In a clear, categorical, cogent, convincing and commendable judgment titled Gautam P Navlakha Vs. National Investigation Agency in Criminal Appeal Stamp No. 1707 of 2020 delivered by a two Judge Bench of the Bombay High Court comprising of Justice SS Shinde and Justice MS Karnik that was reserved on 16 December 2020 and pronounced finally on 8 February 2021, it was held in no uncertain terms 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. This was held so while rejecting senior journalist-activist Gautam Navlakha’s petition for bail. It may be recalled that Navlakha was arrested in the Elgar Parishad – Maoist Links case twice. The first time that he was arrested was on August 28, 2018 and the second time then after he surrendered on April 14, 2020.
To start with, the ball is set rolling in para 1 of this leading case authored by Justice MS Karnik for himself and Justice SS Shinde wherein it is put forth that, “This is an Appeal under section 21 of the National Investigation Agency Act, 2008 (‘the Act’ for short) against order dated 12/07/2020 passed by the NIA Special Court in NIA Case No. 414 of 2020. The impugned order was passed on the Exhibit No. 276 application made by the Appellant before the NIA Court for statutory bail under section 167 (2) of Code of Criminal Procedure (for short ‘CrPC’) read with section 43 of the Unlawful Activities Prevention Act, 1967 (‘UAP’ Act for short).”
While elaborating on the facts of the case in brief that lead to the filing of the present appeal, it is then stated in para 2 that, “The Appellant states that he is a 69 years old scholar, writer, peace and civil rights activist and journalist of long standing associated with the Economic and Political Weekly and other well regarded publications. It is stated that the Appellant belongs to the People’s Union of Democratic Rights (‘PUDR’ for short) many of his Petitions have led to landmark judgments.”
While elaborating on the charges and FIR filed against him, the Bench then states in para 3 that, “The Appellant came to be arrested on 28/10/2018 at his residence in Delhi in connection with F.I.R. No. 4 of 2018 registered at Vishrambag Police Station, Pune on 08/01/2018. The said F.I.R. has since been numbered as RC 01/2020/NIA/Mum dated 24/01/2020 registered by NIA, Mumbai under sections 121, 121-A, 124-A, 153-A, 505(1)(b), 117, 120-B read with section 34 of Indian Penal Code (‘IPC’ for short) & sections 13, 16, 17, 18, 18-B, 20, 38, 39, 40 of UAP Act.”
It would be useful to mention that it is then stated in para 4 that, “The High Court of Delhi in Gautam Navlakha Vs State W.P.(Cr) No. 2559 of 2018 vide order dated 28/08/2018 stayed the Appellant’s transit remand proceedings and directed that the Appellant be kept under house arrest under guard of Delhi Police Special Cell along with local police that had come to arrest the Appellant.”
It would also be worthwhile to mention that it is then stated in para 5 that, “The Hon’ble Supreme Court in Romila Thapar vs. Union of India and ors. in Writ Petition (Crl) 261 of 2018 passed an interim order dated 29/08/2018 extending the Appellant’s house arrest, which was further extended from time to time till final disposal of the Petition on 28/09/2018. On 28/09/2018, the Hon’ble Supreme Court pronounced the judgment in Romila Thapar and gave the accused persons liberty to pursue appropriate legal remedies.”
Be it noted, the Bench then observes in para 6 that, “The High Court of Delhi by its order dated 01/10/2018 passed in Gautam Navlakha Vs. State Writ Petition (Cr) No. 2559 of 2018 quashed the Appellant’s arrest. This order was challenged by the State of Maharashtra (the prosecuting agency before transfer to NIA) before the Hon’ble Supreme Court in State of Maharashtra Vs. Gautam Navlakha SLP(Crl.) 8616/2018.”
As we see, it is then pointed out in para 7 that, “The Appellant by this time had spent 34 days in custody (house arrest) i.e. from 28/08/2018 to 01/10/2018, first under the orders of High Court of Delhi and then under the orders of the Hon’ble Supreme Court in ‘Romila Thapar’.”
What next follows is then stated in para 8 that, “The Appellant filed Writ Petition (Criminal) 4425 of 2018 in this Court for quashing the F.I.R. against him which was dismissed on 13/09/2019. This Court in the interregnum had ordered that no coercive steps be taken against the Appellant.”
While proceeding ahead, the Bench then states in para 9 that, “The order dated 13/09/2019 passed by this Court dismissing the Writ Petition for quashing of F.I.R. was challenged by the Appellant in SLP (Criminal) 8862 of 2019. The Hon’ble Supreme Court granted the Appellant 4 weeks protection with liberty to seek pre-arrest bail/ protection before the concerned Court. The Appellant then filed an anticipatory bail application before the Sessions Court Pune (the Court where the trial was pending before transfer to NIA) and then approached this Court. The anticipatory bail application came to be rejected by this Court on 14/02/2020.”
