The Supreme Court on Friday reserved its order on a plea filed by senior journalist and activist Gautam Navlakha, against an order of the Bombay High Court denying him default bail in the Bhima Koregaon case.
The Bench comprising of Justice UU Lalit and Justice KM Joseph said that it will release the order after 7th April, as Justice Joseph is not available until then.
During the hearing, the Bench observed that the first two days, the period of seeking transit remand for Navlakha, will "definitely be accounted" to calculate period of custody. However, the question remains as to whether the period of house arrest can be considered under Section 167 (2) of CrPC.
The Court brushed aside the submission made by ASG Raju, appearing for the NIA, that the period of transit will not be included in the 90 days period.
"As we are presently given to say, first 2 days will definitely be accounted to calculate period of custody. We are on nature of continued custody.
First point is what is nature of first 2 days when you seek transit remand. Why don't you focus on the second point as that is bulk of the period," the Bench remarked orally.
Does house arrest amount to Custody?
The primary bone of contention in the matter is whether the 34 days period of Navlakha's house arrest between August 29 to October 1, 2018, can be included in his period of detention for the purpose of granting default bail under Section 167(2) of CrPC.
Senior Advocate Kapil Sibal appearing for the Petitioner argued that Navlakha was placed under house arrest, following an order of the court, therefore it would be termed as judicial custody and the said period is to be included in the 90 days period under Section 167(2).
When the Bench asked Sibal as to in whose custody a person under house arrest is, Sibal submitted, "Judicial custody. Nature of custody has changed."
ASG Raju on the other hand argued that the orders of the High Court keeping Navlakha under house arrest were not passed under CrPC but in exercise of writ jurisdiction. Hence, the same cannot be included to compute 90 days period under Section 167.
"The exercise by HC and SC wasn't under CrPC. It was under writ jurisdiction. Therefore, they aren't orders under CrPC," he argued.
Raju further pointed out that Navlakha was surrendered on 14th April 2020 whereafter he was produced at a NIA Court in Delhi. There, Navlakha moved for anticipatory bail.
"If he was in custody or arrested, he'd have been bailed out. The fact is that accused applied for anticipatory bail before Session court, High Court and Supreme Court, and all the Courts didn't entertain it," Raju submitted.
He insisted that these earlier proceedings must be read according to subsequent proceedings. "If your anticipatory bail is rejected, the date of earlier arrest of 28 August becomes insignificant," he argued.
"They accepted the fact that arrest commenced from 14th when he surrendered and not from 28th of August. He himself accepted. This acceptance is by conduct. One conduct is by filing anticipatory bail application."
The Bench on the other hand contemplated that if Sibal's submissions are accepted, then any discovery made during the police investigation in this case would become fractured.
"If he was put in 34 days of custody already, he could never have been given police custody? So logically if his submission is accepted, and there is some discovery in police investigation that would be completely fractured.?
The moment you say police custody cannot be granted after 30 days, and if in this case police custody is granted, every recovery made then would be a fractured discovery. We are just trying to test the combination, to see where logic leads us," the Bench remarked.
Nothing prevented Police from interrogating: Sibal
During his arguments, Sibal insisted that nothing precluded the investigating officers from saying that they want to interrogate Navlakha.
The Bench however opined that if Sibal's submission is accepted that house arrest is to be taken as custody, then Navlakha will be entitled to reconcile that period.
"Can we do that as a Judicial organ. That will be altering course of Section 167 CrPC," the bench remarked.
However, Sibal insisted that nothing during the said period prevented the Police from moving the Court.
"In facts if this case they had all time to investigate him police remand. The order the Court is interpreting did not mean police from Pune cannot seek remand. It intended to mean others cannot meet him," he argued.
The Bench asked Sibal that if supposedly the transit had come into effect and Navlakha was transferred from Delhi to Bombay and produced there, would in his opinion this period of 2 days would also be a part of 90 days under Section 167.
