[Bhima Koregaon] House arrest part of custody period, Kapil Sibal argues for Gautam Navlakha; Bombay High Court reserves verdict in bail plea

The Bombay High Court today reserved its verdict in the plea filed by Bhima Koregaon case accused Gautam Navalakha seeking default bail on the ground that the National Investigation Agency (NIA) has not filed its chargesheet within the prescribed upper-limit of 90 days as per Section 167(2) of the Code of Criminal Procedure (CrPC)..Appearing for Navlakha, Senior Advocate Kapil Sibal contended that Navlakha’s total custody period exceeded 90 days without a chargesheet being filed or an extension of time being granted. Hence, Navlakha is entitled to default bail, it was argued..The question before the Court was whether the time period of Navlakha's house arrest is to be included in the period of custody, in which case he would qualify for default bail under Section 167(2), CrPC..Section 167(2), CrPC:Provides for a release of an accused by the Magistrate in the event the custody of the accused extends beyond a period of 90 days without there being a chargesheet/ final report being filed..Sibal drew the Court's attention to the following dates as relevant to deciding the matter:On August 28, 2018, Navlakha was arrested at his residence in Pune after an FIR was registered against him under the Unlawful Activities Prevention Act (UAPA). The same day, the Delhi High Court directed that Navalkha should be kept under house arrest.On October 1, 2018, the Delhi High Court quashed Navalakha’s arrest. By this time, he had spent 34 days in custody.Thereafter, Navalakha filed proceedings and appeals seeking to quash the FIR and for pre-arrest bail. However, the Supreme Court on March 16, 2020, directed Navlakha to surrender within 3 weeks.Navlakha eventually surrendered before the NIA on April 14, 2020. He was remanded to police custody. On April 25, 2020, he was remanded to judicial custody, which was extended from time to time.On June 29, 2020, the NIA filed an application for extension of time for filing chargesheet, which was granted by the Special NIA court.Navalakha’s statutory bail application before Special NIA Court, Mumbai was rejected on July 12, 2020, after which he approached the High Court challenging the order..Sibal submitted that the Special court had erred when it excluded the period of 34 days spent in house arrest while calculating the period of custody. .He added that Navalakha was confined inside his house under guard and any order confining a person to custody by order of the court was deemed to be judicial custody. .He concluded his submissions by remarking that “arrest is a matter of law, custody is a matter of fact.".Additional Solicitor General SV Raju, appearing for the NIA, opposed the application, contending that the Special Court had rightfully held that Navlakha's house arrest did not constitute detention. He added that during such house arrest, Navlakha was not accessible for interrogation as is the case with regular custody..Raju referred to the Delhi High Court order quashing his arrest to point out that after such quashing, Navalakha had gone ahead and filed an anticipatory bail application which shows that the house arrest was not custody as per Section 167(2), CrPC..“He was neither in custody nor out on bail, he was a free man,” Raju argued..After hearing the parties, the Bench of Justices SS Shinde and MS Karnik directed all counsel to submit their written notes within a week and reserved the matter for orders.