Introduction
On May 14, the Supreme Court bench of Justices MM Sundresh and SVN Bhatti granted bail to Gautam Navlakha in Bhima Koregaon conspiracy case, arguing that the accused has already undergone 4 years of incarceration and the trial may take “years and years and years” to complete. The Supreme Court did not extend the stay on the bail, noting that the charges are yet to be framed and six of the co-accused in the case have already secured bail. It also said that the Bombay High Court has passed a detailed order on December 19, 2023 granting bail to Navlakha, against which National Investigation Agency (NIA) had filed this appeal. The bench took cognizance of the fact that there are 370 witnesses in the case, which would prolong the completion of the trial. Importantly, as a precondition to bail, Navlakha has been asked to pay 20 lakhs for the security expenses incurred during his house arrest. Pertinently, there had been an argument between the two parties over calculation of the cost incurred for his house arrest security, with NIA previously sending him the bill of over 1.64 crores, which Navlakha’s lawyer decried as ‘extortion’.
Brief Background
The case against Gautam Navlakha, a civil rights activist and former secretary of People’s Union of Democratic Rights (PUDR), pertains to his alleged involvement in Bhima Koregaon violence and broader conspiracy to overthrow democratically elected government. On December 31, 2017, Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called ‘Elgaar Parishad’ in Shaniwarwada, Pune to celebrate 200th anniversary of the historic battle of Bhima Koregaon (in which Dalits led British Army had fought against Peshwa authority). During the said event, the police alleged that some of the speakers gave provocative slogans which led to violence the next day on December 1, 2018. Later, the police alleged that some of these speakers were associated with the banned Communist Party of India (Maoist) and wanted to permeate its ideology amongst the masses to misguide them towards violent “unconstitutional activities”. Following the Bhima Koregaon violence, two First Information Report (FIRs) were registered, the first one, registered on January 2, 2018, blamed right-wing elements including Sambhaji Bhide and Milind Ekbote and the second one, dated January 8, 2018, alleged that Maoist linked elements were involved in the violence.
While Navlakha was not present at the event, he is accused of being a member of CPI(M) and working with associate ‘Maoists’ who were allegedly involved in the preparation of the event and are accused of propagating radical anti-state activities and inciting Elgaar Parishad violence. The co-accused in the case include Sudhir Dhawale, Rona Wilson, Surendra Gadling, Harshali Potdar, Sagar Gorkhe, Deepak Dhenga le, Ramesh Gaichor, Jyoti Jagtap, Shoma Sen, Mahesh Raut, Varavara Rao, Vernon Gonsalves, Arun Ferreira, Sudha Bharadwaj, Anand Teltumbde, and Stan Swamy (deceased).
The FIR registered on January 8, 2018, had listed the charges under Indian Penal Code (IPC) Sections 153-A (promoting enmity between groups), 505(1)(b) (making statement inciting public to commit offence against the State), 117 (Abetting commission of offence by the public) read with Section 34 (common intention). As the investigation proceeded, new charges were added to the case under Unlawful Activities (Prevention) Act (UAPA), 1967; it invoked UAPA Sections 13, 16, 17, 18, 18(B), 20, 38, 39, and 40. Notably, Navlakha’s name in this FIR was only added on August 23, 2018.
In 2020, after the January 24, 2020, order by MHA, NIA registered another FIR under Sections 153-A, 505(1)(b) and 117 and Section 34 of IPC and Sections 13, 16, 17, 18, 18B, 20, and 39 of the UAPA Act. On October, 9, 2020, NIA filed supplementary chargesheet against the Navlakha and co-accused under Sections 120-B, 115, 121, 121-A, 124-A, 505(1)(b) read with Section 34 of IPC and under Sections 13, 16, 18, 20, 38 and 39 of UAPA Act.
Navlakha’s journey in the case
Since the initial FIR was registered in Pune, Maharashtra, the police had demanded transit remand of Navlakha, after arresting him on August 28, 2018, from his New Delhi residence. On the same day, Navlakha moved Delhi High Court, and the court stayed his transit remand proceedings and directed him to be placed under house arrest. The bench of Justices S. Muralidhar and Vinod Goel had argued that “the documents produced before the learned CMM most of which (including FIR No. 4 of 2018 registered at Police Station Vishrambagh, Pune) are in Marathi language and only the application filed for transit remand before the learned CMM is in Hindi. However, it is not possible to make out from these documents what precisely the case against the Petitioner is.”
The Delhi High Court order dated August 28, 2018 can be read here:
The Supreme Court through various orders in the case of Romila Thapar vs. Union of India (Writ Petition (Crl) 260 of 2018) continued to extend his house arrest, and on October 1, 2018, Delhi High Court quashed his arrest noting that “in all probability, when the IO appeared before the learned CMM…since the case diary was written in Marathi and since the translated version thereof was not available at that stage…the CMM could not have been able to comprehend as to what was written in the case diary. It is nobody’s case that the learned CMM was conversant in Marathi language. Consequently, the learned CMM would not have been able to appreciate whether the requirement of Section 41 (1) (ba) of the Cr PC stood satisfied.”
