Did Delhi HC Contradict SC in Ordering Gautam Navlakha’s Release?

What does the decision mean for the other arrested activists?

Gautam Navlakha.

(Photo: The Quint)

On 1 October 2018, the Delhi High Court ordered the release of activist Gautam Navlakha, who had been arrested in August over his alleged links to Maoists and the Bhima Koregaon violence. Navlakha is one of the five activists who were arrested at the time across the country; the others are Sudha Bharadwaj, Varavara Rao, Vernon Gonsalves and Arun Ferreira.

The bench of Justices Muralidhar and Vinod Goel set aside the transit remand order passed by the Saket Chief Metropolitan Magistrate, which would have allowed the Maharashtra police to take Navlakha to Pune and keep him in custody, which meant that his detention, having exceeded 24 hours, was “untenable in law.”

This also meant that he could no longer be held under house arrest, unless this is ordered after further proceedings.

But why exactly did the high court order his release? Does this contradict the Supreme Court’s recent order refusing to establish an SIT to look into the case? And does this decision hold any value for the other four activists?

Understanding the Delhi High Court Order

It is important to understand that the Delhi High Court did not rule on the merits of the case, and restricted itself to whether the relevant legal procedures were followed. Whether or not the evidence of assassination plots, weapons orders and Maoist violence holds up, remains to be seen.

The judges specifically note that the order does not in fact preclude the Maharashtra authorities from continuing their investigation or any other relevant proceedings. This would therefore include arresting Navlakha again, provided the appropriate procedures are followed.

The reasoning of the court was as follows:

• When a person is arrested without a warrant (as all the activists were), they have to be produced before the Magistrate who has jurisdiction over the police who have arrested them within 24 hours. If the police want to keep the person in custody, they have to inform the Magistrate why the person’s custody is required.
• If the person has been arrested in a different place, and so cannot be produced before the Magistrate who has jurisdiction within 24 hours, they have to be taken to the nearest Magistrate instead. This Magistrate can then order detention of the person for up to 15 days, and order the accused to be transferred to the jurisdictional Magistrate, which is what the local Magistrates did for each of the activists, including Navlakha.

• Under Section 167 of the Code of Criminal Procedure (CrPC), when the police want custody of a person beyond 24 hours, they have to submit a copy of the case diary to the Magistrate they are making the request of. This is a mandatory requirement whether the request is being made of the jurisdictional Magistrate or a Magistrate at another place.
• The case diary for the investigation into the activists is in Marathi, and no translations of the case diary were provided to the local Magistrates, including the Saket CMM who heard Navlakha’s case. The Delhi HC in fact noted that there was no record of whether even the Marathi case diary entries were provided to the CMM.
• A Magistrate cannot order remand of a person, whether transit remand or otherwise, in a mechanical manner, according to Supreme Court jurisprudence. While they don’t have to go into the details of the evidence or its adequacy per se, it is essential that they view the case diary and apply their mind as to whether there is a need for remand.
• The failure of the Saket CMM to look into the case diary, along with the failure to inform Navlakha of the grounds for his arrest, meant that the transit remand order passed by him was invalid. Since there was no valid order to hold Navlakha beyond 24 hours, this meant any detention of him was illegal at this time.

What Happens Now With Navlakha?

The state of Maharashtra has filed an appeal in the Supreme Court against the decision of the Delhi High Court, arguing that the judges wrongly interpreted Section 167 of the CrPC. According to them, Section 167 doesn’t require the case diary to be placed before a Magistrate considering transit remand, but only the Magistrate who actually has jurisdiction over the case.

They have also argued that it was not possible for them to fulfill all the formalities, which is allowed under the law in exceptional circumstances. According to LiveLaw, they claim that they were in “hot pursuit” of the activists* and that there was no time to get translations of the case diary.

*[Note: The usage of this term is highly dubious since it normally applies to international maritime law and even where allowed in certain domestic legal contexts, would not apply to these arrests as they were not a result of a spontaneous chase]

The Delhi High Court had of course addressed this line of argument, noting that there had been sufficient time for the Maharashtra police to ensure all relevant documentation was in place since the FIR had been registered all the way back in January.

Unless the Supreme Court overturns the Delhi High Court’s decision (which seems unlikely in light of the text of the CrPC and past cases), Navlakha will remain at liberty, This could change if the Maharashtra authorities arrest him again and just ensure that all the relevant procedures are complied with when requesting his remand again, and it is not transparently obvious that the Magistrate has mechanically allowed this.

Does This Decision Contradict the Recent Supreme Court Decision?

As mentioned already, the High Court has refrained from addressing the merits of the case, and so Navlakha has not been let off the hook by the order. The decision is in fact entirely in line with the Supreme Court’s decision on 28 September, where they had held that each of the activists should approach the appropriate court to ask for any available reliefs.

One of these was to approach the Delhi High Court under a habeas corpus petition and ask for the transit remand order to be quashed, and to set Navlakha free. Since Navlakha had already approached the Delhi High Court, which had adjourned the case till the Supreme Court made its decision, there was nothing untoward with the order of Justices Muralidhar and Goel.

The Maharashtra authorities have tried to argue that Navlakha should have at least remained under house arrest since the Supreme Court had ordered that the activists be kept under house arrest for another four weeks. However, this is a clear misreading of the Supreme Court decision, which only specified the four week time period to "enable the accused to move the concerned court” (para 37).

Since Navlakha’s case was already ongoing before the Delhi High Court, there was nothing wrong with the matter being heard within a few days, and for the judges to order his release.

What Does This Mean for the Other Activists?

The reasoning applied by the Delhi High Court conceivably applies to the other four activists arrested in August since the same issues with the case diary occurred there as well, and could be used by them to argue in their respective high courts that their transit remand orders be scrapped and their house arrest cancelled.

It is perhaps to forestall this development that the Maharashtra authorities are appealing the order rather than just approaching the local Magistrates with the required documents, which would take time and effort.

The Punjab & Haryana High Court, which had been hearing a petition filed by Sudha Bharadwaj, reportedly indicated that they would not be able to make a decision till the Supreme Court heard the appeal filed against the Delhi High Court’s order (as per Bar & Bench). The petition was withdrawn on Wednesday, with liberty to seek remedies allowed under law, including quashing and requests for bail and anticipatory bail.

It remains to be seen if the other high courts will also wait for the outcome of the Supreme Court appeal – for those resident in Mumbai, the reasoning about Marathi will not be applicable, though if no case diary was produced before the local Magistrates, the remand of the activists would nonetheless be invalid.