The Delhi High Court Was Right to Call NIA to Account for Gautam Navlakha's Hasty Removal

By failing to uphold the sanctity of the high court's order in a matter where the NIA's conduct appears surreptitious and mala faide, the Supreme Court has undermined the majesty of the law.

A senior once told me that the best way to understand the law was to know the law. His advice confused me in the beginning, but I soon realised how profound it was. I recall this in the context of the case of Gautam Navlakha and others. I don’t hold their brief, but if I’ve chosen to speak, it is as a thinking person. My thoughts and concerns are meant for all serious students of the criminal justice system.

On January 8, 2018, a first information report was filed in respect of the violence which had taken place in Shaniwarwada on December 31, 2017 in a programme organised by the Elgar Parishad. The FIR alleged that the programme had created communal disharmony and that the CPI (Maoist), a banned organisation, was inciting violence. Six persons, but not Gautam Navlakha, were named in the FIR. The scope of the FIR was expanded subsequently on May 17, 2018: offences punishable under section 120B of the Indian Penal Code (for conspiracy) and certain sections of the Unlawful Activities (Prevention) Act were added.

On June 6, 2018, five persons were arrested after their houses were searched and materials seized. On August 20, 2018, five more names were added to the FIR, including that of Gautam Navlakha. Their homes were searched on August 28 and Navlakha was arrested.

He was taken to the chief metropolitan magistrate (CMM) at the Saket district court, New Delhi, who granted two days transit remand for his appearance at Pune. On the same day, a habeas corpus petition was filed in the Delhi high court challenging the arrest and remand that followed. As an interim measure, the Delhi high court directed that Navlakha may not be removed from Delhi till further orders. The court also directed house arrest and kept the matter for the next day to enable the state of Maharashtra to file the papers they sought.

From demand for court-monitored SIT to NIA

On August 29, 2018, five academics moved the Supreme Court for a court monitored special investigation team (SIT) into the Bhima Koregaon case. Initially, the Supreme Court followed the high court and directed house arrest as an interim measure. Eventually, a month later, on September 28, 2018, the Supreme Court dismissed the petition but extended the interim order of house arrest for a further four weeks to enable the arrestees to seek appropriate remedies.

Also read: Why Justice Chandrachud Argued that an SIT Should Probe the Bhima Koregaon Case

Subsequently, on October 1, 2018, the Delhi high court set aside the transit remand order against Navlakha since the provisions of Article 22 of the constitution and the procedure prescribed under sections 167/57 and 41(1)(ba) of the Code of Criminal Procedure (CrPC) had not been followed by the CMM, Saket. The transit remand having been set aside, arrest exceeding 24 hours was anyway untenable.

Article 22 (1) mandates that a detainee has to be informed of the grounds of arrest but in this case it had not been done. Sections 167/57 CrPC mandate that a magistrate has to satisfy himself on the existence of materials against the accused before remanding him. In this case, most of the documents were in Marathi – a language not known to the magistrate – and were not produced before him. Hence the high court held that the magistrate had not acted in accordance with the prescribed procedure. Importantly, the court clarified that the order would not preclude the state of Maharashtra from proceeding in accordance with law.

Consequently, Navlakha was released from house arrest. This order was challenged in the Supreme Court and on October 29, 2018, notice was issued to the respondents, but the matter remained pending.

Meanwhile, Navlakha filed a quashing petition before the Bombay high court, which subsequently came to be dismissed, but with three weeks ad interim protection to allow him to move the Supreme Court. The SC disposed the appeal on October 15, 2019, giving him the liberty to move the appropriate courts for bail/pre-arrest bail.

Also Read: What the Delhi HC Had to Say While Freeing Gautam Navlakha from House Arrest

Navlakha then filed for anticipatory bail before the Bombay high court, sessions judge and high court again, all of which were rejected.

Meanwhile, on January 24, 2020, the investigation of the case was transferred to the National Investigation Agency (NIA) under the National Investigation Agency Act.

Appealing the denial of anticipatory bail, Navlakha moved the Supreme Court. which dismissed his petition on March 16, 2020, saying it was not maintainable, in view of Section 43D(4)  UAPA and directed him to surrender.

Later, in view of COVID-19, travel to Mumbai was not possible and he then surrendered before the NIA in Delhi on April 14, 2020, where he was once again arrested in the same case and produced before a court which remanded him to judicial custody.

Move for interim bail

More than a month later, on May 22, 2020, Gautam Navlakha moved the Delhi high court for interim bail on medical grounds as also on the ground of COVID-19. The court issued notice, sought a status report as well as medical report from Tihar jail and adjourned the matter to May 27.

While the interim bail petition was pending in the Delhi high court, the NIA requisitioned the NIA court Mumbai for issuance of production warrants under section 267 CrPC on May 24, 2020 (a Sunday), produced the order before the Delhi court on May 25 (a holiday for Eid) and took Navlakha to Mumbai, thus removing him outside the territorial jurisdiction of the Delhi high court. In Mumbai, he was produced before the NIA court, which remanded him to Taloja jail till June 22.

