A day after Pune police obtained a transit remand for arrested civil liberties activist Gautam Navlakha, the Delhi High Court came down heavily on Chief Metropolitan Magistrate (South-East) Manish Khurana who granted the transit remand, saying “there has been non-application of mind” and “the court did not do what it was supposed to do”.
Wondering how the court of the Chief Metropolitan Magistrate had passed the remand order without English or Hindi translations of the FIR and police documents in Marathi, the bench of Justices S Muralidhar and Vinod Goel said: “FIR contains serious offences like the petitioner’s involvement in unlawful activities, terrorism besides others. Did the magistrate looked into all this?”
The bench said it is primarily concerned with the legal justification of Navlakha’s arrest, the procedure followed by the investigators and the legality of the remand order passed by the CMM. “We will focus on the validity of the arrest and whatever happened after that,” the bench said, adding that “we are not into the FIR lodged by the Maharashtra police”.
The bench expressed concern that translated copies of the documents had not been handed to it and the arrested activist: “Keeping one in custody is curtailment of personal liberty. Every minute of a person remaining in custody is a matter of concern.”
“(Under UAPA) bail provisions are stringent and, therefore, the court has to be satisfied as it will have serious consequence on the liberty of the person… A sheaf of paper has been produced (in Marathi), most of which the court does not understand. There has been non-application of the mind. The court (of CMM) did not do what it was supposed to do,” Justice Muralidhar said while hearing a habeas corpus plea filed after Navlakha’s arrest.
He said there is a presumption that police have applied their mind in invoking UAPA sections. “But because these sections have been added, he (CMM) should be extra careful (while granting remand) as his (Navlakha’s) name is not in the FIR,” he said.
Appearing for Maharashtra police, senior advocate Aman Lekhi defended their stand, saying all procedure had been followed while taking the accused into custody. Objecting to use of the word accused, the bench told Lekhi that the person cannot be called an accused since the police, while filing the chargesheet, many a time drop the name of a person named as an accused in the FIR.
Noting that there were procedural lapses and police had been unable to show the reason for the activist’s arrest, the bench said it needed to deal with it immediately. The bench sought to know whether the case diary was shown to the magistrate and whether the latter had asked for it.
The bench was dictating its order when it was informed that the Supreme Court had directed that the five arrested activists be kept under house arrest until the matter is heard next on September 6. The bench said that given the development, it would not be appropriate for it to proceed further with its own order. It asked the lawyers to return Thursday.
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