GAUTAM NAVLAKHA versus NATIONAL INVESTIGATION AGENCY
[2021] 5 S.C.R. 87, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Facts
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GAUTAM NAVLAKHA
v.
NATIONAL INVESTIGATION AGENCY
(Criminal Appeal No. 510 of 2021)
MAY 12, 2021
[UDAY UMESH LALIT AND K. M. JOSEPH, JJ.]
Constitution of India: Art.21 – House arrest – When a citizen
is placed on house arrest, which has the effect of depriving him of
any freedom, it will not only be custody but it would involve depriving
him of the fundamental freedoms unless such freedoms are
specifically protected – In the case of a person undergoing a house
arrest and in the teeth of an absolute prohibition, in the facts of the
case forbidding him from moving outside his home, the hallmark of
custody described in the case of incarceration is equally present –
The right under Art.21 is undoubtedly available to citizens and non-
citizens – While personal liberty is a wide expression capable of
encompassing within its fold, many elements apart from the right to
be protected against the deprivation of liberty in the sense of the
freedom from all kinds of restraints imposed on a person, the
irreducible core of personal liberty, undoubtedly, consist of the
freedom against compelled living in forced custody.
Code of Criminal Procedure, 1973: s.167 – Remedies open
to an accused in the case of remand under s.167 – Held: An order
under s.167 is purely an interlocutory order – No revision is
maintainable – A petition under s.482 cannot be ruled out – When
a person arrested in a non-bailable offence is in custody, subject to
the
restrictions, contained therein, a court other than High Court
or Court of Session, before whom he is brought inter alia, can release
him on bail under s.437 – s.439 deals with special powers of High
Court and court of session to grant bail to a person in custody –
The said courts may also set aside or modify any condition in an
order by a Magistrate – Ordinarily, when the court considers a
request for remand there would be an application for bail – It is for
the court to grant bail failing which an order of remand would
follow.
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Code of Criminal Procedure, 1973: ss.437, 439 – While the
remand report is considered by the Magistrate the application for
bail may be moved under s.439 instead of moving under s.437 in
view of the restrictions contained therein – Though an application
under s.397 would not lie against the remand, an application for
bail would lie under s.439 – Therefore, ordinarily the accused would
seek bail and legality and the need for remand would also be
considered by the High Court or court of session in an application
under s.439 – No doubt the additional restrictions under s.43(D)(5)
of UAPA are applicable to citizens of India in cases under the said
law.
Code of Criminal Procedure, 1973: s.167 – Whether a Writ
of Habeas Corpus lies against an order of remand under s.167 of
the Code – A Habeas Corpus petition is one seeking redress in the
case of illegal detention – It is intended to be a most expeditious
remedy as liberty is at stake – If the remand is absolutely illegal or
the remand is afflicted with the vice of lack of jurisdiction, a Habeas
Corpus petition would indeed lie – Equally, if an order of remand is
passed in an absolutely mechanical manner, the person affected
can seek the remedy of Habeas Corpus – Barring such situations, a
Habeas Corpus petition will not lie.
Code of Criminal Procedure, 1973: ss.167, 439 – Whether
superior courts (including High Court) can exercise power under
s.167 of the Code – Can broken
periods of custody count for the
purpose of default bail – Though the power is vested with the
Magistrate to order remand by way, of appropriate jurisdiction
exercised by the superior Courts, (it would, in fact, include the Court
of Sessions acting under s.439) the power under s.167 could also
be exercised by Courts which are superior to the Magistrate – While
ordinarily, the Magistrate is the original Court which would exercise
power to remand under s.167, the exercise of power by the superior
Courts which would result in custody being ordered ordinarily (police
or judicial custody) by the superior Courts which includes the High
Court, would indeed be the custody for the purpose of calculating
the period within which the charge sheet must be filed, failing with
the accused acquires the statutory right to default bail – In such
circumstances, broken periods of custody can be counted whether
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custody is suffered by the order of the Magistrate or superior courts,
if investigation remains incomplete after the custody, whether
continuous or broken periods pieced together reaches the requisite
period; default bail becomes the right of the detained person.
Code of Criminal Procedure, 1973: s.167 – Transit order,
effect of – The remand pursuant to a transit remand cannot be
judicial custody as the police is exclusively entrusted with the man
to produce him before the Magistrate having jurisdiction – It is
therefore, police custody – If it is thought that during the journey, it
is impermissible to interrogate the accused on the basis of transit
order, then such interrogation would equally be impermissible during
the time of journey permitted without obtaining an order under s.167
– If also during such journey, the accused volunteers with a statement
otherwise falling under s.27 of Evidence Act, it would be one when
the accused is in the custody of the police – If it is police custody
then, the order of the Magistrate granting transit remand would set
the clock ticking to complete the period for the purpose of default
bail.
Code of Criminal Procedure, 1973: s.428 – Period of
detention, set off of – Held: s.428 enables a person convicted to
have the period of detention which he has undergone during the
investigation, enquiry or trial set off against the term of
imprisonment.
Code of Criminal Procedure, 1973: s.167 – Detention of an
accused – Police
officer can detain accused and question him in
the course of the investigation – However, the officer cannot detain
the accused beyond 24 hours excluding the time taken for the
journey from the place of arrest to the place where the Magistrate
who is competent to try the case sits – If he cannot so produce the
accused and the investigation is incomplete, the officer is duty bound
to produce the arrested person before the nearest Magistrate – The
nearest Magistrate may or may not have jurisdiction – He may order
the continued detention of the arrested person based on the request
for remand – He would largely rely on the entries in the case diary
and on being satisfied of the need for such remand which must be
manifested by reasons – The Magistrate can order police custody
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during the first 15 days (in cases under UAPA, the first 30 days) –
Beyond such period, the Magistrate may direct detention which is
described as judicial custody or such other custody as he may think
fit – It is, no doubt, open to a Magistrate to refuse police custody
completely during the first 15 days – He may give police custody
during the first 15 days not in one go but in instalments – It is also
open to the Magistrate to release the arrested person on bail – The
scheme further under s.167 is that custody (detention/ custody) as
authorized under such provisions, if it exceeds the limit as to
maximum period without the charge sheet being filed, entitles the
person in detention to be released on default bail – In fact, the
person may on account of his inability to offer the bail languish in
custody but he would undoubtedly be entitled to count the entire
period he has spent in detention under orders of the Magistrate/
Superior Court exercising powers under s.167 for the purpose of
set off under s.428.
Code of Criminal Procedure, 1973: s.167 – Effect of illegality
in the order under s.167 – An order purports to remand a person
under s.167 – It is made without complying with mandatory
requirements thereunder – It results in actual custody – The period
of custody will count towards default bail. s.167(3) mandates
reasons be recorded if police custody is ordered – There has to be
application of mind – If there is
complete non-application of mind
or reasons are not recorded, while it may render the exercise illegal
and liable to be interfered with, the actual detention undergone
under the order, will certainly count towards default bail – Likewise,
unlike the previous Code (1898), the present Code mandates the
production of the accused before the Magistrate as provided in
clause (b) of the proviso to s.167(2) – Custody ordered without
complying with the said provision, may be illegal – But actual custody
undergone will again count towards default bail.
Code of Criminal Procedure, 1973: s.167 – If the Court
purports to invoke and act under s.167, the detention will qualify
even if there is illegality in the passing of the order – What matter in
such cases is the actual custody – However, when the Court does
not purport to act under s.167, then the detention involved pursuant
to the order of the Court cannot qualify as detention under s.167.
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Code of Criminal Procedure, 1973: s.167 – Judicial custody
and police custody – Difference between – When a person is
remanded to police custody, he passes into the exclusive custody of
the police officers – ‘Custodial Interrogation’ as is indispensable
to unearth the truth in a given case is the substantial premise for
such custody – The Magistrate must undoubtedly be convinced about
the need for remand to such custody – Reasons must be recorded –
Judicial custody is ordinarily custody in a jail – It is referred to
also as jail custody – The jails come under the Department of Jails
and staffed by the employees of the said department – The person
in jail custody is therefore indirectly, through the jail authorities,
under the custody of the Court – The police officer does not have
access to a person in judicial custody as he would have in the case
of a person in police custody – Unless permission is sought and
obtained which would apparently be subject to such conditions as
a court places the person in judicial custody cannot be questioned
by the police officers – Now in a case, ordinarily, instead of ordering
a remand a person can be released on bail – As to whether a case is
made out is a question to be decided in the facts of each case –
There may be restrictions put in regard to the grant of bail by law
which must be observed – But if bail is not granted then a person
arrested by the police in connection with the cognizable offence
must be remanded to
custody – This is inevitable from the reading
of s.167 of the Cr.P.C.
Code of Criminal Procedure, 1973: s.167 – Judicial custody
of accused – The concept of house arrest as ordered in this case
with the complete prohibition on stepping out of the Appellants
premises and the injunction against interacting with persons other
than ordinary residents, and the standing of guard not to protect
him but to enforce the condition would place the Appellant under
judicial custody – s.167 speaks of ‘such custody as it thinks fit’ – If
it is found ordered under s.167 it will count.
Code of Criminal Procedure, 1973: s.167 – Does the
magistrate/Court consider the legality of arrest/detention while acting
under s.167 – Held: Art.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
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fundamental right for the detained person to consult and be
defended by a legal practitioner of his choice – Now, detention
follows arrest – What Art.22(1) is concerned with is that the
detention must be supported by the fulfilment of the rights referred
to therein – Strictly speaking, therefore, Art.22(1) does not go to
the legality of the arrest – Constitution of India – Art.22(1).
Code of Criminal Procedure, 1973: s.167 – Impact of 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 – The very purpose of custody under
s.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 s.167 – In other words, the
argument appears to be that the object and scheme of s.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.
Prisons: Conditions relating to jails and prisoners – Alarming
state of affairs as far as occupancy rate is concerned –
Overcrowding in jails, discussed.
Dismissing the appeal, the Court
HELD:
Whether the period of 34 days spent in house arrest by the
appellant is to be counted towards the period of 90 days under
Section 167 Cr.P.C.
1.1. Under Section 156 Cr.P.C., any police officer in charge
of a police station can without order of a Magistrate investigate
any cognizable case which a court having jurisdiction over the
local area within the limits of such station have the power to try.
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Section 157 dealing with Procedure for investigation contemplates
inter alia the power to proceed, to the spot, to investigate the
facts and circumstance of the case, and if necessary, take
measures for the discovery and arrest of the offender. With the
proviso in the Cr.P.C., 1973, in Section 76, in the case of arrest
under a warrant, the person is to be produced before the Court
within 24 hours with the exclusion of time taken for travelling.
Such a proviso was absent in Section (81) of the Cr.P.C., 1898.
[Paras 24, 27][127-F-H; 128-A; 134-C-D]
State of U.P. v. Abdul Samad AIR 1962 SC 1506 : [1962]
Suppl. SCR 915 – held inapplicable.
1.2 In India, the concept of house arrest has its roots in
laws providing for preventive detention. Section 5 of the National
Security Act, 1980, is a law providing for preventive detention.
The safeguards under Article 22(1) and Article 22(2) are not
available under a law providing for preventive detention. ‘House
arrests’ have been resorted to in India, in the context of law
relating to ‘preventive detention’. What is however relevant is
that preventive detention is also a form of forced detention. House
arrest is also custody and forced detention. [Paras 43, 45]
[145-G-H; 147-H; 148-A]
A.K. Roy and Ors. v. Union of India (UOI) and Ors.
AIR (1982) SC 710 : [1982] 2 SCR  272 – followed.
State of Rajasthan and Ors. v. Shamsher Singh AIR
(1985) SC 1082 : [1985] Suppl. SCR 83 – relied on.
A LOOK AT PRISONS IN INDIA
2.1
According to the data published by the National Crime
Records Bureau (NCRB) the conditions relating to jails and
prisoners is fairly alarming. There were a total number of 1350
prisons as of the year 2019. 1350 prisons consists of 617 Sub
Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special
Jails, 31 Women Jails, 19 Borstal School and 2 Other than the
above jails. A perusal of the executive summary would reveal an
alarming state of affairs as far as occupancy rate is concerned. It
has climbed to 118.5 percent in 2019 as on 31st December. The
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occupancy rate is alarming for male prisoners. In fact, during 2019,
a total of 18,86,092 inmates were admitted in the jails. The figure
of 4,78,600 prisoners as on 31st December, 2019 is the figure
obviously after considering the number of prisoners who would
have been inter alia bailed out. The number of under trial
prisoners in 2019 was 3,30,487 which in fact constituted 69.05
per cent of the total no. of prisoners. Delhi had the highest
occupancy rate of 174.9 percent followed by Uttar Pradesh which
came second with 167.9 percent. This means that in Delhi a prison
which was meant to be occupied by 100 persons, was used for
accommodating 174 persons. There is a tremendous amount of
overcrowding in jails in India. Secondly, a very large sum (Rs.
6818.1 crore) was the budget on prisons. Both aspects are
relevant in the context of the possibilities that house arrest offer.
[Paras 48, 49, 50][154-H; 155-A-E]
2.2 In the context of the rights conferred on citizens under
Article 19 which are essentially constitutional freedoms or rather
the enumerated rights as explained by this Court in Maneka
Gandhi vs. Union of India, when a citizen is placed on house arrest,
which has the effect of depriving him of any freedom, it will not
only be custody but it would involve depriving citizens under
custody of the fundamental freedoms unless such freedoms are
specifically protected. A person has a fundamental right to move
in any part
of the country. It is obvious that in the case of a person
undergoing a house arrest and in the teeth of an absolute
prohibition, in the facts of the case forbidding the appellant from
moving outside his home, the hallmark of custody described in
the case of incarceration is equally present. Personal liberty
perhaps is the most important of all values recognized as such
under the constitution. It is to be jealously guarded from any
encroachment, save where such intrusion has the clear sanction
of law. The expression “procedure established by law” has
received an expansive and liberal exposition in decisions of this
Court commencing from Maneka Gandhi. Right to personal liberty
is the birth right of every human being. The right under Article
21 is undoubtedly available to citizens and non-citizens. While
personal liberty is a wide expression capable of encompassing
within its fold, many elements apart from the right to be protected
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against the deprivation of liberty in the sense of the freedom
from all kinds of restraints imposed on a person, the irreducible
core of personal liberty, undoubtedly, consist of the freedom
against compelled living in forced custody. [Para 51][155-E-H;
156-A-B]
Maneka Gandhi v. Union of India AIR 1978 SC 597 :
[1978] 2 SCR  621 – relied on
2.3 Personal liberty is interlinked with the right to life itself.
It is an inseparable part without which the right to life itself is
deprived of its content and meaning. The right to life and personal
liberty is essentially also based on the principle that men in regard
to fundamental rights be treated equal and that no man or a group
of men, even organized as a state under which he lives can deprive
him except without infringing the right to be treated equally unless
there is a legitimate sanction of law. Personal liberty of its
members must continue to remain the most cherished goal of
any civilized state and interference with the same must be confined
to those cases where it is sanctioned by the law and genuinely
needed. The court would lean in favour of upholding this precious,
inalienable and immutable value. In the United States ordinarily,
house arrest follows a conviction and is a choice which is available
to the Courts to send a person to house arrest which is in lieu of
a jail sentence. [Paras 53, 54][157-D-G]
Govt. of Andhra Pradesh and another etc. v. Anne
Venkateswara Rao etc. etc. AIR 1977 SC 1096:[1977]
3 SCR 7 – relied on
THE REMEDIES OPEN TO AN ACCUSED IN THE CASE
OF REMAND UNDER SECTION 167 OF THE CR.P.C.
3.1 An order under Section 167 is purely an interlocutory
order. No revision is maintainable. A petition under Section 482
cannot be ruled out. When a person arrested in a non-bailable
offence is in custody, subject to the restrictions, contained therein,
a court other than High Court or Court of Session, before whom
he is brought inter alia, can release him on bail under Section
437 of the Cr.P.C. Section 439 of the Cr.P.C. deals with special
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powers of High Court and court of session to grant bail to a person
in custody. The said courts may also set aside or modify any
condition in an order by a Magistrate. Ordinarily, when the court
considers a request for remand there would be an application for
bail. It is for the court to grant bail failing which an order of remand
would follow. [Paras 57, 59][159-A-C; 159-G]
State rep. by Inspector of Police and others v. N.M.T.
