GAUTAM NAVLAKHA versus NATIONAL INVESTIGATION AGENCY
[2021] 5 S.C.R. 87, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Facts
A
B
C
D
E
F
G
H
174
SUPREME COURT REPORTS
[2021] 5 S.C.R.
“The CMM granted transit remand on 28.08.2018. The High Court
of Delhi by an interim order having stayed the transit remand and
then having finally set aside the order of transit remand thereby
holding the detention during the period 28.08.2018 upto 01.10,2018
(period of house arrest) as illegal, then, in our opinion, in the
absence of there being an authorised detention by an order of
Magistrate, the Appellant cannot claim entitlement to statutory
default bail under Sub-Section (2) of Section 167 of Cr.PC…”
It goes on to hold:
“It is not possible for us to fathom a situation where detention of
the Appellant though held to be illegal & unlawful rendering the
authorisation by the Magistrate untenable should still be construed
as an authorised detention for the purpose of Sub-Section (2) of
Section 167 of the Cr.P.C. In our view sans any valid authorisation/
order of the Magistrate detaining the appellant, the incumbent will
not be entitled to a default bail…”
Finally, it holds:
“Resultantly, we hold that the period from 28.08.2018 to 01.10.2018
has to be excluded from computing the period of 90 days as the
said custody has been held to be unsustainable in law by the High
Court of Delhi.”
DOES THE MAGISTRATE/ COURT CONSIDER THE
LEGALITY OF ARREST/ DETENTION WHILE ACTING
UNDER SECTION (167).
100. The High Court of Delhi in its judgment dated 01.10.2018
has found that the order of remand is illegal as there was violation
of
Article 22(1). Article 22(1) creates a fundamental right on a person
arrested to be not detained without being informed as soon as may be of
the grounds for such arrest. It also declares it a fundamental right for
the detained person to consult and be defended by a legal practitioner of
his choice. Now, detention follows arrest. What Article 22(1) is concerned
with is that the detention must be supported by the fulfilment of the
rights referred to therein. Strictly speaking, therefore, Article 22(1) does
not go to the legality of the arrest.
101. Now, as far as the non-fulfilment of the conditions under
Article 22(1) and the duty of a Magistrate exercising power to remand,
A
B
C
D
E
F
G
H
175
we notice the judgment of this Court rendered by a Bench of three
learned Judges in The matter of: Madhu Limaye and Others;16. Therein,
the petitioners were arrested apparently for offence under Section 188
of the IPC which was non-cognizable. The officer did not give the
arrested persons the reasons for their arrest or information about the
offences for which they had been taken into custody. this was a case
where the Magistrate offered to release the petitioners on bail but on the
petitioners refusing to furnish bail, the Magistrate remanded them to
custody. The proceeding before this Court was under Article 32. It was
in fact, initiated on a letter complaining that the arrest and detention
were illegal. It was contended that the arrests were illegal as they were
arrested for offences which were non-cognizable. In fact, it was found
that the arrest were effected without specific order of Magistrate. It
was also contended that Article 22(1) was violated. What is relevant is
the following discussion:-
“12. Once it is shown that the arrests made by the police officers
were illegal, it was necessary for the State to establish that at the
stage of remand the Magistrate directed detention in jail custody
after applying his mind to all relevant matters. This the State has
failed to do. The remand orders are patently routine and appear
to have been made mechanically. All that Mr Chagla has said is
that if the arrested persons wanted to challenge their legality
the
High Court should have been moved under appropriate provisions
of the Criminal Procedure Code. But it must be remembered that
Madhu Limaye and others have, by moving this Court under Article
32 of the Constitution, complained of detention or confinement in
jail without compliance with the constitutional and legal provisions.
If their detention in custody could not continue after their arrest
because of the violation of Article 22(1) of the Constitution they
were entitled to be released forthwith. The orders of remand are
not such as would cure the constitutional infirmities. This disposes
of the third contention of Madhu Limaye.”
102. We may further notice that in In Arnesh Kumar vs. State of
Bihar and Another;17, this Court taking note of indiscriminate arrests
issued certain directions. We may notice: -
16 (1969)1 SCC 292
17 (2014) 8 SCC 273
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
176
SUPREME COURT REPORTS
[2021] 5 S.C.R.
“8.2. Before a Magistrate authorises detention under Section 167
CrPC, he has to be first satisfied that the arrest made is legal and
in accordance with law and all the constitutional rights of the person
arrested are satisfied. If the arrest effected by the police officer
does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty-bound not to authorise his further detention
and release the accused. In other words, when an accused is
produced before the Magistrate, the police officer effecting the
arrest is required to furnish to the Magistrate, the facts, reasons
and its conclusions for arrest and the Magistrate in turn is to be
satisfied that the condition precedent for arrest under Section 41
CrPC has been satisfied and it is only thereafter that he will
authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record his
own satisfaction, may be in brief but the said satisfaction must
reflect from his order. It shall never be based upon the ipse dixit
of the police officer, for example, in case the police officer
considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the
case or for preventing an accused from tampering with evidence
or making inducement, etc. the police officer shall furnish to the
Magistrate the facts, the reasons and materials on the basis of
which the police officer had
reached its conclusion. Those shall
be perused by the Magistrate while authorising the detention and
only after recording his satisfaction in writing that the Magistrate
will authorise the detention of the accused.”
