MUMBAI: Jailed activist Gautam Navlakha, an accused in the Elgar Parishad-Koregaon-Bhima case who has sought default bail, on Wednesday told the Bombay High Court that the period he spent in house arrest must be considered as time spent in custody.
The HC reserved its verdict on a plea filed by Navlakha seeking statutory or default bail in the case.
Navlakha's lawyer Kapil Sibal and the counsel of the National Investigation Agency (NIA), the prosecuting agency in the case, made oral arguments over the petition before a bench of Justices SS Shinde and MS Karnik.
Navlakha approached the HC earlier this year challenging a special court order of July 12 that rejected his plea for statutory bail.
The activist had sought default bail before the special court on the ground that he has been in custody for over 90 days, but the prosecution had failed to file a charge-sheet in the case within this stipulated period.
However, the NIA had argued that his plea was not maintainable.
The central agency had also sought an extension of time for filing the charge-sheet.
The special court had at the time accepted the NIA's plea seeking extension of 90 to 180 days to file the charge- sheet against Navlakha and his co-accused, activist Anand Teltumbde.
On Wednesday, Sibal told HC that at the time the NIA was granted the extension to file its charge-sheet, Navlakha had already spent 93 days in custody.
This included 34 days of house arrest, Sibal said.
The senior lawyer said the issue before the HC now was whether or not this period of house arrest could be considered as days spent in custody.
Sibal added that the HC must count the period of house arrest as time spent in custody since it had come after the the Pune police, which initially handled the case, had arrested his client.
Also, while Navlakha was under house arrest, his personal liberties remained curtailed, he told the HC.
"If the 34 days are counted, the NIA's application is beyond 90 days and their application is not maintainable. So, he (Navlakha) is entitled to default bail," Sibal said.
Additional Solicitor General SV Raju, who appeared for the NIA, however, argued that the period of Navlakha's house arrest could not be included in the time he spent in the police's or the NIA's custody, or under judicial custody.
He argued that the Pune police had only arrested Navlakha in August 2018, and had not taken him in custody.
The activist had remained under house arrest and the Delhi High Court had quashed his arrest and remand order in October 2018.
The FIR against Navlakha was re-registered in January 2020 and he surrendered before the NIA on April 14.
ASG Raju argued that if the court "looked from the other angle, it would see that if he (Navlakha) was arrested on August 28, 2018, he should have been enlarged on bail."
"He was a free man till April 2020. He was neither on bail nor on custody. There cannot be a gap in the custody and detention period," Raju said.
"The argument of the other side is that it was no custody. Arrest and custody are different. He was under custody even when he was under house arrest. His freedom and movement were restricted under house arrest," Sibal said.
After the defence and prosecution arguments, the HC reserved its verdict on the petition filed by Navlakha, currently lodged in Navi Mumbai's Taloja jail.
The bench asked Sibal and the NIA to file any other submission they wish to make in writing within a week's time.
Between August 29 and October 1, 2018, Navlakha had been kept under house arrest.
He spent 11 days in NIA's custody from April 14 to April 25.
Since then, he is in jail under judicial custody.
The NIA moved the lower court seeking the extension for filing of charge-sheet on June 26, by which date, Navlakha had spent 110 days in custody, Sibal told the HC.
According to police, activists had made "inflammatory speeches and provocative statements" at the Elgar Parishad meet held in Pune on December 31, 2017, which it claimed triggered violence the next day near a memorial at Koregaon- Bhima in the district.
The police alleged that the activists who took part in the event were active members of banned Maoist groups.
Several activists and academicians have been named accused in the case which was later transferred to the NIA.