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SC Sets Aside Delhi HC Order Against NIA To Produce Records On Gautam Navlakha’s Transfer, Expunges Remarks: Bhima Koregaon

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The Supreme Court today has allowed the plea filed by the National Investigation Agency (NIA) challenging the order of the Delhi High Court dated May 27, that had asked for record of proceedings before Special NIA Courts in Delhi & Mumbai based on which Gautam Navlakha was transferred from Delhi to Mumbai.

A three- Judge Bench of Justice Arun Mishra, Justice Navin Sinha and Justice Indira Banerjee set aside order of the Delhi High Court stating that the High Court should not have entertained interim bail plea of social activist Gautam Navlakha in Bhima Koregaon case as the case comes within the jurisdiction of Bombay HC.

The Court has also expunged the remarks made by Delhi High Court against NIA while hearing Gautam Navlakha bail plea.

During the hearing today, Solicitor General Tushar Mehta submitted before the Court that at the time of surrender, Delhi was under lockdown, they then moved the Delhi High Court, and nothing was kept hidden from the court.

“What has the High Court done? It has neither granted any bail nor any relief. It has simply asked the concerned officer to file an affidavit” Kapil Sibal remarked.

The Apex Court however was of the opinion that the Delhi High Court should not have entertained the matter.

“How could have any High Court interfered in the matter like this? You could have come to us or go to the concerned NIA court in Mumbai” – Bench said to Kapil Sibal.

The Court therefore set aside order of the Delhi High Court against National Investigating Agency, stating that the HC had no business to question transfer of accused Gautam Navlakha from Delhi to Mumbai, as it was the jurisdiction of the Bombay High Court.

The Apex Court had previously issued notice in the petition filed by NIA against the order  passed by Justice Anup J.  Bhambani of the Delhi High Court that had directed the NIA to furnish the complete copy of the proceedings in the matter pertaining to Navlakha’s bail plea. Navlakha had approached the Delhi High Court seeking interim bail on account of the COVID-19 pandemic.The Court had asked the National Investigation Agency to provide Gautam Navlakha’s Counsel with a copy of its petition, while directing the interim order of the Court ordering stay on the Delhi High Court’s order to continue.

The High Court on May 22 had issued notice to the NIA and had directed it to file its status report. Navlakha was however taken to Mumbai after warrant from a Mumbai court was produced, even before the matter could be taken up for hearing again. An application was filed on May 25th seeking an order to be passed for his transfer, which was allowed and he was taken to Mumbai on May 26th.

Thereafter on May 27, the Delhi High court noted that the NIA had acted in “unseemly haste” to transfer Navlakha from Delhi to Mumbai and directed NIA to file a proper report with all the details related to his transfer, including the proceedings before the Mumbai court and his medical records

Solicitor General Tushar Mehta had stated that the Order passed by the Delhi High Court was patently without jurisdiction.

According to NIA, the Delhi High Court lacked the territorial jurisdiction to pass the impugned directions, since the case is registered at Mumbai, making the Special Court at Mumbai the competent court to hear the matter.

They challenged jurisdiction of the Delhi High Court order stating that Gautam Navlakha was charged by an authority outside the territorial jurisdiction of the Delhi High Court because the remand order of the accused was passed by a Special NIA Judge in Mumbai.

According to NIA, the plea for interim bail filed by Gautam Navlakha before the Delhi HC was not maintainable since the charges against him include scheduled offences under the Unlawful Activities (Prevention) Act (UAPA) and plea for bail can only be heard and decided by a Special NIA Court.

NIA, in its petition had also added according to Sections 13, 14, 16 and 21 of the NIA Act it’s clear that an interim bail plea filed by persons accused under the Unlawful Activities (Prevention) Act, can be heard by Division Benches of High Courts, only in appeal against orders of Special NIA Judges. The plea before the Delhi High Court was therefore not maintainable.

The NIA had also stated that they were right in transferring Navlakha from Delhi to Mumbai on the said date, considering the uncertainty of air travel after that on the account of pandemic, which is why they rightly moved an application before the competent jurisdictional Court i.e. Ld. NIA Special Court, Mumbai seeking transfer of Gautam Navlakha from Delhi to Mumbai in the aforesaid FIR.

Read the order here;


-India Legal Bureau

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