SC Sets Aside Delhi HC Order Asking NIA to Explain Gautam Navlakha's 'Hasty' Transfer

The apex court also expunged the Delhi high court judge's remarks questioning the NIA's actions in the case.

New Delhi: The Supreme Court on Monday set aside a May 27 Delhi high court order asking the National Investigation Agency to produce records explaining why rights activist Gautam Navlakha was transferred from Delhi to Mumbai in “unseemly haste”.

Navlakha was arrested in April this year and charged under the draconian Unlawful Activities (Prevention) Act in the Bhima Koregaon case. A number of other rights activists have also been arrested in this case, pertaining to violence against Dalits on January 1, 2018 at Bhima Koregaon.

On May 27, the high court asked for all the relevant documentation used to transfer Navlakha away from Delhi to jail in Mumbai. Justice Anup Bhambhani had then expressed his reservation about the “inexplicable, frantic hurry” the NIA displayed in shifting Navlakha to Mumbai from Delhi, while the proceedings in the court on his interim bail petition were still pending. Navlakha was effectively removed from the high court’s jurisdiction by the NIA.

Also read: The Delhi High Court Was Right to Call NIA to Account for Gautam Navlakha’s Hasty Removal

The NIA, instead of following the Delhi high court order, decided to take the matter to the Supreme Court. On June 2, a bench headed by Justice Arun Mishra and comprising Justices Navin Sinha and Indira Banerjee stayed the high court’s proceedings. The NIA’s plea was that the Delhi high court lacked jurisdiction in the matter in mid-June.

On Monday, the bench not only allowed the NIA’s appeal again the Delhi high court order but also expunged Justice Bhambhani’s remarks against the NIA, LiveLaw reported.

Appearing for the NIA, Solicitor General Tushar Mehta told the Supreme Court that the Delhi high court’s order was “unprecedented” and that Navlakha’s transfer to Bombay was required fro the investigation.

“By way of misconceived venture, an application was filed directly before the High Court of Delhi. In case any modification of the order dated 08.04.2020 was required, it was incumbent upon the respondent to apply to this court, which he did not do. Thus, the entire exercise taken by the High Court of Delhi was totally uncalled for as the spirit of our order is apparent. The High Court of Delhi should not have entertained the application at the threshold, the observations made are hereby ordered to be expunged,” the Supreme Court said.

Senior advocate Kapil Sibal, appearing for Navlakha, argued that Article 136 of the constitution (special leave to appeal by the Supreme Court) was not meant for this. Even if after his removal from its jurisdiction it could not have granted bail anymore, the high court could still have called the mode of his removal to account, Sibal told the court. The matter was now infructuous and Navlakha’s remedies lay only in Bombay, and therefor nothing remained in the SLP, he continued.

The bench, however, held that as it had earlier declined Navlakha’s plea for extension of time, on grounds of COVID-19, his interim bail on the same ground would not lie before the Delhi high court. His remedies are in Bombay, the court said.

Sibal objected to the apex court agreeing to expunge the Delhi high court’s remarks, saying that this was not fair to the high court, which had been moved when Navlakha was still within its jurisdiction.

The Supreme Court clarified during the hearing that it was making no observations about the single judge of the high court. “We make it clear that we have not commented on the merits of the case,” it said.

NIA v GN-Order Dt 06.07.2020 by The Wire on Scribd