On April 5, 2022, a Bombay High Court Bench of Justices SB Shukre and GA Sanap concluded the hearing and reserved the order in connection with the Writ Petition filed by Gautam Navlakha last year, requesting that he be kept under house arrest pending trial in the Bhima Koregaon violence case. He also sought to be transferred out of Taloja Central Prison, citing a lump in his chest, and great hardship owing to the alleged denial of basic medical and other necessities in jail.
The counsel for the State, Additional Solicitor General (ASG) Anil Singh requested time at the very last minute, to file an additional affidavit in response, despite the objections raised by the counsel for petitioner, Advocate Yug Mohit Chaudhary. The court reportedly responded, “We cannot stop them from filing the affidavit as per appellate side rules. But this is a very careless manner in which this matter has been dealt with.”
On April 4, the Bench had expressed strong disapproval at the conduct of the respondents as:
a) the State failed to file any affidavit;
b) the prison authorities failed to address any concerns raised by the petitioner in their reply;
c) the counsel for the prison authorities was absent from the Court.
Justice Sanap had also made observations at the lack of co-ordination between the State and Central agencies and therefore, directed them to ensure co-ordination.
Adv Chaudhary had argued that house arrest can be granted even if bail was rejected and further argued that there was no reason for the fear of evidence tampering as all the evidences are electronic.
On Tuesday, Adv. Chaudhary directed the court’s attention towards the initial order of Delhi High Court Judge, Justice Muralidharan, that laid out the conditions of house arrest. Chaudhary, while pleading for minimum guards, added that there is no fear of Gautam Navlakha absconding. He even offered that the petitioner would be willing to bear part of the expenses that may be incurred from this arrangement. In defence of arguments of a floodgate (of multiple pleas of other co-accused) opening if house arrest was granted to the petitioner, the counsel stated “please do not let the fear of dragons come in the way of this plea.”
ASG Anil Singh argued that that the petitioner should have approached the Special Court before approaching the High Court, and added that the house arrest for medical reasons was not necessary as the Petitioner could be treated at JJ hospital by the best doctors. The counsel implied that the petitioner was indirectly applying for bail through house arrest as his previous attempts at receiving bail have been futile. He further argued that considering the fact that there 1,000 other jail inmates who are suffering from ailments, they too could also raise similar request for similar reasons.
Amused by the fact that the petitioner’s requests for a stool, spectacles, slippers and even a book by ‘PG Wodehouse’ were rejected for ‘security reasons’, Justice SB Shukre reportedly asked, “But Wodehouse was an inspiration for PL Deshpande, the famous humourist and writer of Maharashtra. How can that be a security threat?”
Offering a feeble defence, ASG Singh stated that many items were being denied by the prison authorities due to the Covid-19 pandemic scare. The bench pointed out this contradiction reportedly stating, “Is this the reason for returning the articles? Have you seen the documents filed on record? Because according to us ‘suraksha’ would mean security reasons. Where is Covid-19 pandemic even mentioned on the record? It is better that you do not point out your own contradictions. You are trying to justify something that is not even there in the additional reply!” Finally, the court asked “Is humour banished from jail?”
According to the AG Singh, the petitioner already had 2,800 books available at his disposal in the jail to which the Court reportedly replied, “That is quite less. Even a secondary school would have more books. If there aren’t enough of books, something can be done by the bar or by the court. Because an access to books is very important. It is an important step towards reformation of jail inmates.”
On April 4, citing Mr. Navlakha’s age, Adv. Chaudhary expressed his concern that Mr. Navlakha should not meet the same fate as co-accused Father Stan who died in custody pending trial. He even gave an example of co-accused Varavara Rao who also would have most certainly met the same fate if not for the High Court’s intervention. LiveLaw reported that Adv. Chaudhary quoted from Mr. Navlakha’s complaint saying, “I don’t want to die like father Stan. I want to live so that I can clear my name, stand trial and prove my innocence.” He further argued that Mr. Navalakha has no criminal antecedents, adding to this he reportedly stated, “He doesn’t even have a double-parking case against him. What he does have is an illustrious career as a journalist and as an author.”
In August 2021, the Special NIA court’s Judge D E Kothalikar dismissed his bail plea, along with Anand Teltumbde, on grounds that the Covid-19 situation is under control and that the prison hospital can take care of their medical needs. The 70-year old’s petition read, “Taloja is sorely lacking in infrastructure and manpower and incapable of caring for ailing and elderly inmates such as the petitioner,” reported LiveLaw. Navlakha relied on the Supreme Court decision while refusing him default bail in May 2021. The Supreme Court had originally held, “We observe that under Section 167 in appropriate cases it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest.” (Gautam Navlakha vs National Investigation Agency Crl. App. No. 510 of 2021). Eventually this matter went up to the Supreme Court who, however held against Gautam Navlakha. The Supreme Court (May 2021) that the activist Gautam Navlakha cannot get a statutory bail in the Elgar Parishad case as his 34-day house arrest period will not count as “custody”.
Writ Petition to Bombay HC
In his Writ Petition, he stated how the lump is worrisome considering the history of cancer in his family. His petition also complained that despite repeated oral and written requests, he had not been taken to a hospital for a check-up. It stated, “Because of the negligence and stubborn refusal of officials of Taloja Prison the ailments and medical concerns of inmates go undiagnosed and untreated for long periods of time,” reported LiveLaw. He added that despite the court’s directions, prison officials have denied inmates essential items such as a chair and slippers.
Navlakha’s lawyer Yug Chaudhary argued on September 2, 2021 that the lump in his chest which developed in March 2021, requires investigation to rule out cancer, and he should be taken to Jaslok hospital for the same. The Chief Public Prosecutor, appearing for the Maharashtra government however, argued for Tata Memorial Hospital.
Additional Solicitor General, Anil Singh appearing for NIA, contended that government hospitals were good enough. The court placed on record the statement of Public Prosecutor, Sangeeta Shinde who said that Navlakha will be taken to Tata Institute at Kharghar for a medical check-up on September 3.
The National Investigation Agency has reportedly submitted a list of seventeen draft (proposed) charges against the 15 accused, including the serious charge of waging a war against the country, which is punishable with death or imprisonment for life (section 121 of the Indian Penal Code) before the court. The 15 accused are- Varavara Rao, Anand Teltumbde, Gautam Navlakha, Vernon Gonsalves, Arun Ferreira, Sudha Bharadwaj, Rona Wilson, Shoma Sen, Sudhir Dhawale, Surendra Gadling, Mahesh Raut, Hany Babu, Ramesh Gaichor, Jyoti Jagtap and Sagar Gorkhe.
The NIA charges claim that the accused persons are members of a banned organisation, CPI (Maoists), whose main objective is to establish a Janta Sarkar i.e., people’s Government via a revolution supported by a commitment to protracted armed struggle to undermine and to seize power from the State.
Interestingly, this charge was based on recovery of a letter on the laptop of one of the accused. However, as has been revealed by an investigation of the laptop of Rona Wilson by Arsenal, an American digital forensics firm, that evidence had been planted on it over a 22-month period using malware. Following this other accused too have demanded a forensic examination of their devices, but no court has even taken cognisance of the Arsenal report yet.