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A Division Bench of Justice UU Lalit and Justice KM Joseph of the Supreme Court reserved order for April 12, in the matter of Gautam Navlakha v. NIA, challenging the Bombay High Court judgment which rejected Bhima Koregaon Violence accused Navlakha's application for Default Bail.

Senior Advocate Mr. Kapil Sibal appeared for the Petitioner.

Learned ASG SV Raju appeared for State.

“In facts of this case, they had full time to interrogate in police custody. High Court order did not mean that the police from Pune cannot seek remand. Nothing prevented police to say look we want to interrogate. Under UAPA interrogation could be allowed anytime”, submitted Mr. Sibal.

Earlier the High Court had rejected the petitioner’s plea on primarily two grounds, namely, 1) Period under house arrest cannot be treated as custody of police, because the police could not interrogate. 2) Since the order of transit remand was set aside itself on the grounds of illegality, everything that happened until October 1 falls out of consideration.

Mr. Raju submitted, “It talks of the order of detention by the Magistrate. Till 1 October, there was no order authorizing any custody. For Section 167 to operate, there has to be an order of the Magistrate to put him in custody. The subsequent orders by the High Court and the Supreme Court were either under Article 226 or under Article 142. These are not the orders passed under CrPC. There has to be an order by Magistrate for computing period under Section 167 CrPC."

Reliance was placed on Dalmia case, (2007) 5 SCC 773, by both the parties.

Bench observed, “Mr. Raju, as we presently sort of you know, got to say, that first 2 days will certainly be counted, we are on the nature of continued custody. What is the nature of custody granted by the High Court order. Why don't you confine your submission on the bulk part?”

“Take for a man is arrested and soon after he develops some medical exigencies, and he is bailed out on temporary bail for 30 days with a direction to surrender thereafter and he does so. Whether the period of 30 days be reckoned for Section 167 CrPC?”, the bench further asked.

Petitioner has approached the Top Court against Bombay High Court judgment dated 08.02.2021, rejecting petitioner’s application for default bail under Section 167(2) CrPC read with Section 43 (D)(2) UAPA.

On 15.03.2021, the present bench had adjourned the matter seeking counter affidavit from National Investigation Agency (NIA).

The major question for Court’s determination is, whether a period of 34 days when the petitioner was in custody by way of house arrest pursuant to orders of the Delhi High Court and the present Court modifying transit remand order dated 28.08.2018 of the CMM, Saket Court, New Delhi, would count as custody for the purpose of default bail under Section 167(2) CrPC.

Section 167(2) mandates release of accused where the charge sheet is not submitted within the stipulated period of 60/90 days, as the case maybe. Not only is it a statutory right, but also a fundamental right ensuring liberty of an individual.

The Petitioner herein is a 69 year old scholar, writer, peace and civil rights activist and a journalist of long standing associated with the Economic and Political Weekly and other well regarded publications. He was arrested from his residence in New Delhi on 28.08.2018 by the Maharashtra Police in connection with FIR registered at Pune under Sections 153-A, 505(1)(b), 117, 120-B IPC read with Sections 13, 16, 17, 18, 18B, 20, 38 and 40 of the UAPA; broadly alleged maoist links in Bhima Koregaon violence.

It is the fact of the matter that the petitioner was in custody under house arrest for a period of 34 days under the transit remand order between 28.08.2018 – 01.10.2018. He was subsequently in police custody for 11 days between 14.04.2020 – 25.04.2020 and was in judicial custody for 46 days between 25.04.2020 – 10.06.2020, at which point he completed 90 days in custody and acquired an indefeasible right to default bail under Section 167(2) CrPC.

An application for default bail was moved on 11.06.2020, by which time no charge sheet was filed by the Investigative agency no any extension of time for filing charge sheet was sought by the Public Prosecutor.

Case Title: Gautam Navlakha v. National Investigation Agency | SLP (Crl.) No. 1796 of 2021