According to me, the mess of facts in the present case throws up several legal issues for discussion and it would be good if we deal with them dispassionately.

1. Problems with original arrest and remand

The first question is whether there is a distinction between arrest and remand. The answer is yes, since two different functionaries discharge the two acts. Whereas the power of arrest lies with the executive, remand is a judicial exercise.

The Delhi high court had set aside the remand of Gautam Navlakha by the CMM’s court since it was non-compliant with Article 22 of the constitution and sections 167/57 of the CrPC and consequently set at liberty from house arrest. It held that a police arrest could not last beyond 24 hours in the absence of a valid magisterial remand, which in this case did not exist as the magisterial remand was set aside as invalid. Was it a setting aside of the arrest or of remand only?  Interesting propositions arise on validity of the first arrest, in view of the fact that only the remand was set aside and whether a further arrest was competent. If a second arrest was not competent, an anticipatory bail petition on his behalf would be equally incompetent As things turn out, Navlakha surrendered to custody and the debate, though important, is largely academic.

2. How the NIA dodged the Delhi high court’s jurisdiction

The second question pertains to the manner in which the interim bail petition proceeded before the Delhi high court.

It is a matter of record that Navlakha surrendered in the NIA office on April 14, 2020, and was formally arrested and produced before the sessions court in Delhi on April 15. The normal thing for the court to have done was to either grant him transit bail or grant the NIA transit remand to enable him to appear before the trial court within a certain time. But it did not do so.

It was then that Gautam moved the Delhi high court on May 22 for interim bail on medical grounds as well as on grounds of the pandemic, because the court which had remanded him to custody was within the territorial jurisdiction of Delhi high court. Notices were issued to the concerned parties and they appeared.

While the matter was at the stage of an effective hearing before the high court, the NIA sought a production warrant from the Mumbai NIA court on Sunday, May 24. On May 25, i.e. on yet another holiday for Eid, the warrants were produced before the Delhi special court which directed the jail authorities to comply with the warrants and Navlakha was taken to Mumbai and produced before the court there.

Evidently this was done only to frustrate any action by the Delhi high court so the matter would become infructuous on the next date i.e. May 27, 2020.

3. The manufactured sense of urgency

The so-called urgency in the matter is farcical because after the Delhi high court in the habeas corpus had given liberty to the investigating agency to move afresh way back on October 1, 2018, it had done nothing. In fact, Navlakha was not even arraigned as an accused in the two charge sheets filed on November 15, 2018 and February 21, 2019, so for the NIA to suddenly spring into action while the matter was being heard by the Delhi high court demonstrates utter disrespect  bordering on contempt by the investigating agency towards the Delhi high court.

The NIA had assumed charge of the case on January 24, 2020, when there was no pandemic scare, yet no effort was made to produce Navlakha before the special court to answer any charge, and it was suddenly on May 24, 2020 when the bail petition was being heard by the Delhi high court that the agency sought his production for completely wrong reasons. Evidently this was done only to undermine the majesty of the court.

Further, let us examine the production warrant issued by the Mumbai court. One finds production of Gautam Navlakha was sought under section 267 CrPC for answering ‘charge’. Section 267 CrPC says a court can ask for attendance of any prisoner to answer charge or for purposes of any ‘proceedings’.  In the present case, since a chargesheet against Navlakha has not yet been submitted, the stage of charge has not reached and hence the court there could not possibly ask for his production for answering charge. Also, there is no date fixed by the trial court for any proceedings. This is the minimum understanding one would expect from a responsible court.

The NIA has acted in a manner which does not behove a premier agency. Such unfairness has  been decried by the Supreme Court in the case of Sanchaita and Vineet Narain. It also shakes the faith of an ordinary law-abiding citizen and convinces him that in case of distress, the state will never come to his defence.

4. The role of the Supreme Court

To proceed with the narrative, when the activities of the premier investigating agency was brought to the notice of the Delhi high court on May 27, 2020, it noted that the NIA had acted with unseemly haste to remove Navlakha out of the court’s jurisdiction and probably without informing the special NIA court in Mumbai as well as Delhi about the pendency of the bail petition. In the face of records which appeared surreptitious and mala fide, the court directed the investigating agency to file a complete copy of the proceedings in the application for issuance of production warrants for perusal.

According to me, there could not have been any other order to safeguard the independence of the judiciary. Yet, on June 3, 2020, this order was stayed by the Supreme Court.

Should the Supreme Court have stayed the order of the Delhi high court? Since the matter is sub judice, I will refrain from commenting upon the justifiability or otherwise of the order. Yet, it would be sufficient to remember that the hierarchy of our courts is designed not only to correct errors of the courts below, but also to protect the sanctity of its orders – in order to  maintain the majesty of law and constitutional balance. The Supreme Court in the scheme of our democracy is the guardian of the constitution and the least it can do is to act as one.

Anjana Prakash is a Senior Advocate. This article was written with inputs from Anuj Prakash and Anwesh Madhukar, Advocates