This article is written by Adv. Gaurav Thote and Adv. Sarthak Shetty, advocates practicing in the Bombay High Court. In this article, the authors explain the intricacies in Gautam Navlakha’s Bail Proceedings.
The Bhima-Koregaon Case has been under the scanner for quite a while, and there are various legal intricacies to delve into. Amongst others, the bail proceedings of Mr.Gautam Navlakha before the Delhi High Court have been a matter of concern.
Facts and Cause of Action
On December 31, 2017 inflammatory speeches were made at the Elgar-Parishad-Meeting, allegedly leading to eruption of violence on January 1, 2018 at Bhima-Koregaon resulting in casualties. Hereafter, a FIR was lodged on January 8, 2018 under Sections-153A, 505(1)(b) and 117 read with 34 of IPC at Vishrambaug Police Station, Pune and 9 accused persons were arrested in connection with the case. Subsequently, provisions of the Unlawful Activities Act (Prevention), 1967 were invoked and the investigation was taken-over by the NIA on January 24, 2020. The NIA, inter alia, sought to arrest two accused persons including Mr. Gautam Navlakha for their alleged involvement in the crime. However, Mr. Navlakha was previously granted interim protection from arrest by the Bombay High Court and Supreme Court.
On March 16, 2020, the Supreme Court vacated the interim protection previously granted to Mr Navlakha, permitting him to surrender before the Investigating Agency within three-weeks. Thereafter a plea seeking extension-of-time to surrender was moved by Mr. Navlakha before the Supreme Court in wake of the COVID-19 pandemic, which came to be rejected on April 8, 2020 with a direction to surrender before the Investigating Authorities within 1-week, elucidating that no further time to surrender would be granted. Pursuant to the said Order, the accused surrendered before the NIA on 14 April 2020 at New-Delhi.
Jurisdiction of National Investigating Agency
The National Investigating Agency (“NIA”) is a Special Agency constituted by the Central Government, for the purpose of investigation and prosecution of Offences under Acts specified in the Schedule of the NIA Act, 2008. The NIA Act bestows upon the Agency, all the powers, duties, privileges and liabilities which police officers possess, in connection with the “investigation” of Scheduled Offences and “arrest” of persons concerned in such offences, throughout India. It is, therefore, pellucid that the NIA can investigate into Scheduled Offences under the NIA Act which includes offences under the UAP Act, throughout the nation.
Arrest and Plea-of-Bail
Pursuant to his arrest, Mr. Gautam Navlakha was produced before the Special Judge(NIA), New Delhi as he could not be brought to Mumbai due to the National Lockdown. The Special Judge (NIA) Delhi, observing his detention necessary, remanded him to police custody from time to time and subsequently to judicial custody. Meanwhile, an Application for Interim-Bail was preferred by Mr. Navlakha before the Delhi High Court on the grounds of his advance age and vulnerability to contract fever in backdrop of the COVID-19 situation, as he was suffering from Colonic Polyposis, Chronic Gastritis and Lactose Intolerance which could be controlled only through timely and regular medication. His plea also mentioned that he was diagnosed with high blood pressure during his interrogation, which increased the risk of his morbidity.
Proceedings before the Delhi High Court
On May 22, 2020, the Delhi High Court issued notice in Mr. Navlakha’s bail plea and adjourned it to May 27, 2020 for the NIA to file a status report. However, when the matter was called-out on May 27, 2020 it was interjected that an Application was moved by the Jail Superintendent, Tihar-Jail to transfer Mr. Navlakha from Delhi to Mumbai, which came to be allowed by the Special Judge (NIA), Delhi. Thereafter, in pursuance of a production warrant issued by the Special Judge (NIA), Mumbai, Mr. Navlakha was transferred to Mumbai, pending his Bail Application before the High Court. The Delhi High Court remarked that on May 22, 2020 the learned Solicitor-General had informed the Court of projecting to transfer Mr. Navlakha to Mumbai, in view of opening-up of air-travel, after obtaining orders from the competent court. The Delhi High Court observed that the pending bail proceedings pending before it were rendered infructuous on account of the “evident haste” shown by the NIA through moving applications across Mumbai and Delhi on gazetted holidays and obtaining orders via e-mail. Consequently, Delhi High Court directed the Investigating Officer to file an affidavit indicating the justification for transfer of accused, and also, to file a complete copy of proceedings in the Application for issuance of Production Warrants moved before the Special Court (NIA), Mumbai for perusal of the Court. The operation of this order came to be stayed by the Supreme Court on June 2, 2020.