Joy Immaculate (2004) 5 SCC 729 : [2004] 2 Suppl.
SCR 71; Central Bureau of Investigation, Special
Investigation Cell v. Anupam J. Kulkarni (1992) 3 SCC
141 : [1992] 3 SCR 158 – relied on
3.2 No doubt, while the remand report is considered by the
Magistrate the application for bail may be moved under Section
439 instead of moving under Section 437 in view of the
restrictions contained therein. Though an application under
Section 397 would not lie against the remand, an application for
bail would lie under Section 439. Therefore, ordinarily the accused
would seek bail and legality and the need for remand would also
be considered by the High Court or court of session in an
application under Section 439. No doubt the additional restrictions
under section 43 (D) (5) of UAPA are applicable to citizens of
India in cases under the said law. [Para 60][159-H; 160-A-B]
WHETHER A WRIT OF HABEAS CORPUS LIES
AGAINST AN ORDER OF REMAND UNDER SECTION (167)
OF CR.P.C.
4. A Habeas Corpus petition is one seeking
redress in the
case of illegal detention. It is intended to be a most expeditious
remedy as liberty is at stake. If the remand is absolutely illegal
or the remand is afflicted with the vice of lack of jurisdiction, a
Habeas Corpus petition would indeed lie. Equally, if an order of
remand is passed in an absolutely mechanical manner, the person
affected can seek the remedy of Habeas Corpus. Barring such
situations, a Habeas Corpus petition will not lie. [Paras 61,
63][160-C-D; 161-F-G]
Manubhai Ratilal Patel v. State of Gujarat and others
(2013) 1 SCC 314 : [2012] 8 SCR 993; Serious Fraud
Investigation Office and Ors. v. Rahul Modi and Ors.
(2019) 5 SCC 266 : [2019] 5 SCR 91 – relied on.
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WHETHER SUPERIOR COURTS (INCLUDING A HIGH
COURT) CAN EXERCISE POWER UNDER SECTION (167)
OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT
FOR THE PURPOSE OF DEFAULT BAIL?
5.1 Though the power is vested with the Magistrate to order
remand by way, of appropriate jurisdiction exercised by the
superior Courts, (it would, in fact, include the Court of Sessions
acting under Section 439) the power under Section 167 could
also be exercised by Courts which are superior to the Magistrate.
While ordinarily, the Magistrate is the original Court which would
exercise power to remand under Section 167, the exercise of
power by the superior Courts which would result in custody being
ordered ordinarily (police or judicial custody) by the superior
Courts which includes the High Court, would indeed be the
custody for the purpose of calculating the period within which
the charge sheet must be filed, failing with the accused acquires
the statutory right to default bail. In such circumstances broken
periods of custody can be counted whether custody is suffered
by the order of the Magistrate or superior courts, if investigation
remains incomplete after the custody, whether continuous or
broken periods pieced together reaches the requisite period;
default bail becomes the right of the detained person.
[Paras 66, 67][163-B-E]
THE EFFECT OF TRANSIT ORDER? IS IT A
PRODUCTION ORDER THOUGH SOURCED UNDER
SECTION 167 CR.P.C.?
6.1 In this case, the transit remand was ordered on
28.08.2018.
The Appellant was to be produced under the same
on 30.08.2018 before the Magistrate in Pune. A person may be
arrested by a police officer in any part of India (Section 48 of
Cr.P.C.). Under Section 56, the person arrested without warrant
is to be sent before the Magistrate having jurisdiction or before
the officer in charge of a police station. It is thereafter, that Section
57 forbids the person so arrested: from being detained for a period
more than what is reasonable. from being detained beyond 24
hours from the time of arrest, excluding the time necessary for
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the journey from the place of arrest to the Magistrate Court.
Now, the ‘Magistrate Court’ referred to in Section 57 is the
Magistrate competent to try the case. Section 57 contains the
peremptory limit of 24 hours exclusive of the period for journey,
in the absence of ‘special order’ under Section 167.
[Paras 71, 72][164-B-E]
6.2 The remand pursuant to a transit remand cannot be
judicial custody as the police is exclusively entrusted with the
man no doubt to produce him before the Magistrate having
jurisdiction. It is therefore, police custody. Could the police be
engaged in questioning/ investigating the case by interrogating
the accused on the basis of the transit order either before,
embarking on the journey or during the course of the journey
and after the journey before producing him? If it is thought that
during the journey, it is impermissible, then such interrogation
would equally be impermissible during the time of journey
permitted without obtaining an order under Section 167. If also
during such journey, the accused volunteers with a statement
otherwise falling under Section 27 of Evidence Act, it would be
one when the accused is in the custody of the police. If it is police
custody then, the order of the Magistrate granting transit remand
would set the clock ticking to complete the period for the purpose
of default bail. The remand order be it a transit remand order is
one which is passed under Section 167
of the Cr.P.C. and though
it may be for the production of the Appellant, it involved
authorising continued detention within the meaning of Section
167. [Paras 76, 78][165-F-H; 166-A; 167-A]
THE IMPACT OF SECTION 428 OF CR.P.C.
7.1 If house arrest as ordered in this case is to be treated
as custody within the meaning of section 167 of the Cr.P.C. would
it not entail the period of house arrest being treated as part of
the detention within the meaning of Section 428 in case there is
a conviction followed by a sentence? Section 428 enables a person
convicted to have the period of detention which he has undergone
during the investigation, enquiry or trial set off against the term
of imprisonment. [Paras 80, 82][167-E-G]
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7.2 There is a scheme which is unravelled by the Code
regarding detention of an accused. The starting point appears to
be the arrest and detention of the person in connection with the
cognizable offence by a police officer without a warrant. He can
detain him and question him in the course of the investigation.
However, the officer cannot detain the accused beyond 24 hours
excluding the time taken for the journey from the place of arrest
to the place where the Magistrate who is competent to try the
case sits. If he cannot so produce the accused and the investigation
is incomplete, the officer is duty bound to produce the arrested
person before the nearest Magistrate. The nearest Magistrate
may or may not have jurisdiction. He may order the continued
detention of the arrested person based on the request for remand.
He would largely rely on the entries in the case diary and on
being satisfied of the need for such remand which must be
manifested by reasons. The Magistrate can order police custody
during the first 15 days (in cases under UAPA, the first 30 days).
Beyond such period, the Magistrate may direct detention which
is described as judicial custody or such other custody as he may
think fit. It is, no doubt, open to a Magistrate to refuse police
custody completely during the first 15 days. He may give police
custody during the first 15 days not in one go but in instalments.
It is also open to the Magistrate to release the arrested person
on bail. [Para
85][169-B-E]
Ajmer Singh and others v. Union of India and others
AIR 1987 SC 1646 : [1987] 3 SCR  84 – relied on 
7.3 The arrested person if detained during the period of
investigation can count this period, if he is ultimately charged,
tried and convicted by virtue of the provisions of Section 428 of
Cr.P.C. It is not every detention which can be relied upon to get
the benefit of set-off under Section 428. A period spent under an
order of preventive detention being not in connection with the
investigation into an offence cannot be counted. Thus, detention
‘during investigation’ under Section 428 is integrally connected
with detention as ordered under Section 167. The scheme further
under Section 167 is that custody (detention/ custody) as
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authorized under such provisions, if it exceeds the limit as to
maximum period without the charge sheet being filed, entitles
the person in detention to be released on default bail. In fact, the
person may on account of his inability to offer the bail languish in
custody but he would undoubtedly be entitled to count the entire
period he has spent in detention under orders of the Magistrate/
Superior Court exercising powers under Section 167 for the
purpose of set off under Section 428. [Paras 86, 88, 89][169-F-G;
170-A-C]
EFFECT OF ILLEGALITY IN THE ORDER UNDER
SECTION 167 CR.PC.
8.1 An order purports to remand a person under Section
167. It is made without complying with mandatory requirements
thereunder. It results in actual custody. The period of custody
will count towards default bail. Section 167(3) mandates reasons
be recorded if police custody is ordered. There has to be
application of mind. If there is complete non-application of mind
or reasons are not recorded, while it may render the exercise
illegal and liable to be interfered with, the actual detention
undergone under the order, will certainly count towards default
bail. Likewise, unlike the previous Code (1898), the present Code
mandates the production of the accused before the Magistrate
as provided in clause (b) of the proviso to Section 167 (2). Custody
ordered without complying with the said provision, may be illegal.
But actual custody undergone
will again count towards default
bail. [Para 90][170-C-F]
8.2 The view taken in the impugned judgment that sans
any valid authorisation/ order of the Magistrate detaining the
Appellant there cannot be custody for the purpose of Section
167 is not correct. Therefore, if the Court purports to invoke
and act under Section 167, the detention will qualify even if there
is illegality in the passing of the order. What matter in such cases
is the actual custody. However, when the Court does not purport
to act under Section 167, then the detention involved pursuant
to the order of the Court cannot qualify as detention under Section
167. [Paras 91, 92, 93][170-G-H; 171-A-B]
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JUDICIAL CUSTODY AND POLICE CUSTODY
9.1 Whether house arrest as ordered by the High Court
amounts to custody within the meaning of Section 167 of the
Cr.P.C. Undoubtedly custody in Section 167 of the Cr.P.C. is
understood as ordinarily meaning police custody and judicial
custody. The period of custody begins not from the time of arrest
but from time the accused is first remanded. Police custody can,
in a case falling under the Cr.P.C. (not under the UAPA), be given
only during the first 15 days. During the first 15 days no doubt
the Court may order judicial custody or police custody. No doubt
the last proviso to Section 167 (2) provides that detention of a
woman under eighteen years of age, the detention shall be
authorised to be in the custody of a remand home or recognised
social institution. [Para 94][171-B-E]
9.2 Distinction between police custody and judicial custody
When a person is remanded to police custody, he passes
into the exclusive custody of the police officers. ‘Custodial
Interrogation’ as is indispensable to unearth the truth in a given
case is the substantial premise for such custody. The Magistrate
must undoubtedly be convinced about the need for remand to
such custody. Reasons must be recorded. Judicial custody is
ordinarily custody in a jail. It is referred to also as jail custody.
Thus, jail custody and judicial custody are the same. The jails
come under the Department of Jails and staffed by the employees
of the said department. The
person in jail custody is therefore
indirectly, through the jail authorities, under the custody of the
Court. The police officer does not have access to a person in
judicial custody as he would have in the case of a person in police
custody. Unless permission is sought and obtained which would
apparently be subject to such conditions as a court places the
person in judicial custody cannot be questioned by the police
officers. Now in a case, ordinarily, instead of ordering a remand a
person can be released on bail. As to whether a case is made out
is a question to be decided in the facts of each case. There may
be restrictions put in regard to the grant of bail by law which
must be observed. But if bail is not granted then a person arrested
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by the police in connection with the cognizable offence must be
remanded to custody. This is inevitable from the reading of Section
167 of the Cr.P.C. [Para 95][171-E-H; 172-A-B]
9.3 The concept of house arrest though familiar in the law
relating to preventive detention, therein the underpinnings are
different. House arrest in the law of preventive detention is one
which is permitted under the law itself and such orders are made
in fact by the executive. Taking the ingredients of house arrest
as are present in the order passed by the High Court of Delhi, if
it is found to be one passed under Section 167, then it would be
detention thereunder. The concept of house arrest as ordered in
this case with the complete prohibition on stepping out of the
Appellants premises and the injunction against interacting with
persons other than ordinary residents, and the standing of guard
not to protect him but to enforce the condition would place the
Appellant under judicial custody. Section 167 speaks of ‘such
custody as it thinks fit’. If it is found ordered under Section 167 it
will count. [Paras 97, 98][172-G; 173-A-B]
DOES THE MAGISTRATE/ COURT CONSIDER THE
LEGALITY OF ARREST/ DETENTION WHILE ACTING
UNDER SECTION 167
10. 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. [Para 100][174-F-G]
CUSTODY UNDERGONE UNDER ORDERS OF
SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS
THE CR.P.C APPLICABLE TO WRIT PETITIONS?
11.1 The proceeding in the High Court was a writ petition.
At the time when the writ petition was filed, the relief sought was
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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. 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. 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.
As 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.[Paras
104, 106, 108, 116][178-B-D; 179-A-B;
181-A]
11.2 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
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 is 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
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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. [Para 117]
[181-B-F]
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.
12. 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. 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.
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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
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. [Para 119][182-B-H; 183-A]
Chaganti Satyanarayan & Ors. v. State of Andhra
Pradesh (1986) 3 SCC 141:[1986] 2 SCR 1128 – relied
on
13.1 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.
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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. [Para 121][184-C-F]
13.2 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 remains in the region of conjecture.
[Para 122][184-G-H; 185-A]
13.3 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,
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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. [Para 124][185-C-F]
13.4 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 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. [Para 125][185-G-H;
186-A-B]
14. 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. [Para 127][186-G]
15. Undoubtedly, the period of 30 days is permissible by
way of police custody. This Court will proceed on the basis that
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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, 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 Anupam Kulkarni., 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. [Para 128][187-A-D]
16. 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. 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.
[Para 128][187-D-E]
17. 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. 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 there is judicial custody,
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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. [Para 128][187-F-H;
188-A-B]
THE CIRCUMSTANCES THAT MILITATE AGAINST
THE ORDER OF HOUSE ARREST BEING ONE UNDER
SECTION 167.
18. 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.
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. 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 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. 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
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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 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. The High Court of
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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. 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. 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, 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.
[Para 131][189-C-H; 190-A-H; 191-A-H; 192-A-D]
19. There can be no quarrel with the proposition that a court
cannot remand a person unless the court is authorised to do so
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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. 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. 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. 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. 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. 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. [Paras 136, 138, 139, 140]
[195-B-G]
Lalita Kumari v. Government of Uttar Pradesh and
others (2014) 2 SCC 1 : [2013] 14 SCR 713; Bikramjit
Singh v. The State of Punjab (2020) 10 SCC
616 – relied
on.
Romila Thapar and Others v. Union of India and others
(2018) 10 SCC 753 : [2018] 11 SCR 951; State of
Punjab v. Ajaib Singh AIR 1953 SC 10 : [1953] SCR
254; In re. M.R. Venkataraman and Others AIR 1948
Mad 100; The matter of: Madhu Limaye and Others
(1969) 1 SCC 292 : [1969] 3 SCR 154; Arnesh Kumar
v. State of Bihar and Another (2014) 8 SCC 273 : [2014]
8 SCR 128; State of West Bengal v. Dinesh Dalmia
(2007) 5 SC 773 : [2007] 5 SCR 561; Niranjan Singh
& Anr. v. Prabhakar Rajaram Kharote & Ors. (1980) 2
SCC 559 : [1980] 3 SCR 15 – referred to.
Buzadji v. Moldova 398 Butterworths Human Rights
Cases 42 – referred to.
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Case Law Reference
[2018] 11 SCR 951
referred to
Para 4
[1986] 2 SCR 1128
relied on
Para 9
[2013] 14 SCR 713
referred to
Para 22
[1953] SCR 254
referred to
Para 26
[1962] Suppl. SCR 915
referred to
Para 28
[1985] Suppl. SCR 83
relied on
Para 44
[1982] 2 SCR 272
followed
Para 44
[1978] 2 SCR 621
relied on
Para 51
[2004] 2 Suppl. SCR 71
relied on
Para 56
[1992] 3 SCR 158
relied on
Para 58
[2012] 8 SCR 993
relied on
Para 61
[2019] 5 SCR 91
relied on
Para 62
[1977] 3 SCR 7
relied on
Para 83
[1987] 3 SCR 84
referred to
Para 84
[1969] 3 SCR 154
referred to
Para 101
[2014] 8 SCR 128
referred to
Para 102
[2007] 5 SCR 561
referred to
Para 129
[1980] 3 SCR 15
referred to
Para 129
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 510 of 2021.
