18 Nov 2022 11:17 AM GMT
The Supreme Court on Friday dismissed the application filed by the National Investigation Agency seeking to vacate the order allowing the shifting of activist Gautam Navlakha to house arrest from the Taloja prison in Mumbai where he is lodged in connection with the Bhima Koregaon case.A bench comprising Justices KM Joseph and Hrishikesh Roy also engrafted certain additional conditions for...
The Supreme Court on Friday dismissed the application filed by the National Investigation Agency seeking to vacate the order allowing the shifting of activist Gautam Navlakha to house arrest from the Taloja prison in Mumbai where he is lodged in connection with the Bhima Koregaon case.
A bench comprising Justices KM Joseph and Hrishikesh Roy also engrafted certain additional conditions for the house arrest of the septuagenarian, such as the sealing of the kitchen door leading to the exit point and the locking of the grills of the hall. The bench noted that Navlakha has complied with the condition of installing CCTV cameras at both the exit points.
The bench directed that the order passed on November 10, which allowed the shifting of Navlakha from prison to the house arrest, must be executed within 24 hours. The bench also said that it will be open to the NIA to shift the DVRs of the CCTV cameras.
During the hearing, the bench orally told the NIA, "if you are trying to find out some loopholes to see that our order is defied, we will take a very serious view of it".
"If with the entire police force you cannot keep a watch on a 70 year old ailing man, then think about the weakness...please do not say such a thing. With all the might of the State, you are not able to keep a 70 year old ailing man in house confinement", the bench orally commented about NIA's objections.
Solicitor General of India Tushar Mehta submitted that the medical reports cited by Navlakha, which were relied upon by the Court to grant him relief, are biased since they are prepared by Jaslok hospital, where the main doctor, Dr S Kothari, is his direct brother-in-law.
The SG said that Navlakha failed to disclose the personal relationship between him and the senior hospital at Jaslok hospital while invoking the equity jurisdiction of the Court.
Justice Joseph then pointed out that this aspect was argued. "There Solicitor General, we would like to tell you something. You were represented by the Additional Solicitor General. All these arguments, that the doctor was his brother-in-law, that his condition is not warranting the relief, all these things were ably argued by him. We can understand if the order was passed without hearing you. There were full fledged arguments. The whole thing was argued", Justice Joseph said asking if the NIA is seeking a review of the order.
The SG said that he is not doubting the abilities of his colleague ASG SV Raju but added that there are subsequent developments which warrant the attention of the court.
"Mr Raju till the last moment persevered and we agreed to all conditions, and in that sense it was an agreed order", Justice Joseph said.
"No", ASG was quick to interject. "My learned friend will never agree to such an order", SG added.
That location is at a hall above the library controlled by Communist Party is not shocking, bench says
Justice Joseph then referred to the next ground of objection taken by the NIA that the location chosen for house arrest is a library under the control of Communist party.
"Communist party is a recognised party of India. What is the objection we cannot understand", Justice Joseph asked.
"If that does not shock this court, I will leave it at that", SG said
"It certainly does not shock us", Justice Joseph said.
"A person accused of indulging in a serious terrorist act being a Maoist is staying at some political party's office? What is this institution being driven to?", SG asked.
At this juncture, Justice Hrishikesh Roy intervened to say that the arguments relating to the medical report need not be raised as the order was passed considering all objections. Justice Roy said that the Court can consider the objections relating to the location chosen.
ASG Raju said that the understanding given by Navlakha was that there was a library on the ground floor and there is a private residence on the first floor. But the location turned out to be a library under the control of a political party.
"Is it because the library belonging to a political party that you are objecting?", Joseph asked.
"My objection is not that it belongs to x, y or z. My objection is that there are a series of misleading statements and it means he cannot be trusted. The understanding was that he won't meet anyone. But now he has chosen a place where he can easily meet persons. It was suggested that there will be a CCTV at the exit and that it will be a small room. We all believed it will be a flat with one exit. But it was a lie. This is a place with two exits.The purpose was that he wanted to mislead us by saying there was only exit", ASG said.
