The Supreme Court on Friday adjourned an appeal moved by State of Maharashtra against the Delhi High Court order setting aside Gautam Navlakha's transit remand.
A bench of Justices Arun Mishra, S. Abdul Nazeer & Indira Banerjee allowed the State Government to file a compilation earmarking list of dates along with a convenience in the appeal which has contended that the habeas corpus petition filed by Navlakha before the High Court is not maintainable. For this purpose, the State Government has gone on to cite two Supreme Court judgements - State of Maharashtra v. Tanseem Rizwan Siddique and Saurabh Kumar v. Jailor, Koneil Jail.
The case was heard for a brief period and the Government's contention of non-application of Section 167(2) of the CrPC by the High Court of Delhi while setting aside Navlakha's remand order for transit by the Trial Court. It has been contended by the State Government that the High Court had erred while holding that production of case diary was imperative while applying for transit remand.
Solicitor General Tushar Mehta stated that the question here is whether the interpretation of section 167(2) could have been done (by the High Court)."High Court could not have gone into this issue" argued Mehta.
Senior Advocate Dushyant Dave appeared for Navlakha and stated that the validity of the transit remand order has to be decided by the trial court itself. "It was a writ of habeas corpus. Nalvlakha had surrendered" argued Dave.
At this juncture, Justice Mishra stated that the matter shall be taken up next week after the compilation is on record and is circulated.
The Appeal filed by the state has contended that,
"Section 167 (1) of the code of criminal procedure makes it clear that in case an accused is to be produced before the jurisdictional magistrate, then it is incumbent upon the police to produce the case diary. In case the police applies for transit remand before a Magistrate having no jurisdiction, then it is not necessary for the police to produce the case diary. In the case in hand, the Police arrested 5 persons from different places in the country. It was, therefore, not expected and not possible to produce the case diary before the concerned Courts."
The State of Maharashtra has also contended that the the Chief Metropolitan Magistrate passed the transit remand order "without application of mind" and that the manner of arrest by Navlakha was in fact due process and the High Court could not have gone into the issue.
Gautam Navlakha had approached the Delhi High Court challenging the transit remand order granted to the Maharashtra Police after his arrest on August 28, 2018.
The Court had noted that the transit remand order was passed in violation of Article 22 of the Constitution and Sections 41(1)(ba) and 167 of the CrPC.
The HC bench of Justices S Muralidhar & Vinod Goel had held that the CMM had passed the order without "existence" of material proving necessity of arrest.
The Court ended the house arrest of Navlakha stating,
"In view of Section 56 and 57 of CrPC and absence of remand order by the CMM, detention of Petitioner has exceeded 24 hours, which is untenable in law."