From the Judgment and Order dated 08.02.2021 of the High Court
of Judicature at Bombay  in Criminal Appeal Stamp No. 1707 of 2020.
Kapil Sibal, Ms. Nitya Ramakrishnan, Sr. Advs., Ms. Warisha
Farasat, Shadan Farasat, Nizam Pasha, Shourya Dasgupta, Ms. Hafsa
Khan, Bharat Gupta, Advs. for the Appellant.
S.V. Raju, ASG., Ms. Sairica Raju, Guntur Pramod Kumar, B.V.
Balaram Das, Advs. for the Respondent.
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY
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The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Leave granted.
2. On the basis of FIR No. 4 of 2018 dated 08.01.2018, registered
at Vishrambagh Police Station, Pune, Maharashtra, which was one
registered under Sections 153A, 505(1B) and Section 34 of IPC to which
Section 120(B) was added on 06.03.2018 and still further into which,
Sections 13, 16, 17, 18, 18B, 20, 38 and 40 of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as ‘the UAPA’, for short),
were added on 17.05.2018, and, in which FIR, the name of the appellant
was added on 22.08.2018, the appellant came to be arrested from his
residence in Delhi on 28.08.2018. The appellant moved Writ Petition
No. 2559 of 2018 seeking a Writ of Habeas Corpus in the High Court of
Delhi. The High Court, apart from issuing notice, inter alia, ordered
that no further precipitate action of removing the appellant from Delhi
be taken till the matter was taken at 04:00 P.M.. The Order was passed
at 02:45 P.M.. In the meantime, the CMM at Saket, Delhi disposed of an
Application seeking transit remand with the following Order:
“FIR No. 4/18
PS: Vishrambagh, Pune, Maharashtra
U/s: 153A/505(1)(B)/117/34 1PC & u/s 13/15/17/18/185/20/39/
40 of Unlawful Activities Prevention Act.
State Vs. Gautam Pratap Navlakha
28.08.2018
Present: Sh. Jagdamba Pandey, Ld. APP for the State
IO Assistant Police Inspector Sushil V. Bobde alongwith
ACP Ganesh Gawade and
DCP Bachchan Singh Inspector
Sanjay Gupta, PS Special Cell, Lodhi Colony, New Delhi.
Accused Gautam Pratap Navlakha produced in Police custody.
Sh. Om Prakash, Ld. LAC for the accused.
This is a handwritten application preferred by the 10 Assistant
Police Inspector Sushil V. Bodbe seeking transit remand of two
days the above noted accused persons. The identity of 10 as a
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police officer of P Vishrambagh, Pune, Maharashtra is established
upto my satisfaction upon his having shown his identity card.
Heard. It is submitted by the IO that above noted accused is
required in above noted case FIR registered at PS Vishrambagh,
Pune, Maharashtra and has been arrested from his house at
Kalkaji, Delhi. It is further submitted by the IO that the accused
has been arrested without warrant and he is required to be produced
before competent Court i.e. Court of Ld. Special Court, Shivaji
Nagar, Pune, Maharashtra and therefore, his transit remand may
be granted.
Heard. Considered. I have given my thoughtful consideration
to the submissions made by the IO and the APP for the State.
As per the police papers, FIR No 4/18 has been registered under
sections 153A/505(1)(B)/117/34 IPC &u/s 13/16/17/18/18B/20/
39/40 of Unlawful Activities Prevention Act at police station
Vishronbagh, Pune, Maharashtra wherein the accused is required.
As per the arrest memo the accused namely Gautam Pratap
Navlakha was arrested on 28.08.2018 at. 2.15 pm at Kalkajl, Delhi.
Intimation of arrest of accused has been given to his partner/
friend.
As the accused is required for further investigation of the case,
therefore, his transit remand is granted till 30.08.2018. The accused
be produced before the concerned Ld. Special Court, Shivaji
Nagar, Pune, Maharashtra on or before 30.08.2018 without fail.
Accused be got medically examined as per rules and the directions
of
the Hon’ble Supreme Court. A copy of this order be given dasti
to the Investigating Officer.
Application of transit remand is disposed of accordingly.
Necessary record be maintained by the Ahlmad.
(Manish Khurana)
Commissioner/SE/ District Court, Saket
New.Delh1/28.08.2018"
3. Thereafter, when the Writ Petition, filed by the appellant before
the High Court, came up at 04.00 P.M., the High Court passed the
following Order on 28.08.2018:
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“2. Court is informed at 4 pm by Mr. Rahul Mehra, learned
Standing Counsel for the State that an order was passed today by
the learned Chief Metropolitan Magistrate (CMM), South East
District, Saket in the post lunch session granting transit remand
for producing the Petitioner before the learned Special Court,
Shivaji Nagar, Pune on or before 30th August, 2018.
3. 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.
4. Since it is already 4.30 pm, the Court considers it appropriate to
direct that pursuant to the order dated 28th August, 2018 of the
learned CMM, the petitioner will not be taken away from Delhi
and this case will be taken up as the first case tomorrow morning.
5.Translations of all the documents produced before the CMM be
provided to this Court tomorrow.
6. The petitioner shall, in the meanwhile, be kept at the same
place from where the was picked up with two guards of the Special
Cell, Delhi Police along with local Police that was originally here
to arrest the petitioner, outside the house. Barring his lawyers,
and the ordinary residents of the house, the petitioner shall not
meet any other persons or step out of the premises till further
orders.”
4. A Writ Petition was filed in the Supreme Court as Writ Petition
(Criminal) Diary No. 32319 of 2018 on the next day. This Writ Petition
was filed by five illustrious persons in their own fields, as is observed by
this Court in the Judgment, which is reported in Romila Thapar and
Others vs. Union of India and others1. The subject matter of the Writ
Petition was the allegedly high-handed action of the Maharashtra Police
and the arrest of five Activists which included the appellant on 28.08.2018
from their homes. The relief sought by the Writ Petitioners was to ensure
a credible investigation into the arrest of the five Human Rights Activists.
1 (2018) 10 SCC 753
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Interim orders were passed in the Writ Petition by this Court, under
which, the benefit of house arrest of the appellant, inter alia, was also
ordered to be extended to others. The order of house arrest of appellant
was extended. The relief sought for, namely, an independent investigation
in the Writ Petition, filed in this Court, was rejected by the majority of
Judges with Dr. D.Y. Chandrachud, J., dissenting. We notice paragraph-
40, which reads as follows:
“40. Accordingly, this writ petition is disposed of with liberty to
the accused concerned to take recourse to appropriate remedy
as may be permissible in law. The interim order passed by this
Court on 29-8-2018 (Romila Thapar v. Union of India, 2018 SCC
OnLine SC 1343) shall continue for a period of four weeks to
enable the accused to move the court concerned. The said
proceedings shall be decided on its own merits uninfluenced by
any observation made in this judgment, which is limited to the
reliefs claimed in the writ petition to transfer the investigation to
an independent investigating agency and/or court-monitored
investigation. The investigating officer is free to proceed against
the accused concerned as per law. All the accompanying
applications are also disposed of in terms of this judgment.”
5. This Judgment was rendered on 28.09.2018 by this Court.
Thereafter, the Writ Petition, filed by the appellant, before the High Court
of Delhi, was allowed. We may, at once notice, that the relief
sought in
the Writ Petition was initially one seeking a Writ of Habeas Corpus.
Thereafter, the Court came to be concerned with the legality of the
Order of transit remand passed by the CMM, which we have adverted
to. We may notice only, paragraphs-28 and 29, 30 and 31 of judgment
dated 01.10.2018:
 “28. With there being several non-compliances of the mandatory
requirement of Article 22(1), Article 22(2) of the Constitution and
Section 167 read with Section 57 and 41(1)(ba) of the Cr PC,
which are mandatory in nature, it is obvious to this Court that the
order passed by the learned CMM on 28th August, 2018 granting
transit remand to the Petitioner is unsustainable in law. The said
order is accordingly hereby set aside.
29. In view of Section 56 read with Section 57 Cr PC, in the
absence of the remand order of the learned CMM, the detention
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of the Petitioner, which has clearly exceeded 24 hours, is again
untenable in law. Consequently, the house arrest of the Petitioner
comes to an end as of now.
30. It is clarified that this order will not preclude the State of
Maharashtra from proceeding further in accordance with law.
31.  At this stage, Mr. Navare submits that this Court should extend
the house arrest of the Petitioner by two more days since the
Supreme Court had itself extended his house arrest for four weeks.
This submission overlooks the fact that the Supreme Court had
extended the Petitioner’s house arrest only in order to enable him
to avail of the remedies that were permissible to him in accordance
with law. As far as the present Petitioner is concerned, the fact
that this writ petition filed by him was already pending before this
Court, was noticed by the Supreme Court and it was made clear
that he is free to pursue this remedy among others in accordance
with law. The extension of his house arrest by the Supreme was
only for that limited purpose. Consequently, this Court is unable to
accede to the request of Mr. Navare.”
(Emphasis supplied)
6. The appellant filed Writ Petition No. 4425 of 2018 dated
05.10.2018 for quashing the FIR. The High Court protected the appellant
from arrest during the pendency of the said Writ Petition. Charge-sheet
was filed against the appellant’s co-accused on 15.11.2018. Then, this is
followed-up by a supplementary
charge-sheet against the co-accused
on 21.02.2019. On 13.09.2019, the High Court of Bombay dismissed the
Writ Petition filed by appellant against the FIR. The interim protection
from arrest was, however, extended by three weeks. The Special Leave
Petition filed by appellant, as SLP (Criminal) No. 8862 of 2019, came to
be disposed of by acceding to the request of the appellant that the appellant
may apply for anticipatory bail before the competent Court. The Court
extended the interim protection, which was given to the appellant for
another period of four weeks, from 15.10.2019 and he was given liberty
to apply for regular/anticipatory bail. The Application seeking anticipatory
bail came to be dismissed by the Sessions Court by Order dated
12.11.2019.
7. The Appellant approached the High Court of Bombay seeking
anticipatory bail, which was declined by Order dated 14.02.2020.
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However, the High Court granted protection from arrest for four weeks.
The Special Leave Petition filed, challenging the Order by the High Court,
came to be disposed of by Order dated 16.03.2020. By the said Order,
this Court dismissed the Special Leave Petition. In its Order, this Court
noticed that since the appellant had enjoyed protection for approximately
one and a half years, three weeks’ time was granted to surrender. It is,
thereafter, that on 08.04.2020, this Court extended the time by a period
of one week for surrendering and, accordingly, on 14.04.2020, the
appellant surrendered before the NIA, Delhi. On 15.04.2020, seven days
police custody was granted by the Sessions Court, New Delhi. On
21.04.2020, the further remand of seven days was ordered. Before the
expiry of the appellant’s policy custody, he was remanded to judicial
custody on 25.04.2020. The appellant was transferred to Mumbai on
26.05.2020 and he was remanded to judicial custody. It is, thereafter,
that the appellant moved for default bail on 11.06.2020. In calculating
the period of custody for the purpose of filing the Application for default
bail, the appellant, included the period of 34 days of house arrest from
28.08.2018 to 01.10.2018. Further, eleven days of custody with the NIA
from 15.04.2020 till 25.04.2020 and forty-eight days in Tihar Jail, Delhi
and Taloja Jail, Mumbai from 25.04.2020 to 12.06.2020 (judicial custody),
were also added. The NIA, it would appear, filed
Application for extension
of time to file charge-sheet after 110 days of custody on 29.06.2020.
The NIA Special Court, before which the Application for default bail
was moved, rejected the Application on 12.07.2020. The appellant
preferred an Appeal before the High Court of Bombay challenging the
Order dated 12.07.2020. On 09.10.2020, the NIA filed the charge-sheet
against the appellant, inter alia. By the impugned Order dated 08.02.2021,
the High Court of Bombay, dismissed the Appeal, which was filed under
Section 21 of the NIA Act.
8. We heard Shri Kapil Sibal, learned Senior Counsel as also Smt.
Nitya Ramakrishnan, learned Senior Counsel assisted by Shri Shadan
Farasat for the appellant and Shri S.V. Raju, learned Additional Solicitor
General, on behalf of the respondent.
THE FINDINGS IN THE IMPUGNED ORDER
9. During the period of the house arrest, the appellant was not
supposed to meet anyone, barring his lawyers and ordinary residents of
the house. He could not step out of the premises. There were to be two
Guards of the Special Cell of Delhi Police outside the house. The
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Investigating Agency/Investigating Officer did not have any access to
him or occasion to interrogate him. The Transit Remand Order being
stayed, it could not be said that the appellant was under the detention of
the Police for investigation. Under Section 167(2) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the CrPC’, for short), the
Magistrate has to authorise the detention. The High Court having stayed
the transit remand and finally having set aside the transit remand, thereby
holding the detention to be illegal, there was no authorised detention by
an Order of the Magistrate. Therefore, the appellant cannot claim the
benefit of default bail. It is an indispensable requirement to claim the
benefit of default bail that the detention of the accused has to be
authorised by the Magistrate. The authorisation by the Magistrate having
been declared illegal, the detention itself was illegal. The said period
(house arrest custody) cannot be treated as authorised custody under
Section 167(2) of the CrPC. The Court drew support from decision of
this Court which is reported in Chaganti Satyanarayan & Ors. v. State
of Andhra Pradesh2, to hold that the period of 90 days will commence
only from the date of remand and not from any anterior date in spite of
the fact that the accused may have been taken into custody earlier. The
Court held that it was not possible for it to hold that every detention,
which may
have resulted in deprivation of liberty of the accused, to be
an authorised detention under Section 167(2) of the Cr.P.C. Sans any
valid authorisation of the Magistrate, detaining the appellant, he was not
entitled to default bail. Thus, the Court took the view that the period,
when the appellant was under the house arrest, i.e., 28.08.2018 to
01.10.2018, had to be excluded. After the High Court of Delhi set aside
the Transit Remand Order, it was noted that the appellant had applied
for anticipatory bail, which was rejected at all stages and, ultimately, the
appellant surrendered only on 14.04.2020. It was based on the said
surrender that the Magistrate authorised police custody.
SUBMISSIONS OF THE APPELLANT
10. The learned Senior Counsel for the appellant contended that
there is no substance in the reasoning of the High Court that the period
of 34 days, during which, the appellant was under house arrest, could
not be included within the period of 90 days, for the reason that the
Investigating Officer did not have access to the appellant, and it is
untenable. It was contended that nothing prevented the Officers from
2 (1986) 3 SCC 141
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interrogating the appellant/investigating the matter, if need be, after
obtaining the leave of the High Court of Delhi. It the appellant’s contention
that under Section 167 of the CrPC, what is contemplated is granting of
such custody by the Magistrate, as he thinks fit. The provision does not
contemplate access to the Police for interrogation as a condition. It is
pointed out that it is open to the Magistrate and it is often so done that
right from the first day of remand, what is granted is judicial custody,
wherein Police have no access to the accused. However, such judicial
custody is reckoned for calculating the period for considering an
Application for default bail. Still further, it is pointed out that under Section
43D(2)(b), of UAPA Police Custody can be sought at any time. It is
further contended that there was no stay of investigation. The two
conditions required for attracting Section 167 are pointed out to be as
follows: (a) A person is arrested under Section 57 of the Cr.P.C. while
investigating a cognisable offence and (b) he is produced before a
Magistrate after his arrest. It is contended that in the case of the appellant,
both the conditions were fulfilled having regard to the fact that the
appellant stood arrested on 28.08.2018 and he was produced before the
Magistrate for the remand. It was next contended that the fact that the
High Court of Delhi finally set aside the said remand and held that the
detention was illegal, was an
untenable ground to hold that there was no
remand under Section 167 of the CrPC. Appellant lay store by the Order
of the High Court of Delhi, wherein it had concluded that the house
arrest of the appellant ‘comes to an end as of now’. It is contended that
the Court has not treated the period of house arrest as either nonest or
void. Custody, it is pointed out, was authorised by the Magistrate under
Section 167. It was extended by a modification by the High Court and,
thereafter, by this Court. The High Court of Delhi, it is pointed out, only
stayed the transit and not the remand Order. The Court only modified
the nature of the remand, i.e., from transit in Police custody to within the
confines of the appellant’s house. The detention, being found to be illegal,
cannot wipe out the period of detention. The Order of the High Court of
Delhi, providing for house arrest can only be sourced from Section 167
of the CrPC. What is required under Section 167 of the CrPC is the total
period of custody which can include broken periods and the custody
need not be one continuous lot. It is contended that Section 167 does not
distinguish between transit or other remand. The remand, be it a transit
remand, has to be sourced to Section 167 of the Cr.P.C. and there is no
other provision for the transit remand. The High Court has itself found
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that appellant was in custody when he was under the house arrest. It is
then pointed out that the High Court did not have any inherent power to
place a person in custody. In this case the power can only, therefore, be
what flows from Section 167 of the CrPC. It is the Order of transit
remand which occasioned the custody. It was contended that the High
Court or any superior Court can modify or change the nature of the
Magisterial remand. The modified nature of the remand by the High
Court of Delhi and this Court was never set aside.