While stating about the appellant availing his legal remedies, the Bench then mentions in para 10 that, “The Appellant then approached the Hon’ble Supreme Court by way of (SLP) (Criminal) 1842 of 2020. By an order dated 16/03/2020 the Hon’ble Supreme Court directed the Appellant to surrender within 3 weeks. The appellant sought extension of time to surrender by an application dated 08/04/2020 due to Covid-19 pandemic. The Hon’ble Supreme Court granted one more week to the Appellant to surrender. The Appellant surrendered to NIA Delhi on 14/04/2020 in compliance with the order passed by the Hon’ble Supreme Court. It is stated by the Appellant that he could not surrender to NIA, Mumbai as there was ban on inter- state travel due to Covide-19 pandemic.”
Be it noted, para 17 then brings out that, “Learned Senior Advocate Mr.Kapil Sibal appearing on behalf of the Appellant submitted that the Appellant’s total custody had exceeded 90 days and no charge-sheet had been filed nor extension of time sought for fling charge-sheet and hence, the Appellant is entitled for statutory bail under section 167(2) of CrPC read with 43 of UAP Act. According to learned Senior Advocate 90 days custody of the Appellant is as follows.
“From 28.8.2018 – 1.10.2018 (custody in his house) = 34 days (excluding the last day)
From 14.4.2020 – 25.4.2020 (NIA custody) = 11 days (excluding the last day)
From 25.4.2020 – 12.6.2020 (Judicial custody) = 48 days (excluding the last day)
TOTAL = 93 DAYS.”
Simply put, the Bench then brings out in para 33 that, “Though the facts have been set out in detail earlier, however for appreciating the controversy, it would be apposite to concisely refer to a few basic facts again. Pursuant to registration of FIR, the Appellant was restrained in his house by the Maharashtra Police on 28.08.2018. The learned CMM granted transit remand to the Appellant on 28.08.2018. The High Court of Delhi stayed the Appellant’s transit remand proceedings on the same day i.e. 28.08.2018. Apart from the other directions, the following direction in paragraph 5(6) of the order which reads thus came to be issued :-
“5(6) The Petitioner shall, in the meanwhile, be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local Police that was originally here to arrest the Petitioner, outside the house. Barring his lawyers, and the ordinary residents of the house, the Petitioner shall not meet any other persons or step out of the premises till further orders.”
Going forward, the Bench then envisages in para 34 that, “The interim directions were continued from time to time. The High Court of Delhi finally on 01.10.2018 held that the order passed by the learned Chief Metropolitan Magistrate (CMM for short) on 28.08.2018 granting transit remand to the Appellant is unsustainable in law. It was held that there were several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Section 57 and 41(1)(ba) of the Cr.P.C., which are mandatory in nature. The High Court of Delhi also observed that in view of Section 56 read with Section 57 of the Cr.P.C., in the absence of the remand order of the learned CMM, the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, it was ordered that the house arrest of the Petitioner came to an end. It was clarified that the order will not preclude the State of Maharashtra from proceeding further in accordance with law.”
More significantly, the Bench then after considering the versions of both sides goes on to add in para 39 that, “The bone of contention is the period of 34 days (28/08/2018 to 01/10/2018) which the appellant was under custody (house arrest). Undoubtedly, this period has to be regarded as custody as the appellant admittedly was under house arrest. However, in our opinion, the intervening orders passed would be relevant for determining the nature of this custody for the purpose of Section 167 of Cr.P.C to enable the appellant to claim default bail. Following circumstances cumulatively leads us to conclude that the appellant is not entitled to the benefit of 34 days for claiming statutory default bail.
(1) The transit remand order came to be stayed by the Delhi High Court on 28/10/2018.
(2) The appellant was placed under house arrest pursuant to the directions of the Delhi High Court during which period the investigating officer did not get the opportunity of interrogating him.
(3) The High Court of Delhi quashed the appellant’s arrest holding that the appellant’s detention is illegal.
(4) Pursuant to the declaration of the detention as illegal, the appellant was set at liberty. It is not as if the appellant was released on bail but after being set at liberty, the appellant is protected by an order of this Court restraining the investigating agency from taking coercive steps during the pendency of appellant’s challenge to the FIR.
(5) The Hon’ble Supreme Court having dismissed the challenge of the appellant to quash FIR granted 4 weeks protection with liberty to seek pre arrest bail/protection before the Sessions Court. The Hon’ble Supreme Court granted the appellant time to surrender after the appellant failed to serve pre arrest bail. The appellant ultimately surrendered to NIA Delhi on 14/04/2020. Only after the appellant surrendered, the Magistrate authorised the police custody whereupon the appellant was interrogated.”
