Elgar Case: Bombay HC Directs NIA Special Court to Rehear Gautam Navlakha’s Bail Plea

The bench directed the special court to conclude the hearing within four weeks.

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On Thursday, a division bench of the Bombay High Court, comprising Justices A.S. Gadkari and P.D. Naik, refused to grant regular bail to Gautam Navlakha and directed the special court under National Investigation Agency (NIA) Act to rehear the bail plea for its reconsideration. The bench quashed the special court’s order dated September 5, 2022 that rejected the grant of regular bail to Navlakha.

Journalist and human rights activist Navlakha, an accused in the Bhima Koregaon-Elgar Parishad Maoist links/criminal conspiracy case, is charged under the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA). During his custody as an undertrial prisoner, a chargesheet was filed on October 9, 2020; charges are yet to be filed by the court.

Navlakha, in custody since April 2020, stands accused along with 15 others. He was lodged at Taloja Central Jail in Mumbai. On November 10 last year, the Supreme Court allowed Navlakha to be placed under house arrest.

According to the bench, the bail application necessitated a fresh hearing by the special court on the ground of lack of reasoning while rejecting his bail application, as provided under Section 43D(5) of the UAPA. It also observed that the special court failed to consider the judgment of the Supreme Court in the case of NIA versus Zahoor Ahmad Shah Watali (2019) in which the finding of the Delhi High Court while granting bail to the accused, that similar documents were inadmissible, was challenged at the Supreme Court.

In Zahoor Ahmad Shah Watali, the Supreme Court had held that courts must look for “grave suspicion” once the charges are framed, not for bail, at which stage the degree of satisfaction is lighter as the court has to opine that the accusation is ‘prima facie true’ .

Additional Solicitor General of India Anil Singh, representing the NIA, expressed his consent for an order to quash the special court’s ruling on the rejection of the bail. Whereas, advocate Yug Mohit Chaudhary, appearing for Navlakha, opposed the redirection and urged the bench to decide the bail plea on merits.

Subsequently, on Chaudhary’s request to fix a timeline to finish the rehearing of the bail application before the special NIA court, the bench directed the special judge to conclude it within a period of four weeks.

Background

Navlakha was arrested on August 28, 2018, for his alleged involvement in the Elgar Parishad–Maoists links case. While he was initially kept under house arrest, he was subsequently sent to judicial custody in April 2020. During his custody as an undertrial prisoner, a chargesheet was filed on October 9, 2020; charges are yet to be filed by court.

In May 2021, the Supreme Court rejected Navlakha’s default bail on the ground that the 35 days he spent under house arrest in 2018 did not constitute custody in order to compute the 90-day period within which a chargesheet must be filed under criminal law, to entitle him to bail.

On October 12, 2021, Navlakha was shifted to the ‘anda circle’ (high-security zone) from the barracks at Taloja, further deteriorating his health, as claimed by his partner, Sahba Hussain.

On April 26 last year, the Bombay High Court dismissed Navlakha’s petition that sought his transfer from the Taloja jail in Navi Mumbai to house arrest.

On May 23, Navlakha approached the NIA to be provided with a mosquito net, which he was previously allowed but which was subsequently taken away by the prison authorities. Earlier, prison authorities had refused his request for a new pair of spectacles, which were given only after media and legal intervention.

The Maharashtra prison authority has also barred Navlakha from availing telephonic communication facilities in Taloja, as per a circular signed by the state’s Inspector General of Police that provides that undertrial prisoners booked under charges of terrorism or other ‘serious charges’ cannot make telephone calls from the prison.

On November 10 last year, the Supreme Court allowed Navlakha to be placed under house arrest for a period of one month under certain restrictions. On November 19, after hearing and incorporating further concerns of the NIA, the bench dismissed the petition filed by the NIA to vacate the order granting house arrest and directed the house arrest order to be implemented within 24 hours of its pronouncement.

Since then, his house arrest has been periodically extended by the court.

The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Thirteen of the 16 accused persons are presently incarcerated, having now spent between two to almost five years in judicial custody without trial. Another accused, tribal rights activist and Jesuit priest Fr. Stan Swamy, passed away in judicial custody in July 2021 after contracting COVID-19 in prison while awaiting bail on medical grounds.

Sarah Thanawala is a staff writer at The Leaflet