SUBMISSIONS OF THE RESPONDENT
11. Mr. S.V. Raju, learned Additional Solicitor General would
support the order of the High Court:-
a. He points out that at the time when the writ petition was filed in
the High Court of Delhi seeking a writ of habeas corpus, the
order of transit remand had not been passed by the CMM, Saket.
b. In his application seeking for anticipatory bail, the appellant had
sought through his pleadings to project the need to be protected.
The protection was granted which was continued in various
proceedings as already noticed.
c. Reliance is placed on the bar under Section 43(D)(4) of UAPA
against the grant of anticipatory bail.
d. He referred to paragraph 12 of the order rejecting appellant’s
plea for anticipatory bail. It is pointed out that it was the case of
the appellant that this Court had protected his liberty by granting
house arrest inter alia. The meat of the
matter is that it was
understood by the appellant himself that the house arrest was a
protection from custody and therefore it could not be understood
as custody within the meaning of Section 167 of the Code of
Criminal Procedure. In short, house arrest was permitted in
exercise of the extraordinary powers available to this Court.
12. It is further pointed out that house arrest according to the
appellant itself was unknown to the code. It is further the case of the
respondent that an accused who is remanded to custody under Section
167 of the Cr.P.C. cannot come out of the custody unless he is bailed out
or unless he is acquitted. There is no bail in favour of the appellant. He
was also not remanded to judicial custody. The so-called custody during
the house arrest, in other words, was not custody or detention within the
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meaning of Section 167 of the Cr.P.C. It also was not a police custody
because the investigating agency had no access to the accused during
this period. Thus, a period of 34 days in house arrest was neither judicial
custody nor police custody as provided in Section 167 of the Cr.P.C. The
order of the High Court is relied upon to point out that the Court
contemplated that the house arrest came to an end with the judgment.
The fact that the High Court did not grant bail when it pronounced the
judgment on 1.10.2018, would go to show that it was not an order passed
under Section 167 of the Cr.P.C. The contention which found favour
with the High Court is reiterated, namely, with its judgment on 01.10.2018,
the Court has set the clock back and treated the arrest of the appellant
as non-est. This is for the reason that the appellant was not bailed out.
He was not placed in judicial custody. With the house arrest coming to
an end, the appellant became a free person, entitled to apply for
anticipatory bail which he availed of. The application for anticipatory
bail presupposes that the arrest on 28.08.2018 was non-est since a person
could not be arrested for an offence twice. By refusing anticipatory bail,
the Courts including this Court permitted the arrest of the appellant for
the same offences for which he was arrested earlier. This indicates that
the earlier proceedings were treated as non-est for all practical purposes.
The surrender by the appellant estopped
the appellant from projecting
the house arrest as custody within the meaning of Section 167 of the
Cr.P.C. The order passed by CMM, Saket was only an order for
production and not an order for detention in custody. Reading Section
167 alongwith Sections 56 and 57 of the Cr.P.C., it is pointed out that the
order of transit remand is to be understood as an order extending the
period of arrest of 24 hours for the purpose of facilitating the production
of accused before the competent Magistrate which in this case, was the
competent Court located at Pune. Sections 56, 57 and 167 is relied upon
to contend that since there is a duty to produce an arrested person within
24 hours, Section 57 provided for a special order under Section 167 for
such detention beyond 24 hours for production of the accused before
the competent Court. Orders are ordinarily passed under this Section
167 are either orders of police remand or orders remanding an accused
to judicial custody. The special order referred to in Section 57 is the
order forwarding the accused to a Magistrate having jurisdiction to either
try the case or commit the accused. In a case where an accused is
presented before a Magistrate not having such jurisdiction, the Magistrate
has no authority or power to remand an accused to judicial custody.
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Therefore, the order of transit remand is not an order for the purpose of
including the period in computing 90 days and it is only a production
order. At any rate, it is pointed out that the order of Saket Court (transit
order), even if it is considered to be an order under Section 167 of Cr.PC,
it was hardly in force for a couple of hours till the Delhi High Court
stayed the same around 4.00 p.m. on the very day. Even if this period of
1 day is included for the purpose of computing the period of 90 days, the
appellant would not become entitled to default bail. It is further the case
of the respondent that the interpretation adopted by the appellant would
render police custody under Section 167 illusory.
13. The investigating authorities would be deprived of the
opportunity for custodial interrogation during the first 15 days or 30 days
in case of UAPA offences. The interpretation which frustrates a fair
investigation under the statute should be avoided.
14. Act of Court should not negatively impact the investigating
agency- the maxim “Actus curiae neminem gravabit” would apply in the
present case.
15. The order passed by the High Court of Delhi in the writ petition
seeking habeas corpus was not an order under Section 167 of the Cr.P.C.
If the submission of the appellant is accepted, it would mean that the
appellant was remanded to police custody after 30 days i.e., on 15.04.2020
and 21.04.2020. The appellant never
objected to the same. This clearly
shows that the present contention of the appellant is a mere after thought.
The period of arrest has to be excluded and the period has to be reckoned
from the date of production. The submission is based on the decision of
this Court in Chaganti Satyanarayana(supra). This is after treating
15.04.2020 to be the date of production.
ANALYSIS
16. Though the final question to be answered is whether the period
of 34 days spent in house arrest by the appellant is to be counted towards
the period of 90 days under Section 167 Cr.P.C., several issues arise
which we articulate as follows:
1) What is the nature of an order of transit remand? Is it an order
passed under Section 167 of the Cr.PC.?
2) What is the nature of the interim order dated 28.08.2018 passed
in the writ petition by the appellant in the High Court of Delhi as
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extended? Are these orders passed under Section 167 of the
Cr.P.C.?
3) What is the effect of the judgment of the High Court of Delhi
dated 1.10.2018 wherein the arrest of the appellant and the transit
remand are found illegal?
4) Does the House arrest of the appellant amount to police custody
or judicial custody? Can there be an order for custody other than
police custody and judicial custody under Section 167 Cr.P.C.? Is
House arrest custody within the embrace of Section 167 of
Cr.P.C.?
5) Is the House arrest of the appellant not custody under Section
167 of the Cr.P.C. on the score that the appellant could not be
interrogated by the competent investigating officer?
6) What is the effect of the appellant being in police custody from
15.4.2020 till 25.4.2020 and the alleged acquiescence of the
appellant in the order and the custody undergone by the appellant?
7) Whether broken periods of custody otherwise traceable to
Section 167 Cr.P.C. suffice to piece together the total maximum
period of custody permitted beyond which the right to default bail
arises or whether the law giver has envisaged only custody which
is continuous?
8) What is the impact of mandate of Article 21 and Article 22 of
the Constitution?
17. Before we deal with the various issues, it is necessary to note
certain salient features of the Constitution, Cr.P.C. and also Unlawful
Activities (Prevention) Act (UAPA).
18. Article 21 of the Constitution incorporates invaluable
fundamental rights
insofar as it declares that no person shall be deprived
of his life or personal liberty except according to procedure established
by law. Article 22 (1) and (2) read as follows:
“2. Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by,
a legal practitioner of his choice
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(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-
four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said period
without the authority of a magistrate”
19. Chapter V of the Cr.P.C. deals with “Arrest of Persons”.
Section 41 deals with situations in which any police officer may arrest
any person without an order from a Magistrate or without a warrant.
Section 41 (1)(a) to 41 (1)(d) provides for safeguards to avoid arbitrary
arrest and also confer certain rights on the person arrested. They were
inserted by Act 5 of 2009 with effect from 1.11.2010. Section 43 Cr.P.C.
provides for power to arrest even by a private person and the procedure
to be followed in such case. Section 48 Cr.P.C. reads as follows:
“48. Pursuit of offenders into other jurisdictions. A police officer
may, for the purpose of arresting without warrant any person whom
he is authorised to arrest, pursue such person into any place in
India.”
20. Sections 56 and 57 Cr.P.C. are also relevant and we refer to
the same.
“56. Person arrested to be taken before Magistrate officer in
charge of police station. - A police officer making an arrest without
warrant shall, without unnecessary delay and subject to the
provisions herein contained as to bail,
take or send the person
arrested before a Magistrate having jurisdiction in the case, or
before the officer in charge of a police station.
57. Person arrested not to be detained more than twenty- four
hours. - No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances
of the case is reasonable, and such period shall not, in the absence
of a special order of a Magistrate under section 167, exceed
twenty- four hours exclusive of the time necessary for the journey
from the place of arrest to the Magistrate’ s Court.”
21. Chapter VI deals with Processes to compel Appearance.
Part A of Chapter VI deals with Summons. Part B deals with Warrant
of arrest. Warrant of arrest contemplated are those issued by a court
under Cr.P.C. Section 76 Cr.P.C. reads as follows:
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“76. Person arrested to be brought before Court without delay.
The police officer or other person executing a warrant of arrest
shall (subject to the provisions of section 71 as to security) without
unnecessary delay bring the person arrested before the Court
before which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed twenty-
four hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate’s Court.”
22. Under Section 77 Cr.P.C., a warrant of arrest may be executed
at any place in India. Chapter XII deals with Information to the Police
and their Powers to Investigate. The mandatory duty of police officer
to register first information report has been elaborately considered by a
Constitution Bench of this Court in the decision reported in Lalita Kumari
vs. Government of Uttar Pradesh and others3.
23. Section 156 Cr.P.C. reads as follows:
“156. Police officer’ s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a Court
having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the provisions
of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any
stage be called in question on the ground that the case was one
which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under section 190 may order such
an investigation as above- mentioned.”
24. Under Section 156 Cr.P.C., any police officer in charge of a
police station can without order of a Magistrate investigate any cognizable
case which a court having jurisdiction over the local area within the
limits of such station have the power to try. Section 157 deals with
Procedure for investigation. The said provision contemplates inter
alia the power to proceed, to the spot, to investigate the facts and
circumstance of the case, and if necessary, take measures for the
3 (2014) 2 SCC 1
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discovery and arrest of the offender. It is also pertinent to notice Section
167 Cr.P.C. It reads as under:
“167. Procedure when investigation cannot be completed in
twenty-four hours.—(1) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours fixed by
Section 57, and there are grounds for believing that the accusation
or information is well-founded, the officer in charge of the police
station or the police officer making the investigation, if he is not
below the rank of sub-inspector, shall forthwith transmit to the
nearest Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at the same
time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole; and if he has no jurisdiction
to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that—
[(a) the Magistrate may authorise the detention of the accused
person, otherwise than in the custody of the police, beyond the
period of
fifteen days, if he is satisfied that adequate grounds
exist for doing so, but no Magistrate shall authorise the detention
of the accused person in custody under this paragraph for a total
period exceeding, —
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment for
a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days,
as the case may be, the accused person shall be released on bail
if he is prepared to and does furnish bail, and every person released
on bail under this sub-section shall be deemed to be so released
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under the provisions of Chapter XXXIII for the purposes of that
Chapter;]
[(b) no Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and subsequently
every time till the accused remains in the custody of the police,
but the Magistrate may extend further detention in judicial custody
on production of the accused either in person or through the medium
of electronic video linkage;]
(c) no Magistrate of the second class, not specially empowered in
this behalf by the High Court, shall authorise detention in the custody
of the police.
[Explanation I.—For the avoidance of doubts, it is hereby declared
that, notwithstanding the expiry of the period specified in paragraph
(a), the accused shall be detained in custody so long as he does
not furnish bail.]
[Explanation II. —If any question arises whether an accused
person was produced before the Magistrate as required under
clause (b), the production of the accused person may be proved
by his signature on the order authorising detention or by the order
certified by the Magistrate as to production of the accused person
through the medium of electronic video linkage, as the case may
be:]
[Provided further that in case of a woman under eighteen years
of age, the detention shall be authorised to be in the custody of a
remand home or recognised social institution.]
[(2-A) Notwithstanding anything contained
in sub-section (1) or
sub-section (2), the officer in charge of the police station or the
police officer making the investigation, if he is not below the rank
of a sub-inspector, may, where a Judicial Magistrate is not
available, transmit to the nearest Executive Magistrate, on whom
the powers of a Judicial Magistrate, or Metropolitan Magistrate
have been conferred, a copy of the entry in the diary hereinafter
prescribed relating to the case, and shall, at the same time, forward
the accused to such Executive Magistrate, and thereupon such
Executive Magistrate, may, for reasons to be recorded in writing,
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authorise the detention of the accused person in such custody as
he may think fit for a term not exceeding seven days in the
aggregate; and, on the expiry of the period of detention so
authorised, the accused person shall be released on bail except
where an order for further detention of the accused person has
been made by a Magistrate competent to make such order; and,
where an order for such further detention is made, the period
during which the accused person was detained in custody under
the orders made by an Executive Magistrate under this sub-section,
shall be taken into account in computing the period specified in
paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the
Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the
entries in the diary relating to the case which was transmitted to
him by the officer in charge of the police station or the police
officer making the investigation, as the case may be.]
(3) A Magistrate authorising under this section detention in the
custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making
such order shall forward a copy of his order, with his reasons for
making it to the Chief Judicial Magistrate.
(5) If in any case triable by Magistrate as a summons-case, the
investigation is not
concluded within a period of six months from
the date on which the accused was arrested, the Magistrate shall
make an order stopping further investigation into the offence unless
the officer making the investigation satisfies the Magistrate that
for special reasons and in the interests of justice the continuation
of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence
has been made under sub-section (5), the Sessions Judge may, if
he is satisfied, on an application made to him or otherwise, that
further investigation into the offence ought to be made, vacate
the order made under sub-section (5) and direct further
investigation to be made into the offence subject to such directions
with regard to bail and other matters as he may specify.”
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25. Section 43(D) (2) of UAPA provides for the modified
application of Section 167.
26. In State of Punjab v. Ajaib Singh4, the court had to deal with
ambit of Article of 22(1) and also the scope of the expression “arrest”
contained therein.
“16. Broadly speaking, arrests may be classified into two
categories, namely, arrests under warrants issued by a court and
arrests otherwise than under such warrants. As to the first category
of arrest, Sections 75 to 86 collected under sub-heading “B-
Warrant of Arrest” in Chapter VI of the Code of Criminal
Procedure deal with arrests in execution of warrants issued by a
court under that Code. Section 75 prescribes that such a warrant
must be in writing signed by the presiding officer, or in the case of
a Bench of Magistrates, by any Member of such Bench and bear
the seal of the court. Form No. II of Schedule V to the Code is a
form of warrant for the arrest of an accused person. The warrant
quite clearly has to state that the person to be arrested stands
charged with a certain offence. Form No. VII of that Schedule is
used to bring up a witness. The warrant itself recites that the
court issuing it has good and sufficient reason to believe that the
witness will not attend as a witness unless compelled to do so.
