Gautam Navlakha v. National Investigation Agency

CASE COMMENT

CITATION: Criminal Appeal No. 510 of 2021 [Arising Out of SLP (Criminal) No. 1796/2021].

DATE OF THE CASE: May 12, 2021.

BENCH/JUDGE: Justice Uday Umesh Lalit & K.M. Joseph.

STATUTES/PROVISIONS INVOLVED: The Code of Criminal Procedure, 1973.

_______________________________________________________________

FACTS OF THE CASE

Journalist and Human Rights activist Gautam Navlakha was arrested in connection with Elgar Parishad – Bhima Koregaon violence case. Being a civil rights activist, he is a former secretary of People’s Union of Democratic Rights; a case related to his alleged involvement in Bhima Koregaon Violence and larger conspiracy for overthrowing the democratically elected Government.
Elgar Parishad Bhima Koregaon incident: There was this celebration that took place on 31st December, 2017, for the 200th anniversary of the victory of Mahar Dalits over the Peshwa’s army i.e., the Marathas.

A syndicate of 250 Dalit and non-profit groups were present that day. January 1, 2018, the day after the event, there was violence between members of Maratha and the Dalit communities. The group of activists including Gautam Navlakha were all under arrest in 2018 are collectively called the “Bhima Koregaon 16″. This was considering violence under penal code.
Thereafter, two more FIRs were registered on March 06, 2018 and May 17, 2018, vide which offences under Unlawful Activities Prevention Act, 1967, were added.
Gautam Navlakha was initially arrested under Section 167 of the CrPC on August 28, 2018, and he was produced before a Delhi court for remand to take him to Pune in connection with a FIR there under the UAPA.
The UAPA is anti-terrorism legislation aimed at “more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities”. The Elgar Parishad – Bhima Koregaon violence, police claim, is part of a larger Maoist plot to assassinate Prime Minister Narendra Modi and overthrow the Indian Government.
Navlakha was ordered to be placed under house arrest until further orders were passed. On 29 August 2018, on a writ petition the Supreme Court extended the arrest of Navlakha to 4 weeks and he was permitted to avail any remedy available under the law.
The Bombay HC rejected the plea against whom the incriminating evidence was found and ordered house arrest of 3 weeks. No anticipatory bail was given to him by Supreme Court instead, his house arrest was extended to 4 weeks with liberty to seek anticipatory bail from the suitable Session Court.
His incarceration consisted of 34 Days of House Arrest and 11 Days of NIA and Judicial custody, which added up to more than the mandated period of 90 Days, for which he is entitled to get default bail.
During the house arrest, Navlakha was not allowed to meet any person except his lawyers and the regular inmates of the house. He was not allowed to move out of the premises. Two members of Delhi Police special cell guards were to be posted outside the house.

SECTIONS INVOLVED

Section 21(4): The National Investigation Agency Act, 2008 (for short, ‘the NIA Act’).
Sections 120-B, 115, 121, 121A, 124A, 505(1)(b) and Section 34 of the Indian Penal Code, 1860 (for short “the IPC”) and under Sections 13, 16, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (for short “UAP Act”).
Sections 153-A, 505(1) (b), 117 read with Section 34 of IPC.
Section 167 of the Code of Criminal Procedure, 1973 CrPC – that while the police is investigating an offence, an accused may be remanded to police custody or in judicial custody in a jail.

ISSUES RAISED

Whether house arrest can be treated as police/judicial custody under Section 167, Code of Criminal Procedure?

CONTENTION

Arguments from the side of the petitioner:

It was submitted by the petitioner that his house arrest did amount to police custody because, during this period, his liberty was curtailed. Moreover, the investigation on charges under IPC and UAPA was continued for the entire period he was detained by the Pune Police. Even though Delhi HC decided to terminate the house arrest of Navlakha on the ground that it was illegal on October 01, 2018, that does not make the period of house arrest non-est. He was entitled with further police custody after the house arrest and not given a default bail.

Arguments from the respondent’s side:

It was the contention of the National Investigating Agency that the house arrest cannot be treated as police custody under Section 167, CrPC. House arrest is unknown to Criminal Code. In addition, during the period of house arrest, the NIA had no access to the petitioner. The very purpose of Police custody is to allow the police to interrogate the accused. If this facility was not available to NIA, then house arrest cannot be regarded as police custody. It was further contended that custody comes to an end only when bail is provided.

RATIONALE

In this case, Supreme Court’s decision regarding the judgment was that-

The Supreme Court held that Courts are free to issue the order of house arrest under section 167 in circumstances which are ought to be appropriate. However, for issuance of house arrest criteria like age, health, the nature of crime committed by the accused, his antecedents should be taken into consideration.
Under section 167, CrPc if an accused is in remand, then until his acquittal or bail, he cannot be released. Court observed that the police custodial remand beyond the initial period of 30 days will be incongruous.
The Court precipitated that the period of house arrest, if considered as an order to be passed under the provisions of section 167 CrPc, then detention after 24 hours can be said to be illegal.