103. In terms of paragraph 8.2, it is clear that if the arrest does
not satisfy the requirements of Section 41, the Magistrate is duty bound
not to authorize further detention. The Magistrate is to be satisfied that
the condition precedent for arrest under Section 41 of the CrPC has
being satisfied. He must also be satisfied that all the constitutional rights
of the person arrested are satisfied. Therefore, it is not as if an arrest
becomes a fait accompli, however, illegal it may be, and the Magistrate
mechanically and routinely orders remand. On the other hand, the
Magistrate is to be alive to the need to preserve the liberty of the accused
guaranteed under law even in the matter of arrest and detention before
he orders remand. This is no doubt apart from being satisfied about the
continued need to detain the accused.
A
B
C
D
E
F
G
H
177
CUSTODY UNDERGONE UNDER ORDERS OF
SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS
THE CR.P.C APPLICABLE TO WRIT PETITIONS?
104. We have noticed that there is no absolute taboo against an
order of remand being challenged in a habeas corpus petition. Should
the remand be absolutely illegal or be afflicted with vice of lack of
jurisdiction such a writ would lie? If it is established in a case that the
order of remand is passed in an absolutely mechanical manner again it
would lie. Now in such cases the person would be in custody pursuant to
the remand ordinarily. What would be the position if the writ court were
to modify the order of remand passed by the magistrate. Take a case
where police custody is ordered by the Magistrate. By an interim order
of the High court let us take it the High Court provides for judicial custody.
It is done after the accused undergoes police custody for 5 days. Finally,
the writ petition is however dismissed. What would happen to the period
of judicial custody? Will it be excluded from the period undergone for
the purpose of grant of default bail? Another pertinent question which
arises is whether Section 167 of the Cr.P.C. is applicable in writ
proceedings. If a writ petition is not a criminal proceeding, Will Section
167 apply or does the provision apply only to the proceedings which
arise under the Code? In the example, we have given if we hold that
irrespective of facts which otherwise justified including the period of jail
custody as part of the custody under one Section 167, it will not be
reckoned it may produce anomalous and unjust results. We expatiate as
follows:
In the example we have given the High Court does not stay the
investigation. The petitioner who has been in police custody is made
over to judicial custody by the interim order of the High Court. The High
Court also applies its mind and finds that no case is made out at any rate
for continuing the writ petitioner in police custody and then passes the
order to continue the petitioner in judicial custody. Finally, the writ petition
is dismissed. In such a case where there is no stay of investigation and
in fact even the police custody was obtained and thereafter the High
Court after looking into the records also find that the petitioner should
only be continued in the modified form of remand, the custody, which is
undergone under an order of the court being also ‘during the investigation’
which the investigation is also not stayed, ought to be counted.
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
178
SUPREME COURT REPORTS
[2021] 5 S.C.R.
105. Now though the Cr.P.C. will not apply to a writ petition, what
is required to include custody under Section 167 is that the detention
brought about by the court ordering it during the investigation into an
offence. It is a matter which will turn on the facts.
106. The crucial question to be answered is whether the High
Court of Delhi was exercising power under Section 167 when it ordered
house arrest. The proceeding in the High Court was a writ petition. At
the time when the writ petition was filed, the relief sought was that a
writ of Habeas Corpus be issued to set him at liberty. The further relief
sought was that the Appellant may not be arrested without prior notice
to enable him to seek appropriate remedies. As far as the prayer that the
Appellant may not be arrested is concerned, it is a relief which does not
go hand in hand with Section 167 of the Cr.P.C. This is for the reason
that the power under Section 167 is invoked only after there has been an
arrest and what is sought is the extension of the detention of the person
arrested.
107. Though, this was the position when the writ petition was
filed, by the time, the writ petition came up for consideration at 2:45 p.m.
on 28.08.2018, the Appellant stood arrested at 2:15 p.m. The Court initially
at 2:45 p.m. passed the following order: -
“4. When the matter was taken up at 2:25 pm yesterday, Mr.
Rahul Mehra, learned Standing Counsel (Criminal) for the State
of NCT of Delhi appeared. The Court then passed the following
order at around 2:45 pm:
“1. The petition complains of the Petitioner and his companion
Sehba Husain being restrained in his house by the Maharashtra
Police pursuant to FIR No. 4/2018, registered at P.S. Vishrambagh,
Pune.
2. Notice. Mr. Rahul Mehra, who appears and accepts notice and
informs that he will take some instructions.
3. The Court is informed by Ms. Nitya Ramakrishnan, learned
counsel appearing for the Petitioner, that her information is that
the Petitioner is just being taken away from his house. No further
precipitate action of removing the Petitioner from Delhi be taken
till the matter is taken up again at 4 pm.”
[This is taken from order dated 29.08.2018 extracted in the
judgment.]
A
B
C
D
E
F
G
H
179
108. It would appear, in the meantime, the appellant was produced
before the Magistrate who passed the transit remand order. Thereafter
when the matter was taken up for consideration at 4:00 p.m. and on
noticing the transit remand, order, dated 28.08.2018, inter alia, ordering
house arrest came to be passed. Therefore, at the time (4PM) when the
order was passed, the Court was dealing with the matter when the
Appellant stood arrested and also remanded by way of the transit remand
order.
109. One way to look at the matter is to remind ourselves of the
contents of the order dated 28.08.2018. In the said order, we notice the
following portion which we recapture at this juncture: -
“The Court is also shown the documents produced before the
learned CMM most of which (including FIR No. 4 of 2018
registered at Police Station, Vishrambagh, Pune) are in Marathi
language and only the application filed for transit remand before
the learned CMM is in Hindi. However, it is not possible to make
out from these documents what precisely the case against the
Petitioner is.”
110. The Court further proceeded to direct that the translations of
all the documents be provided to the Court on the next date (29.8.2018).
111. Now, the direction to supply the translation could not be
complied with as is the evident from the order dated 29.08.2018 (See
para 6 of the said order) as reproduced in the judgment.
