The Bombay High Court on Monday rejected the criminal appeal by Gautam Navlakha, accused in the Elgaar Parishad case, against the special National Investigation Agency (NIA) court’s July 12, 2020 ruling that rejected his default bail plea. Navlakha (69) is currently lodged at Taloja Central jail.

“We have gone through the order passed by the Special Judge, NIA. We see no reason to interfere with the well-reasoned order of the Special NIA Judge. The appeal stands dismissed,” the HC held.

The court on December 16, 2020 had concluded hearing arguments and reserved its ruling on Navlakha’s plea.

Navlakha had sought default bail on the grounds that NIA, the investigating agency, had failed to file a chargesheet within the stipulated period of 90 days. The NIA, however, claimed that the period of 34 days of Navlakha’s house arrest between August 29 and October 1, 2018, was termed ‘illegal’ by the Delhi High Court and hence it cannot be included in the period of detention.

A division bench of Justices S S Shinde and M S Karnik, which was hearing Navlakha’s plea, was informed by senior counsel Kapil Sibal that the ‘house arrest’ in 2018 had restricted Navlakha and therefore his plea for default bail under Section 167 of the Criminal Procedure Code (CrPC) was valid.

“If 34 days (of house arrest) are counted, the NIA’s application is beyond 90 days and the same is not maintainable and therefore Navlakha is entitled to default bail. He has cumulatively spent 93 days in custody,” Sibal argued. However, Additional Solicitor General S V Raju, representing the NIA, opposed the plea stating that the period of ‘house arrest’ cannot be counted as the date of production of accused before the magistrate. The HC noted that the bone of contention is the period of 34 days which the appellant was under custody (house arrest).

“Undoubtedly, this period has to be regarded as custody as the appellant admittedly was under house arrest. However, in our opinion, the intervening orders (including Delhi HC) passed would be relevant for determining the nature of this custody for the purpose of Section 167 of Criminal Procedure Code (CrPC) to enable the appellant to claim default bail,” the bench stated.

In light of this, the HC observed, “It is not possible for us to fathom a situation where detention of the appellant though held to be illegal and unlawful rendering the authorisation by the magistrate untenable should still be construed as an authorised detention for the purpose of Section 167 (2) of the CrPC. In our view sans any valid authorisation/order of the magistrate detaining the appellant, the incumbent will not be entitled to a default bail.”

“Resultantly we hold that the period from 28.08.2018 to 01.10.2018 has to be excluded from computing the period of 90 days as the said custody has been held to be unsustainable in law by the High Court of Delhi,” Justice M S Karnik who authored 35-page judgment noted.