[Breaking] Bhima Koregaon : SC Sets Aside Delhi HC Order Calling For NIA Records Of Gautam Navlakha's Transfer To Mumbai; Expunges Remarks

Allowing NIA's appeal against the HC order, a bench comprising Justices Arun Mishra and Navin Sinha further directed for the expunging of remarks made by the Delhi High Court against NIA while hearing Navlakha's bail plea. 

The top court held that as per its order passed on April 8, the accused was granted liberty to surrender before Courts at Bombay. Therefore, the Delhi High Court had no jurisdiction to entertain Navlakha's bail plea at the threshold.

"in view of the aforesaid clear order passed by this Court and the time of one week granted by this Court, it was the jurisdiction of the Bombay Court alone to entertain any  application. By way of misconceived venture, an application was filed directly before the High Court of Delhi. In case any modification of the order dated 08.04.2020 was required, it was incumbent upon the respondent to apply to this court, which he did not do. Thus, the entire exercise taken by the High Court of Delhi was totally uncalled for as the spirit of our order is apparent. The High Court of Delhi should not have entertained the application at the threshold, the observations made are hereby ordered to be expunged", the SC ordered.

On June 2, the apex court had stayed the HC order, while admitting NIA's SLP.

Navlakha is currently lodged at Taloja jail at Mumbai.

Today, Solicitor-General Tushar Mehta submitted that the Delhi HC's order was of  "unprecedented nature".

"At the time of Navlakha's surrender, India was under lockdown. Special Judge at Bombay was pleased to pass the Order for transfer of Navlakha at the behest of our arguments. We did not hide anything from the Court. Custody is required with NIA Mumbai as there has been discovery of new evidence", Mehta said.

The SG further submitted that the transfer had been brought to the notice of the High Court and that the Delhi HC ceased to possess jurisdiction over the matter after that. The SG added that Navlakha had been produced before the Special Judge in Mumbai, after which the remand order had been passed.

Senior Advocate Kapil Sibal, appearing for Navlakha, submitted that the Special Leave Petition was not maintainable against the order of the HC, which merely called for records.

"How can 136 lie against an Order which says 'file an Affidavit'? There is no impugned Order granting bail. Just an Order setting up circumstances in which they took the person to Bombay."

At this juncture, Justice Mishra asked Sibal about how the Delhi HC could have directed the production of affidavit detailing proceedings before Special NIA Court in Mumbai. He further asked Sibal about why he did not approach the NIA Court under Section 43D of the Unlawful Activities (Prevention) Act.

On 27^th May, Delhi High Court Judge Justice Anup Jairam Bhambhani, in a matter pertaining to the bail plea of Gautam Navlakha, had directed the NIA to furnish a complete copy of the proceedings in the Application for issuance of production warrants moved before the Special Judge (Mumbai), for its consideration. 

Justice Bhambhani had also sought for the complete records of the Application moved before the Delhi Bench of the NIA Court for seeking an extension of Navlakha's judicial remand.

This Order of the Delhi High Court had been challenged by the NIA before the Supreme Court on 2^nd June wherein it had been submitted by Solicitor-General Tushar Mehta, appearing for NIA, that the impugned Order was patently illegal and sans jurisdiction. The Apex Court accordingly stayed the proceedings before the Delhi High Court and, issued notice to Navlakha and sought for a Reply.

Earlier, on March 16, the top Court had denied anticipatory bail to activists Gautam Navlakha and Anand Teltumbde in the case registered under Unlawful Activities Prevention Act alleging Maoist links in connection with Bhima Koregaon violence.

Subsequently, Navlakha surrendered before the National Investigation Agency (NIA) on April 14 in Delhi.

The case pertains to alleged Maoist links over the violent incidents which occurred on January 1, 2018 at Bhima Koregaon, near Pune during the Dalit organisations' commemoration of 200th anniversary of Victory of Koregaon Battle. The Pune police alleged that violence was incited by the Elgaar Parishad meeting held at Pune the previous day.

It was alleged that the meeting was organised by persons having nexus with banned Maoist organisations.

The first wave of arrests were made by the police in June 2018. The arrested persons were anti-caste activist Sudhir Dhawale, human rights lawyer Surendra Gadling, Forest Rights Act activist Mahesh Raut, retired English professor Shoma Sen and human rights activist Rona Wilson, an activist with the Committee for Release of Political Prisoners.

Later, activist-lawyer Sudha Bharadwaj, Telugu poet Varavara Rao, activists Arun Ferreira and Vernon Gonsalves were arrested.

In November 2018, the police filed the first chargesheet in the case against the six persons arrested in June 2018.

In February 2019, supplementary chargesheet against Sudha Bharadwaj, Varavara Rao, Arun Ferreira and Gonsalves was filed.