The point to be noted is that in either case the warrant ex facie
sets out the reason for the arrest, namely, that the person to be
arrested has committed or is suspected to have committed or is
likely to
commit some offence. In short, the warrant contains a
clear accusation against the person to be arrested. Section 80
requires that the police officer or other person executing a warrant
must notify the substance thereof to the person to be arrested,
and, if so required, shall show him the warrant. It is thus abundantly
clear that the person to be arrested is informed of the grounds for
his arrest before he is actually arrested. Then comes Section 81
which runs thus:
“The police officer or other person executing a warrant of arrest
shall (subject to the provisions of Section 76 as to security) without
unnecessary delay bring the person arrested before the court
before which he is required by law to produce such person.”
4 AIR 1953 SC 10
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17. Apart from the Code of Criminal Procedure, there are other
statutes which provide for arrest in execution of a warrant of
arrest issued by a court. To take one example, Order 38 Rule 1 of
the Code of Civil Procedure authorises the court to issue a warrant
for the arrest of a defendant before judgment in certain
circumstances. Form No. 1 in Appendix F sets out the terms of
such a warrant. It clearly recites that it has been proved to the
satisfaction of the court that there is probable cause for belief
that the Defendant 1s about to do one or other of the things
mentioned in Rule 1. The court may under Section 55 read with
Order 21 Rule 38, issue a warrant for the arrest of the judgment-
debtor in execution of the decree. Form 13 sets out the terms of
such a warrant. The warrant recites the decree and the failure of
the judgment-debtor to pay the decretal amount to the decree-
holder and directs the bailiff of the court to arrest the defaulting
judgment-debtor, unless he pays up the decretal amount with costs
and to bring him before the court with all convenient speed. The
point to be noted is that, as in the case of a warrant of arrest
issued by a court under the Code of Criminal Procedure, a warrant
of arrest issued by a court under the Code of Civil Procedure
quite plainly discloses the reason for the arrest in that it sets out
an accusation of default, apprehended or actual, and that the person
to be arrested
is made acquainted with the reasons for his arrest
before he is actually arrested.”
Also in para 20, this Court laid down as follows:-
“20. Turning now to Article 22(1) and (2), we have to ascertain
whether its protection extends to both categories of arrests
mentioned above, and, if not, then which one of them comes within
its protection. There can be no manner of doubt that arrests without
warrants issued by a court call for greater protection than do
arrests under such warrants. The provision that the arrested person
should within 24 hours be produced before the nearest Magistrate
is particularly desirable in the case of arrest otherwise than under
a warrant issued by the court, for it ensures the immediate
application of a judicial mind to the legal authority of the person
making the arrest and the regularity of the procedure adopted by
him. In the case of arrest under a warrant issued by a court, the
judicial mind had already been applied to the case when the warrant
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was issued and, therefore, there is less reason for making such
production in that case a matter of a substantive fundamental
right. It is also perfectly plain that the language of Article 22(2)
has been practically copied from Sections 60 and 61 of the Code
of Criminal Procedure which admittedly prescribe the procedure
to be followed after a person has been arrested without warrant.
The requirement of Article 22(1) that no person who is arrested
shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest indicates that the clause
really contemplates an arrest without a warrant of court, for, as
already noted, a person arrested under a court’s warrant is made
acquainted with the grounds of his arrest before the arrest is
actually effected. There can be no doubt that the right to consult
a legal practitioner of his choice is to enable the arrested person
to be advised about the legality or sufficiency of the grounds for
his arrest. The right of the arrested person to be defended by a
legal practitioner of his choice postulates that there is an accusation
against him against which he has to be defended. The language
of Article 22(1) and (2) indicates that the fundamental right
conferred by it gives protection against such arrests as are effected
otherwise than under a warrant issued by a court on the allegation
or accusation that the arrested person has, or is suspected to have,
committed, or is about or likely to
commit an act of a criminal or
quasi-criminal nature or some activity prejudicial to the public or
the State interest. In other words, there is indication in the language
of Article 22(1) and (2) that it was designed to give protection
against the act of the executive or other non-judicial authority.
The Blitz case (Petition No. 75 of 1952), on which Sri Dadachanji
relies, proceeds on this very view, for there the arrest was made
on a warrant issued, not by a court, but, by the Speaker of State
Legislature and the arrest was made on the distinct accusation of
the arrested person being guilty of contempt of the legislature. It
is not, however, our purpose, nor do we consider it desirable, to
attempt a precise and meticulous enunciation of the scope and
ambit of this fundamental right or to enumerate exhaustively the
cases that come within its protection. Whatever else may come
within the purview of Article 22(1) and (2), suffice it to say for
the purposes of this case, that we are satisfied that the physical
restraint put upon an abducted person in the process of recovering
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and taking that person into custody without any allegation or
accusation of any actual or suspected or apprehended commission
by that person of any offence of a criminal or quasi-criminal nature
or of any act prejudicial to the State or the public interest, and
delivery of that person to the custody of the officer in charge of
the nearest camp under Section 4 of the impugned Act cannot be
regarded as arrest and detention within the meaning of Article
22(1) and (2). In our view, the learned Judges of the High Court
over-simplified the matter while construing the article, possibly
because the considerations hereinbefore adverted to were not
pointedly brought to their attention.”
[Emphasis supplied]
27. It will be noted that with the proviso in the Cr.P.C., 1973, in
Section 76, in the case of arrest under a warrant, the person is to be
produced before the Court within 24 hours with the exclusion of time
taken for travelling. Such a proviso was absent in Section (81) of the
Cr.P.C., 1898 which was considered by the Court.
28. In State of U.P. v. Abdul Samad5, the respondents who were
husband and wife were arrested for non-compliance with the order of
deportation passed against them. They were sent to Amritsar for being
deported to Pakistan. They were produced before the Magistrate on
23rd July, 1960 at 10.00 A.M. who ordered them to be kept in the Civil
Lines Police Station. They were brought back to Lucknow on the 25th
July 1960 based on a message from the High Court of Allahabad requiring
their production and they were produced before the Deputy Registrar,
High Court who directed them to be produced on the next day of the
morning. The court which was dealing with the writ of Habeas Corpus
by the respondents directed the respondents be produced the next day.
On 28th July 1960, the High court focussing on the second period i.e.
25th July 1960 to 2.00 p.m. 27th July, 1960 found that during this period
the respondents having not being produced before a Magistrate within
24 hours of the commencement of the custody the detention was found
to be violative of Article 22(2). It is on these facts the majority (Justice
K. Subba Roa -dissenting)held as follows:
“….It is very difficult to appreciate what exactly either of the
learned Judges had in mind in making these observations holding
5 AIR 1962 SC 1506
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that the guarantee under Article 22(2) had been violated. During
the “second stage” at which the learned Judges held that the
detention has been illegal because of a violation of Article 22(2),
the facts were these: The respondents had been brought back to
Lucknow on a message requiring their production before the High
Court. They reached Lucknow on the 25th at 1 p.m. and were
produced at 3 p.m. the same day i.e. within two hours of reaching
Lucknow before the Deputy Registrar. The Deputy Registrar had
directed their production the next day and they were accordingly
so produced. Even taking it that the Deputy Registrar was not a
judicial authority such as the learned Judges had in mind, the
respondents had been produced on 26th morning at 10.15 a.m.
before the learned Judges when they were at liberty to make any
order regarding the custody which they considered proper and
the time when they were produced before the Judges was
admittedly not beyond 24 hours from the time the respondents
reached Lucknow. On the 26th the learned Judges who took part
in the final decision passed an order directing the production of
the respondents on July 27, 1960 at 2 p.m. which obviously
permitted the previous custody to be continued till further orders.
They were produced accordingly at 2 p.m. on that day and by a
further order of July 27, 1960 the learned Judges had directed the
release of the respondents on bail and in pursuance of this order
the respondents had been
released on July 27, 1960 itself. In these
circumstances we are at a loss to understand which is the period
during “the second stage” or “on the 27th”, when the respondents
could be said to have been illegally detained for more than 24
hours without production before a judicial authority as required by
Article 22(2). We would add that even if Article 22(2) were
construed to require that a person arrested and detained has to be
produced before a Magistrate every 24 hours during his detention,
a meaning which it assuredly cannot bear, though it is not clear to
us whether the learned Judges did not understand the article to
require this, even such a requirement was satisfied in this case as
the respondents were during “the second stage” produced before
the High Court itself “for suitable orders” on the 26th and again
on the 27th. We have no desire to comment further on this judgment
of the learned Judges except to say that there was no justification
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whatsoever for the finding on the basis of which the learned Judges
directed the release of the respondents.”
[Emphasis supplied]
29. The aforesaid reasoning is not inapposite in the context of
Respondent’s case that only a Magistrate can authorize detention under
Section 167 Cr.PC.
PROCEEDINGS IN THE HIGH COURT OF DELHI
30. The writ petition filed by the appellant was mentioned before
the Chief Justice of the Court on 28.08.2018 at 2:15 p.m. From the
judgment, it is further clear that it was taken up at 2:45 p.m. on the same
day. The Court initially ordered that ‘no precipitate action be taken’ of
removing the appellant till the matter was taken up again at 4:00 p.m. In
the meantime, it would appear that in the transit remand application moved
by the Maharashtra police, the CMM, Saket passed the order on the
transit remand application which we have extracted.
31. We have also noticed the contents of the order which was
passed at 4:00 p.m. on 28.08.2018. The perusal of the judgment further
reveals that the counsel for the state of Maharashtra, in fact, raised the
preliminary objection to the maintainability of the writ. It reads as follows:-
“6. Mr. Vinay Navare, learned counsel appearing for the State of
Maharashtra, raised a preliminary objection to the maintainability
of the present writ petition relying on the recent judgment dated
5th September 2018 of a three judge bench of the Supreme Court
in Crl. A. 1124 of
2018 (State of Maharashtra v. Tasneem Rizwan
Siddiquee). He submitted that the Supreme Court has, in said
decision, reiterated the settled position in law, as explained in the
decisions in Manubhai Ratilal Patel v. State of Gujarat, (2013)
1 SCC 314 and Saurabh Kumar v. Jailor, Koneil Jail, (2014)
13 SCC 436, that once a person is in judicial custody pursuant to
a remand order passed by a magistrate in connection with an
offence under investigation, a writ of habeas corpus is not
maintainable.”
32. The High Court tides over this objection by holding as follows:-
“9. On the question of the maintainability of the present petition,
as already noticed earlier, this Court had even prior to the learned
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CMM passing the order on the remand application directed at
around 2.45 pm on 28th August 2018 that “no further precipitate
action of removing the Petitioner from Delhi be taken till the matter
be again taken up at 4 pm.” Mr. Rahul Mehra, learned Standing
Counsel for the State (NCT of Delhi) informed the Court that he
had conveyed the aforementioned interim order to the concerned
police officials at 2.54 pm on 28th August 2018. While it is not
clear if the learned CMM was actually informed of this Court’s
interim order, the arrest memo of the Petitioner shows that he
was arrested at 2.15 pm at his residence in Nehru Enclave. Given
a reasonable time taken to reach the Saket Court complex, it is
unlikely that the learned CMM heard the matter, perused the
remand application and then passed the order before 2.45 pm, i.e.
before this Court passed the interim order.
10. Consequently, when the present habeas corpus petition was
entertained and the above interim order was passed by this Court,
there was no order of the learned CMM granting transit remand
of the Petitioner. In each of the aforementioned decisions cited
by Mr. Navlakha the entertaining of the habeas corpus petition
by the High Court was subsequent to the transit remand order
passed by the concerned Judicial Magistrate. This one factor
distinguishes the present case from the above cases. Consequently,
this Court rejects the preliminary objection raised by Mr. Navakre
as to the maintainability of the
present writ petition.”
33. The High Court, thereafter, proceeded to find that even before
a Magistrate, before whom the transit remand application is filed, the
mandatory requirement of Section 167 is that the entries in the case
diary should be produced, is applicable. He is required to apply his mind
to ensure there exists material in the form of entries to justify the prayer
for transit remand. While the Magistrate examining the transit remand
application is not required to go into the adequacy of the material, he is
obliged to satisfy himself from about the existence of the material. He
further found that the Magistrate is bound to ask the arrested person
whether in fact, he has been informed about the grounds of arrest and
whether he requires to consult and be defended by any legal practitioner
of his choice. Though, a duty lawyer empanelled under the Legal Services
Authority Act, 1987 was shown representing the appellant, the High
Court noticed that the Magistrate did not ask the counsel of the arrested
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person whether he was informed about the grounds of arrest and whether
he asked to consult and be defended by the legal practitioner of his
choice. The High Court emphasized that this requirement does not get
diluted only because the proceedings are for transit remand. It was found
be the mandate under Article 22(1) of the Constitution. The appearance
of the duty lawyer was found to be essentially cosmetic and not in the
true spirit of Article 22(1).The materials in the case diary were found to
be written in the Marathi language. It was found undisputed that the
Magistrate was not conversant with the Marathi language. This disabled
the Magistrate from appreciating whether the requirements under Section
41(1)(b)(a) of the Cr.P.C. stood satisfied. It is thereafter noticed that the
Court disposed of the writ petition with the findings and the directions as
noted in paragraphs 28, 29, 30 and 31 which we have already extracted.
34. The SLP against the judgment was disposed of as follows on
11.08.2020:
“Heard the learned Solicitor General and the learned counsel
appearing in the matter at length.
The learned Solicitor General has submitted that the High Court
should not have interfered in the matter and the order should not
have been passed and it is palpably illegal. Ms. Nithya
Ramakrishnan, learned counsel, has submitted that the order is
absolutely correct and there is no ground to make any interference
in the order.
Be
that as it may, the exercise is academic in nature and the
accused have surrendered on 14.04.2020, pursuant to the order
passed by this Court on 08.04.2020. We do not propose to go into
the rival submissions, as the petitions have been rendered
infructuous for practical purposes.
However, we direct that the impugned order shall not be treated
as a precedent for any other case, questions of law are kept open.
The Special Leave Petitions and the pending interlocutory
application(s), if any, is/are disposed of.”
NATURE OF HOUSE ARREST
35. The High Court in the impugned order has itself found that the
period of 34 days spent in house arrest by the appellant amounted to
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custody. We, however, consider it necessary to articulate our views
regarding the nature of house arrest.
36. In an article “A Brief History of House Arrest and Electronic
Monitoring” by J. Robert Lilly and Richard A. Ball, we find the following
discussion:-
“HOME CONFINEMENT “House arrest” has a long history
dating at least to St. Paul the Apostle, who is reported to have
been placed under “house arrest” (custodia libera) in Rome at
about the age of 60. St. Paul’s sentence lasted two years during
which time he paid rent and earned his keep as a tent maker, thus
avoiding becoming a ward of the church or state. While it would
go far beyond the historical record to claim that St. Paul was the
first person to pay for his keep under conditions of house arrest, it
is interesting to note that many of today’s “house arrest” programs
expect their clients to pay supervision fees, restitution, and their
living expenses. Galileo Galilei, the Florentine philosopher, physicist,
and astronomer, also experienced “house arrest” after a “second
condemnation” trial in Rome in 1633. After the trial, he returned
to Florence and house arrest for the rest of his life. More recently,
Czar Nicholas II of Russia and his family were kept under house
arrest in 1917 until their deaths in 1918. This history is a cause for
concern among some because of the traditional use of the practice
as a means of silencing political dissent. South Africa, for example,
has a long history of
control through “banning” and societies found
in Poland, South Korea, India, and the Soviet Union are known to
employ “house arrest” primarily to deal with troublesome political
dissenters. On the other hand, France introduced the concept of
control judiciare in 1970 as a fairly straightforward form of pre-
trial detention involving a provision that employed home
confinement as an alternative for common offenders. In 1975,
Italy initiated a policy of affidamento in provo ai servizio sociale
(trial custody), which may be described as a form of parole
following a shock period of three months incarceration. Other
European countries have also experimented with some manner
of home confinement as a means of dealing with a variety of
offenders. The traditional use of “house arrest” should not in itself
become a rationale for rejecting it. In the United States, “home
detention” had been put in practice in St. Louis as early as 1971.