112. Finally, we may notice paragraphs 18 and 19 of the order
dated
29.08.2018 reproduced in the judgment:-
“He is informed that the Supreme Court has in the said petition
passed an interim order today staying the transit remand orders,
including the one passed by the CMM in respect of the Petitioner,
and has ordered that all those who have been arrested including
the Petitioner shall continue under house arrest.
In view of the above development, it would not be appropriate for
this Court to continue considering the validity of the transit remand
order passed by the learned CMM. The Court considers it
appropriate to list this matter tomorrow at 2:15 pm by which time
the order of Supreme Court would be available.
List on 30th August 2018 at 2:15pm.”
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
180
SUPREME COURT REPORTS
[2021] 5 S.C.R.
113. On the next day i.e., on 30.08.2018, the Court passed a further
order. Therein, in fact the order recites that the Court was in the process
of pronouncement an order on the validity of the transit remand and
consequently on the validity of the arrest of the appellant. It is further
stated that the court was informed by the counsel for the State of
Maharashtra that an interim order continuing the house arrest of the
appellant and some other similarly situated had been passed. It is
specifically recorded that the dictation of the order was then halted in
order to peruse the order passed by the Supreme Court. Thereafter, it is
stated that as the Supreme Court as per the interim order extended the
house arrest of the appellant, the court did not consider it appropriate to
proceed with the matter. Orders of the Supreme Court were awaited.
114. It was further adjourned. Thereafter, this Court pronounced
the judgment on 28.09.2018 and finally, the judgment was pronounced
on 01.10.2018 by the High Court. We may also notice: - para 5
“5. This writ petition was listed for hearing today at 2:15 pm before
this Court. It is noted that the Supreme Court in para 7 of the
majority judgment notes that the Petitioner has filed the present
petition on 28th August 2018 “challenging the transit remand order
passed by the Chief Metropolitan Magistrate (CMM) on
28th August 2018”. At this stage it is required to be noted that
although
when the writ petition was originally filed the ground of
challenge was that the arrest of the Petitioner was in violation of
Section 165 and 166 Cr PC, during the course of arguments on
28th August 2018 in light of the developments that took place
subsequent to the filing of the petition, challenge was laid to the
remand order of the learned CMM. It was further contended that
there had been a violation of the mandatory provision contained in
Section 41(1)(ba) Cr PC.”
115. The Court went on to find that the writ petition was
maintainable as the writ petition was entertained at a time when the
transit remand order had not been passed. The Court finally proceeds to
find violations of Articles 22(1) and 22(2)of the Constitution and Section
167 read with Section 57 and also Section 41(1)(ba) of the Cr.P.C. The
remand order is set aside. The continued detention beyond 24 hours of
the arrest of the appellant, in the absence of the remand order which
stood set aside, was found untenable. Consequently, the house arrest of
the appellant was pronounced as having “come to an end as of now”.
A
B
C
D
E
F
G
H
181
116. We have already found that the superior Courts including the
High Court can exercise power under Section 167. The finding of the
High Court in the impugned judgment appears to proceed on the basis
that only a Magistrate can order remand, does not appear to be correct.
117. Undoubtedly, as pointed out by the appellant, he came to be
detained on the basis of an arrest carried out by the police officer from
the State of Maharashtra in connection with FIR No. 84 of 2018 disclosing
the commission of cognizable offences. The arrest is apparently effected
in view of the powers available under Section 48 of the Cr.P.C. Finding
that an order under Section 167 was required to produce the appellant
before the competent Court in Maharashtra, he produced the appellant-
in-person before the nearest Magistrate in Delhi and the Magistrate
passed an order which we have found to be an order of remand under
Section 167. The High Court came to be concerned with the validity of
the remand order and detention of the appellant. A writ of habeas corpus
does lie in certain exceptional cases even by way of challenging the
orders of remand. If there is non-compliance with Article 22(1) and the
person is detained it is an aspect which has to be borne in mind by the
Magistrate when ordering remand. Detention is the result of an arrest.
Article 22(1) applies at this stage after arrest. If fundamental rights are
violated in the matter of continued detention, the Magistrate is not
expected to be oblivious to it. It is in this sense that the High Court has
found violation of Article 22(1) inter alia and the Magistrate over-looking
it as rendering the transit remand illegal. As far as the arrest being made
in violation of Section 41(1)(ba), undoubtedly, it is a matter which related
to the legality of the arrest itself which is the stage prior to detention.
The High Court finds that the Magistrate had not applied his mind to the
question as to whether the arrest was in compliance with Section 41 (1)
(ba) of Cr.P.C.
118. This is unlike the decision in Madhu Limaye(supra) where
this court found that there was a violation of Article 22(1) and even
during the course of arguments before this court, it could not be explained
to the court as to why the arrested persons were not told of the reasons
for their arrest or of the offences for which they had been taken into
custody. In the said case in fact one of the specific issues was about the
legality of the arrest both on the ground that the offences being non
cognizable arrest which was illegally effected by the police officer and
also there was violation of Article 22(1).
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
182
SUPREME COURT REPORTS
[2021] 5 S.C.R.
THE IMPACT OF THE NON-ACCESSIBILITY TO THE
APPELLANT FOR THE INVESTIGATING AGENCY DURING
HOUSE ARREST AND THE EFFECT OF THE APPELLANT
BEING IN POLICE CUSTODY FROM 14.4.2020 TO 25.4.2020.