In view of the above circumstances, it is pertinent to analyse-
- Whether the Special Judge (NIA), Delhi was justified in allowing the Application to transfer Mr. Navlakha from Delhi to Mumbai, during the pendency of Bail proceedings before the Delhi High Court?
- Whether the Delhi High Court would have absolute or limited jurisdiction to entertain the plea of Bail of the Accused given the fact that the cause of action arose in Maharashtra?
To evaluate (i) and (ii), it would be apposite to peruse Section-167 of the Cr.P.C along-with Section-43D(2)(a) of the UAP Act and Chapter XXXIII of the Cr.P.C.
Section-167 of CrPC states-
“167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section-57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that-
Section 43D(2)(a) of UAPA states-
“(2) Section-167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),—
- the references to “fifteen-days”, “ninety-days” and “sixty-days”, wherever they occur, shall be construed as references to “thirty-days”, “ninety-days” and “ninety-days” respectively.”
Section-437 of CrPC contemplates as to when bail can be taken in non-cognizable cases. Section-439 of CrPC enumerates Special Powers of a High Court and Court-of-Sessions with regard to bail.
In S.C.Shukla v. State of U.P the Allahabad High Court observed that if the Magistrate is of the view that the detention of accused is unnecessary, then as per the second part of sub-section (2) of Section-167, the Magistrate could only order the accused to be forwarded to the Magistrate having jurisdiction without authorizing further detention of the accused to any custody.
- The ratios in Ranveer Singh v. Deshraj Singh Chauhan, Syed Zafrul Hasan v. State and Sailesh Jaiswal v. State of West Bengal cumulatively manifests that a “Court” mentioned in Chapter XXXIII (particularly under Sections–437, 438 and 439) of Cr.P.C., visualises a competent Court having local/territorial jurisdiction concerning the matter. In the case of Ranveer Singh (supra) the Court observed that a wider interpretation of the term “Court” would be an anarchy and chaos in the matter of surrender and bail – the Accused would be free to surrender anywhere in India and seek bail from any Court. Further, in Syed Zafrul Hasan’s case (supra) before deciding the issue the Court also considered the anomalous results that might flow from the construction that section 438 confers a jurisdiction on any Court to grant bail and also the practical difficulty which would arise due to the Accused approaching multiple Courts to seek relief.
According to the findings mentioned above, it is a pre-ordained fact that territorial jurisdiction is an essential aspect in matters of bail. Ideally, a Court having no territorial jurisdiction, could either remand the accused to custody or grant transit remand or transit bail to the accused while forwarding him to a Court having jurisdiction. The Special Court(NIA), Delhi was constrained to remand the accused to custody in Delhi, in view of the National-Lockdown. As submitted by the Solicitor-General before the Delhi High Court, the Investigating Agency was projecting to transfer the accused to Mumbai soon after obtaining orders of the competent court i.e. Special Court (NIA), Mumbai. In this context, an Application for issuance of a production-warrant was moved before the Special Judge(NIA), Mumbai which was allowed. Before executing the production warrant, permission was obtained from the Special Judge (NIA), Delhi to transfer Mr. Navlakha from Delhi to Mumbai. A conjoint reading of the provisions along with the above-mentioned findings cumulatively manifest that the Special Judge (NIA), Delhi was justified in allowing the Application to transfer Mr. Navlakha to Mumbai as the Special Court (NIA), Mumbai was the competent Court having jurisdiction to proceed with the matter. As regards plea of interim-bail, the Delhi High Court would have powers limited to considering only the transit bail plea of Mr. Navlakha for want of jurisdiction.
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