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Home confinement as a policy for use with adult offenders began
to draw more attention in 1983 with the delivery of two different
papers on the subject, passage of the Correctional Reform Act,
and the use of an “electronic bracelet” to monitor compliance
with home confinement on the part of an offender in New Mexico.
The latter was inspired by a New Mexico district court judge,
who read a comic strip where “Spiderman” was being tracked by
a transmitter fixed to his wrist. The judge approached an engineer,
who designed a device consisting of an electronic bracelet
approximately the size of a pack of cigarettes that emitted an
electronic signal that was picked up by a receiver placed in a
home telephone. This bracelet could be strapped to the ankle of
an offender in such a way that if he or she moved more than
approximately 150 feet from the home telephone, the transmission
signal would be broken, alerting authorities that the offender had
left the premises. Officials in New Mexico gave approval for trial
use of the device and a research project funded by the National
Institute of Justice eventually reported successful results with this
“electronic monitoring.”
37. In the United States, in December 1985, one Ms. Murphy
stood convicted in a case of insurance fraud. She could have been packed
off to a jail for a maximum period of 50 years. Instead, the Federal
Judge placed her under house arrest (See 108 F.R.D. 437, 439
(E.D.N.Y.
1985). This is what the Federal Judge inter alia ordered: -
“The sentencing of Maureen Murphy requires, in the court’s opinion,
a sentence not heretofore used in this District and almost never
used in the country in the federal court. It is used elsewhere in the
world and is considered by some to be highly objectionable. The
difference, however, is that in other countries it is used to repress
political dis- sent and before trial. Here it will be used after a full
trial where the defendant has been found guilty of a serious
offense. The penalty is house arrest.”
She was allowed to leave her apartment only for medical reasons,
employment, religious services or to conduct essential food shopping.
House arrest has been employed in the United States essentially as an
intermediate level penal sanction. In other words, upon being found guilty
instead of sentencing the convict to a term in prison and in lieu of
incarceration, as a condition of probation, the convict is compelled to
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confine himself to his place of residence. Interestingly, consistent with
the constitutional protection afforded under United States constitution,
the house arrest does not visit the convict with an absolute restriction
from leaving his home. In the article “House Arrest”, a critical analysis
of an intermediate level penal sanction by Jeffrey N. Hurwitz, we notice
the following:-
“House arrest is a form of intensive law enforcement supervision
characterized by confinement to the offender’s place of residence
with permission to leave only for explicit, pre-authorized purposes.
Generally, it is imposed as a penal sanction in lieu of incarceration
and mandated by the sentencing judge as a condition of probation.
In Florida, however, house arrest is considered a criminal sanction
entirely separate from probation. In addition, at least one jurisdiction
has reported using house arrest for individuals who have been
released on their own recognizance while awaiting trial.
For example, a number of states and counties have recently added
intensive supervision to probation programs in order to provide an
intermediate punishment in lieu of incarceration for selected
offenders. Many of the reported conditions of intensive supervision
strategies are similar or even identical to those imposed as part of
the house arrest sanction. For example, multiple weekly contacts
between offenders and probation officers, as well as mandatory
employment, may be common to both control
techniques.
The unique restriction on the offender’s freedom to leave home is
the distinguishing feature of the house arrest sanction. Although
other heightened surveillance sanctions generally include strict
curfews, house arrest allows the offender to leave her residence
only for specific purposes, unless time spent away from home is
used for pre-authorized ends, the offender risks detention and
incarceration.
The Florida Community Control statute mandates that the court
impose “intensive supervision and surveillance for an offender
placed into community control, which may include … confinement
to an agreed-upon residence during hours away from employment
and public service activities. The Florida law has classified three
tiers of permissible travel, ranked according to the purposes for
spending time away from the site of confinement. “Essential travel”
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includes travel for work, religious expression, vocational or
educational training, self-improvement programming, public service,
and scheduled appointments with the supervising officer.
Movement from the home oriented toward “the fulfilment of the
basic needs of the community controllee” is considered “acceptable
travel. All three types of travel must be approved in advance,
although movements for family emergencies may occur without
pre-authorization provided that they are reported no later than the
following day.”
We may also notice the following discussion in the said article: -
“While the conditions of house arrest imposed in Murphy are highly
restrictive, another federally imposed home confinement pro- gram
establishes even greater control. In United States v. Wayte3 the
defendant was convicted for failure to register with the Selective
Service System.” The imposition of sentence was suspended and
the defendant was placed on probation for six months. The court
ordered that the entire probationary period be spent under house
arrest at the residence of Wayte’s grandmother, and that Wayte
be allowed to leave his site of confinement only for “emergency
purposes with the permission of the probation officer.”3" The house
arrest regime in Wayte is the most restrictive yet re- ported.
Because Wayte is unable to leave home at all, he is precluded
from obtaining outside employment. All travel from his site of
confinement
must be only in response to a life-threatening crisis;
apparently, even movement for religious expression must be
approved by the probation officer as an emergency. He is
functionally isolated and removed from the outside world, as if he
were incarcerated, his wife acts as his intermediary with the
community.”
38. In the caption “the goals of house arrest”, we notice the
following discussion: -
“Yet house arrest, generally imposed as a special condition of
probation, includes a distinctly retributive component.42 The
sentencing court in Murphy de- scribes the incorporation of
retribution, humiliation, and deterrence into the traditionally palliative
scheme of probation: There will be some people who will believe
that this sentence is much too lenient. Others will believe it too
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humiliating. Public humiliation is a part of the punishment .... In
many respects the colonial use of stocks and the equivalent
punishment in other societies served a useful goal in providing
swift social disapproval as a deterrent. It is obvious that some
form of this disapproval is required under modern conditions.”
39. Among the advantages which have been perceived in promoting
the house arrest, have been avoidance of overcrowding of the prisons
and also cost saving. However, concerns have also emerged in regard
to the issues arising out of the proper supervision of house arrest.
40. The said article goes on to describe house arrest as a community
based probationary sanction. We may also notice the following discussion
under the heading of waiver and probation being an act of grace: -
“Moreover, because of the particularly restrictive nature of home
confinement, the implicated constitutional right might not be
waivable. For example, if a confinee’s housing is substandard,
home confinement imposed by the state may violate the eighth
amendment ban on cruel and unusual punishment. Similarly, it is
likely that the offender might sacrifice a right that is not alienable
to the state. If a regime of home confinement does not include
access to a house of worship, the state will have coerced from
the offender a waiver or transfer of the inalienable right to freedom
of worship guaranteed by the free exercise clause of the first
amendment.
[Refer to decision by
EC. Also refer to Russian.]”
41. It will be noticed that ordinarily in the United States, house
arrest is ordered after the trial is conducted and an accused is found
guilty. No doubt, it has also been resorted in respect of juveniles even
during the pendency of the proceedings against him.
42. In Buzadji v. Moldova; 398 Butterworths Human Rights
Cases 42, the European Court of Human Rights (Grand Chamber), was
dealing with a case against the Republic of Moldova lodged under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950. Dealing with the questions, whether the applicant is
deprived of liberty and whether the applicant had waived his right to
liberty, inter alia, the Court held as follows:-
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“As it does in many other areas, the court insists in its case law on
an autonomous interpretation of the notion of deprivation of liberty.
A systematic reading of the Convention shows that mere
restrictions on the liberty of movement are not covered by art 5
but fall under art 2(1) of Protocol No 4. However, the distinction
between the restriction of movement and the deprivation of liberty
is merely one of degree or intensity, and not one of nature or
substance. In order to determine whether someone has been
‘deprived of his liberty’ within the meaning of art 5, the starting
point must be the concrete situation and account must be taken of
a whole range of criteria such as the type, duration, effects and
manner of implementation of the measure in question (see Guzzardi
v Italy (1980) 3 EHRR 333, [1980] ECHR 7367/76, paras 92–
93).
According to the court’s case law (see, among many others,
Mancini v Italy (App no 44955/98) (judgment, 2 August), para 17;
Lavents v Latvia (App no 58442/00) (judgment, 28 November
2002), paras 64–66; Nikolova v Bulgaria (No 2) [2004] ECHR
40896/98, para 60; Ninescu v Moldova (App no 47306/07)
(judgment, 15 July 2014), para 53; and Delijorgji v Albania [2015]
ECHR 6858/11, para 75), house arrest is considered, in view of
its degree and intensity, to amount to deprivation of liberty within
the meaning of art 5 of the Convention.
In Storck v Germany (2005) 43 EHRR 96, [2005] ECHR 61603/
00,
para 75 the court held that the right to liberty is too important
in a ‘democratic society’ within the meaning of the Convention
for a person to lose the benefit of the protection of the Convention
for the sole reason that he gives himself up to be taken into
detention. Detention might violate art 5 even though the person
concerned might have agreed to it (see De Wilde v Belgium (1971)
1 EHRR 373, [1971] ECHR 2832/66, para 65).”
We may also notice:-
“The government submitted that lesser reasons were required in
order to justify house arrest than detention in an ordinary remand
facility because the former measure was more lenient than the
latter.
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It is true that in most cases house arrest implies fewer restrictions
and a lesser degree of suffering or inconvenience for the detainee
than ordinary detention in prison. That is the case because detention
in custody requires integrating the individual into a new and
sometimes hostile environment, sharing of activities and resources
with other inmates, observing discipline and being subjected to
supervision of varying degrees by the authorities twenty-four hours
a day. For example, detainees cannot freely choose when to go to
sleep, when to take their meals, when to attend to their personal
hygiene needs or when to perform outdoor exercise or other
activities. Therefore, when faced with a choice between
imprisonment in a detention facility and house arrest, as in the
present case, most individuals would normally opt for the latter.
However, the court notes that no distinction of regime between
different types of detention was made in the Letellier principles
(see para 92, above). It further reiterates that in Lavents (cited
above), where the court was called upon to examine the relevance
and sufficiency of reasons for depriving the applicant of liberty
pending trial for a considerable period of time, the respondent
government had unsuccessfully argued that different criteria ought
to apply to the assessment of the reasons for the impugned
restriction on liberty as the applicant had been detained not only in
prison but also been held in house arrest and
in hospital. The court
dismissed the argument, stating that art 5 did not regulate the
conditions of detention, referring to the approach previously
adopted in Mancini (cited above) and other cases cited therein.
The court went on to specify that the notions of ‘degree’ and
‘intensity’ in the case law, as criteria for the applicability of art 5,
referred only to the degree of restrictions to the liberty of movement,
not to the differences in comfort or in the internal regime in different
places of detention. Thus, the court proceeded to apply the same
criteria for the entire period of deprivation of liberty, irrespective
of the place where the applicant was detained.”
HOUSE ARREST IN INDIA
43. In India, the concept of house arrest has its roots in laws
providing for preventive detention. Section 5 of the National Security
Act, 1980, is a law providing for preventive detention. Section 5 reads as
follows:-
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“5. Power to regulate place and conditions of detention.—Every
person in respect of whom a detention order has been made shall
be liable—
(a) to be detained in such place and under such conditions, including
conditions as to maintenance, discipline and punishment for
breaches of discipline, as the appropriate Government may, by
general or special order, specify; and
(b) to be removed from one place of detention to another place of
detention, whether within the same State or in another State, by
order of the appropriate Government: Provided that no order shall
be made by a State Government under clause (b) for the removal
of a person from one State to another State except with the consent
of the Government of that other State.”
Article 22(3) reads as follows: -
“22(3).Nothing in clauses (1) and (2) shall apply
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law
providing for preventive detention.”
Thus, the safeguards under Article 22(1) and Article 22(2) are
not available under a law providing for preventive detention.
44. We notice that State of Rajasthan and Ors. vs. Shamsher
Singh6 was a case under the said act. It was a case where the High
Court had after quashing the order of detention on certain grounds gave
certain directions. The detenu was to be released from the central jail
but thereafter it was directed that the detenu be placed under
house
arrest or in place like Dak Bungalow or Circuit House with members of
his family consisting of his wife and children. The authorities were to
permit interview with other relatives also if the detenu was kept outside
the house. This Court allowed the appeal of the state finding that the
requirements of law in relation to detention had been complied with and
the detention was wrongly quashed. In A.K. Roy and Ors. vs. Union
of India (UOI) and Ors.7 a Constitution Bench also dealt with the issue
relating to preventive detention and house arrest in the said context. We
may notice only paragraph 74.
6 AIR (1985) SC 1082
7 AIR (1982) SC 710
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“74. By Section 5, every person in respect of whom a detention
order has been made is liable-
a. to be detained in such place and under such conditions, including
conditions as to maintainance, discipline and punishment for
breaches of discipline, as the appropriate Government may, by
general or special order, specify: and
b. to be removed from one place of detention to another place of
detention, whether in the same State or another State, by order of
the appropriate Government.
The objection of the petitioners to these provisions on the ground
of their unreasonableness is not wholly without substance. Laws
of preventive detention cannot, by the back-door, introduce
procedural measures of a punitive kind. Detention without trial is
an evil to be suffered, but to no greater extent and in no greater
measure than is minimally necessary in the interest of the country
and the community. It is neither fair nor just that a detenu should
have to suffer detention in “such place” as the Government may
specify. The normal rule has to be that the detenu will be kept in
detention in a place which is within the environs of his or her
ordinary place of residence. If a person ordinarily resides in Delhi,
to keep him in detention in a far off place like Madras or Calcutta
is a punitive measure by itself which, in matters of preventive
detention at any rate, is not to be encouraged. Besides, keeping a
person in detention in a place other than the one where he habitually
resides makes it impossible for his friends and relatives to meet
him or for the detenu to claim the advantage of facilities like having
his own food. The requirements of administrative convenience,
safety and security may justify in a given case the transfer of a
detenu to a place other than that where he ordinarily resides, but
that can only be by way of an exception and not as a matter of
general rule. Even when a detenu is required to be kept in or
transferred to a place which is other than his usual place of
residence, he ought not to be sent to any far-off place which, by
the very reason of its distance, is likely to deprive him of the
facilities to which he is entitled. Whatever smacks of punishment
must be scrupulous avoided in matters of preventive detention.”
45. Thus ‘house arrests’ have been resorted to in India, in the
context of law relating to ‘preventive detention’. What is however relevant
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is that preventive detention is also a form of forced detention. House
arrest is also custody and forced detention.
46. As to whether such detention would qualify as custody under
Section 167 will be considered when we discuss the provision relating to
set off under Section 428 of Cr.P.C.
A LOOK AT PRISONS IN INDIA
47. The executive summary published by the National Crime
Records Bureau for 2019 is as follows: -
“Prison Statistics India – 2019
Executive Summary
Prisons – Types & Occupancy
1. The total number of prisons at national level has increased
from 1,339 in 2018 to 1,350 in 2019, having increased by 0.82%.
2. The 1,350 prisons in the country consist of 617 Sub Jails, 410
District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31
Women Jails, 19 Borstal School and 2 Other than the above Jails.
3. The highest number of jails was reported in Rajasthan (144)
followed by Tamil Nadu (141), Madhya Pradesh (131), Andhra
Pradesh (106), Karnataka (104) and Odisha (91). These Six (6)
States together cover 53.11 % of total jails in the country as on
31st December, 2019.
4. Delhi has reported the highest number of Central jails (14) in
the country. States/UTs like Arunachal Pradesh, Meghalaya, A &
N Island, D & N Haveli, Daman & Diu and Lakshadweep have
no central Jail as on 31st December, 2019.
5. Uttar Pradesh has reported the highest number of District jails
(62). States/UTs like Goa, Chandigarh, D & N
Haveli, Daman &
Diu, Delhi, Lakshadweep and Puducherry have no District Jail as
on 31st December, 2019.
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6. Tamil Nadu has reported highest number of Sub-jails (96). States/
UTs like Arunachal Pradesh, Goa, Haryana, Meghalaya, Mizoram,
Nagaland, Sikkim, Chandigarh and Delhi have no sub-jail in their
States/UTs, as on 31st December, 2019.