119. This is the most serious contention raised by the respondent
to exclude the period of house arrest. The contention is that having regard
to the nature of the proceedings in the High Court of Delhi during the
period of house arrest, no investigation could be carried out. The very
purpose of custody under Section 167 is to enable the police to interrogate
the accused and if that opportunity is not present then such period of
custody as alleged would not qualify for the purpose of Section 167. In
other words, the argument appears to be that the object and scheme of
Section 167 is that an investigation is carried out with opportunity to
question the accused and still it is not completed within the period of 90
days whereupon right to default bail arises. By the proceedings on
28.08.2018 when the petition was filed, the High Court stayed the transit
remand and the appellant could not be taken to Maharashtra. By the
very same order, the High Court placed the Appellant under house arrest.
No access was provided to the investigating agencies to question the
Appellant. In such circumstances, the period undergone as house arrest
should be excluded. It is appropriate that the allied argument, namely,
the effect of the Appellant surrendering
on 14.04.2020, being produced
on 15.04.2020 and being remanded to police custody in which he remained
till 25.04.2020, is considered. The argument is that under the general
law, namely, the Cr.P.C. without the modification effected under Section
43(D) of UAPA, police custody can be sought and given only during the
first 15 days, thereafter, police custody cannot be given. In the case of
UAPA, in view of the modified application of the Cr.P.C. under Section
43(D)(2), the period of 15 days stands enhanced to 30 days. Thus, police
custody by the Magistrate can be given on production for a period of 30
days. The argument further runs that if it is on the basis of the Appellant
having surrendered on 14.04.2020 and upon being produced before the
Court, he stood remanded to police custody, the period of 90 days would
begin to run only from the date of the remand i.e. 15.04.2020. If the
contention of the appellant is that the period of remand commenced with
the house arrest i.e., 28.08.2018, is accepted, it would result in the police
custody given on 15.04.2020 as impermissible. In this regard, the fact
that the appellant did not object to the police custody being given on
15.04.2020 is emphasized. The appellant acquiesced in the police custody
A
B
C
D
E
F
G
H
183
commencing from 15.04.2020. This is possible only on the basis that the
period of 90 days would commence only on 15.04.2020 in terms of the
law laid down in Chaganti Satyanarayana(supra).
120. Per contra, the case of the appellant is as follows: -
There is no requirement in law that the person should be granted
police custody in all cases. Section 167 of Cr.P.C. confers a power with
the Magistrate to grant either police or other custody (judicial custody)
during the first 15 days in a case not covered by UAPA. After the first
period of 15 days, undoubtedly, custody cannot be police custody but
there is no requirement that any police custody at all should be given. It
is entirely with the Magistrate/ Court to determine as to whether the
custody should be police or judicial. Furthermore, it is contended that in
this case, the offences under UAPA are the main offences. A period of
30 days is available by way of police custody. It is open to the investigator
to seek police custody at any time.
It is contended that in any event, a reading of the second proviso
under Section 43(D)(2)(b) of the UAPA shows that in cases under the
said act for the purpose of investigation, police custody can be sought
any time and is not limited by 30 days/ 15 days period. It is submitted
that the principle in Central Bureau of Investigation,Special
Investigation Cell(supra) that police custody is limited to the first 15
days of remand, does not apply. It is further contended that
there was no
stay of investigation and police could have sought access to the appellant
during the 30 days period of interrogation or investigation but this was
not done. It is also seen contended in the written submissions that the
second proviso to Section 43(2)(D) of UAPA nullifies the judgment in
Anupam Kulkarni (supra) in UAPA cases and custody can, therefore,
be sought at any time even from judicial custody without the limit of first
15 days or even 30 days. The requirement of an affidavit in terms of the
proviso arises only when custody is taken by the police from judicial
custody. It was open to the investigating agency to file such an affidavit
and seek such custody or even the permission to interrogate during the
period of house arrest which was not done. It is seen further contended
that on 14.04.2020, the appellant surrendered before the NIA i.e. police
custody. Therefore, when the police custody was sought on 15.04.2020
and extended again on 21.04.2020, there is no transfer from judicial
custody to police custody. Therefore, it is contended that the police
custody was not under the second proviso to Section 43(D)(2)(b). This
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
184
SUPREME COURT REPORTS
[2021] 5 S.C.R.
explains why no affidavit as required thereunder was filed by the police.
The conduct of the appellant in not objecting to the application seeking
police custody cannot defeat the case for counting the period of 34 days
of house arrest. The appellant was indeed in police custody on 28.08.2018
for the purpose of investigation. All his devices were seized by the
investigating agency who had spent several hours at his house and
restrained him from morning till 2:15 P.M. when they proceeded with
him to the Magistrate.
121. The scheme of the law (Cr.P.C.) is that when a person is
arrested without warrant in connection with a cognizable offence,
investigation is expected to be completed within 24 hours from his arrest.
If the investigation is not completed, as is ordinarily the case, the accused
must be produced before the Magistrate who is nearest from the place
of arrest irrespective of whether he is having jurisdiction or not. The
Magistrate on the basis of the entries in the case diary maintained by the
officer is expected to apply his mind and decide whether the accused is
to be remanded or not. If the police makes a request for police custody
which is accepted then an order is to be passed and reasons are to be
recorded under Section 167(3). Police custody is an important tool in
appropriate cases to carry on an effective investigation. It has several
uses. It includes questioning the accused with reference to the
circumstances, and obtaining if possible, statements which are relevant
in the future prosecution. Custodial interrogation in some cases is clearly
a dire need to give a prosecution and therefore the courts a complete
picture. The contention of the appellant that it is always open to Magistrate
to order only judicial custody and even exclusively with 90 days of judicial
custody alone, an application for default bail would lie cannot be disputed.
Whatever be the nature of the custody as long as it falls within four
walls of Section 167, if the requisite number of days are spent in police/
judicial custody/ police and judicial custody that suffices.