Responding in the affirmative, Sibal submitted,
"Yes! Because he was in custody. There is no other procedure of law established under Section 167. My liberty is taken away. I am in custody. As a matter of law, it would have to be granted."
Transit does not amount to Remand: ASG Raju
This was however disputed by ASG Raju who argued that Transit order does not amount to remand.
"The remand was not for purpose interrogation. It was only for purpose of transit. Because there is a mandate that to be kept in custody beyond 24 hours you have to seek transit," Raju submitted.
"Section 167 talks of order of detention by Magistrate. From 28th August till 1st October, no order was passed by any Magistrate authorising any custody. For Section 167 to operate, there has to be an order of a Magistrate putting him in custody."
"The orders putting him in custody from 28th are either orders of High Court or SC. Order wasn't passed by Magistrate hence not in nature of 167. Order keeping him custody from 28th August to 1st October wasn't an order of 167 hence cannot be computed."
Raju further argued that if a person is required for investigation and is situated outside jurisdictional court, he can be brought to jurisdictional court if he is detained, by production warrant.
"If he isn't detained, he can be brought for production. And in Dalmiya'a case (State of West Bengal v. Dinesh Dalmiya) it was held that if a person is brought for purpose of production, it will not be included in computation of 90 days."
The Bench, at this juncture, inquired if it is the agency's submission that if two days on account of Dalmiya case cannot be considered, in this case 2 days got elongated to 34 days due to Court's intervention.
The Bench observed,
"If difference was going to be for 2 days one can understand. But here its more than two days. If he is in custody in first case and has to be produced in second case, Production warrant is produced for another case but he continues to be in custody even for first case. But this case is different.
Here the moment you arrest him he is in your custody. If you say he will not be in your custody till he is produced in Pune, what will be nature of his custody? Should he just walk away? You have to accept he was in your custody. Your point is not Dalmiya. Your point is if he continued to be in custody under 167. Dalmiya doesn't answer your point, correct?
This case has to be understood from the point of where the duration of first custody begin. In that aspect it will be a good case."
Had no opportunity to interrogate: ASG Raju
ASG Raju vehemently opposed the plea while submitting that it had no occasion to interrogate Navlakha while he was in house arrest.
"He (Navlakha) was produced before the Saket Court in Delhi on 28th August at around 2:45 pm on the same day, after being arrested. At same time or slightly before that, the Delhi High Court passed an order. Virtually everything was stayed by the order."
"Transit order doesn't amount to remand be one of my submissions…It is an arrest order. Order was extended till 12th and then further extended till when Romila Thapar's order was pronounced (on 28th September).
Thereafter, interim order was extended for 4 weeks on 28th September 2018. The order had lost its effect as it only said to produce him (Navlakha) before Pune Court before 30th August. The High Court said the order was bad."
In this backdrop, Raju argued that Navlakha was granted protection at various times from various Courts, and therefore he could not be interrogated by the Police.
While giving a brief of the entire chain of events, Sibal submitted that Navlakha was arrested on August 28, 2018. The next day, i.e. on August 29, interim order for house arrest was passed. This order kept on getting extended from time to time.
"The orders can be seen, how the interim orders kept on getting extended. Court says interim orders issued on 18th august be continued till pronouncement of judgement. This is important. Now the (Delhi) High Court, quashed the Petitioner's arrest.
He was kept under house arrest for 34 days. The point for consideration is set out by the High Court itself. There are 3 periods, 28th August to 1st October. There is no dispute qua the other two periods. Total days, taking these three sets of periods into account, would be 98 days. The Chargesheet was filed on 90th day. The question is that charge sheet not being filed in 90 days, the petitioner ought to be released," he told the Bench.
When the Bench enquired if the Petitioner is contesting the nature of detention during the said 34 days, Sibal responded,
"Yes. But the High Court has rejected it. It said while he was under house arrest it cannot be treated as custody of police as they cannot interrogate him. Also, that order of transit was set aside everything that happened till 1st October was void and cannot be counted. Both reasons according to me are legally unsustainable. High Court order was not in a writ petition. It was in furtherance of the remand."
