Thread by @barandbench

#SupremeCourt to begin hearing plea by Gautam Navlakha, accused in the 2018 Bhima Koregaon violence, challenging the rejection of his plea for default bail by Bombay High Court at 10:30 am
#bhimakoregaon

Navlakha has sought bail on the ground that the National Investigation Agency (NIA) failed to file its chargesheet within the prescribed upper-limit of 90 days as per Section 167(2) of the Code of Criminal Procedure (CrPC)
@NIA_India

The question before the Bombay High Court was whether the period of custody spent during house arrest constituted 'custody' for the purposes of section 167(2) of CrPC.
#SupremeCourt
#GautamNavlakha

Senior Adv Kapil Sibal: this incident arises from the Bhima Koregaon event. Group of eminent persons included Justice Patil held an event to commemorate the Bhima Koregaon anniversary

Sibal: It was August 22, 2018, when name of Navlakha was included in the FIR. When I was arrested on the 28th of August I was arrested from Delhi and produced before CMM Saket and there was an order of transit remand.
@KapilSibal
#SupremeCourt

Sibal: Transit remand was granted that day and that very day habeas corpus was moved. Then matter was taken up at 4 pm. 2:15 he was already taken to the magistrate.

@KapilSibal : This interim order was extended. In the meantime Romila Thapar and others filed a writ in Delhi High Court

Sibal: This order of house arrest kept on getting extended again and again. Court says interim order order will continue till the pronouncement of judgment. Delhi HC on October 1 quashed the petitioners arrest. #SupremeCourt

Sibal: He remained under house arrest for 34 days. HC sets out the short point for consideration, there are three periods in relation to him being detained.

Sibal: If you take all three into account it is 93 days. We say chargesheet was filed after 90th day and thus Navlakha ought to be released on default bail

Justice Lalit: When was chargesheet filed ?

Justice Lalit: if we hold that this 34 days do not count then we can say application for interim extension was within time

Sibal: Yes then the plea does not survive

Justice KM Joseph: You were saying Delhi HC set it aside. Where is it?

@KapilSibal : HC said detention was illegal thus it could not be said to authorized custody. Both reasons according to me is legally unsustainable. HC order is in pursuance of a transit remand.

Sibal: It was in furtherance of remand and in pursuance of remand and not dehors it

Justice Lalit: We are on August 29 order. Where is that ?

Justice Lalit: so the next order stayed the trasnsit remand and continued the house arrest. Right ?

Sibal: Yes. Then the case was stayed on October 1

Justice Lalit: We have to see what is the kind of house arrest, whether police custody or not.

Sibal: High Court has relied on a judgment that has no application to the case - the Dalmia case [2007 5 SCC]

Bench consults between themselves.

What prevented the police from asking for his custody for 2-3 days? Sibal asks

If we accept your submission that house arrest has to be taken as custody, the accused is entitled to reconcile the period, Justice UU Lalit

As a judicial organ, can we do that? We will be altering the entire course of 167 CrPC: Justice Lalit

What prevented the police from approaching the courts and asking for police custody of Navlakha? Sibal asks

Sibal refers to judgments of the Supreme Court to substantiate his case

In this case, they had all the time to interrogate Navlakha while he was in police remand.

High Court order did not mean that Mumbai Police could not interrogate him, Sibal

Would two-day period of transit from Delhi to Mumbai be part of the 90-day custody period under 167 CrPC? Justice Joseph asks.

Two-day period will not be excluded, it was part of 90-day period, Sibal responds.

We see the point there: Justice Lalit.

ASG SV Raju begins submissions for State.

Raju states that Navlakha was granted interim protection from various courts at various times, so couldn't be interrogated by the police.

The orders passed by the High Courts and Supreme Court keeping him in custody were not orders under Section 167 CrPC. Thus, these periods cannot be counted as part of the 90-day period: Raju

As per Dalmia's judgment, the time taken to produce him before jurisdictional court does not count towards calculation of 90-day limit for remand: Raju

Court explains how Dalmia case is different from Navlakha case.

If he is still in your custody, could he walk away? Should not that period be considered as part of 90 days? Justice Lalit says

Could you have not interrogated him while he was under house arrest? That is the issue, Justice Lalit says

Sibal begins rejoinder submissions. High Court orders placing Navlakha under house arrest is extension of Section 167. High Court has no power otherwise.

Once High Court has set aside house arrest, can a person be re-arrested for the same crime? Court asks

Sibal says no

If a man develops medical issues after 30 days of custody and is granted interim bail, will the period for which he is in hospital be calculated as part of 90 days? Court asks

Sibal: I don't imagine so.

Breaking: Supreme Court reserves order in Gautam Navlakha's plea for default bail after 90 days of remand.

Parties would be at liberty to file written submissions: Court

Hearing ends.

[Bhima Koregaon] Supreme Court reserves orders on plea by Gautam Navlakha seeking Default Bail

Read a LIVE account of the hearing today:

barandbench.com/news/litigatio…