Navlakha Bail Denial Flawed But SC Backing House Arrest as Alternative to Jail a Blow for Rights

Though the activist’s right to default bail on the basis of his 34-days house arrest in 2018 was turned down by the top court, the judges found merit in treating house arrests as an alternative form of detention. 

Well-known human rights activist Gautam Navlakha lost his legal battle for default bail in the Supreme Court on Wednesday. But his case has ironically persuaded the top court to make a huge advance on human rights so that other activists like him are not similarly disadvantaged in future.

The bench of Justices Uday Umesh Lalit and K.M. Joseph achieved this by giving liberty to courts to order house arrests in appropriate cases as another form of detention under Section 167 of the CrPC.  Thus Navlakha’s loss on Wednesday would well imply mitigating the absence of freedom under police or judicial custody for other human rights defenders in future.

Section 167 of the CrPC deals with the procedure when investigation cannot be completed in 24 hours following the arrest of an individual. Under Section 167(2) of the CrPC, an accused is entitled to default bail, if the investigation has not been completed within the specified time period, depending upon the nature of the offences.

In this case, Navlakha, who has been in detention since April last year, sought default bail on the ground that the NIA neither filed a chargesheet nor sought an extension of time within the statutory period of 90 days of his detention. The NIA special court, before which the application for default bail was moved, rejected the application on July 12, 2020.

Navlakha appealed before the Bombay high court challenging the NIA special court’s rejection. On October 9, 2020, the NIA filed the chargesheet against Navlakha. The Bombay high court dismissed Navlakha’s appeal, filed under Section 21 of the NIA Act, on February 8, 2021.

Navalakha was first arrested on August 28, 2018 and produced before a magistrate in Delhi for the remand to be taken to Pune, in connection with an FIR registered against him under the Unlawful Activities (Prevention) Act (UAPA) there. On the same day, the Delhi high court stayed the transit remand, so he could not be taken to Maharashtra. By the very same order, the high court placed him under house arrest. The house arrest was extended by the Supreme Court in the case of Romila Thapar v Union of India.

The house arrest lasted 34 days, at the end of which the Delhi high court quashed his arrest as illegal.  Meanwhile, the Bombay high court refused to quash the FIR against him. With the high court rejecting his anticipatory bail application on February 14, 2020, the Supreme Court directed him on March 16, 2020 to surrender within three weeks, which was extended by one more week on April 8, 2020 due to the COVID-19 pandemic. He surrendered to the NIA on April 14, 2020.

Representative image. Photo: PTI

Thus Navlakha’s custody included 34 days of house arrest in 2018, 11 days of custody under the NIA in April 2020, and the period of judicial custody from April 25 to June 28, 2020, which clearly exceeded the statutory period of 90 days, making him eligible for default bail. The NIA applied for an extension of time to file the chargesheet before the NIA special court on June 29, 2020.

During the period of house arrest, Navlakha was not supposed to meet anyone, barring his lawyers and ordinary residents of the house. He could not step out of the premises. There were to be two guards of the special cell of the Delhi Police outside the house. The Pune Police – which was investigating the case before the NIA took it over in January last year – did not have any access to him or occasion to interrogate him. With the transit remand order being stayed, Navalakha could not be said to be under the detention of the police for investigation.

Does house arrest constitute period of custody for default bail?

The issue before the Bombay high court as well as the Supreme Court was whether the period of custody spent during house arrest constitutes custody for the purposes of default bail.

Under Section 167(2) of the CrPC, the magistrate has to authorise the detention. Since the Delhi high court stayed the transit remand and finally set it aside, thereby holding the detention to be illegal, there was no authorised detention by an order of the magistrate. Therefore, Navlakha could not claim the benefit of default bail.

“It is an indispensable requirement to claim the benefit of default bail that the detention of the accused has to be authorised by the Magistrate. The authorisation by the magistrate having been declared illegal, the detention itself was illegal. The house arrest custody cannot be treated as authorised custody under section 167(2) of the CrPC,” the bench held on Wednesday.

The bench held that the period of 90 days will commence only from the date of remand and not from any anterior date, in spite of the fact that the accused may have been taken into custody earlier.

The court took the view that the period when he was under house arrest from August 28, 2018 to October 1, 2018 had to be excluded.

Senior counsel Kapil Sibal argued for Navlakha that nothing prevented the officers from interrogating him and investigating the matter, if need be, after obtaining the leave of the Delhi high court during his house arrest in 2018. Sibal contended that there was no stay of investigation and that under Section 43D(2)(b) of UAPA, police custody can be sought at any time.

The fact that the Delhi high court finally set aside the remand and that the detention was illegal, was an untenable ground to hold that there was no remand under section 167 of the CrPC, he argued. The Delhi high court, in its order, had concluded that Navlakha’s house arrest ‘comes to an end as of now’. It did not treat the period of house arrest as either non est or void, only staying the transit and not the remand order. The high court only modified the nature of the remand that is, from transit in police custody to within the confines of Navlakha’s home. Though the detention was found to be illegal, it cannot wipe out the period of detention, it was argued. What is required under Section 167 CrPC is the total period of custody, which can include broken periods and the custody need not be one continuous lot, Sibal contended before the Supreme Court.