According to the Court, under CrPc section 167(2), house arrest is not included in the provisions of detention that is permitted. That means the bench observed that even though the accused was brought to the custody earlier, the 90 days period will be counted from the day of remand.

Thus, the court ordered to remove the appellant from house arrest.

Since the Nation Investigation Agency took prime investigation and interrogation, the police investigation wasn’t executed. The police custody wasn’t done against him, and the house arrest was ordered by Delhi High Court and not by Magistrate, which is required under Section 167 of CrPC, and under Section 167(2) of CrPC, the order of detention has to be ordered by a magistrate.
The house arrest period cannot be included within 90 days which is necessary to issue for getting default bail under Section 167 of CrPC and writ of Habeas corpus3 will not be considered here as a remedy as this was wholly constitutional.
By doing so, the Court widens the term of custody beyond the normal dichotomy between “police custody” and “judicial custody”, that hitherto was understood as detention in police lock-up and being sent to jail. This custodial detention at one’s home would, by extension, also be included towards computing time spent in custody by an accused.

DEFECTS OF LAW

Since the Constitution’s Article 22 dealing with arrest and remand does not apply to preventive detention, the term ‘house arrest’ has not been known till now to the Supreme Court or High Courts in criminal cases. The essence of remand in criminal law is that the magistrate applies his mind and decides whether custodial interrogation of the arrestee is necessary to unearth the truth in a given case. Under Section 41 of the Code of Criminal Procedure, police officers are empowered to arrest a person without warrant in a cognizable case. Only thereafter is the mandate of Section 57 of the CrPC, viz., production of the accused before the nearest magistrate within 24 hours of such arrest, to be followed. The magistrate may then authorize his custody under Section 167 of the CrPC. Section 167 of the CrPC envisages detention of the accused in custody and provides that a magistrate may authorize detention of an accused in such custody as he thinks fit for a period not exceeding 15 days in the aggregate. However, a magistrate shall not authorize detention to custody for a total period exceeding:

Ninety days, where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
Sixty days, where investigation relates to any other offence.

On the expiry of the said period, the accused person shall be released on bail if he is prepared to and does furnish bail. In offences under the Unlawful Activities Prevention Act, the term ’15’ days under Section 167 of the CrPC has been modified to ’30’ days.

Provided that with regard to the foregoing facts, if the Magistrate is not competent to try himself or commit for trial and no further detention is considered necessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. In the case of Gautam Navlakha, the house arrest was an invalid one because it had crossed the detention period and also after this, he was given an unnecessary judicial police custody for further investigation. Navlakha is of the opinion that the period of custody undergone by an accused during investigation into the commission of non-bailable offences must be counted towards computing the total time spent in such custody under Section 167, Criminal Procedure Code, 1973, even if a superior court later rules that the accused had been illegally remanded. He was denied default bail. Default bail is availed when eligibility for the same is acquired by the accused person after fulfilment of the requirements regarding the same. The provision of default bail flows from Sections 1678 and 436A9 of the CrPC. Default bail is also referred to as ‘compulsory bail’, for the grant of bail, on eligibility being acquired, is indispensable; or ‘statutory bail’, for the bail is granted because of a statutory provision. The scope of this research paper remains limited to the right of default bail under Section 167. Navlakha filed a petition of Habeas Corpus in the Delhi High Court for his release stating that he was arrested illegally.

INFERENCE

This judgment lays down that the principle of “house arrest” should be considered by the court for the people who are not hardcore criminals.

Through this case, the court ruled out that now the courts are given the permission to issue the order of house arrest, which will, in certain specific circumstances, constitute a form of custody under the provisions of section 167 of the CrPc. The default bail can be granted to the accused depending on the nature of the case, only in specific circumstances. Thus, it limits the liberty of a human rights activist under any police or judicial custody. The Court may keep the terms of house arrest flexible while looking at these factors and always keep a provision to make changes if there is any need for a particular case. Convenient as it may have seemed, it was nevertheless altogether impermissible for the Court to locate the 34 days of custody suffered by the Appellant in a no-man’s land which is both within the law and beyond it. It is just such judicial exceptionalism, in the face of hard cases, that not only unmoors the concept of judicial review from its very foundations but flips it entirely to permit a pick-and-choose of the worst sort imaginable. After all, and it is a matter that judgment itself brings out, even the Appellant and other co-accused persons did not imagine house arrest as a liberty-depriving measure at the time when the orders were passed.

REFRENCE

https://main.sci.gov.in/supremecourt/2021/27058/27058_2021_8_31_50487_Judgement_16-Feb-2024.pdf

https://www.livelaw.in/pdf_upload/gautam-navlakha-dec-19-judgement–511125.pdf