7. Only 15 States/UTs were having Women Jails (31 Women Jails)
with a total capacity of 6,511 in India. These States/UTs (number
of Jails, Inmates Capacity) are – Rajasthan (7) (1048), Tamil Nadu
(5) (2018), Kerala (3) (232), Andhra Pradesh (2) (280), Bihar (2)
(152), Gujarat (2) (410), Delhi (2) (648), Karnataka(1) (100),
Maharashtra(1) (262), Mizoram (1) (90), Odisha(1) (55), Punjab(1)
(320), Telangana(1) (250), Uttar Pradesh(1) (420) and West
Bengal(1) (226) and The rest of 21 States/ UTs have no separate
Women Jail as on 31st December, 2019.
8. The actual capacity of prisons has increased from 3,96,223 in
2018 to 4,03,739 in 2019 (as on 31st December of each year),
having increased by 1.90%. Number of prisoners lodged in various
jails has increased from 4,66,084 in 2018 to 4,78,600 in 2019 (as
on 31st December of each year), having increased by 2.69% during
the period.
9. Out of the total capacity 4,03,739 in 1,350 prisons in 2019, the
Central Jails of the country were having the highest capacity of
inmates (1,77,618) followed by the District Jails (capacity of
1,58,986 inmates) and the Sub Jails (capacity of 45,071 inmates).
Among the other types of jails, Special Jails, Open Jails and Women
Jails were having a capacity
of 7,262, 6,113 and 6,511 inmates
respectively as on 31st December, 2019. The highest number of
inmates were lodged in Central Jails (2,20,021) followed by District
Jails (2,06,217) and Sub Jails (38,030) as on 31st December, 2019.
The number of inmates in Women Jails were 3,652.
10.Uttar Pradesh has reported the highest capacity in their jails
(capacity of 60,340 inmates in 72 jails contributing 14.95% of total
capacity) followed by Bihar (capacity of 42,222 inmates in 59
Jails contributing 10.46% of total capacity) and Madhya Pradesh
(capacity of 28,718 inmates in 131 jails contributing 7.1% of total
capacity).
11.Out of the 4,78,600 prisoners, 4,58,687 were male prisoners
and 19,913 were female prisoners.
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12.The occupancy rate has increased from 117.6% in 2018 to
118.5% in 2019 (as on 31st December of each year).
13.The highest occupancy rate was in District Jails (129.7%)
followed by Central Jails (123.9%) and Sub Jails (84.4%). The
occupancy rate in Women Jails was 56.1% as on 31st December,
2019.
14.Uttar Pradesh has reported the highest number of prisoners
(1,01,297) in its jails contributing 21.2% followed by Madhya
Pradesh (44,603), Bihar (39,814), Maharashtra (36,798), Punjab
(24,174) and West Bengal (23,092) as on 31st December, 2019.
These States together are contributing around 56.4% of total
prisoners in the country.
15.Delhi has reported the highest occupancy rate (174.9%)
followed by Uttar Pradesh (167.9%) and Uttarakhand (159.0%)
as on 31st December, 2019.
16.The capacity in 31 Women Jails was 6,511 with the actual
number of women prisoners in these Women Jails was 3,652
(Occupancy Rate: 56.1%). The capacity of Women Inmates in
other types of Jail (i.e. except Women Jails) was 21,192 with the
actual number of women inmates in these jails was 16,261
(Occupancy Rate: 76.7%) as on 31st December, 2019.
17.Uttarakhand has reported the highest female occupancy rate
(170.1%) followed by Chhattisgarh (136.1%) and Uttar Pradesh
(127.3%). However, the highest number of female inmates were
confined in the Jails of Uttar Pradesh (4,174) followed by Madhya
Pradesh (1,758) and Maharashtra (1,569).
Prisoners – Types &
Demography
1. During the year 2019, a total of 18,86,092 inmates were admitted
in various jails of the country.
2. A total of (4,78,600) prisoners as on 31st December, 2019 were
confined in various jails across the country. The number of
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Convicts, Undertrial inmates and Detenues were reported as
1,44,125, 3,30,487 and 3,223 respectively accounting for 30.11%,
69.05% and 0.67% respectively at the end of 2019. Other prisoners
accounted for 0.2% (765 prisoners) of total prisoners.
3. Convicted Prisoners
a. The number of convicted prisoners has increased from 1,39,488
in 2018 to 1,44,125 in 2019 (as on 31st December of each year),
having increased by 3.32% during the period.
b. Out of total 1,44,125 convicts, the highest number of convicted
prisoners were lodged in Central Jails (66.2%, 95,470 convicts)
followed by District Jails (27.0%, 38,846 convicts) and Open Jails
(3.0%, 4,288 convicts) as on 31st December,2019.
c. Uttar Pradesh has reported the maximum number of convicts
(19.2%, 27,612 convicts) in the country followed by Madhya
Pradesh (14.1%, 20,253 convicts) and Maharashtra (6.3%, 9,096
convicts) at the end of 2019.
d. Among the 1,44,125 convicts, 325 were civil convicts.
4. Undertrial Prisoners
a. The number of undertrial prisoners has increased from 3,23,537
in 2018 to 3,30,487 in 2019 (as on 31st December of each year),
having increased by 2.15% during this period.
b. Among the 3,30,487 undertrial prisoners, the highest number of
undertrial prisoners was lodged in District Jails(50.5%, 1,66,917
undertrials) followed by Central Jails(36.7%, 1,21,342 undertrials)
and Sub Jails(10.6%, 35,059 undertrials) as on 31st December,
2019.
c. Uttar Pradesh has reported the maximum number of
undertrials
(22.2%, 73,418 undertrials) in the country followed by Bihar (9.5%,
31,275 undertrials) and Maharashtra (8.3%, 27,557 undertrials)
at the end of 2019.
d. Among the 3,30,487 undertrial prisoners, only 91 were civil
inmates.
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5. Detenues
a. The number of detenues has increased from 2,384 in 2018 to
3,223 in 2019 (as on 31st December of each year), having
increased by 35.19% during this period.
b. Among the 3,223 detenues, the highest number of detenues
were lodged in Central Jails (81.4%, 2,622 detenues) followed by
District Jails (9.9%, 318 detenues) and Special Jails (6.1%, 196
detenues) as on 31st December,2019.
c. Tamil Nadu has reported the maximum number of detenues
(38.5%, 1,240) in the country followed by Gujarat (21.7%, 698)
and Jammu & Kashmir (12.5%, 404) at the end of 2019.
6. Women Prisoners with Children
a. There were 1,543 women prisoners with 1,779 children as on
31st December, 2019.
b. Among these women prisoners, 1,212 women prisoners were
undertrial prisoners who were accompanied by 1,409 children and
325 convicted prisoners who were accompanied by 363 children.
7. Age-group of the Prisoners
a. As on 31st December, 2019 the maximum number of inmates
(2,07,942 inmates, 43.4%) were belonging to the age group 18-
30 years followed by the age group 30- 50 years (2,07,104 inmates,
43.3%).
b. 63,336 inmates (13.2%) were belonging to the age group above
50 years.
c. 218 inmates belonged to the age group of 16-18 years.
8. Education
a. Among the 4,78,600 prisoners, literacy profile of 1,98,872
(41.6%) prisoners was Below Class X, 1,03,036 (21.5%) prisoners
were Class X & above but below Graduation, 30,201 (6.3%)
prisoners were
having a Degree, 8,085 (1.7%) prisoners were
Post Graduates and 5,677 (1.2%) prisoners were Technical
Diploma/Degree holders.
b. A total of 1,32,729 (27.7%) prisoners were Illiterate.
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9. Domicile of Origin of Prisoners
a. Among the 4,78,600 prisoners as on 31st December, 2019,
around 90.8% (4,34,564 inmates) of prisoners belonged to the
State followed by prisoners belonging to the Other States (8.0%,
38,428 inmates) and prisoners belonging to the Other Country
(1.2%, 5,608 inmates).
b. Among the 1,44,125 convicts, 92.4% convicts (1,33,228 inmates)
belonged to the State while 6.1% (8,726 inmates) and 1.5% (2,171
inmates) belonged to the Other States and Other Country
respectively.
c. Haryana has reported the most number of other State domicile
convicts (15.5%, 1,353 convicts) followed by Delhi (9.8%, 855
convicts) and Maharashtra (9.2%, 800 convicts) as on 31st
December, 2019.
d. Among the 3,30,487 undertrial prisoners, 90.2% (2,98,208
inmates) belonged to the State while 8.9% (29,300 inmates) and
0.9% (2,979 inmates) belonged to the Other States and Other
Country respectively.
e. Maharashtra has reported the highest number of undertrial
prisoners of other states (16.0%, 4,675 inmates) followed by Uttar
Pradesh (11.8%, 3,470 inmates) and Delhi (11.8%, 3,453 inmates)
at the end of 2019.
1. The number of prisoners of foreign nationality (as on 31st
December of each year) has increased from 5,168 in 2018 to
5,608 in 2019, having increased by 8.51% during this period.
2. The percentage share of foreign prisoners out of total prisoners
has increased from 1.1% in 2018 to 1.2% in 2019 (as on 31st
December of each year).
3. Among 5,608
prisoners of foreign nationality at the end of 2019,
4,776 were Males and 832 were females.
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4. Among these foreign national prisoners, 38.7% (2,171 inmates)
were Convicts, 53.1% (2,979 inmates) were Undertrials and 0.7%
(40 inmates) were Detenues.
5. Among the foreign convicts, the highest number of foreign
convicts were from Bangladesh (67.7%, 1,470 convicts) followed
by Nepal (10.5%, 228 convicts) and Myanmar (7.1%,155 convicts)
at the end of 2019.
Prison – Budget & Infrastructure
1. The total budget for the financial year 2019-20 for all prisons in
the country was ‘ 6818.1 Crore. The actual expenditure was ‘
5958.3 Crore which is 87.39% of total annual budget for FY 2019-
20.
2. A total of ‘ 2060.96 Crore was spent on inmates during FY
2019-20 which is almost 34.59% of total annual expenditure of all
prisons for FY 2019-20.
3. Almost 47.9% (‘ 986.18 Crore) of total expenses on inmates
were spent on Food followed by 4.3% (‘ 89.48 Crore) on Medical
matters, 1.0% (‘ 20.27 Crore) on welfare activities, 1.1 %(‘ 22.56
Crore) on Clothing and 1.2% (‘ 24.20 Crore) on Vocational/
Educational trainings.
4. Among all the States/UTs, out of total expenditure, Haryana
has spent the highest share of expenditure on inmates (100.0%, ‘
272.62 Crore) followed by Andhra Pradesh (88.1%, ‘ 152.24
Crore) and Delhi (66.2%, ‘ 310.02 Crore) during the Financial
Year 2019-20.
5. Among the 1,350 prisons, 269 prisons were renovated/expanded
during 2019.
6. Among the 1,350 prisons, 808 prisons were having Video
Conference facility as
on 31st December 2019.
7. A total of 33,537 quarters were available against the actual
staff strength of 60,787 as on 31st December, 2019.”
48. According to the data published by the National Crime Records
Bureau (NCRB) the conditions relating to jails and prisoners is fairly
alarming. There were a total number of 1350 prisons as of the year
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2019. 1350 prisons consists of 617 Sub Jails, 410 District Jails, 144 Central
Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School
and 2 Other than the above jails.
49. A perusal of the executive summary would reveal an alarming
state of affairs as far as occupancy rate is concerned. It has climbed to
118.5 percent in 2019 as on 31st December. The occupancy rate is
alarming for male prisoners. In fact, during 2019, a total of 18,86,092
inmates were admitted in the jails. The figure of 4,78,600 prisoners as on
31st December, 2019 is the figure obviously after considering the number
of prisoners who would have been inter alia bailed out. The number of
under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05
per cent of the total no. of prisoners. Delhi had the highest occupancy
rate of 174.9 percent followed by Uttar Pradesh which came second
with 167.9 percent. This means that in Delhi a prison which was meant
to be occupied by 100 persons, was used for accommodating 174 persons.
We cannot also be oblivious to the fact that the figures represent the
official version.
50. There is a tremendous amount of overcrowding in jails in India.
Secondly, a very large sum (Rs. 6818.1 crore) was the budget on prisons.
Both aspects are relevant in the context of the possibilities that house
arrest offer.
51. In the context of the rights conferred on citizens under Article
19 which are essentially constitutional freedoms or rather
the enumerated
rights as explained by this Court in Maneka Gandhi vs. Union of India,8
when a citizen is placed on house arrest, which has the effect of depriving
him of any freedom, it will not only be custody but it would involve
depriving citizens under custody of the fundamental freedoms unless
such freedoms are specifically protected. A person has a fundamental
right to move in any part of the country. It is obvious that in the case of
a person undergoing a house arrest and in the teeth of an absolute
prohibition, in the facts of the case forbidding the appellant from moving
outside his home, the hallmark of custody described in the case of
incarceration is equally present. Personal liberty perhaps is the most
important of all values recognized as such under the constitution. It is to
be jealously guarded from any encroachment, save where such intrusion
has the clear sanction of law. The expression “procedure established by
8 AIR 1978 SC 597
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law” has received an expansive and liberal exposition in decisions of this
Court commencing from Maneka Gandhi(supra). Right to personal liberty
is the birth right of every human being. The right under Article 21 is
undoubtedly available to citizens and non-citizens. While personal liberty
is a wide expression capable of encompassing within its fold, many
elements apart from the right to be protected against the deprivation of
liberty in the sense of the freedom from all kinds of restraints imposed
on a person, the irreducible core of personal liberty, undoubtedly, consist
of the freedom against compelled living in forced custody.
52. Here we bear in mind the concept of negative liberty. In the
celebrated lecture, “Two Concepts of Liberty” by Isaiah Berlin, he states
as follows, inter alia:-
“The notion of ‘negative’ freedom
I am normally said to be free to the degree to which no human
being interferes with my activity. Political liberty in this sense is
simply the area within which a man can do what he wants. If I
am prevented by other persons from doing what I want I am to
that degree unfree; and if the area within which I can do what I
want is contracted by other men beyond a certain minimum, I can
be described as being coerced, or, it may be, enslaved. Coercion
of not, however, a term that covers every form of inability. If I
say that I am unable to jump more than 10 feet in the air, or
cannot read because I am
blind or cannot understand the darker
pages of Hegel, it would be eccentric to say that I am to that
degree enslaved or coerced. Coercion implies the deliberate
interference of other human beings within the area in which I
wish to act. You lack political liberty or freedom only if you are
prevented from attaining your goal by human beings. Mere
incapacity to attain your goal is not lack of political freedom. This
is brought out by the use of such modern expressions as ‘economic
freedom’ and its counterpart, ‘economic slavery’. It is argued,
very plausibly, that if a man is too poor to afford something on
which there is no legal ban- a loaf of bread, a journey round the
world, recourse to the law courts- he is as little free to have it as
he would be if it were forbidden him by law. If my poverty were
a kind of disease, which prevented me from buying bread or paying
for the journey round the world, or getting my case heard, as
lameness prevents me from running, this inability would not
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naturally be described as a lack of freedom at all, least of all
political freedom. It is only because I believe that my inability to
get what I want is due to the fact that other human beings have
made arrangements whereby I am, whereas others are not,
prevented from having enough money with which to pay for it,
that I think myself a victim of coercion or slavery. In other words,
this use of the term depends on a particular social and economic
theory about the causes of my poverty or weakness. If my lack
of means is due to my lack of mental or physical capacity, then I
begin to speak of being deprived of freedom (and not simply of
poverty) only if I accept the theory. If, in addition, I believe that I
am being kept in want by a definite arrangement which I consider
unjust or unfair, I speak of economic slavery or oppression. ‘The
nature of things does not madden us, only ill will does’, said
Rousseau. The criterion of oppression is the part that I believe to
be played by other human beings, directly or indirectly, in frustrating
my wishes. By being free in this sense I mean not being interfered
with by others. The wider the area of non-interference the wider
my freedom.”
