New Delhi: In orders that followed animated hearings over two days, the Delhi high court this week punched huge holes in the Maharashtra police’s case for the arrest and ‘transit remand’ of the well-known rights activist Gautam Navlakha. However, it stopped short of pronouncing an actual verdict in view of the Supreme Court granting temporary relief to him and four others charged by the state with crimes under the Unlawful Activities (Prevention) Act.
“This court was in the process of pronouncing an order on the validity of the transit remand order passed by the chief metropolitan magistrate, Saket courts, New Delhi and consequently, the validity of the arrest of the petitioner [Gautam Navlakha], when it was informed by [counsel for the Maharashtra police]” of the Supreme Court’s interim order, Justice S. Muralidhar, who headed the high court bench, wrote in his order of August 30. In the light of this, the bench would wait for further orders from the apex court, he said.
Acting through his counsels – Nitya Ramakrishanan, Warisha Farishat and Ashwath Sitharaman – Gautam Navlakha had approached the Delhi high court on the afternoon of February 28 seeking the issuance of a writ of habeas corpus questioning the legality of his arrest by the Pune police and pressing for his release from their illegal custody.
The police had effected their arrest that morning on the basis of an FIR (4/2018) registered at the Vishrambagh police station in Pune in January.
When the matter was mentioned before the chief justice of the high court at 2:15 pm, he directed that it be heard by the roster bench dealing with habeas corpus petitions comprising Justice S. Muralidhar and Justice Vinod Goel. That bench took the matter up immediately, at around 2:20 pm.
In its order of August 29, the high court notes:
“Para 4 of the petition states that the petitioner was shown a copy of FIR No.4/2018 regarding a cultural program held on 31st December 2017. It is further averred in para 4 that the said FIR did not contain the petitioner‟s name. The petitioner claims that “he was not even present at the meeting”. The petition notes that offences under the provisions of the Unlawful Activities (Prevention) Act 1967 (UAPA), particularly under Sections 30 and 18, have been added to the FIR which was originally under Sections 153A, 505, and 117 read with Section 34 IPC.”
When Nitya Ramakrishnan said that Navlakha had just been taken away from his house by the police, the court directed state counsel that “no further precipitate action of removing the petitioner from Delhi be taken till the matter is taken up again at 4 pm.”
The petition was taken up again at 4 pm that day, at which time the court was informed by state counsel that the chief metropolitan magistrate (CMM) had already passed an order granting the Maharashtra police transit remand for Navlakha so that he could be produced before the UAPA special court in Pune “on or before August 30”.
The bench noted in a brief order on August 28 that it was shown the documents that had been produced before the CMM and that most of these, including the FIR, were in Marathi. “However, it is not possible to make out from these documents what precisely the case against the petitioner is,” it noted, listing the matter for the morning of August 29 and ordering that translations of all the documents produced before the CMM be provided by then.
The court also directed that Navlakha be held at home, though he would be at liberty to meet his lawyers.
Translations delayed, incomplete
On the morning of August 29, the Maharashtra police, now represented by additional solicitor general Aman Lekhi, told the court that more time was needed for translation of the case documents.
Gautam Navlakha. Credit: Youtube
At 2.15 pm, the court noted in its order, “a bunch of documents which runs into 36 pages and which includes a copy of FIR No.4/2018 in Marathi, the English version of the FIR, the letter for adding Section 120B IPC (in English), the letter to add provisions of the UAPA (in English), the letter for search under Section 166 (3) Cr PC (in Marathi), the English version of the search letter, the letter to arrest in Marathi, and the English version of the arrest letter” were shown to it. “The bunch also includes the search and seizure form, the search panchnama, and the arrest memo, all of which are in Marathi. For some reason, these have not been translated as yet. Mr. Lekhi stated that some more time is required for this purpose. However, the court did not consider it appropriate to give any further time for this purpose and proceeded to hear the petition on the core issues that arose.”
After going through the transit remand order – which recorded that the CMM had taken his decision after he had “given … thoughtful consideration to the submissions made by the IO and the learned APP for the State” – the bench said that the high court “in the present petition is concerned with the legality of the arrest of the petitioner. This will include examining the legality of the order of transit remand passed by the learned CMM.”
After hearing arguments from both sides, Justice Muralidhar started dictating his order. The following are excerpts from the order of August 29, 2018:
“11. It was urged by Mr. Lekhi that although the FIR itself does not name the petitioner or refer to his involvement in the offence for which the FIR has been registered, [the Maharashtra police] has other sufficient material which points to his involvement. When asked whether any of the papers in the bunch shown to this court, which presumably was available even when the remand application was moved before the learned CMM, contains such material, Mr. Lekhi referred to the remand application (in Hindi) which according to him indicated what the involvement of the petitioner was in the case.
