Bombay HC quashes order rejecting bail plea of Navlakha by special court, orders expeditious rehearing

According to HC, the impugned order was very cryptic, lacked analysis of the evidence relied on by the prosecution- why then was the case remanded to the same judge?

Gautam Navlakha

On March 2, in the case of Gautam Navlakha v. National Investigation Agency & Ors, the Bombay High Court issued an order quashing the impugned special court order, through which bail was rejected to the Bhima Koregaon accused Gautam Navlakha. A division bench of Justices AS Gadkari and PD Naik directed the special judge of the special court under the National Investigation Agency (NIA) Act to rehear the bail plea.

According to the division bench, the reasoning provided in the impugned order of the special court was cryptic and did not contain analysis of the evidence relied upon by the prosecution. The bench further noted that the landmark judgment of the Supreme Court in the Watali case has also not been appropriately considered by the special court while deciding the bail of Navlakha.

“No reason of whatever nature is given. Trial court has not given reasoning as required under section 43D(5) of Unlawful Activities Prevention Act (UAPA) while rejecting bail.  It also appears that the order of SC in Zahoor Ahmad Shah Watali case has not been considered while rejecting bail application”, the Court said, as provided by the Bar and Bench.

In view of this, the bench ruled that the bail application requires fresh hearing by the special court and remanded the case back to the court.

“The reasoning stated in the order is very cryptic and there is no analysis. The Additional Solicitor General fairly conceded to the said fact and submitted that the bail application be remanded to the trial court. In view of our observations, the matter to be remanded back to the trial court for fresh hearing”, the court stated, as provided by the LiveLaw.

It also directed the special judge to conclude the hearing within 4 weeks, without being influenced by the earlier order rejecting bail. The High Court bench further clarified that it has not made any observations on merit.

The court proceedings

During the hearing, the High Court had opined that they do not have the benefit of a reasoned order. Pertaining to this, the bench then asked the Additional Solicitor General (ASG) Anil Singh, appearing for NIA, to take instructions on whether the agency was willing to concede the bail plea. Alternatively, the Court said it would call for material which the special court had not considered. 

When the matter was called out and the decision was to be given, the ASG had submitted that he was consenting for quashing of the order of September 5, and remanding the matter back to the special court for reconsideration. He had requested the Court not to express any opinion on merits of the matter.

Navlakha’s counsel, Yug Mohit Chaudhry, had objected to the remanding of the case to the special court and requested that the High Court hear the appeal on the merits. The bench, however, stated that because it lacks the benefit of a reasoned order, it would be in accordance with judicial propriety to first allow the lower court to hear the matter properly.

Chaudhry then asked the High Court to expedite the hearing before the special court. As a result, the Court remanded the case to the trial court for a decision within four weeks.

“The special judge is requested to conclude within 4 weeks without being influenced from September 5 order and this order of today. It is made clear that this court has not made any opinion on merits,” the Court said, as was provided by the Bar and Bench.

Brief Background of the case

The said case pertains to alleged inflammatory speeches delivered at the ‘Elgar Parishad’ conclave, held at Shaniwarwada in Pune on December 31, 2017, which the police had claimed to have triggered violence the next day near the Koregaon-Bhima war memorial, located on the outskirts of the western Maharashtra city, located around 200km from Mumbai.

The Pune police, which probed the case initially, had claimed the conclave was backed by Maoists. The NIA later took over the probe into the case, in which more than a dozen activists and academicians were named as accused.

Navlakha, who is human rights activist and former secretary of People’s Union for Democratic Rights, was arrested in August 2018, but was initially placed under house arrest. He has been booked under the stringent anti-terror law Unlawful Activities (Prevention) Act (UAPA) in connection with the alleged conspiracy behind the Bhima Koregaon violence of January 2018.

Navlakha has been in custody since April 14, 2020, in the Taloja Central Prison in Maharashtra, after the Supreme Court directed him to surrender before the NIA after rejecting his bail application. His plea seeking an extension to surrender in view of the Coronavirus pandemic was also rejected. 

On September 5, 2022, a special NIA court judge Rajesh J Katariya had rejected the bail plea of Navlakha. The NIA had vehemently opposed Navlakha’s bail plea by claiming that he had been introduced to a Pakistan Inter-Services Intelligence (ISI) General for his recruitment, which shows his nexus with the organisation. They had also described him as a member of the outlawed Communist Party of India (Maoist).

However, on November 10, the Supreme Court allowed his plea to be shifted back to house arrest for a month, albeit with rather stringent conditions. The bench of Justices KM Joseph and Hrishikesh Roy, had noted that while charge sheet has been filed against Navlakha on October 9, 2020 no charges were yet framed against him and that he has been in custody as an undertrial prisoner since April 14, 2020. The Supreme Court was also ‘mystified’ as to why the High Court did not consider Navlakha’s age (70) as a basis to consider his application for house arrest. This was extended by another month on December 13. 

He is presently residing in Navi Mumbai city of Thane district. Navlakha had moved the High Court, the above-mentioned case, after the rejection of his bail plea by the special NIA court had.

Questioning the “fairness” in our Indian Judicial System

Gautam Navlakha, through his counsel, has been repeatedly arguing that no case has been made against him and no concrete evidence is there, no charges have been filed against him to show that he is connected to the violence that took place at the Bhima Koregaon. It is pertinent to note, that in the above-mentioned order of the Bombay High Court quashing the special court order rejecting his bail, the bench has basically noted the fact that the lower court did not really consider the arguments made by the defendant. The court also said that the special court did not even account for the precedents set by the Supreme Court in similar matters before rejecting the bail plea of Navlakha. Despite this, the High Court has only sent the case for rehearing to the same judge that had rejected his bail plea. 

When the counsel of Navlakha urged the High Court itself to hear the matter on the merits, the bench said that since the order issued by the special court is not a reasoned order, they will have to remand the case back to the special court, in accordance with “judicial propriety.” While this is the tedious process put in place in our Indian judicial system, an incarcerated defendant is being punished for the judicial callousness of a special NIA Court. There is also no reprimand of the special court for not appropriately following judicial procedure. The special court has been given four weeks to decide the case of an aged political prisoner who has had to live in custody for over a year, and is now abiding by the stringent rules of house arrest where he has to take “permission” to make an international call to his own daughter.

What has the system learnt in self-correction after the institutional murder of Fr. Stan Swamy, who died while being incarcerated in jail as his bail petition lay pending? Most of the people arrested in connection with the Bhima Koregaon case still languish in jail, even as forensic reports showing a brazen tampering of evidence, supporting their innocence have been released. 

Today, in 2023, the Bombay High Court has ordered the case to be heard expeditiously. However, it has been years since the Bhima Koregaon accused have had their freedom stripped from them. There is every probability that the said special court will reject Navlakha’s bail plea again, and then an appeal will again be filed in the upper constitutional courts. Why then, keeping in view the pattern of misuse of the criminal justice system with the aim of harassing human rights defenders, could the High Court not take up the case themselves at this stage itself?

That may have then resulted in a measure of self-correction by the institutions of justice delivery.



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Elgar Case: Special NIA Court Denies Bail to Activist Gautam Navlakha

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On the firing line:  Human rights warriors of 2022

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