In a big setback to the Maharashtra Police, the Delhi High Court on October 1 freed Gautam Navlakha – one of the five activists arrested in connection with the Bhima Koregaon violence – from house arrest, and also cancelled transit remand given to the Pune police.
A Division Bench of Justice Muralidhar and Justice Vinod Goel said that the order of the chief metropolitan magistrate (CMM), Saket, granting transit remand is “unsustainable in law”. “It is obvious that there was non-compliance of mandatory provisions of the Constitution and the Code of Criminal Procedure (Cr.PC.),” said Justice Muralidhar.
The court said that Navlakha’s detention has exceeded 24 hours which was “untenable”.
The High Court also noted that the documents submitted before the magistrate were in Marathi, a language not known to the magistrate, and hence there was no avenue for the magistrate to conclude that there was a prima facie case against the accused justifying the remand.
The HC granted him the relief saying that the Supreme Court last week had given him the liberty to approach the appropriate forum within four weeks to seek relief, which he has availed. The apex court on September 28 had declined the plea for an investigation by a special investigation team (SIT) into the Bhima Koregaon incident by 2:1 majority, with Justice Chandrachud dissenting. However, the top court granted liberty to the activists to approach lower courts seeking remedies.
Navlakha, along with lawyer Sudha Bhardwaj, Telgu poet Varavara Rao, Vernon Gonsalves, and Arun Ferreira, was arrested from his Delhi home on August 28 by the Pune police who wanted to take him to Pune in connection with the violence at Bhima Koregaon village that allegedly took place as a follow-up of an event ‘Elgaar Parishad’ held on December 31, 2017. Navlakha’s transit remand was also secured from the Saket court.
On the same day, a habeas petition was filed in the Delhi High Court challenging his arrest and remand. While admitting the matter, the High Court directed that Navlakha should not be taken away from Delhi till final disposal of the case.
During the hearing, Justice Muralidhar had asked how the magistrate granted transit remand without understanding the arrest documents in the language (Marathi) of a different state. “We would examine the legality of the whole petition, including the order of the metropolitan magistrate. Did she look upon the case diary? She should have been extra careful and satisfied. It’s apparent. She could not have applied mind in understanding these papers.”
The bench had finished arguments on August 29, and Justice Muralidhar had started dictating the order. While so, the Supreme Court took up the petition filed by Romila Thapar and four other persons challenging arrests of the activists.
The SC passed an interim order on that day, stating that the arrested activists should be kept under house arrest only. On coming to know that the SC had taken up the issue, the Delhi HC halted the proceedings.
The habeas petition filed for release of Navlakha, a member of People’s Union for Democratic Rights, termed the arrest a “witch hunt for unsympathetic views”.
“There is no compliance with the requirements of Sections 165 and 166 CrPC in as much as the documents are in Marathi, a language which the petitioner does not know, thus are unable to read its contents. Furthermore, neither the grounds nor the purported to be made in writing by the searching officer in terms of Section 165(1) have been made available to the Petitioner and the remaining occupants of the premises under search, after a copy thereof has been forwarded to the nearest magistrate,” the petition stated.
Claiming that he was not even present at the cultural meeting, the petition stated: “Furthermore, the officers conducting the search seem to have, at their own behest, added certain provisions of the Unlawful Activities Prevention Act, 1967 in the in the search warrant. The search has not yielded any objectionable material, yet the petitioner, who has been detained and kept under preventive custody has been told that he will be arrested.”
“This is clearly an assault on liberals, liberal thinking and a motivated act. There is no ground for detention or restriction of movement, the petition stated, claiming it to be a violation of the Constitutional, Fundamental and Human Rights,” contented the petitioner.