New Delhi: In a setback to civil rights activist Gautam Navlakha, the Supreme Court on May 12 dismissed his plea seeking bail in the alleged Elgar Parishad-Maoist link case of Bhima Koregaon in Maharashtra.

The top court examined the technical grounds raised by Navlakha for the default bail as the charge sheet in the case was not filed by the NIA within the stipulated period of 90 days which also include 34 days of his house arrest.

The activist had challenged the Bombay High Court order denying him bail on the same grounds.

While deliberating with his appeal, the top court said that the personal liberty perhaps is the most important of all values recognized as such under the constitution and “it is to be jealously guarded from any encroachment, save where such intrusion has the clear sanction of law”.

A bench of Justices U U Lalit and K M Joseph in its 206 page-verdict said, “In view of the fact that the house arrest of the appellant was not purported to be under Section 167 (of CrpC) and cannot be treated as passed thereunder, we dismiss the appeal.”

Under CrPC, section 167 provides for procedures when investigation cannot be completed in twenty four hours and powers of magistrate to authorise custody of a person.

The bench, which dealt with various aspects of custody and its impact said that the right to life and personal liberty is essentially also based on the principle that men in regard to fundamental rights be treated equal and that no man or a group of men, even organized as a state under which he lives can deprive him except without infringing the right to be treated equally unless there is a legitimate sanction of law.

“Personal liberty of its members must continue to remain the most cherished goal of any civilized state and its interference with the same must be confined to those cases where it is sanctioned by the law and genuinely needed. The court would lean in favour of upholding this precious, inalienable and immutable value,” it said.

Dealing with earlier orders of the top court and the High Court, it said, “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 this Court and the High Court of Delhi. This is our understanding of the orders passed by the court.”

The bench said that it is confronted with a clash between the two values as on the one hand; there is the deprivation, in law, of the liberty of Navlakha, by way of house arrest for 34 days, while 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. It must be purported to be passed under Section 167 CrPC.

The right to statutory bail arises dehors the merits of the case. The fundamental right arises when the conditions are fulfilled,” the bench said.

The top court also held that if the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition can be filed.

“Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie”, it ruled.

The bench said that the nature of detention, being one under Section 167 is indispensable to count the period.

“We are of the view, that in the facts of this case, the house arrest was not ordered purporting to be under Section 167. It cannot be treated as having being passed under Section 167 of CrPC,” the top court said.

Dealing with house arrest, the top court said that the High Court in the impugned order has itself found that the period of 34 days spent in house arrest by the appellant amounted to custody.

The top court also referred to “fairly alarming” conditions of jails and prisoners of the country and cited National Crime Records Bureau (NCRB) data of 2019.

“A perusal of the executive summary would reveal an alarming state of affairs as far as occupancy rate is concerned. It has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails”, it said.

It said that “there is a tremendous amount of overcrowding in jails in India” and “Delhi had the highest occupancy rate of 174.9 percent followed by Uttar Pradesh which came second with 167.9 percent.

This means that in Delhi a prison which was meant to be occupied by 100 persons, was used for accommodating 174 persons. We cannot also be oblivious to the fact that the figures represent the official version.”

The bench said that when a citizen is placed on house arrest, which has the effect of depriving him of any freedom, it will not only be custody but it would involve depriving citizens under custody of the fundamental freedoms unless such freedoms are specifically protected.

The FIR against him was re-registered in January 2020, and Navlakha had surrendered before the NIA on April 14, last year.

According to the prosecution, some activists allegedly made inflammatory speeches and provocative statements at the Elgar Parishad meet in Pune on December 31, 2017, which triggered violence at Koregaon Bhima in the district the next day.

https://www.ndtv.com/india-news/supreme-court-refuses-bail-to-gautam-navlakha-in-bhima-koregaon-case-2440502