“12. His further submission is that once a remand application has been filed and a transit remand has been granted, a writ of habeas corpus does not lie and the petitioner would have to seek regular bail and/or challenge the entire proceedings on merits in other proceedings in accordance with law.
“13. The officers of the Maharashtra police present in the Court, i.e. ACP Ganesh Gawade, DCP Bachhan Singh, were asked by Mr. Lekhi, at the instance of the court, whether at any time during the proceedings before the learned CMM, the learned CMM (had) asked to see the case diary in which purportedly the relevant material concerning the involvement of the petitioner is contained. The answer, on the instructions of the said police officers, was in the negative. The court is further informed that the case diary is also written in Marathi.
“14. As already noted hereinbefore, it is apparent from the translated version of the FIR No.4/2018 that the FIR itself does not contain anything which shows the involvement of the present petitioner. It indicates that apart from Sections 153A, 505(1)(b), 117/34 IPC and the UAPA provisions, i.e. Section 13 UAPA (punishment for unlawful activities), Section 16 UAPA (punishment for terrorist acts), and Section 17 UAPA (punishment for raising funds for terrorist acts), Section 18 UAPA (punishment for conspiracy, etc.), Section 18B UAPA (punishment for recruiting of any person or persons for terrorist act), Section 20 UAPA (punishment for being member of terrorist gang or organisation), have been added.
“15. Relevant to the question of the arrest of a person for the aforementioned cognizable offences under UAPA is Section 43D UAPA. Section 43D(4) UAPA states that the provision of anticipatory bail under Section 438 Cr PC is not available to a person arrested for commission of an offence cognizable under the UAPA. The proviso to Section 43D(5) UAPA states that the said accused person “shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that these are reasonable grounds for believing that the accusation against such person is prima facie true”. Section 43D(6) UAPA states that the “restrictions on granting of bail specified in subsection (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail”. These provisions make it explicit that once a person is taken into custody pursuant to an FIR for cognisable offences under the UAPA, it would be extremely difficult for such person to obtain regular bail, till at least the filing of the charge sheet.
“16. Section 43C UAPA makes it clear that provisions of the Cr PC “shall apply, insofar as they are not inconsistent with the provisions of this Act, to all arrests, searches, and seizures made under this Act”.
“17. At this stage, while this order was being dictated, at 5:03 pm in the Court, Mr. Lekhi interjected to state that the Supreme Court has been petitioned in a PIL under Article 32 of the Constitution questioning the validity of the arrest and transit remand orders passed by the MMs not only in the Petitioner‟s case but in other similar cases as well. He is informed that the Supreme Court has in the said petition passed an interim order today staying the transit remand orders, including the one passed by the CMM in respect of the Petitioner, and has ordered that all those who have been arrested including the Petitioner shall continue under house arrest. The next date of the said PIL is stated to be 6th September 2018.
18. In view of the above development, it would not be appropriate for this Court to continue considering the validity of the transit remand order passed by the learned CMM. The Court considers it appropriate to list this matter tomorrow at 2:15 pm by which time the order of Supreme Court would be available.”
The next day, on August 30, the high court bench issued another order which it said “has to be read in continuation of” its order of August 29:
“Yesterday this court was in the process of pronouncing an order on the validity of the transit remand order passed by the Chief Metropolitan Magistrate, Saket Courts, New Delhi and consequently, the validity of the arrest of the petitioner, when it was informed by Aman Lekhi, learned additional solicitor general of India appearing for the State of Maharashtra, that the Supreme Court had passed an interim order continuing the house arrest of the petitioner and some others similarly placed. The dictation of the order was then halted and this petition was adjourned by a day to peruse the order of the Supreme Court.
“The court has today been shown a copy of W.P. (Crl) [Diary No. 32319/2018] (Romila Thapar & Ors. v. Union of India & Ors.) filed in the Supreme Court of India under Article 32 of the Constitution of India as well as the order dated 29th August 2018 passed therein by the Supreme Court, the relevant portion of which reads …
“We have considered the prayer for interim relief. It is submitted by Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the petitioners that in pursuance of the order of the High Court, Mr. Gautam Navlakha and Ms. Sudha Bhardwaj have been kept under house arrest. It is suggested by him that as an interim measure, he has no objection if this Court orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if arrested, they are kept under house arrest at their own homes. We order accordingly. The house arrest of Mr. Gautam Navlakha and Ms. Sudha Bhardwaj may be extended in terms of our orders.”
“As the Supreme Court has, by the aforementioned interim order, extended the house arrest of the Petitioner, this Court does not consider it appropriate to proceed further. It will await the further orders of the Supreme Court.”
The high court bench listed the matter for September 14 but said, “Liberty is, however, granted to the parties to mention for an earlier listing, if so warranted by the orders of the Supreme Court.”