Equally significant is what is then stated in para 45 that, “In the present case, no doubt the Appellant was under house arrest. The transit remand ordered by the CMM on 28.08.2018 was stayed by the High Court of Delhi on very same day. During the period of house arrest, barring the Appellant’s lawyers and ordinary residents of the house, the Appellant was not supposed to meet any one or step out of the premises till further orders. The High Court of Delhi had ordered that the Appellant be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local police that was originally present to arrest the Appellant, outside the house. It is therefore obvious that the Investigating Agency/Investigating Officer did not have any access to him nor had an occasion to interrogate him. As the transit remand order was stayed, it cannot be said that the appellant was under detention of police for investigation.”
What’s more, it is then elucidated in para 46 that, “Further under Sub-Section (2) of Section 167 of Cr.P.C. the Magistrate has to authorise the detention of the accused in such custody as such Magistrate thinks ft, for a term not exceeding fifteen days. The CMM granted transit remand on 28.08.2018. The righ Court of Delhi by an interim order having stayed the transit remand and then having finally set aside the order of transit remand thereby holding the detention during the period 28.08.2018 upto 01.10.2018 (period of house arrest) as illegal, then, in our opinion, in the absence of there being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default bail under Sub-Section (2) of Section 167 of the Cr.P.C. The mandate of Sub-Section (2) of Section 167 of the Cr.P.C. makes it clear that for claiming availment of default bail under Section 167(2) of the Cr.P.C. the basic requirement is that the detention of the accused in the custody has to be authorised by the Magistrate. 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.”
No less significant is what is then stated in para 47 that, “The Apex Court in the case of Chaganti Satyanarayan and others (supra) held that the period of 90 days will commence only from the date of remand and not from any anterior date inspite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty. Thus, from a reading of Section 167(2) of Cr.P.C., we are of the view that the essential requisite for availing statutory bail is that the accused must have undergone the authorised period of detention ordered by the Magistrate. It is not possible for us to construe any and every detention which may have resulted in deprivation of liberty of the accused to be an authorised detention by the Magistrate within the meaning of Section 167(2) of the Cr.P.C.”
Quite remarkably, the Bench then holds in para 48 that, “It is not possible for us to fathom a situation where detention of the Appellant though held to be illegal & unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 167 of the Cr.P.C.. In our view sans any valid authorisation/order of the Magistrate detaining the appellant, the incumbent will not be entitled to a default bail. It is therefore obvious that Sub-Section (2) of Section 167 of the Cr.P.C. necessarily presupposes a detention authorised by a Magistrate, for only then the said period of authorised detention can count towards calculating 90 days period of custody prescribed under Section (2) of Section 167 of the Cr.P.C. for the purpose of default bail.”
In view of the above, the Bench then holds in para 49 that, “Resultantly we hold that the period from 28.08.2018 to 01.10.2018 has to be excluded from computing the period of 90 days as the said custody has been held to be unsustainable in law by the High Court of Delhi. The High Court of Delhi also set aside the order passed by the learned CMM on 28.08.2018 granting transit remand to the Appellant. It is not in dispute that thereafter the Appellant applied for Anticipatory Bail which came to rejected at all stages and ultimately the Appellant surrendered on 14.04.2020. It is only consequent to the surrender that the Magistrate then authorise the police custody.”
We also need to pay attention that it is henceforth observed in para 50 that, “The decisions relied upon by the learned Senior Advocate Shri Sibal have no application in the facts of the present case. None of the decisions relied upon by learned Senior Advocate Mr. Sibal deals with the question whether sans any authorisation of the detention by the Magistrate under Section 167(2) of Cr.P.C. and particularly when the detention has been held to be unlawful, can this period of custody still be included in the 90 days period prescribed for grant of default bail.”
Now coming to the concluding paras. Para 51 states that, “We have gone through the order passed by the Special Judge, NIA. We see no reason to interfere with the well reasoned order of the learned Special Judge. The Appeal Stands dismissed.” Finally, it is then stated in the last para 52 that, “This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment.”
In conclusion, the Bombay High Court has rejected senior journalist-activist Gautam Navlakha’s petition for bail. It minced no words to hold that, “It is not possible for us to fathom a situation where detention of the Appellant (Navlakha) though held to be illegal and unlawful rendering the authorization by the Magistrate untenable should be construed as an authorized detention for the purpose of Sub-Section (2) of Section 167 of the Cr.PC.” The Division Bench of Justices SS Shinde and MS Karnik held that the 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 High Court. We also see that the Bench relied on the decision of Chaganti Satyanarayan and others v. State of Andhra Pradesh (1986) 3 SCC 141 where the Supreme Court in Paragraph 24 held that the period of 90 days or 60 days, as the case may be, will commence running only from the date of remand and not from any anterior date in spite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty.
While definitely this notable ruling is a big setback for Gautam Navlakha but all the doors are still not closed for him yet. He still has the option to approach the Supreme Court. His lawyer who is none other than the eminent and legendary Kapil Sibal who is former Union Law Minister as also senior Supreme Court lawyer will surely further strenuously argue the case with full vigour in the top court. But in Bombay High Court we see that Kapil Sibal’s arguments failed to convince the Judges in this case as we have already discussed above!