Bhima Koregaon: SC sets aside Delhi HC order calling for Navlakha’s records, expunges remarks against NIA

The Supreme Court on Monday set aside the order passed by the Delhi High Court calling for an affidavit from the National Investigation Agency (NIA) over Gautam Navlakha's shift from Delhi to Mumbai. The court also directed that the remarks made by the Delhi High Court against the NIA be expunged from the order, legal news website BarandBench.com has reported.

The order was passed by a Bench of Justices Arun Mishra and Navin Sinha in NIA's plea challenging the Delhi High Court order which had sought records of the judicial proceedings concerning Navlakha before special courts in Delhi and Mumbai, in relation to the Bhima Koregaon case.

The court said that the Delhi High Court ought not have entertained the interim bail plea filed by civil rights activist Navlakha in the Bhima Koregaon case, given that the case now falls under the jurisdiction of the Bombay High Court.

Solicitor General Tushar Mehta told the court today that at the time of Navlakha's surrender before the NIA, the nationwide COVID-19 lockdown was imposed. However, his production warrant was issued by the Special Court in Mumbai at a time when the city was gradually reopening. Mehta submitted that the Delhi High Court was also informed of the facts and the timeline of events.

Mehta further argued that Delhi High Court ceased to have jurisdiction in the case after Navlakha was produced before the Mumbai Court via video conferencing, and was subsequently placed under remand by the orders of the Special Court there. He also pointed out that all the other accused persons in the Bhima Koregaon case are in Mumbai.

"Unwarranted remarks such as NIA was in a hurry to take accused to Mumbai was not needed," Mehta said.

Appearing for Navlakha, Senior Advocate Kapil Sibal questioned how a petition under Article 136 could lie against an order by the High Court merely calling for an affidavit.

"How can an Article 136 plea lie against a High Court order merely calling for an affidavit? This is not an order granting bail... Just an affidavit to understand the situation under which accused was taken to Mumbai," he said.

The Bench, however, raised the question as to why the Delhi High Court entertained the interim bail plea filed by Navlakha when the court was expressly informed of the case now being in Mumbai's jurisdiction. Justice Sinha observed that Navlakha should have moved the Special NIA Court under Section 43 of the Unlawful Activities (Prevention) Act (UAPA).

The court then proceeded to allow the petition filed by the NIA and set aside the order passed by the Delhi High Court. The court also directed for the remarks made against the NIA to be expunged from the order, while clarifying that no aspersions were being cast on the judge who passed the order.

"Delhi High Court should not have entertained interim bail plea of Navlakha as the case comes within the jurisdiction of Bombay High Court," the SC observed.

The Delhi High Court's May 27 order was passed after Navlakha was taken from Delhi's Tihar Jail to Mumbai. Challenging the High Court's order as being "patently without jurisdiction", the NIA had moved the Supreme Court and on June 2, a Bench headed by Justices Mishra issued notice to Navlakha on the same.

The apex court had also stayed the proceedings before the Delhi High Court while issuing notice on the agency's plea.

The High Court had pulled up the NIA for acting in "unseemly haste" by taking away Navlakha from the national capital to Mumbai while his interim bail plea was pending.

It said there was an evident haste shown by the NIA in moving pleas in Mumbai and Delhi over weekends and gazetted holidays (Eid). Obtaining orders by e-mail and "whisking away" Navlakha to Mumbai has rendered these proceedings infructuous, it was noted.

The observation by the Delhi High Court formed part of the order passed by a Single Judge Bench of Justice Anup J Bhambhani while it was hearing Navlakha's plea for interim bail on account of COVID-19 contagion.

While explaining the hurry for issuance of production warrants, the investigating officer had informed the High Court that he had moved an application before the principal District Judge, Mumbai on May 23. This came up for hearing the next day, when the court issued the warrants, being unsure of the future course of events in relation to the lockdown.

The High Court had directed the IO to file an affidavit detailing the response given by him and a copy of the proceedings relating to production warrants by the Mumbai court.