122. However, that may not mean applying the functional test or
bearing in mind the object of the law that the purpose of obtaining police
custody is lost sight of. According to the appellant, the period of house
arrest is to be treated as judicial custody on the terms of the order dated
28.08.2018 as subsequently extended. Investigating officers, undoubtedly,
could go to the house of the appellant and question him. It is, however,
true that if the High Court had been approached, it may have directed
the appellant to cooperate with the officers in the investigation. It however
A
B
C
D
E
F
G
H
185
remains in the region of conjecture. The impact of this aspect, will be
further considered later.
123. We must, in this regard, also consider the impact of the police
custody, admittedly, obtained on 15.04.2020. The order which is produced
before us would show that police custody was sought for 10 days.
Custodial interrogation was necessary, it is seen pleaded, for analysing
the retrieved electronic data/ documents from the electronic devices
recovered during the investigation.
124. The special Judge ordered remand for 7 days. Thereafter, a
period of 7 days further remand to police custody was granted by the
order dated 21.04.2020. Still further, it appears on 25.04.2020, the
Appellant was remanded in judicial custody in which he continued. The
question would arise that all else being answered in favour of the Appellant
whether his case is inconsistent with the police remand initially granted
for 7 days on 15.04.2020 and further extended on 21.04.2020 which
was, no doubt, cut short on 25.04.2020. The point to be noted is police
custody can be given only for 15 days and that too, the first 15 days,
ordinarily. In the case of persons accused of offences, under UAPA,
the maximum period of police custody is 30 days. If the case of the
appellant is to be accepted then it must be consistent with the subsequent
proceedings, namely, police custody vide orders dated 15.04.2020 and
21.04.2020. In other words, Section 167 of the Cr.P.C. as modified by
Section
43(D)(2) of UAPA, contemplates that remand to police custody
on production of the accused can be given only during the first 30 days
from the date of production and it advances the case of the respondent
that remand on production of the accused before the Special Judge took
place only with the production of the accused on 15.04.2020. If the
remand in the case of the appellant took place in the year 2018 then it
would be completely inconsistent with the remand to police custody well
beyond the first 30 days of the remand in the year 2018.
125. The answer of the Appellant is that apart from the period of
15 days being supplanted by 30 days under UAPA, police custody can
be sought and granted at any time in cases involving UAPA. It appears
to be the Appellants case in one breath that this is possible under the
second proviso contemplated in Section 43(2)(b) of UAPA. It is seen
contended, that unlike the cases generally covered by the Cr.P.C., police
custody can be sought in cases under UAPA at any time. It is also
contended however that, it is only if a person is in judicial custody and
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
186
SUPREME COURT REPORTS
[2021] 5 S.C.R.
the investigator wants to get police custody in place of judicial custody
that an affidavit is required. In this case, it is the case of the appellant
that there is no such affidavit. This is for the reason that when police
custody was sought on 15.04.2020, the appellant was not in judicial
custody. He had surrendered on the previous day i.e. on 14.04.2020
before the NIA. It is, therefore, to resolve this controversy necessary to
find out whether the case of the Appellant that the police custody can be
sought at any time in cases falling under UAPA is tenable.
126. Section 43 D(2) of UAPA reads as follows:-
“(2) Section 167 of the Code shall apply in relation to a case
involving an offence punishable under this Act subject to the
modification that in sub-section (2), —
(a) the references to “fifteen days”, “ninety days” and “sixty days”,
wherever they occur, shall be construed as references to “thirty
days”, “ninety days” and “ninety days” respectively; and
(b) after the proviso, the following provisos shall be inserted,
namely:—
“Provided further that if it is not possible to complete the
investigation within the said period of ninety days, the Court may
if it is satisfied with the report of the Public Prosecutor indicating
the progress of the investigation and the specific reasons for the
detention of the accused beyond the said period of ninety days,
extend the said period up to one hundred and eighty days:
Provided also that if the police officer making the investigation
under this Act, requests, for the purposes of investigation, for police
custody from judicial custody of any person in judicial custody, he
shall file an affidavit stating the reasons for doing so and shall also
explain the delay, if any, for requesting such police custody”.
127. Under Section 43(D)(2)(a), it is clear that the maximum period
of police custody which is permissible has been increased from 15 days
to 30 days. The further modification is that which is relevant which is
incorporated in the second proviso. It contemplates that the investigating
officer can seek with reasons and explaining the delay obtain the police
custody of a person who is in judicial custody.
128. We would think that the position under Section 167 as
applicable in cases under UAPA is as follows:-
A
B
C
D
E
F
G
H
187
Undoubtedly, the period of 30 days is permissible by way of police
custody. This Court will proceed on the basis that the legislature is aware
of the existing law when it brings the changes in the law. In other words,
this Court had laid down in Anupam Kulkarni (supra), inter alia, that
under Section 167 which provides for 15 days as the maximum period of
police custody, the custody of an accused with the police can be given
only during the first 15 days from the date of the remand by the Magistrate.
Beyond 15 days, the remand can only be given to judicial custody.
Ordinarily, since the period of 15 days has been increased to 30 days,
the effect would be that in cases falling under UAPA applying the principle
declared in (1992) 3 SCC 141, the investigating officer in a case under
UAPA, can get police custody for a maximum period of 30 days but it
must be within the first 30 days of the remand. In this regard, the number
of days alone is increased for granting remand to police custody. The
principle that it should be the first 30 days has not been altered in cases
under UAPA.
As far as the second proviso in Section 43(D)(2)(b) is concerned,
it does bring about an alteration of the law in Anupam Kulkarni (supra).
