[Gautam Navlakha Bail] Period under illegal detention has to be excluded in computing 90-day custody period for default bail: Bombay High Court

The period for which an accused is under illegal detention cannot be taken into account while computing the 90-day custody period for grant of default bail, the Bombay High Court said in its judgment rejecting default bail to Bhima Koregaon case accused Gautam Navlakha, .Thus, when authorisation by the Magistrate was declared illegal by Delhi High Court consequently rendering the detention itself illegal, that period will not be part of the custody period for grant of statutory bail under Section 167 of he Code of Criminal Procedure (CrPC).."It is not possible for us to fathom a situation where detention of the Appellant (Navlakha) though held to be illegal & unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 167 of the CrPC," the Court said..It, therefore, refused to interfere with the order of the special court which had earlier rejected Navlakha's plea. .Navlakha had sought bail on the ground that the National Investigation Agency (NIA) had not filed its chargesheet within the prescribed upper limit of 90 days as required under Section 167(2) of the Code of Criminal Procedure (CrPC)..The bone of contention as crystallised by the Bench of Justices SS Shinde and MS Karnik was whether the period of 34 days during which Navlakha was under house arrest could be included towards calculating the 90-day period for custody prescribed under Section 167(2) of CrPC..Relying upon the facts of the case and on a bare perusal of Section 167 (2) of CrPC, the Court decided that Navlakha could not claim entitlement to statutory default bail under the provision..It held that the period during which Navlakha was under house arrest has to be excluded from the period of 90 days, as the said custody was held to be unsustainable in law by the Delhi High Court.."It is therefore obvious that Sub-Section (2) of Section 167 of the Cr.P.C. necessarily presupposes a detention authorised by a Magistrate, for only then the said period of authorised detention can count towards calculating 90 days period of custody prescribed under Section (2) of Section 167 of the CrPC for the purpose of default bail," the Court said. .The following circumstances led the Court to conclude that Navlakha could not claim benefit of the 34 days of custody:The transit remand order of August 28, 2018 of the Chief Metropolitan Magistrate in Delhi came to be stayed by the Delhi High Court on October 28, 2018.Navlakha was placed under house arrest on directions from the Delhi High Court and the investigating officer was not permitted to interrogate him during this period.Thereafter, the Delhi High Court quashed his arrest, holding that his detention was illegal.Pursuant to such declaration, Navlakha was set at liberty, after the Bombay High Court protected him from any possible coercive steps by the NIA till pendency of the plea challenging the FIR.The Supreme Court dismissed his petition to quash the FIR with liberty to seek pre-arrest bail from the Sessions Court, which was also refused.Navlakha ultimately surrendered to the NIA, after which the Magistrate authorised police custody during which he could be interrogated..The Court further noted that during the period of house arrest, barring the lawyers and ordinary residents of the house, nobody else was allowed to meet him. NIA did not have any access to him or any occasion to interrogate him.“As the transit remand order was stayed, it cannot be said that the appellant was under detention of police for investigation,” the order stated..With regard to being entitled to statutory bail, the Court reasoned that the mandate under Section 167(2) was clear - that the basic requirement is that the detention of the accused in the custody has to be authorised by the Magistrate.."It is not possible for us to construe any and every detention which may have resulted in deprivation of liberty of the accused to be an authorised detention by the Magistrate within the meaning of Section 167(2) of the CrPC," the Court concluded. .[Read final order]