Gautam Navlakha v. National Investigation Agency SLP (CRIMINAL) NO. 1796/2021

Citation – SLP (CRIMINAL) NO. 1796/2021

Bench – K.M. Joseph and U.U. Lalit

Date of Judgement: May 12, 2021

Introduction:

Gautam Navlakha is charged in the Bhima-Koregaon case and is suspected of being one of the perpetrators of the violence. His bail application was initially denied due to his ties to the maoists and Elgar-Parishad under the UAPA. Following that, the accused was asked to surrender to the National Investigation Agency, where it was discovered that the accused met with Syed Ghulam Nabi Fai (the Maoist group’s commander) to combine and fight against government forces in order to beat them physically and mentally. Navlakha is another person who has been vocal in writing against the administration, and he gained notoriety after being denied access to Kashmir and labelled a threat.

Facts of the case:

Navlakha was detained at his home in Delhi on charges related to the Bhima-koregaon case. The accused was placed under house arrest by the Delhi High Court for 34 days, from August 28 to October 1, 2018. The arrest was declared illegal by the Delhi High Court on the 34th day. Following that, the accused was placed in 11 days of police custody and 46 days of judicial custody; at this point, he had served 90 days of his sentence and applied for bail at the Bombay High Court; however, the court denied the bail application, stating that house arrest had protected the accused’s liberty. The accused was ordered by the Supreme Court to surrender to the NIA within three weeks on March 16, 2020, and he did so on April 4, 2020.

The accused’s counsel submitted a habeas corpus writ to the Supreme Court, which was granted.

Issues

  1. Whether a period of 34 days when Navlakha was in custody by way of house arrest would count as custody for the purpose of default bail?
  2. Whether the apex court would entertain Writ of habeas corpus in a case where remand order has already been issued?

Laws

  1. Article 32, constitution of India
  2. Section 153A, 505(1B) and 34 and Section 120(B) IPC
  3. Sections 13, 16, 17, 18, 18B, 20, 38 and 40, Unlawful Activities Prevention Act

Contentions made by petitioner

Navlakha had already served 90 days in detention, according to the accused’s lawyer, and thus is eligible for default bail.

The counsel further claimed that the Delhi High Court had already overturned the arrest and declared it illegal, citing the case of Romila Thapar v. Union of India as an example.

The counsel also argued that because the accused was constantly interrogated by police officers while under house arrest, it should not be included in the period of default bail because he was completely cut off from the outside world – he couldn’t leave his house, he couldn’t meet anyone except police officers, lawyers, and ordinary house residents.

Contentions made by Respondent

Even though he was charged with serious crimes, the National Investigation Agency offered him a residence and did not treat him like a regular criminal, according to the attorney.

The counsel contended that because the magistrate’s authorization was found to be invalid by the Delhi High Court, the entire detention was illegitimate, and so the incarceration under Section 167 of the CrPC is utterly undesirable, rendering the default bail scenario unclaimable.

The counsel also stated that the Delhi high court had suspended the transit remand and set it aside, ruling that detention was unconstitutional and that there had been no allowed custody by a magistrate’s order.

Judgement

The hon’ble supreme court dismissed the writ of habeas corpus and dismissed the accused’s bail plea, plainly stating that “home arrest” is not included in the time period required for default bail.

In its decision, the Supreme Court said unequivocally that a Writ of Habeas Corpus will only be considered against a remand order if the remand is wholly unconstitutional or was acquired by orders of a court with no power to do so.

The petition of the accused was dismissed by the Supreme Court because it had not been passed by a court with erroneous jurisdiction and was not fully illegitimate.

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