The Delhi High Court order dated October 1, 2018 can be read here:
After the Supreme Court bench comprising Arun Mishra and M R Shah dismissed the petition for further protection on March 16, 2020, Navlakha surrendered to NIA Delhi and was later transferred to Mumbai, where the NIA Special Court remanded him to judicial custody. The courts also rejected his default bail application, arguing that the period of the house arrest cannot be considered “custody” within the meaning of Section 167(2) of the CrPC. Subsequently, due to his deteriorating health conditions, the SC sent him back to be kept under house arrest in November 2022, and since then, house arrest has been extended. In the meantime, Navlakha had already filed plethora of court cases for quashing the FIR registered against him and for annulling his arrest, but they were rejected by the courts.
The Supreme Court order dated March 16, 2020 can be read here:
The Bombay High Court verdict granting bail to Navlakha
After a long drawn legal battle, which is still far from over, the Bombay High Court on December 19, 2023 granted bail to Navlakha noting that “it cannot be said that there are reasonable grounds for believing that the accusation against the Appellant is prima facie true to attract Sections 16, 18, 20 and 39 of UAP Act”. The verdict delivered by Justices A. S. Gadkari and Shivkumar Dige also considered that co-accused Arun Ferreira, Vernon Gonsalves, Anand Teltumbde and Mahesh Raut have already secured bail, and given the parity, Navlakha should not be denied the same. Noting snail paced progress in the case, the judges observed that “the Appellant is in pre-trial incarceration for more than three years and eight months. The charge-sheet consists of about 20,000 pages in 54 Volumes and the prosecution has cited 370 witnesses…As a matter of fact, till date the trial Court has not framed charge. The possibility of trial of the Appellant being concluded in near future is very bleak.”
Speaking on the merits of the case, the Court observed that primary material against the Navlakha was in the form of literature/documents/letters, which itself does not proof any charges of terrorism against the accused. It noted the “content of these letters/documents through which the Appellant is sought to be implicated are in the form of hearsay evidence, as they are recovered from co-accused… The actual involvement of the Appellant in any terrorist act cannot be even inferred from any of the communications and or statements of the witnesses. According to us, there is no material to infer conspiracy to commit an offence as contemplated under Chapter IV of the UAP Act.” It also noted that the charge that the accused is an active member of CPI(M) cannot be inferred from the fact that letters mentioned someone named “Gautam” in their communication, “as the identity of the said ‘Gautam’ is yet to be established beyond reasonable doubt by the prosecution”.
The bench further pointed out that some of the witnesses have not even mentioned Navlakha, despite that the prosecution has relied upon their statements to corroborate the fact of alleged terrorist activities of the accused. The bench strongly relied on Vernon vs The State of Maharashtra (2023 SCC OnLine SC 885) to reiterate that “mere possession of literature, even if the content thereof inspires or propagates violence by itself cannot constitute any of the offences within Chapter IV and VI of the UAP Act”. The bench cautioned against blindly relying on the material recovered from the co-accused and said that “As far as the documents mentioned above which have not been recovered from the Appellant, however mentions his name are concerned, as held by the Hon’ble Supreme Court in the case of Vernon (supra) these communications or contents thereof have weak probative value or quality”.
The Court furthered emphasised on the distinction between active and passive membership of the terrorist organisation (though Navlakha has not been established to be part of any such organisation) and argued that “the Appellant only being a member of the party cannot be prima facie held to be a co-conspirator to it… According to us, the record prima facie indicate that, it was at the most the intention of the Appellant to commit the alleged crime and not more than it. The said intention has not been further transformed into preparation or attempt to commit a terrorist act, to attract Section 15 of the UAP Act.” The verdict noted that the “Perusal of statement of witnesses at the most indicate that, the Appellant is a member of CPI (M) and therefore it would attract provisions of Sections 13 and 38 of UAP Act.” The court recorded that there is no material on record to believe that the charges of UAPA under Sections 16, 17, 18, 20 and 39 are prima facie true.
The bench additionally relied on Union of India Vs. K.A. Najeeb (2021) 3 SCC 713 : 2021 SCC OnLine SC 50) and cited from the judgement, noting, “It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per-se does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statue as well as the powers exercisable under constitutional jurisdiction can be well harmonised.”
While the bail order was passed by the Bombay High Court on the aforementioned grounds, it had stayed its operation for three weeks on the request of NIA to appeal the decision in the Supreme Court. Thus, following the appeal by NIA the Supreme Court bench of Justices MM Sundresh and SVN Bhatti had extended the stay on the bail order on January 5, 2024. Since then, the stay was continuous extended until the latest order in which uplifted the stay, effectively paving the way for Navlakha’s release on bail.
Just last month on April 5, another accused in the case, activist Shoma Sen, was released on bail after SC noted that the charges of terrorism against Sen are prima facie untrue.
The Bombay High Court bail order dated December 19, 2023 can be read here:
The Supreme Court order dated January 5, 2024 can be read here:
Related:
Delhi HC sets aside Transit Remand, Gautam Navlakha walks free | CJP
The Truth about the Elgaar Parishad | CJP
SC directs arrested Human Rights Activists be placed under House Arrest | CJP