Bhima Koregaon Case: Supreme Court To Hear Gautam Navlakha's Plea For Default Bail As First Item Tomorrow

On the request of the National Investigation Agency, the Supreme Court today adjourned the hearing on Bhima Koregaon accused Gautam Navlakha's bail plea to 10:30 a.m. on Friday as the first item on the board.

Appearing before a bench headed by Justice UU Lalit, ASG SV Raju advanced,

"I am seeking only one day's accommodation. It is not a regular bail application. If it was regular bail, I would understand. It is a default bail application on some hyper technical grounds..."

"Notice was issued on March 15. Then on your request, the matter was posted to 22nd. Then it came to be listed on the 25th, that is, today. It becomes difficult for us to manage the board this way", said Justice Lalit at the outset.

"I am not complaining of a shortage of notice or a lack of notice. And I had only sought time once to file the counter. This is a default bail application. This is not a regular bail application. There has been no calculation. He (Navlakha) is saying that the period of 34 days spent in house arrest should be included… ", submitted Mr Raju.

"Don't please argue the merits. I have to argue. You are taking time, we are opposing this. We want the matter to go on", intervened  senior advocate Kapil Sibal.

"Your Lordships may hear me today. If he wants time, he may be heard tomorrow" pressed Mr Sibal.

"The problem is that this combination is not available tomorrow. We must finish the hearing today and then whatever decision is to be taken will be taken. If the hearing is to spill over tomorrow, then we cannot have a segregated hearing", noted Justice Lalit.

Mr Sibal prayed that the matter be listed as the first item tomorrow on the board before the bench.

Agreeing, Justice Lalit told Mr Raju, "Tomorrow is the hearing day. Whatever happens will happen. Keep yourself available"

Activist and Journalist Gautam Navlakha who is an accused in the Elgar Parishad – Maoist links case moved the Supreme Court challenging Bombay High Court's recent order rejecting his bail application. A three-judge Bench of Justices UU Lalit, Indira Banerjee and KM Joseph is scheduled to hear his plea on Wednesday, 3rd March 2021.

Navlakha's plea before the top Court comes after a division bench of Justices SS Shinde and MS Karnik refused to interfere in his criminal appeal filed against an order of the special court, which rejected his application for default bail in June, last year. He is in prison since his surrender on April, 14 2020.

However the High Court, observed that, the time spent in "unlawful custody" cannot be included while computing the 90 days period prescribed for grant of default bail under section 167(2) of the Criminal Procedure Code (CrPC).

The Court had further observed that 34 days Navlakha had spent under house arrest between August 28, 2018 - October 10, 2018, cannot be used to calculate his total detention period, especially since his arrest, as well as the magistrate's transit remand, was found to be illegal by the Delhi HC.

The court held that section 167 (2) of the CrPC, assumes the detention is authorised by a magistrate, and 90 days upward from that day can be used to calculate the period of custody for default bail. "However, once the authorisation by the Magistrate is declared illegal consequently rendering the detention itself illegal, the said period (house arrest custody) cannot be construed to be an authorised custody within the meaning of Section 167(2) of CrPC.," the court said.

The Maharashtra police had arrested Navlakha on August 28, 2018 in connection with an FIR lodged following the 'Elgar Parishad' held on December 31, 2017 and the Bhima Koregaon violence, a day after. Through the nationwide crackdown on activists and academics, connected to the conference, the police claimed to bust a larger maoist conspiracy.

The case was later handed over to the NIA. Navlakha's arrest and subsequent house arrest in August, 2018, was declared illegal by the Delhi High Court. Navlakha then approached the Sessions Court, followed by the High Court and Supreme Court for anticipatory bail. The Supreme Court, on March 16, 2020, directed Navlakha to surrender within three weeks, after rejecting his bail application. His plea seeking an extension in view of the coronavirus pandemic was also rejected. Following this Navlakha surrendered on April 14.