Supreme Court of India. Photo: Pinakpani/CC BY-SA 4.0

Top court agrees with NIA

The Supreme Court bench, on Wednesday, found merit in the NIA’s contention that an accused who is remanded to custody under Section 167 of the CrPC cannot come out of custody unless he is bailed out or acquitted. There was no bail in favour of him and he was not remanded to judicial custody at the end of the house arrest. The so-called custody during the house arrest was not custody or detention within the meaning of Section 167, the NIA argued.

Navalakha’s application for anticipatory bail presupposes that the arrest on August 28, 2018 was non-est since a person could not be arrested for an offence twice. The surrender by Navlakha stopped him from projecting the house arrest as custody within the meaning of Section 167 CrPC.

An act of court should not negatively impact the investigating agency, the NIA argued, referring to the maxim “Actus curiae neminem gravabit” and it would apply in the present case. But can the act of court negatively impact the accused? The Supreme Court failed to consider this question.

The bench, however, conceded that house arrest is also custody and forced detention. The very purpose of custody under Section 167 is to enable the police to interrogate the accused and if that opportunity is not present, then such period of custody as alleged would not qualify for the purpose of section 167, the bench held.

Police custody can be sought and given only during the first 15 days, and thereafter, it cannot be given.  In the case of UAPA, the period of police custody stands enhanced to 30 days. Therefore, the period of 90 days would begin to run only from the date of Navlakha’s remand, that is, April 15, 2020, the bench held.

If Navlakha’s contention that the period of remand commenced with the house arrest on August 28, 2018 is accepted, it would result in the police custody given on April 15, 2020 as impermissible, the bench reasoned. That Navlakha did not object to the police custody given on April 15, 2020 is emphasised. As he acquiesced to police custody commencing from April 15, 2020, the period of 90 days would commence only on that day, the bench concluded. Thus Navlakha’s compliance with the Supreme Court’s order to surrender weakened his own case for default bail.

There was no stay of investigation, but the police did not seek access to Navlakha during the house arrest. His conduct in not objecting to the application seeking police custody cannot defeat the case for counting the period of 34 days of house arrest. Navlakha was indeed in police custody on August 28, 2018 for investigation. All his devices were seized by the investigating agency, which spent several hours at his house and restrained him from morning till 2:15 pm, when they took him to the magistrate.

The bench agreed with Navlakha that if the Delhi high court had been approached, it might have directed him to cooperate with the investigation. “It, however, remains in the region of conjecture. The impact of this aspect will be further considered later,” the bench said, as if it was unsure of its own reasoning.

If the remand in the case of the appellant took place in 2018, then it would be completely inconsistent with the remand to police custody well beyond the first 30 days of the remand in 2018, the bench reasoned. It appeared as if the bench had to adopt this reasoning in order to rationalise the failure of the police to interrogate Navlakha during his house arrest in 2018, and to legitimise the fresh remand against him in 2020.

House arrest is alternative to actual incarceration

The bench recognised that house arrest was, undoubtedly, perceived as the softer alternative to actual incarceration. That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under section 167 of the CrPC was not apparently in the minds of both the Supreme Court and the Delhi high court, the bench suggested.

There is deprivation of liberty of the appellant by way of house arrest for 34 days, the bench conceded.  On the other hand, it does not fall actually in the facts of this case within the ambit of Section 167 of the CrPC; while the right to default bail is a fundamental right, it is subject to the conditions, obtaining in section 167 of the CrPC being satisfied, the bench ruled. The right to statutory bail arises dehors the merits of the case. The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under section 167, is indispensable to count the period, the bench held.

The 16 activists, lawyers and academics arrested in connection with the Bhima Koregaon case. Photo: The Wire

Article 21 creates a fundamental right, which cannot be waived. The setting aside of the order of transit remand will not wipe out the police custody or the house arrest. We agree that illegality in the order of the CMM, Saket will not erase the deprivation of liberty. The house arrest, in the facts of this case, was not ordered purporting to be under section 167,” the bench explained.

The bench observed further:

“The concept of house arrest as part of custody under section 167 has not engaged the courts including this court. We have now formed the view that it involves custody which falls under section 167. 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.

As regards post-conviction cases, we would leave it open to the legislature to ponder over its employment. We have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons.”

In view of the fact that the house arrest of the appellant was not purported to be under section 167 and cannot be treated as passed thereunder, we dismiss the appeal, the bench concluded.

But the bench didn’t answer the question of whether the Delhi high court could have impliedly ordered Navlakha’s house arrest under section 167 of the CrPC in 2018, so as to entitle him to default bail. It is important because depriving him of this right would result in his unfair discrimination by the state as compared to similarly placed other accused, who could now avail the Supreme Court’s landmark judgment on Wednesday in their favour.