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Supreme Court Allows Transfer Of Bhima Koregaon Accused Gautam Navlakha To House Arrest For One Month, Imposes Conditions

10 Nov 2022 8:12 AM GMT
Supreme Court Allows Transfer Of Bhima Koregaon Accused Gautam Navlakha To House Arrest For One Month, Imposes Conditions

The Supreme Court has ordered that 70-year-old human rights activist Gautam Navlakha, who is in custody in connection with the Bhima Koregaon case, be transferred to house arrest within 48 hours on account of his medical condition. The order is interim in nature and will be reviewed after one month.

The Top Court said,

"He's been in custody since 2020. He was placed in house arrest in an earlier occasion...prima facie, no complaint that he misused earlier house arrest. No criminal antecedents apart from this case against him...We would think that we should allow to be house arrest, at least, to begin with, for a period of one month."

The Police has however been permitted to search and inspect the residence, if needed in its evaluation, to ensure that Navlakha does not misuse the house arrest. "We make it clear that such searches should not be abused...should not be a ruse to harass the petitioner."

Navlakha had requested to be transferred to his sister's house. However, following some developments during the hearing, it was submitted that he will arrange an alternate accommodation where he would reside with his 71 years old companion. Sibal informed the Court that he will stay in a 1BHK, located on first floor above a public library. The NIA said it will inspect the location before his transfer.

The relief is subject to the following conditions, any deviation will be viewed seriously and may entail in immediate cancellation of the order:

1) His house will be under surveillance (Police personnel to be posted outside the house) and CCTV cameras will be installed outside the rooms and at entry and exit points of the residence;

2) No permission to leave the house (except for walks in the company of Police personnel; he will not engage with any person during such walks);

3) No access to internet, laptop or any communication device;

4) Phone calls will be permitted once a day for 10 minutes in Police presence, on a mobile phone provided by the Police personnel;

5) Otherwise he will not use any other phone including that of the companion. Companion's mobile shall not have internet, a basic phone for making calls and SMS- she shall not delete calls or SMS;

6) NIA can conduct surveillance into calls made by him and the companion;

7) He cannot leave Bombay;

8) Maximum two family members can visit him once a week, for three hours (list of family members to be provided to NIA within 3 days);

9) No electronic gadgets will be permitted even when such visitors are allowed;

10) He will be permitted to use cable TV and read newspaper;

11) No contact with any witnesses in the case;

12) Permitted to meet lawyer as per Jail Manual rules (must forward names of lawyers in 3 days to the NIA);

13) Intimate officers in case of medical emergency, who will take him to a suitable hospital;

14) Submit a local surety of Rs 2 Lakhs.

The expense of surveillance, approximately Rs. 2.4 lakhs, is to be borne by Navlakha himself. The cost CCTV installation will also be borne by him. In case he is acquitted, the amount will be reimbursed, the Bench said. It added, "Court will revisit whether payment to be made for police personnel will remain open."

The matter is now listed in second week of December. The NIA has been asked to obtain a fresh medical report from the KEM Hospital, prior to next date of hearing.

Yesterday, the Top Court had expressed its inclination to allow the request for house arrest.

"This Court has considered house arrest as a form of custody... All kinds of restrictions. We will try out. He's not in the best of health...70 years old man. He's on his way to the inevitable…Place whatever restrictions. At least let him remain in house arrest for a few days. Let's try to work it out…" it had orally remarked over the course of the hearing.

Navlakha is said to be suffering from serious ailments, including skin allergy and dental issues, and cited the need to undergo colonoscopy to test suspected cancer. He had approached the Top Court after the Bombay High Court rejected his prayer to be shifted to his sister's house.

Setting aside the High Court order, the bench said, "we are little mystified as to why High Court said petitioner does fulfill criteria of age. He's aged 70 years. The state of health is also far from perfect, there are multiple health issues..."

Courtroom Exchange

On September 29, the Supreme Court had ordered his medical check-up at a hospital of choice, after Senior Advocate Kapil Sibal argued that he had many health complications. Based on the medical report, Sibal argued that there's no possibility of him being treated in the jail. He also emphasized that Navlakha is an undertrial, not convict. Further, the chargesheet against him has been filed in 2020 and the trial is yet to begin.

However, Additional Solicitor General SV Raju appearing for the NIA stoutly opposed the application, stating that the crimes alleged go to the security of the nation. He argued that Navlakha has links with Kashmiri Extremists and thus, it would be difficult to monitor him in house arrest. ASG also submitted that Navlakha's condition has improved and he has no complaints at the moment.

Today, the ASG raised suspicion with respect to veracity of the medical report, pointing that the board of doctors that examined Navlakha included his brother-in-law.

"Twist in the tale. Kindly have a look at two papers. One is his sister, Mridula Kothari. We have reason to live Dr. Kothari was instrumental is the husband of this sister. We feel medical report is tainted. Came to our notice only yesterday. Dr. S Kothari is an ortho in Justlog...He wanted to go to Juslog Hospital. He didn't say it's his brother in law there."

However, Senior Advocate Kapil Sibal appearing for Navlakha took strong exception to the allegations. "You attack the man, you attack the doctor. 12 doctors given up their oaths? Is this the submission from Govt of India?"

The bench noted that Dr Kothari has only said three lines in the entire report. It orally remarked,

"This is an opinion by 5-6 special doctors. Would a related Doctor give a wrong report? Such an argument can't be. You have to be responsible...One person can't poison minds of others...You should have objected earlier. Only shows poor input from your side."

However, the ASG insisted that an independent assessment is required. "I have my reservations about this. There's possibility of it being tainted...If his condition is very bad, he should not have problem going to a different hospital where his brother in law is not..."

The bench held that prima facie, there is no reason for rejecting the report. Nevertheless, it ordered, "In view of the doubts expressed by ASG owing to presence of Dr Kothari, petitioner be taken for a medical evaluation at KEM Hospital before... And a report secured prior to next date of hearing."

The ASG then proposed the conditions for house arrest. NIA sought to depute a group of policemen after Navlakha's abode, installation of CCTV Cameras in the house and prohibition on use of internet, laptops, phones etc.; no media interviews or contacting any witnesses. It also submitted that he should not be permitted to leave Bombay.

"This is all fine. But CCTV cameras? Treading on third party rights. His sister, others staying may not want...We are balancing right to privacy..." it said.

The NIA also said that Navlakha cannot be permitted to take strolls outside the house. To this, the Bench pointed that has been suggested 45-60 mins of walking. On a proposal that he may use a treadmill, the Bench remarked,

"After 55, I can go personal, treadmill will cause knee issues. Nothing like natural walking."

So far as company of a 71 years old partner is concerned, the ASG submitted,

"Problem with companion. She's 71, god forbid if something happens. He's medically unfit. Also, males and females not allowed for co-live in jails."

"Are you aware of open jails?" the Bench responded.

Case Title: Gautam Navlakha v. National Investigation Agency & Anr. | SLP(Crl) No. 9216/2022 II-A

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