It is contemplated that a person who is remanded to judicial custody and
NIA has not been given police custody during the first 30 days, on reasons
being given and also on explaining the delay, Court may grant police
custody. The proviso brings
about the change in the law to the extent
that if a person is in judicial custody on the basis of the remand, then on
reasons given, explaining the delay, it is open to the Court to give police
custody even beyond 30 days from the date of the first remand. We may
notice that Section 49 (2) of Prevention of Terrorism Act is pari materia
which has been interpreted by this Court in AIR 2004 SC 3946 and the
decision does not advance the case of Appellant though that was a case
where the police custody was sought of a person in judicial custody but
beyond 30 days.
In this regard, it would appear that the appellant had surrendered
on 14.04.2020. He was not in judicial custody. He was produced with a
remand report seeking police custody on 15.04.2020. Treating this as a
remand sought within the first 30 days, a remand is ordered for a period
of 7 days initially. There is no dispute that the period was police custody.
We may notice that an accused under UAPA may be sent to judicial
custody, police custody or granted bail. If the argument that the police
custody can be sought at any time and it is not limited to cases where
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
188
SUPREME COURT REPORTS
[2021] 5 S.C.R.
there is judicial custody, it will go against the clear terms of the proviso
and even a person who is bailed out can after 30 days be remanded to
police custody. This is untenable. The case of the appellant that the
police custody granted on 15.04.2020 was permissible and consistent
with his case does not appear to be correct.
THE DECISION IN (2007) 5 SCC 773
129. The High Court placed considerable reliance on the judgment
reported in State of West Bengal v. Dinesh Dalmia18. So also the
Additional Solicitor General, Shri Raju. In the said case, the Respondent
was arrested in New Delhi. He was produced before the Magistrate on
transit remand in Chennai. The Investigating Officer, in cases in Calcutta,
prayed for production warrant before the Court at Calcutta as the
Respondent was arrested and detained in the CBI case before the
Magistrate at Chennai. The said prayer was allowed and the order was
sent to the Court at Chennai. There was a further order by the Calcutta
Court issued that the Respondent should not be released in the CBI
cases in Chennai. The Respondent also came to know that he was
wanted in two more cases pending in Calcutta. He voluntarily surrendered
before the Magistrate in Chennai. It was on the basis of the cases at
Calcutta. The Respondent stood remanded to judicial custody till
13.03.2006. Finally, after the procedures were under gone the Respondent
was produced before the Magistrate at Calcutta.
The Investigating
Officer in the case at Calcutta sought police custody of 15 days. The
Respondent moved for bail contending that he had surrendered in the
Court at Chennai and the period of 15 days had elapsed from the date of
surrender. Finally, the matter reached before the Calcutta High Court
against the order of the Magistrate rejecting the application for bail and
ordering police custody. The Calcutta High Court in the revision filed by
the Respondent found that more than 90 days, had expired from the time
of the detention which should have been counted from 27.02.2006 when
the Respondent had surrendered before the Court at Chennai. Therefore,
the question for consideration before this Court was whether the period
of detention started from 27.02.2006 when the Respondent had
surrendered before the Court at Chennai in connection with the CBI
case or whether it should be counted from 13.03.2006 when the
Respondent was actually taken into custody by the police and produced
before the Magistrate at Calcutta. This Court held that the respondent
18 (2007) 5 SC 773
A
B
C
D
E
F
G
H
189
having voluntarily surrendered before the Court at Chennai could not be
treated as being in detention under the cases registered at Calcutta. The
accused, in fact, it was found continued to be under the judicial custody
in relation with the CBI case in Chennai. The Court referred to the
decision of this Court in Niranjan Singh & Anr. vs. Prabhakar Rajaram
Kharote & Ors.19 and reiterated that if there is a totally different offence
then it will be a separate offence for which the detention in the previous
case cannot be counted for the purpose Section 167.
130. The present is a case where there is only one FIR, one case.
This is a case where following arrest and production before the
Magistrate a remand is made which is then questioned. The High Court
orders house arrest.
131. THE CIRCUMSTANCES THAT MILITATE AGAINST
THE ORDER OF HOUSE ARREST BEING ONE UNDER SECTION
167.
1.
The High Court entertains the writ petition on 28.08.2018.
It intended to dispose of the matter on the very next day.
The order of house arrest was passed in such circumstances.
But there was custody and what is more, it went on for 34
days.
2.
The High Court was unable to go through the entries in the
case diary as the entries were in the Marathi language. In
fact, the court expresses inability to make out from the
documents what precisely the case against the appellant
was. Translation of the documents were to be made available
on the next day. The translations were not made available.
Yet the house arrest was ordered until further orders on
28.08.2018. What is pertinent is that by the standards in
law applicable to a Magistrate acting under Section 167,
the High Court did not purport to act under Section 167.
This is different from saying that it acted in violation of the
mandate of law.
3.
It is true that there was no stay of investigation as such.
However, what was challenged was the transit remand.
The FIR was lodged in another state. Interrogation of the
appellant would be integral to the investigation. On the terms
19 (1980) 2 SCC 559
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
190
SUPREME COURT REPORTS
[2021] 5 S.C.R.
imposed by the High Court in regard to house arrest it was
not possible for such interrogation to take place. It appears
that the parties did not contemplate as it is presently
projected. It is no doubt true that the respondent could have
moved the High Court.
4.
The house arrest according to the appellant is by way of
modification of the order of remand. In other words, the
contention is that the High Court stayed the transit. But the
High Court when it passed the order of house arrest on
28.08.2018, it modified the remand from police custody to
house arrest. Subject to what follows we proceed on the
basis that the High Court modified the order of remand.
