The Bench comprising Justices M.M. Sundresh and J.B. Pardiwala expressed "reservations" over the grant of house arrest to Navlakha by the predecessor Bench.
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TODAY, the Supreme Court directed the National Investigation Agency (NIA) to file a counter-affidavit on Gautam Navlakha's plea to change the location of his house arrest.
A division Bench comprising Justices M.M. Sundresh and J.B. Pardiwala adjourned the hearing for eight weeks.
Navlakha, a journalist and activist, is an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case and is charged under the Unlawful Activities (Prevention) Act, 1967.
Advocate Warisha Farasat, appearing on behalf of Navlakha, apprised the court that during the last hearing date, on May 15, the NIA was granted four weeks to reply to Navlakha's application for a change of venue of his house arrest.
Navlakha had filed an application to change the place of his house arrest from Mumbai to Alibag within a period of four weeks.
Stating the urgency to vacate the current premises used for house arrest, Farasat emphasised, "It has been three months and they [the NIA] have still not filed a counter affidavit".
Additional Solicitor General of India S.V. Raju, representing the NIA, claimed that the Order granting house arrest to Navlakha on account of his medical condition was "unwarranted" and "unusual".
On November 10 last year, another division Bench of the Supreme Court comprising Justices K.M. Joseph and Hrishikesh Roy had allowed Navlakha to be placed under house arrest for a period of one month under certain restrictions.
Since then, his house arrest has been periodically extended by the court.
Today, Justice Sundresh remarked that although the present Bench may have "reservations" about the grant of house arrest, a "lengthy" Order has been passed by the predecessor Bench.
"Without going into the merits of the case, this [Order granting house arrest] might set a wrong precedent" in respect of "facilities [ensured] for one person", Justice Sundresh added.
On Justice Pardiwala's enquiry on whether the trial in the Bhima Koregaon case is in progress, Raju replied that the trial court is presently hearing discharge applications filed by the accused persons "one after the other".
Further, Raju claimed that Navlakha has yet to pay over ₹1 crore towards the cost of the house arrest and the security cover provided to him.
To this claim, Farasat clarified that in accordance with the last Order of the Supreme Court, Navlakha has deposited ₹8 lakh.
In addition to the ₹8 lakh, Navlakha had already deposited ₹2,40,000 towards the cost of deploying police personnel which is in compliance with the terms of the house arrest, Farasat told the court.
Farasat also submitted that the figures presented by the NIA, as needed towards the house arrest, are disputed.
During the last date of the hearing, the NIA had demanded ₹66,00,000 from Navlakha as cost of his house arrest.
Senior advocate Nitya Ramakrishnan, representing Navlakha, pointed out that the NIA has absented itself from providing a break-up of the demanded cost as formerly requested.
In light of Navlakha's bail application presently being heard before the Bombay High Court and nearing conclusion, Ramakrishnan prayed for an adjournment of eight weeks.
Raju vehemently opposed the period of adjournment proposed by Ramakrishnan and submitted that the NIA can file a reply and the matter could be posted after three weeks.
To this, Ramakrishnan pointed out the NIA's failure to file a reply to date.
The Bench accepted Ramakrishnan's plea and posted the matter for further hearing after eight weeks.
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 in the 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 as provided under Section 167(2)(a)(i) of the Code of Criminal Procedure, 1973.
According to the Section, the chargesheet should be filed within 90 days from the day the accused is arrested, failing which he is entitled to default 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 to shift him 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 of telephonic communication facilities in Taloja.
This was done in accordance with 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 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.
The court directed for 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.
Eleven 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 Father Stan Swamy, passed away in judicial custody in July 2021 after contracting Covid in prison while awaiting bail on medical grounds.