Justice Roy then pointed out, "he could not have gone there unless a recce was carried out by the police officers. Now it has been done so measures can be taken".
"The subsequent discovery by us does not matter. What matters is at the time of the order, it was not disclosed", ASG said.
The ASG further said that the grills of the room can be broken for anyone's entry. Also, there is a karate class on the terrace and there are people who keep on going up and down. So it is easy for meeting anyone.
"It was suggested that it will be a one room flat. But this is not a residential area at all. It is a library and a makeshift residence has been made on the top floor. Here is a person who is not straightforward. It is impossible to monitor this place. An attempt has been made to ensure that the monitoring is a sham by putting only one camera. Look at the premises, where a person with such ailments can stay. This fortifies my submission that the medical report is a sham", ASG said.
Senior Advocate Nitya Ramakrishnan said that it was previously revealed to the Court that the location will be a hall above the library, with a kitchen and a bathroom. One CCTV camera was put on the entrance on the 14th of November. She added that the Commissioner did not accept the draft for the second CCTV camera on 14th. On 15th, the officials came for inspection.
"NIA misbehaved with locals as well and made them to take out books etc. I don't want to get into that. NIA said kitchen cannot be used.. now kitchen access is barred", she said. She added that the CCTV camera at the second exit has been installed.
"What do you say about Communist party?", Justice Joseph said.
"Anybody with a basic political sense will know Communist Party of India is different from Maoists. Communist party itself condemns Maoists. Anybody with basic understanding of contemporary politics will know that CPI(M) is a recognized party. The library is run by BT Ranadive trust. BT Ranadive, EMS Nampoothiripad etc are leaders of the Communist party", she added.
Ramakrishnan further pointed out that in the application, Navlakha had clearly stated why he preferred Jaslok hospital as his relative was there. She read out the portion of the affidavit which stated about his sister's connection with the hospital.
"If the pleadings show there is a connection between the hospital and sister, which it indeed do, where is the suppression?", Justice Joseph asked.
ASG said that the affidavit only stated that his sister "worked" at the hospital and that here is no disclosure regarding Navlakha's brother-in-law being the head of the hospital. "There is no whisper about the brother-in-law. If this does not amount to suppression, I don't have anything more to say", ASG said.
"Everytime they are trying to find some loopholes", the ASG said.
"It can be seen in the other way too. If you are trying to find out some loopholes to see that our order is defied, we will take a very serious view of it. We gave a lengthy hearing", Justice Joseph warned.
"If with the entire police force you cannot keep a watch on a 70 year old ailing man, then think about the weakness...please do not such a thing. With all the might of the State, you are not able to keep a 70 year old ailing man in house confinement", Justice Roy said.
At this juncture, the ASG requested for adjourning the hearing to Monday citing a personal difficulty, saying that his 90 year old mother-in-law is ailing.
"For what purpose we are adjourning", Justice Joseph asked.
Solicitor General then said that Navlakha is not a mere 70-year old person but an accused with links with ISI and terrorist.
Bench asks about additional conditions
Ramakrishnan submitted that all the conditions in the order have been complied with and that the NIA should be ordered to execute the direction at the earliest. At this point, the bench asked the ASG about the additional conditions.
The ASG said that bed in the hall is away from the CCTV. However, the bench pointed out that the issue of privacy is there. Ramakrishnan highlighted that Navlakha's partner is also staying with him. "There's lady in the house. They should know better. Inside is not fair"
"If you keep the camera way, you will have a glimpse of the bed", Justice Joseph said refusing to accept the ASG's demand. However, the other demands made by the ASG were added as additional conditions in the order.
The Special NIA Court at Mumbai on Wednesday refused to pass orders to execute the house arrest of Navlakha, after the NIA objected to the location chosen by Navlakha.
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