The transit remand order of the CMM Saket provided for
police custody which was to last for two days. But on the
basis of the house arrest ordered by the High Court by
interim order the appellant underwent house arrest for 34
days. By the judgment dated 01.10.2018 the High Court of
Delhi set aside the transit remand, as the transit remand
ordered by the magistrate was found illegal. On the said
basis the High Court of Delhi finds that detention beyond
24 hours was clearly impermissible. Now it is relevant to
notice that the CMM Saket had not ordered detention for
the period after 30.08.2018. Detention was ordered by him
only for two days and the appellant was to be produced on
30.08.2018. By the order of the High Court of Delhi, the
transit could not take effect.
Therefore, the entire period
after 30.08.2018 till 01.10.2018 cannot be said to be based
on the order of the magistrate. The said period in fact is
covered by the order of house arrest. The period of house
arrest covered the period from 28.08.2018 based on the
order of the High Court. The arrest was effected at 2.15PM
on 28.08.2018. The order of the CMM was passed within
the next hour or so. The order of the High Court was passed
at about 4.30PM. No doubt, it is the order of the magistrate
which originated the remand under Section 167 to police
custody. The High Court of Delhi proceeded to find that
without the support of a valid remand order by the
magistrate, the detention exceeded 24 hours rendering it
A
B
C
D
E
F
G
H
191
untenable in law and the further finding however is that
consequently the house arrest came to an end as of then
(01.10.2018). Therefore, the High Court did not proceed to
pronounce the house arrest as non est or illegal. On the
other hand, when it is pronounced, it as having come to an
end on 01.10.2018 and no part of it is found to be illegal, it
meant that it was valid from the point of time it was passed
till 01.10.2018. If this is perceived as an order passed under
Section 167 then there would not be any detention beyond
24 hours of the arrest which could be illegal. The illegality
of the detention is based on the transit order being found
illegal. If the transit order has been modified as claimed by
the appellant, then the detention would be lawful as the
order of house arrest is passed well within 24 hours of the
arrest. We are highlighting this aspect to emphasize this as
a circumstance to show that the High Court of Delhi also
did not contemplate that the order of house arrest was
passed by way of custody under Section 167. No doubt,
the foundational order, the transit remand, being set aside it
could be said that the interim order will not survive. But
then the order should have been so understood by the High
Court.
5.
Undoubtedly, the appellant was placed in police custody
from 15.04.2020 to 25.04.2020. Even the enhanced period
of 30 days of police custody, permissible under Section 43
(D) (2) of UAPA, must be acquired within the first 30 days
of the remand. Proceeding on the basis of the case of the
appellant that the first remand took place on 28.08.2018,
the appellant being in police custody for a period of 11 days
in 2020 is inconsistent with appellants case and the law.
Though police custody can be had under UAPA beyond
the first 30 days under the Second Proviso to Section
43(D)(2), it is permissible only in a situation, where the
accused is in judicial custody. The appellant was, admittedly,
not in judicial custody, having surrendered to the NIA on
14.04.2020, which is on the eve of the first order directing
police custody.
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
192
SUPREME COURT REPORTS
[2021] 5 S.C.R.
6.
One of the contentions raised by the respondent is that if
the order of house arrest was passed under Section 167
Cr.PC then the High Court of Delhi would have after setting
aside the transit remand, either released the appellant on
bail or remanded him to custody. Instead, the High Court
released the appellant on the basis that as the remand order
was illegal and set aside, in view of Section 56 and Section
57 the detention beyond 24 hours, cannot be sustained. Now
in a proceeding under Section 167 where a remand order is
put in issue before a superior court it presupposes an arrest
in connection with a cognizable offence. Now if the remand
is set aside by the superior court, we are of the view that in
a proceeding which originated from a remand under Section
167, then the order that would follow on setting aside the
remand, would be to grant him bail or to modify the remand.
This is for the reason that there is an arrest which in the
first place sets the ball rolling. Therefore, he has either to
be released on bail, if not, he would have to be remanded.
It is here that we may remember the decision of this Court
in (1969) 1 SCC 292 (supra). There was a remand. Violation
of Article 22(1) was found in a Writ Petition under Article
32. It was, in fact, a non-cognizable offence, which was
involved. The Court released the petitioners. The remand
orders were found patently routine and were not such as
would cure the
constitutional infirmities. In the said case,
arrest was put in issue and found bad in law.
7.
No doubt there is the filing of application for anticipatory
bail wherein the appellant has clearly projected the period
of house arrest as protection of this liberty. It was also
sought to be rested under the extraordinary power of this
Court. [We would observe that while his conduct is not
irrelevant in appreciating the matter, the contours of personal
liberty would better rest on surer foundation. Estoppel, may
not apply to deprive a person from asserting his fundamental
right. A right to default bail is fundamental right [See
Bikramjit Singh vs. The State of Punjab20]. But hereagain,
it must depends upon fulfilment of conditions in Section 167.
20 (2020) 10 SCC 616
A
B
C
D
E
F
G
H
193
THE KNOT TIGHTENED
132. Now, the argument, which survives is as follows:
What mattered was that the appellant actually underwent the
actual custody of 34 days by way of house arrest. The fact that
there may have been illegality in the Order of the Magistrate, will
not take away, the factum of actual custody. The fact that the
appellant was given in Police custody and he did not object, cannot
defeat appellant’s right. What is relevant is that a period of 90
days had run out. It is emphasised before us that be it the High
Court, it could not have ordered the detention of the appellant
without authority of the law. The only law, which supports the
house arrest, is Section 167 of the CrPC.
