Elgar Parishad case:HC dismisses Gautam Navlakha's bail appeal

The Bombay High Court on Mondaydismissed a statutory bail appeal of activist Gautam Navlakha,an accused in the Elgar Parishad-Maoist links case, saying itsees no reason to interfere with a special court's ''wellreasoned order'' which earlier refused him bail.

A bench of Justices SS Shinde and MS Karnik said the34 days that Navlakha spent under house arrest in 2018 couldnot be counted as the period spent in custody forconsideration of the statutory bail.

The civil rights activist was arrested by the Punepolice on August 28, 2018, but not taken in custody.

Between August 28 and October 1, 2018, Navlakha waskept under house arrest.

He also spent 11 days in the NIA's custody from April14 to April 25 last year, after he surrendered following re-registration of an FIR against him in January 2020.

Since then, he has remained in judicial custody and islodged at the Taloja jail in neighbouring Navi Mumbai.

The National Investigation Agency (NIA) is conductinga probe into the case.

Navlakha approached the HC last year, challenging thespecial NIA court's order of July 12, 2020 that rejected hisplea for statutory bail.

He had sought statutory or default bail on the groundthat he had been in custody for over 90 days, but theprosecution failed to file a charge sheet in the case withinthis period.

His counsel, senior advocate Kapil Sibal, had arguedthat Navlakha already spent 93 days in custody, including 34days of house arrest between August 28 and October 1, 2018,and the HC must count house arrest as the period of custody.

Additional Solicitor General SV Raju, appearing forthe NIA, had opposed the application, contending the specialcourt had rightfully held that Navlakha's house arrest did notconstitute detention.

He had said that during such house arrest, Navlakhawas not accessible for interrogation as he would have been ifin regular custody.

On October 1, 2018, the Delhi High Court quashedNavlakha's house arrest, holding it illegal.

It had also quashed a transit remand, thus preventingthe Pune police from taking Navlakha to the Maharashtradistrict from Delhi for questioning.

Raju referred to the Delhi HC's order quashingNavlakha's arrest to point out that after the order, theactivist had gone ahead and filed an anticipatory bailapplication, which showed the house arrest was not custody asper Section 167(2) of the Criminal Procedure Code (CrPC).

On Monday, the Bombay HC said while there was no doubtNavlakha's house arrest was a form of detention, the questionbefore the court was whether the period of such house arrestwas to be included in the period of custody, in which case hewould qualify for default bail under CrPC Section 167(2).

However, in its judgement, the Bombay HC answered theabove question in negative.

''It is not possible for us to fathom a situation wheredetention of the appellant, though held to be illegal andunlawful, should still be construed as an authorised detentionfor the purpose of Section 167 (2) of the CrPC,'' the HC said.

It said for a person to be eligible for default bail,one's entire period of 90 days of custody must be authorisedby a magistrate's remand order in accordance with the CrPC.

However, since the 34 days of Navlakha's house arresthad been held as illegal by the Delhi High Court, that periodcould not be counted as a period of custody authorised by amagistrate's court, the Bombay HC said on Monday.

''In our view sans any valid authorisation/order of themagistrate detaining the appellant, the incumbent will not beentitled to a default bail,'' the high court said.

''Resultantly we hold that the period from 28.08.2018to 01.10.2018 has to be excluded from computing the period of90 days, as the said custody has been held to be unsustainablein law by the High Court of Delhi,'' it said.

Thus, the bench dismissed Navlakha's appeal, saying itsaw ''no reason to interfere with the well reasoned order'' ofthe special NIA court.

According to police, some activists made inflammatoryspeeches and provocative statements at the Elgar Parishad meetheld in Pune on December 31, 2017, which triggered violencethe next day at Koregaon Bhima village in the district.

The police HAVE also alleged that the event was backedby some banned Maoist groups.