Case Briefs
Truth and Youth (TAY) 2021. All rights reserved.

Gautam Navlakha vs. State

Author: Sanhita Pandey, 4th year law student from ICFAI Law School, Hyderabad.

Citation –   SLP (CRIMINAL) NO. 1796/2021

Petitioner – Gautam Navlakha

Respondent- National Investigation Agency 

Petitioners lawyer –  Kapil Sibal 

Respondents lawyer –  Jagdamba Pandey 

Statutes – Constitutional law – Writ of habeas corpus, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act – Anticipatory bail, Unlawful Activities Prevention Act- Sections 13, 16, 17, 18, 18B, 20, 38 and 40,  Indian Penal code section – 153A, 505(1B) and 34 and Section 120(B)

Bench – Justice K.M. Joseph and Justice U.U. Lalit 

Date of judgement-  12th May 2021 

Present status- Navlakha was denied bail and his petition under the writ of habeas corpus was rejected by the Supreme Court at the same time stating that “house arrest” under section 167 of the Code of Criminal Procedure does not constitute the period for default bail. 

Main Judgement


Gautam Navlakha is an accused of the Bhima-Koregaon case and held as one of the people responsible for the violence that took place. At first his bail plea was rejected on the basis of his linkup with the maoists and Elgar-Parishad under the UAPA. After which the accused was requested to surrender to the National Investigation Agency, after investigations it was proved that the accused met with Syed Ghulam Nabi Fai ( leader of Maoist group) to unite and fight against the government forces to defeat them physically and break their spirits. Navlakha is also one of the people who have been stringent to write against the government and he also came into limelight when he was denied entry to Kashmir and labelled as a threat. 

Facts of the case

  • Navlakha was arrested from his house in Delhi for the the charges against him in the Bhima-koregaon case 
  • Accused was put on house arrest by the orders of Delhi High Court for a period of 34 days between 28 August 2018- 01 October 2018
  • Delhi High Court at the end of 34th day quashed the arrest as illegal 
  • Subsequently the accused was put into 11 days of police custody and 46 days of judicial custody at this point he completed 90 days of custody and applied for bail at the Bombay High Court, the court rejected the bail plea stating that it protected the accused’s liberty by granting him house arrest 
  • The accused was asked to surrender to NIA by the Supreme Court on 16 March 2020 within 3 weeks and he surrendered on April 4 2020
  • The counsel of the accused filed a habeas corpus writ in the Supreme Court which was accepted 
  • The Supreme Court dismissed the accused’s petition and upheld the decision of the Bombay High Court and pointed out: 
    • There was a delay in the filing of charge sheet by the NIA which was accepted and taken care of by the NIA Court
    • The 90 days period does not include the 34 days of house arrest under section 167 of the the Code of Criminal Procedure 
    • The court refused bail to the accused 

Issues raised 

  • Whether a period of 34 days when Navlakha was in custody by way of house arrest would count as custody for the purpose of default bail? 
  • Whether the apex court would entertain Writ of habeas corpus in a case where remand order has already been issued? 

Arguments by petitioner 

  • The counsel of the accused contended that Navlakha had already completed 90 days in custody and thus is eligible for default bail.
  • The counsel also argued that the Delhi High Court had already quashed the arrest and termed it illegal at the same time giving the example of Romila Thapar v. Union of India 
  • The counsel also contended that the accused was being continuously grilled by police officials during house arrest why is it not counted in the period of default bail, he was completely cut off with the world – accused couldn’t step out of his premises, he couldn’t meet anyone except policemen and lawyers and ordinary residents of the house.
  • Counsel for the petitioner contended that 

Arguments by Respondent 

  • The counsel contended that National Investigation Agency keeping in mind the liberty of the accused granted him house and did not treat him like usual criminals even though he was charged with heavy crimes 
  • The counsel argued that the authorisation of the magistrate was held illegal by the Delhi High Court so in fact the whole detention was illegal and thus the custody under Section 167 of the CrPC is completely unacceptable making the scenario of default bail unclaimable. 
  • The counsel also claimed that the Delhi high court stayed the transit remand and set it aside thus holding detention to be illegal and so there was no authorised detention by an order of the magistrate.


  • The court dismissed the writ of habeas corpus and rejected the bail plea of the accused clearly making a stance that “house arrest” does not constitute to be a part of the time period required for default bail. 
  • The Supreme Court clearly stated in its judgement that Writ of Habeas Corpus will only be entertained against a remand order if the remand is absolutely illegal or has been obtained by the orders of a court completely out of jurisdiction to do so.
  • The apex court did not entertain the petition of the accused and dismissed it as it had not been passed by a court of wrongful jurisdiction nor was it completely illegal. 

Critical Analysis 

  • The efficacy of the writ of habeas corpus lies in the promptness and effectiveness at the same time where there is a remand order it depends on modus operandi of the accused and rationale behind the writ on which the court seeks either to entertain or dismiss the said petition. 
  • In this case it can clearly be seen that the National Investigation Agency had already asked for an extension period for the filing of chargesheet plus the accused was in house arrest for a period of 34 days and only after that he was brought in police custody and later into judicial custody which couldn’t have been done to an ordinary person charged under UAPA which makes it prominent that the investigation authorities had fully respected and took care of the liberty of the accused. 
  • As far as the question of  authority of the Magistrate to authorise detention is concerned, as per laws of this country the day the Delhi High court stayed the transit order and set it aside the detention became illegal thus, there is no authorisation of detention and it need not be added in the period of default bail. 
  • Now taking the question of the remand order at the same time entertaining the Writ of habeas corpus the apex court took a stand and said that petitions will only be entertained if the remand is absolutely illegal and has been given by a court not having jurisdiction to do so. 
  • Even though the courts have dismissed several petitions under writ of habeas corpus one cannot be of the opinion that there exists an absolute bar against the remand order being challenged in a habeas corpus petition. 

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