12 May 2021 5:50 AM GMT
The Supreme Court on Wednesday dismissed a petition filed by jailed activist Gautam Navlakha seeking default bail in the Bhima Koregaon case. Navlkaha wanted to include the 34-day period of his unlawful custody in 2018 while computing the period for filing chargesheet under the Unlawful Activities Prevention Act.A bench comprising Justices UU Lalit and KM Joseph dismissed Navlakha's...
The Supreme Court on Wednesday dismissed a petition filed by jailed activist Gautam Navlakha seeking default bail in the Bhima Koregaon case.
Navlkaha wanted to include the 34-day period of his unlawful custody in 2018 while computing the period for filing chargesheet under the Unlawful Activities Prevention Act.
A bench comprising Justices UU Lalit and KM Joseph dismissed Navlakha's petition, affirming the Bombay High Court judgment. The bench had reserved judgment on March 26.
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. The house-arrest period was declared to be unlawful custody by the Delhi High Court as it had found his arrest and remand to be illegal.
The High Court had 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.
Reasons given by Supreme Court to uphold High Court order
While upholding the Bombay High Court judgment, the Supreme Court noted :
1. High Court allowed house-arrest of Navlkakha as a safer alternative interim arrangement and it was not an order purported under Section 167 CrPC.
2. There was no stay of investigation as such during the house-arrest period.
3. Navlakha was given police custody only on April 15, 2020, after he surrendered before NIA on April 14, 2020.
"The High Court of Delhi did not contemplate that the order of house arrest was passed by way of custody under Section 167. We are in this case not sitting in appeal over the legality of the house arrest. But we are here to find whether the house arrest fell under Section 167. We are of the view, that in the facts of this case, the house arrest was not ordered purporting to be under Section 167. It cannot be treated as having being passed under Section 167," the judgment said.
"While, the Right to Default Bail is a Fundamental Right, it is subject to the conditions, obtaining in Section 167 of the CrPC, being satisfied. It must be purported to be passed under Section 167 CrPC. The right to statutory bail arises dehors the merits of the case. The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under Section 167 is indispensable to count the period", the judgment authored by Justice KM Joseph 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.
Case: Gautam Navlakha vs. National Investigation Agency [CrA 510 OF 2021]Coram: Justices UU Lalit and KM JosephCitation: LL 2021 SC 254
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