The Maharashtra government today (October 3, 2018) moved the Supreme Court against the Delhi High Court order allowing Gautam Navlakha, one of the five activists arrested in connection with the Koregaon-Bhima case, to be freed from house arrest.

The Delhi High Court on October 1, 2018, had set aside the transit remand order against Navlakha and put an end to his house arrest.

In a Special Leave Petition (SLP), the State of Maharashtra has questioned the maintainability of the habeas corpus petition filed by Navlakha before the High Court, in light of two Supreme Court decisions in State of Maharashtra v. Tanseem Rizwan Siddique and Saurabh Kumar v. Jailor, Koneil Jail.

Further, the State Government has also contended that the Delhi High Court, while setting aside the transit remand order, did not apply Section 167(1) of the Code of Criminal Procedure, 1973 correctly.

As per the SLP filed by the State, “Section 167 (1) of the code of criminal procedure makes it clear that in case an accused is to be produced before the jurisdictional magistrate, then it is incumbent upon the police to produce the case diary. In case the police applies for transit remand before a Magistrate having no jurisdiction, then it is not necessary for the police to produce the case diary. In the case in hand, the Police arrested 5 persons from different places in the country. It was, therefore, not expected and not possible to produce the case diary before the concerned Courts.”

The fact that the High Court observed that the Chief Metropolitan Magistrate passed the transit remand order without application of mind is also assailed by the State of Maharashtra.

“It needs to be seen that, while passing the order of transit remand the Magistrate had gone through the application filed by the Police and he had heard the concerned Police officer. It is not possible/ pragmatic to mention minute details while passing the order of remand. The Ld. Chief Metropolitan Magistrate has also mentioned about his thoughtful consideration to the submissions of the concerned police officer.”

The State government prayed that the Delhi High Court order should be set aside, least the State suffer “irreparable loss”.

It is also prayed that Navlakha be kept under house arrest keeping in line with the Supreme Court order passed last week extending the house arrest for four more weeks.

Following his arrest on August 28, 2018, Gautam Navlakha had approached the Delhi High Court challenging the transit remand order granted to the Maharashtra Police. Observing that it was not possible to make out a case from the documents placed before it, the Bench of JusticesS Muralidhar and Vinod Goel posted the case for the next day, directing that Navlakha be placed under house arrest.

The next day, a petition was filed in the Supreme Court on behalf of Navlakha and four other arrestees – Sudha Bharadwaj, Vernon Gonsalves, Varavara Rao and Arun Ferreira. The petition called for a Special Investigation Team (SIT) to probe the arrests.

On September 28, 2018, the Supreme Court Bench of then Chief JusticeDipak Misra, and JusticesAM Khanwilkar and DY Chandrachud refused the prayer for constitution of a SIT and directed that the house arrest of the activists continue for another four weeks.