The Bombay High Court on Monday rejected the bail application filed by Bhima Koregaon case accused Gautam Navalakha seeking default bail.

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 per Section 167(2) of the Code of Criminal Procedure (CrPC).

A Bench of Justices SS Shinde and MS Karnik pronounced the verdict in the chambers today more than 6 weeks after the matter was reserved for orders.

Appearing for Navlakha, Senior Advocate Kapil Sibal had 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.

Sibal had told the Court that the period for which Navlakha was confined to his house under house arrest should be calculated as part of judicial custody and should be taken into account while deciding the custody period.

Sibal stated that 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 Navlakha's 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.

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.

[Read order here]