would take some more time.Despite being granted more time, the search and seizure form, the search panchnama, and the arrest memo, all of which were in Marathi, could not be translated by August 29.The bench noted that though originally the petition challenged the ground of arrests, it later challenged the remand order of the CMM.Maintainability of the petitionThe bench dismissed Navare’s argument that once a person is in judicial custody pursuant to a remand order passed by a magistrate in connection with an offence under investigation, a writ of habeas corpus is not maintainable. Navare had cited apex court judgment in case titled State of Maharashtra v. Tasneem Rizwan Siddiquee.However, Navlakha’s counsel Nitya Ramakrishnan referred to the same case to say that the CMM had in the instant case not satisfied himself about the existence of material, and not the adequacy thereof, which could justify the prayer made in the remand application filed by the Maharashtra Police.“On the question of the maintainability of the present petition…this Court had even prior to the learned CMM passing the order on the remand application directed at around 2.45 pm on 28th August 2018 that no further precipitate action of removing the Petitioner from Delhi be taken till the matter be again taken up at 4 pm.”“…Consequently, when the present habeas corpus petition was entertained and the above interim order was passed by this Court, there was no order of the learned CMM granting transit remand of the Petitioner. In each of the aforementioned decisions cited by Mr. Navlakha the entertaining of the habeas corpus petition by the High Court was subsequent to the transit remand order passed by the concerned Judicial Magistrate. This one factor distinguishes the present case from the above cases. Consequently, this Court rejects the preliminary objection raised by Mr. Navakre as to the maintainability of the present writ petition,” the bench said.CMM has to apply his mind to ensure material exist to justify transit remandFrom a combined reading of Article 22(2) of the Constitution and Sections 57 CrPC and 167 CrPC, the bench noted that “…even before a Magistrate before whom a transit remand application is filed, the mandatory requirement of Section 167(1) CrPC is that a copy of the entries in the case diary should also be produced. It is on that basis that under Section 167(2) such nearest Judicial Magistrate will pass an order authorising the detention of the person arrested for a term not...

Bhima Koregaon Case: Delhi HC Brings Gautam Navlakha’s House Arrest To An End, Holds Order Granting Transit Remand Unsustainable [Read Order]

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