[BREAKING] Supreme Court dismisses plea for default bail by Bhima Koregaon accused Gautam Navlakha

The Supreme Court on Wednesday dismissed a plea filed by activist Gautam Navlakha against a Bombay High Court order rejecting his plea for statutory bail in the Bhima Koreagon violence case (Gautam Navlakha v. NIA)..The Court ruled that Navlakha's house arrest was not ordered by the Delhi High Court purporting to be under Section 167 of Code of Criminal Procedure (CrPC) and thus "cannot be treated as having been passed under Section 167..The order of house arrest of Navlakha was passed by the Delhi High Court in 2018. .Navlakha had sought default bail on the ground that the National Investigation Agency (NIA) failed to file its chargesheet within the upper limit of 90 days as prescribed under Section 167(2) of the Code of Criminal Procedure (CrPC).In this regard, it was Navlakha's contention that the period for which he was confined under house arrest in Delhi should be calculated as part of the judicial custody and should be taken into account while deciding the custody period under Section 167(2)..A Bench of Justices UU Lalit and KM Joseph, however, held that Navlakha's house arrest was not ordered under Section 167. "The High Court of Delhi did not contemplate that the order of house arrest was passed by way of custody under Section 167. We are in this case not sitting in appeal over the legality of the house arrest. But we are here to find whether the house arrest fell under Section 167. We are of the view, that in the facts of this case, the house arrest was not ordered purporting to be under Section 167. It cannot be treated as having being passed under Section 167," the judgment said..The Court held that house arrest was, undoubtedly, perceived as the softer alternative to actual incarceration and that was in this "light that the Court proceeded in the matter.""That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court," the Supreme Court added. .The top court was hearing an appeal against a decision of the Bombay High Court which had rejected his plea on February 8. A Bench of Justices SS Shinde and MS Karnik of Bombay High Court had rejected the plea on February 8 on the ground that 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.When authorisation by the Magistrate to keep Navlakha under house arrest 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 CrPC, the High Court had held..It had, therefore, refused to interfere with the order of the special court which had earlier rejected Navlakha's plea..Supreme Court reserves orders on plea by Gautam Navlakha seeking Default Bail [LIVE UPDATES].Navlakha, 69, is lodged at Taloja Central jail. He has been seeking statutory bail under the Code of Criminal Procedure (CrPC) on the ground that the NIA did not file its chargesheet within the stipulated 90-day period. .The NIA, however, claimed that the period of 34 days of Navlakha’s house arrest between August 29 and October 1, 2018, was termed “illegal” by the Delhi High Court and hence could not be included in the period of detention..With regard to the effect of illegality in the order passed under Section 167, the top court held that if the Court purports to invoke and act under Section 167, the detention will qualify even if there is illegality in the passing of the order. In such cases, what would matter is actual custody, the Court made it clear. "However, when the Court does not purport to act under Section 167, then the detention involved pursuant to the order of the Court cannot qualify as detention under Section 167," the top court held..On whether a writ of habeas corpus will lie against an order of remand under Section 167, the Supreme Court held that if "remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie". "Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie," it was held. .Over the course of hearing, the Bench sought to know whether the two-day transit period to take Navlakha from Delhi to Mumbai, as well as the period for which he was under house arrest, would be part of the 90-day remand period..Supreme Court also answered the question regarding the effect of transit bail and whether it was a production order though sourced under Section 167. The two-judge bench has held that the remand order be it a transit remand order was one which was passed under Section 167 and "though it may be for the production of the Appellant, it involved authorising continued detention within the meaning of Section 167.".Interestingly, the top court also indulged in a detailed examination of the state of prisons in India.It noted that as per NCRB data, the conditions relating to jails and prisoners was fairly alarming. There were a total number of 1,350 prisons as of the year 2019. 1350 prisons consists of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails. "A perusal of the executive summary would reveal an alarming state of affairs as far as 95 occupancy rate is concerned. It has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails," the judgment noted. .[Read judgment]