By LE Desk

New Delhi, March 26: The Supreme Court on Friday reserved orders on a petition filed by civil rights activist Gautam Navlakha demanding bail on default after he pointed out that the National Investigation Agency (NIA) failed to file its charge sheet in the Bhima-Koregaon case within the stipulated period of 90 days.

Navlakha is facing stringent charges under the Unlawful Activities (Prevention) Act for his alleged links with banned organization – Communist Party of India (Maoist). Once a charge sheet is not filed within the period of 90 days, an accused can seek default bail under Section 167(2) of the Code of Criminal Procedure.

A bench of Justices UU Lalit and KM Joseph reserved its judgment after hearing senior advocates Kapil Sibal and Nithya Ramakrishnan for Navlakha and Additional Solicitor General (ASG) SV Raju for NIA, the Hindustan Times reported.

Sibal argued that while calculating the period of arrest, the 34 days of his house arrest suffered by the petitioner between August 28, 2018 and October 1, 2018 should be counted. These 34 days were crucial towards calculating his period of custody as subsequently he was in 11-day police custody (April 14, 2020 to April 25, 2020) and 46 days of judicial custody (April 25, 2020 to June 10, 2020).

This argument was rejected by the Bombay High Court on February 8 this year. The High Court had held, “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 still be construed as an authorized detention for the purpose of Section 167(2) of the Code of Criminal Procedure.”

Sibal argued in the top court that any kind of detention of an accused must be reckoned with the offence and here the offence for which the accused was in house arrest and later in judicial custody was the same. By change of nature of custody, there will be no effect on the period of detention undergone by the accused, he added.

Contradicting him, ASG Raju argued that a detention can only be lawful if it was obtained under the orders passed by a Magistrate. In the case of house arrest, no order of Magistrate was obtained and hence it cannot be treated as legal custody. Navlakha was first arrested in connection with this case in August 2018 when the case was probed by the Maharashtra Police. After NIA took over the probe last year, Navlakha surrendered in April 2020.

During the period of house arrest, Navlakha was not allowed to meet anybody and even the NIA did not have access to him. For this reason too, the HC supported the argument advanced by NIA to deny any relief to Navlakha.

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