Bhima Koregaon: Bombay High Court grants, stays bail to Gautam Navlakha

Following a concerning trend, a Bench of Justices A.S. Gadkari and Shivkumar Dige has allowed a stay of three weeks on the bail Order.

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ON Tuesday, the Bombay High Court granted bail to journalist and human rights activist Gautam Navlakha.

A division Bench of the high court comprising Justices A.S. Gadkari and Shivkumar Dige, however, stayed the bail Order for three weeks to allow the National Investigation Agency (NIA) to appeal in the Supreme Court.

Navlakha 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 (UAPA).

Arrested on August 28, 2018, he was initially kept under house arrest, and subsequently sent to judicial custody in April 2020. Following his plea in the Supreme Court, he has been under house arrest since November last year.

On March 2 this year, the high court had directed the special NIA court to rehear the bail plea for its reconsideration, averring that a special NIA court had rejected Navlakha's September 2022 bail application without proper reasoning.

On April 6 this year, after adjudicating and reconsidering the submissions, the special NIA court had again denied bail to Navlakha.

On June 12, the high court issued a notice to the NIA on Navlakha's fresh bail application.

While granting Navlakha bail today, the high court directed the bail conditions imposed on Dalit scholar, academic and activist, Dr Anand Teltumbde, and forest rights activist Mahesh Raut— both co-accused in the Bhima Koregaon case— to be applied to Navlakha.

Raut was granted bail by the high court on September 21. The high court had allowed the bail Order to be stayed for a week.

Raut, however, continues to be held in prison, since the appeal by the NIA remains pending in the Supreme Court.

Raut's matter has been adjourned four times for various reasons, including paucity of time and adjournments sought by the NIA, resulting in the stay continuing for almost three months. 

Background

During Navlakha's 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 which 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.

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 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 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.

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.

Five co-accused persons, Sudha Bharadwaj, Varavara Rao, Dr Anand Teltumbde, Vernon Gonsalves, Arun Ferreira, have been released on bail. Navlakha and Raut have been granted bail but wait pending decision on the stay Orders by the Supreme Court.

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.