Should Gautam Navlakha's House Arrest In 2018 Be Included For Computing Period For Default Bail? Bombay High Court To Decide

The Bombay High Court on Wednesday reserved judgment on the appeal filed by Gautam Navlakha, accused in the Bhima Koregaon case, challenging the order of NIA court granting extension of time under the Unlawful Activities Prevention Act( UAPA) for filing chargesheet.

Senior Advocate Kapil Sibal, appearing for Navlakha, submitted that the extension application under Section 43D(2) of UAPA was filed by the NIA on the 110th day of his custody. Since the application was filed beyond the period of 90 days, Navlakha was entitled to get default bail, Sibal submitted.

Sibal submitted that the period of 34 days during which Navlakha was kept under house arrest from August 28, 2018 to October 1, 2018 has to be included in the custody duration. On October 1, 2018, a division bench of the Delhi High Court had declared the arrest of Navlakha by the Maharashtra police to be illegal and 'non-est' in the eye of law, and had quashed the transit remand order passed by a Magistrate in Delhi. Navalkha was kept under house-arrest on the basis of the restraint order passed by the Supreme Court on August 29,2018 against the police from taking him out of his residence.

Bhima Koregaon Case: Delhi HC Brings Gautam Navlakha's House Arrest To An End, Holds Order Granting Transit Remand Unsustainable [Read Order]

Navlakha surrendered before the NIA at Delhi on April 14, 2020, after the rejection of his anticipatory bail applications. He was remanded to custody on April 15. The application seeking extension of time for chargesheet was filed by the NIA in June. The supplementary chargesheet against Navlakha and other accused were filed only in October this year.

According to Sibal, if the 34 days of house-arrest is included, the NIA's extension application will fall on the 110th day of custody.

"The only question to be considered is whether the 34 days which Navlakha spend in custody in 2018 before his remand was quashed should be counted or not", Sibal told a bench comprising Justices SS Shinde and MS Karnik.

He placed reliance on the recent Supreme Court judgment in M. Ravindran vs. The Intelligence Officer, which held that the right to default bail can be enforced even if application seeking extension of time is filed subsequently.

Sibal advanced that the 'arrest' and 'custody' were different concepts and even if arrest is declared illegal, the effects of custody will remain in force. Even while under house arrest, the person's freedoms were curtailed.

Additional Solicitor General S V Raju, appearing for the NIA, argued that the 34 days of custody in 2018 cannot be included for the purposes of computing 90 days period. The arrest was declared 'non-est' in the eye of law by the Delhi High Court. After that, Navlakha was a free man. The fact that Navlakha filed anticipatory bail application means that he was not under 'custody'.

The ASG referred to the judgment in 'Chaganti Satyanarayan & Ors vs State Of Andhra Pradesh(1986)' to cite that the period of 90 days has to be calculated only from the date of remand and not from the date of arrest. Date of production before the Magistrate is relevant for the computation of 90 days and not the date of arrest. Therefore, April 15 is the relevant date and the application filed by NIA in June is well within the time period of 90 days.

"Section 167 CrPC will not apply if the arrest is illegal. Delhi HC held that arrest of Navlakha in 2018 was illegal. So 167 is not applicable. 167 stipulates legal arrest and custody", ASG Raju submitted.

Advocate Nitya Ramakrishnan, also appearing for Navlakha, responded to ASG's arguments by saying that as per 'Chaganti judgment' the period will be computed from date of production. Navlakha was in custody from August 28 to October 1 based on transit remand order.

"When an arrest is quashed on technical grounds, and the person is re-arrested on the same offence, the initial period of custody will also be counted. The fact that he spent time in custody cannot be washed away.It is not the nature of custody but the factum of custody which is relevant for computing the time", she submitted.

Following this, the bench closed the arguments and reserved judgment on the case. Parties have been given liberty to file written submissions by December 23.

https://www.livelaw.in/top-stories/prosecutor-cannot-defeat-right-to-default-bail-by-subsequently-filing-report-seeking-extension-of-time-165005