133. We have already noticed the circumstances surrounding the
Order passed by the High Court. We would also, at this juncture, again
capture the Order dated 29.08.2018, passed by this Court:
“Taken on Board.
Issue notice.
Mr. Tushar Mehta and Mr. Maninder Singh, learned Additional
Solicitor Generals being assisted by Mr. R. Balasubramanian,
learned counsel shall file the counter affidavit by 5.9.2018.
Rejoinder thereto, if any, be filed within three days therefrom.
We have considered the prayer for interim relief. It is submitted
by Dr. Abhishek Manu Singhvi, learned senior counsel appearing
for the petitioners that in pursuance of the order of the High Court,
Mr. Gautam Navalakha and Ms. Sudha Bharadwaj have been
kept under house arrest. It is suggested by him that as an
interim
measure, he has no objection if this Court orders that Mr. Varavara
Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if arrested,
they are kept under house arrest at their own homes. We order
accordingly. The house arrest of Mr. Gautam Navalakha and Ms.
Sudha Bharadwaj may be extended in terms of our orders.
Needless to say, an interim order is an interim order and all
contentions are kept open.
Let the matter be listed on 6.9.2018.”
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
A
B
C
D
E
F
G
H
194
SUPREME COURT REPORTS
[2021] 5 S.C.R.
134. We would think that the reality of the situation is explained
by the said Order. Upon being informed that the appellant and another
were kept under house arrest, on the suggestion of the Counsel for the
petitioners in the Public Interest Litigation before this Court, that he had
no objection in three others, if arrested, they be kept under house arrest,
at their own homes, it was so ordered. It is not a case where this Court
even had in its mind the duty to go through the entries in the case diaries
relating to them, leave alone actually going through them. Quite clearly,
in respect of those persons, house arrest even was the result of the
choice exercised by the Senior Counsel for the Writ Petitioners, who
were not the persons to undergo the house arrest. No doubt, the Public
Interest Litigation was launched to have an impartial enquiry regarding
their arrests. It is thereafter that it was ordered that the house arrest of
appellant and other (Sudha Bharadwaj), may be extended in terms of
the order. House arrest was, undoubtedly, perceived as the softer
alternative to actual incarceration. It was in that light that the Court
proceeded in the matter. That house arrest, in turn, involved, deprivation
of liberty and will fall within the embrace of custody under Section 167
of the CrPC, was not apparently in the minds of both this Court and the
High Court of Delhi. This is our understanding of the orders passed by
the court.
135. Now, here, we are confronted with a clash between the two
values. On the one hand, there is the deprivation, in law, of the liberty of
the appellant, by way of house arrest for 34 days. On the other hand, it
does not fall actually in the facts of this case within the ambit of Section
167 of the CrPC, for the reasons, which have been discussed earlier.
While, the Right to Default Bail is a Fundamental Right, it is subject to
the conditions, obtaining in Section 167 of the CrPC, being satisfied. It
must be purported to be passed under Section 167 CrPC. The right to
statutory bail arises dehors the merits of the case. The fundamental
right arises when the conditions are fulfilled. The nature of detention,
being one under Section 167 is indispensable to count the period.
136. On the other hand, Article 21 of the Constitution of India,
provides that no person shall be deprived of his life or personal liberty
except in accordance with the procedure prescribed by law. This Article,
creates a Fundamental Right, which cannot be waived. Moreover, unlike
the persons, who apparently underwent house arrest on the basis of the
offer made on their behalf, in the case of the appellant, even prior to the
order dated 29.08.2018, the High Court had ordered house arrest, which
A
B
C
D
E
F
G
H
195
constituted house arrest. The appellant was an accused in a FIR invoking
cognizable offences. He stood arrested by a Police Officer. He was
produced before a Magistrate. A transit remand, which was a remand,
under Section 167, was passed. Police custody followed. The High Court
ordered that the appellant be kept in house arrest. The setting aside of
the Order of transit remand will not wipe out the Police custody or the
house arrest. We agree that illegality in order of the CMM, Saket, will
not erase the deprivation of liberty. But other aspects already discussed
militate against the order being treated as passed purportedly under
Section 167. There can be no quarrel with the proposition that a court
cannot remand a person unless the court is authorised to do so by law.
However, we are in this case not sitting in appeal over the legality of the
house arrest. But we are here to find whether the house arrest fell
under Section 167. We are of the view, that in the facts of this case, the
house arrest was not ordered purporting to be under Section 167. It
cannot be treated as having being passed under Section 167.
137. There is one aspect which stands out. Custody under Section
167 has been understood hitherto as police custody and judicial custody,
with judicial custody being conflated to jail custody ordinarily.
138. The concept of house arrest as part of custody under Section
167 has not engaged the courts including this Court. However, when the
issue has
come into focus, and noticing its ingredients we have formed
the view that it involves custody which falls under Section 167.
139. We observe that under Section 167 in appropriate cases it
will be open to courts to order house arrest. As to its employment, without
being exhaustive, we may indicate criteria like age, health condition and
the antecedents of the accused, the nature of the crime, the need for
other forms of custody and the ability to enforce the terms of the house
arrest. We would also indicate under Section 309 also that judicial custody
being custody ordered, subject to following the criteria, the courts will be
free to employ it in deserving and suitable cases.
140. As regards post-conviction cases we would leave it open to
the legislature to ponder over its employment. We have indicated the
problems of overcrowding in prisons and the cost to the state in maintaining
prisons.
141. In view of the fact that the house arrest of the appellant was
not purported to be under Section 167 and cannot be treated as passed
thereunder, we dismiss the appeal. There will be no order as to costs.
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]
Devika Gujral
Appeal dismissed.