The Bench sought a clarification, "the next order stayed the trasnsit remand and continued the house arrest?"
"Yes, the case was stayed on October 1" Sibal said.
Further, on being asked how the High Court dealt with the house arrest part, Sibal responded, "They haven't dealt with it. The house arrest kept getting extended."
Here, the bench observed that Navlakha finally surrendered on 14th April 2020. The next day 7 days, custody was granted. Thereafter, on 25th April, he was directed to judicial custody.
"So, till then he was in Police Custody. But Police Custody can only be granted in first 15 days," the Bench remarked.
"Not in UAPA," Advocate Nitya Ramakrishnan, also appearing for Navlakha, responded.
Continuing his submissions, Sibal argued that reliance of NIA Court, that first rejected default bail, on the decision rendered in State of West Bengal v. Dinesh Dalmiya is erroneous in the present facts.
"In Dalmia case, Mr Dalmia was required by Calcutta exchange. Meanwhile he was arrested in other case in Delhi. And then transit remand was granted. A production warrant was issued. When he got to know, he surrendered.
(Special) Court said voluntary surrender wouldn't count. There were two different cases filed against him in that case. That case doesn't apply here."
Sibal also disputed applicability of certain judgments on which the Bombay High Court had relied while rejecting default bail.
"HC has relied on Saytanarayan v. State of Andhra Pradesh which has nothing to do with this case, because it says that period of 15 days should start from the date of remand."
He submitted that the ratio in Saytanarayan was that the period prior to remand should not be counted. "And it hasn't been counted here. I don't understand how's this applicable here," Sibal argued.
Navlakha's plea before the top Court comes after a division bench of Justices SS Shinde and MS Karnik refused to interfere in his criminal appeal filed against an order of the special court, which rejected his application for default bail in June, last year. He is in prison since his surrender on April, 14 2020.
Yesterday, the Supreme Court had accommodated NIA's request to adjourn the matter for a day. "I am seeking only one day's accommodation. It is not a regular bail application. If it was regular bail, I would understand. It is a default bail application on some hyper technical grounds..."ASG SV Raju had said.
After raising some objections, Sibal conceded that the matter be listed as the first item today (March 26).
"Tomorrow is the hearing day. Whatever happens will happen. Keep yourself available," the Bench said.
The High Court, observed that, the time spent in "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 Court had further observed that 34 days Navlakha had spent under house arrest between August 28, 2018 - October 10, 2018, cannot be used to calculate his total detention period, especially since his arrest, as well as the magistrate's transit remand, was found to be illegal by the Delhi HC.
The court held that section 167 (2) of the CrPC, assumes the detention is authorised by a magistrate, and 90 days upward from that day can be used to calculate the period of custody for default bail. "However, once the authorisation by the Magistrate is declared illegal consequently rendering the detention itself illegal, the said period (house arrest custody) cannot be construed to be an authorised custody within the meaning of Section 167(2) of CrPC.," the court said.
The Maharashtra police had arrested Navlakha on August 28, 2018 in connection with an FIR lodged following the 'Elgar Parishad' held on December 31, 2017 and the Bhima Koregaon violence, a day after. Through the nationwide crackdown on activists and academics, connected to the conference, the police claimed to bust a larger maoist conspiracy.
The case was later handed over to the NIA. Navlakha's arrest and subsequent house arrest in August, 2018, was declared illegal by the Delhi High Court. Navlakha then approached the Sessions Court, followed by the High Court and Supreme Court for anticipatory bail. The Supreme Court, on March 16, 2020, directed Navlakha to surrender within three weeks, after rejecting his bail application. His plea seeking an extension in view of the coronavirus pandemic was also rejected. Following this Navlakha surrendered on April 14.