53. In fact, personal liberty is interlinked with the right to life itself.
It is an inseparable part without which the right to life itself is deprived
of its content and meaning. The right to life and personal liberty is
essentially also based on the principle that men in regard to
fundamental
rights be treated equal and that no man or a group of men, even organized
as a state under which he lives can deprive him except without infringing
the right to be treated equally unless there is a legitimate sanction of law.
Personal liberty of its members must continue to remain the most cherished
goal of any civilized state and its interference with the same must be
confined to those cases where it is sanctioned by the law and genuinely
needed. The court would lean in favour of upholding this precious,
inalienable and immutable value.
54. We have noticed that in the United States ordinarily, house
arrest follows a conviction and is a choice which is available to the
Courts to send a person to house arrest which is in lieu of a jail sentence.
55. We will use this opportunity to echo the argument of Sh. Kapil
Sibal, learned senior counsel for the appellant that no Court even if it is
the High Court has any inherent power to deprive any person of his
personal liberty by placing him under house arrest. Placing a person in
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custody depriving him of his rights which would include his fundamental
rights as he would stand deprived of on giving effect to the term of
house arrest, would amount to a completely illegal exercise, were it not
for the fact that the High Court must be treated as having exercised
powers available to a Judge under Section 167 of the Cr.P.C. Thus, runs
the argument.
THE REMEDIES OPEN TO AN ACCUSED IN THE CASE
OF REMAND UNDER SECTION 167 OF THE CR.P.C.
56. In State rep. by Inspector of Police and others vs. N.M.T.
Joy Immaculate9, a bench of 3 learned judges considered the question
of maintainability of a revision under Section 397 of the Cr.P.C. against
an order of remand. We notice para 13 which reads as follows:
“(13) Section 167 Cr.PC. empowers a Judicial Magistrate to
authorise the detention of an accused in the custody of police.
Section 209 Cr.P.C. confers power upon a Magistrate to remand
an accused to custody until the case has been committed to the
Court of Session and also until the conclusion of the trial. Section
309 Cr.PC. confers power upon a court to remand an accused to
custody after taking cognisance of an offence or during
commencement of trial when it finds it necessary to adjourn the
enquiry or trial. The order of remand has no bearing on the
proceedings of the trial itself nor can it have any effect on the
ultimate decision of the case. If an order of remand is found to be
illegal, it cannot
result in acquittal of the accused or in termination
of proceedings. A remand order cannot affect the progress of the
trial or its decision in any manner. Therefore, applying the test laid
down in Madhu Limaye case [(1977) 4 SCC 551 : 1978 SCC
(Cri) 10 : AIR 1978 SC 47] it cannot be categorised even as an
“intermediate order”. The order is, therefore, a pure and simple
interlocutory order and in view of the bar created by sub-section
(2) of Section 397 Cr.P.C, a revision against the said order is not
maintainable. The High Court, therefore, erred in entertaining the
revision against the order dated 6-11-2001 of the Metropolitan
Magistrate granting police custody of the accused Joy Immaculate
for one day.”
9 (2004) 5 SCC 729
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57. Thus, an order under Section 167 is purely an interlocutory
order. No revision is maintainable. A petition under Section 482 cannot
be ruled out. Now at this juncture we must notice the following dimension.
When a person arrested in a non-bailable offence is in custody, subject
to the restrictions, contained therein, a court other than High Court or
Court of Session, before whom he is brought inter alia, can release him
on bail under Section 437 of the Cr.P.C. Section 439 of the Cr.P.C. deals
with special powers of High Court and court of session to grant bail to a
person in custody. The said courts may also set aside or modify any
condition in an order by a Magistrate.
58. In Central Bureau of Investigation, Special Investigation
Cell v. Anupam J. Kulkarni10, we may notice the following statement:-
“Now coming to the object and scope of Section 167 it is well-
settled that it is supplementary to Section 57. It is clear from Section
57 that the investigation should be completed in the first instance
within 24 hours; if not the arrested person should be brought by
the police before a Magistrate as provided under Section 167.
The law does not authorise a police officer to detain an arrested
person for more than 24 hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate court.
Sub-section (1) of Section 167 covers all this procedure and also
lays down that the police officer while forwarding the accused to
the
nearest Magistrate should also transmit a copy of the entries
in the diary relating to the case. The entries in the diary are meant
to afford to the Magistrate the necessary information upon which
he can take the decision whether the accused should be detained
in the custody further or not. It may be noted even at this stage
the Magistrate can release him on bail if an application is made
and if he is satisfied that there are no grounds to remand him to
custody but if he is satisfied that further remand is necessary then
he should act as provided under Section 167.”
59. Thus, ordinarily, when the court considers a request for remand
there would be an application for bail. It is for the court to grant bail
failing which an order of remand would follow.
60. No doubt, while the remand report is considered by the
Magistrate the application for bail may be moved under Section 439
10 (1992) 3 SCC 141
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instead of moving under Section 437 in view of the restrictions contained
therein. Though an application under Section 397 would not lie against
the remand, as already noticed, an application for bail would lie under
Section 439. Therefore, ordinarily the accused would seek bail and legality
and the need for remand would also be considered by the High Court or
court of session in an application under Section 439. No doubt the
additional restrictions under section 43 (D) (5) of UAPA are applicable
to citizens of India in cases under the said law.
WHETHER A WRIT OF HABEAS CORPUS LIES
AGAINST AN ORDER OF REMAND UNDER SECTION (167)
OF CR.P.C.
61. A Habeas Corpus petition is one seeking redress in the case
of illegal detention. It is intended to be a most expeditious remedy as
liberty is at stake. Whether a Habeas Corpus petition lies when a person
is remanded to judicial custody or police custody is not res integra. We
may notice only two judgments of this court. In Manubhai Ratilal Patel
v. State of Gujarat and others,11. We may notice paragraph 24.
“(24) The act of directing remand of an accused is fundamentally
a judicial function. The Magistrate does not act in executive
capacity while ordering the detention of an accused. While
exercising this judicial act, it is obligatory on the part of the
Magistrate to satisfy himself whether the materials placed before
him justify such a remand or, to put it differently, whether
there
exist reasonable grounds to commit the accused to custody and
extend his remand. The purpose of remand as postulated under
Section 167 is that investigation cannot be completed within 24
hours. It enables the Magistrate to see that the remand is really
necessary. This requires the investigating agency to send the case
diary along with the remand report so that the Magistrate can
appreciate the factual scenario and apply his mind whether there
is a warrant for police remand or justification for judicial remand
or there is no need for any remand at all. It is obligatory on the
part of the Magistrate to apply his mind and not to pass an order
of remand automatically or in a mechanical manner.”
However, the Court also held as follows:
11 (2013) 1 SCC 314
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“31. It is well-accepted principle that a writ of habeas corpus is
not to be entertained when a person is committed to judicial custody
or police custody by the competent court by an order which prima
facie does not appear to be without jurisdiction or passed in an
absolutely mechanical manner or wholly illegal. As has been stated
in B. Ramachandra Rao [(1972) 3 SCC 256 : 1972 SCC (Cri)
481 : AIR 1971 SC 2197] and Kanu Sanyal [(1974) 4 SCC 141 :
1974 SCC (Cri) 280] , the court is required to scrutinise the legality
or otherwise of the order of detention which has been passed.
Unless the court is satisfied that a person has been committed to
jail custody by virtue of an order that suffers from the vice of lack
of jurisdiction or absolute illegality, a writ of habeas corpus cannot
be granted.”
62. One of us (U.U. Lalit, J.) speaking for a Bench of two, followed
the aforesaid line of thought in the decision of Serious Fraud
Investigation Office and Ors. vs. Rahul Modi and Ors.12 and held as
follows:
“(21) The act of directing remand of an accused is thus held to be
a judicial function and the challenge to the order of remand is not
to be entertained in a habeas corpus petition.”
We may also notice paragraph 19 from the same judgment.
“(19) The law is thus clear that “in habeas corpus proceedings a
court is to have regard to the legality or otherwise of the detention
at the time of the return and not with reference to the institution
of the proceedings”.
63.
Thus, we would hold as follows:
If the remand is absolutely illegal or the remand is afflicted with
the vice of lack of jurisdiction, a Habeas Corpus petition would indeed
lie. Equally, if an order of remand is passed in an absolutely mechanical
manner, the person affected can seek the remedy of Habeas Corpus.
Barring such situations, a Habeas Corpus petition will not lie.
WHETHER SUPERIOR COURTS (INCLUDING A HIGH
COURT) CAN EXERCISE POWER UNDER SECTION (167)
OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT
FOR THE PURPOSE OF DEFAULT BAIL?
12 (2019) 5 SCC 266
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64. One of the contentions raised is that the order passed by the
High Court of Delhi, is not one passed under Section 167 of the Cr.P.C.,
for the reason that what the Cr.P.C. contemplates is an order passed by
a Magistrate. It, therefore, becomes necessary to consider whether a
Court other than a Magistrate can order remand under Section 167. In
the first place, going by the words used in Section 167, what is
contemplated is that Magistrate orders remand under Section 167(2).
65. Let us, however, delve a little more into the issue. Let us take
a case where a Magistrate orders a remand under Section 167 and at
the same time, he also rejects the application for bail preferred by the
accused. The accused approaches the High Court under Section 439 of
the Cr.P.C. The court reverses the order and grants him bail. The accused
who was sent to custody means police custody or judicial custody is
brought out of his custody and is released on bail pursuing to the order of
the High Court. This order is challenged before the Apex Court. The
Apex Court reverses the order granting bail. The original order passed
by the Magistrate is revived. It is apparent that the accused goes back
to custody. Since assuming that the period of 15 days is over and police
custody is not permissible, he is sent back to judicial custody. Equally if
he was already in judicial custody, the order granting judicial custody is
revived. Let us assume in the
illustration that the accused was in custody
only for a period of 10 days and after the order passed by this Court and
the accused who spent another 80 days, he completes, in other words, a
total period of custody of 90 days adding the period of custody, he suffered
consequent upon the remand by the Magistrate. That is by piecing up
these broken periods of custody, the statutory period of 90 days entitling
the accused to default bail, is reached. Can it be said that the order of
this Court granting custody should not be taken into consideration for
calculating the period of 90 days, upon completion of which the accused
can set up a case for default bail. We would think that the mere fact is
that it is the Apex Court which exercised the power to remand, which
was wrongly appreciated by the High Court in the illustration, would not
detract from the custody being authorized under Section 167.
66. Let us take another example. After ordering remand, initially
for a period of 15 days of which 10 days is by way of police custody and
5 days by way of judicial custody, the Magistrate enlarges an accused
on bail. The High Court interferes with the order granting bail on the
basis that the bail ought not to have been granted. Resultantly, the person
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who on the basis of the order of bail, has come out of jail custody, is put
back into the judicial custody or jail custody. The order is one passed by
the High Court. The order granting custody by the High Court cannot be
treated as one which is not anchored in Section 167 of the Cr.P.C.
Therefore, we would think that though the power is vested with the
Magistrate to order remand by way, of appropriate jurisdiction exercised
by the superior Courts, (it would, in fact, include the Court of Sessions
acting under Section 439) the power under Section 167 could also be
exercised by Courts which are superior to the Magistrate.
67. Therefore, while ordinarily, the Magistrate is the original Court
which would exercise power to remand under Section 167, the exercise
of power by the superior Courts which would result in custody being
ordered ordinarily (police or judicial custody) by the superior Courts which
includes the High Court, would indeed be the custody for the purpose of
calculating the period within which the charge sheet must be filed, failing
with the accused acquires the statutory right to default bail. We have
also noticed the observations of this Court in AIR 1962 SC 1506 (supra).
In such circumstances broken periods of custody can be counted whether
custody is suffered by the order of the Magistrate or superior courts, if
investigation remains incomplete after the custody, whether continuous
or broken periods pieced together reaches the requisite
period; default
bail becomes the right of the detained person.
68. Equally when an order in bail application is put in issue, orders
passed resulting in detaining the accused would if passed by a superior
court be under Section 167.
THE EFFECT OF TRANSIT ORDER? IS IT A
PRODUCTION ORDER THOUGH SOURCED UNDER
SECTION 167 CR.P.C.?
69. The Respondent contends that the transit remand order is not
a remand for detention under Section 167 of the Cr.P.C. but only one for
production. Reliance is placed on Section 57. It is in other words, pointed
out that Section 57 contemplates that in the absence of ‘special order’
under Section 167, a person arrested without warrant must be produced
withing 24 hours excluding the time taken for journey from the place of
arrest to the place where the Magistrate is located. Therefore, if a ‘special
order’ under Section 167 is obtained, it is for the purpose of extending
the time in Section 57 for production of the arrestee.
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70. Per contra, Appellant contends that Section 167 specially
covers cases where a judicial Magistrate who has no jurisdiction to try a
case, can order a remand. There is no other provision for ordering transit
remand.
71. In this case the transit remand was ordered on 28.08.2018.
The Appellant was to be produced under the same on 30.08.2018 before
the Magistrate in Pune. A person may be arrested by a police officer in
any part of India (Section 48 of Cr.P.C.). Under Section 56 the person
arrested without warrant is to be sent before the Magistrate having
jurisdiction or before the officer in charge of a police station. It is
thereafter, that Section 57 forbids the person so arrested:
i.
from being detained for a period more than what is
reasonable.
ii.
from being detained beyond 24 hours from the time of arrest,
excluding the time necessary for the journey from the place
of arrest to the Magistrate Court.
72. Now, the ‘Magistrate Court’ referred to in Section 57 is the
Magistrate competent to try the case. Section 57 contains the peremptory
limit of 24 hours exclusive of the period for journey, in the absence of
‘special order’ under Section 167.
73. The words ‘special order’ is not found in Section 167 of the
Cr.P.C. Therefore, could it not be said that but for Section 57 permitting
the Magistrate to allowing time by passing an order under Section 167,
detention in violation of Section 57 would be rendered illegal?
What is
the nature of the custody on the basis of the special order under Section
167 referred to in Section 57? Is it police custody or is it judicial custody?
Is it any other custody? Will the period of remand for statutory bail begin
from the date of this ‘special order’? Will it begin only when the competent
Magistrate orders remand?
74. Now as far as this case is concerned, we notice findings of
the High Court of Delhi as follows: (para 11 and para 15)
“(11) Mr. Navare next tried to draw a distinction between the
scope of the function of a Magistrate before whom an application
for transit remand is moved and the jurisdictional Magistrate who
should be approached for an order of remand in terms of Section
56 of the Cr.P.C. According to Mr. Navare, at the stage of transit
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remand the concerned Magistrate would not be required to satisfy
himself anything more than whether an offence is made out and
whether the Police Officer seeking the remand is in fact the one
authorized to do so.”
“(15) Therefore, when a person who after arrest is required to be
produced before a jurisdiction Judicial Magistrate is detained in a
place which is away from that jurisdiction, and therefore cannot
be produced before the jurisdictional Magistrate within 24 hours,
as mandated both by Article 22(2) of the Constitution and by
Section 57 Cr.P.C., he will be produced before the ‘nearest Judicial
Magistrate’ together with ‘a copy of the entries in the diary’.
Therefore, even before a Magistrate before whom a transit
remand application is filed, the mandatory requirement of Section
167 (1) Cr.P.C. is that a copy of the entries in the case diary
should also be produced. It is on that basis that under Section 167
(2) such ‘nearest Judicial Magistrate’ will pass an order authorising
the detention of the person arrested for a term not exceeding 15
days in the whole. Where he has no jurisdiction to try the case
and he finds further detention unnecessary, he may order the
accused to be forwarded to the jurisdictional Magistrate.”
75. In fact, as already noticed the submission of the State of
Maharashtra was also that once a person was in judicial custody a writ
of habeas corpus would not lie which also was rejected.
76. Now, the question may persist as to
whether the remand
pursuant to a transit remand is to police custody or judicial custody. It
cannot be judicial custody as the police is exclusively entrusted with the
man no doubt to produce him before the Magistrate having jurisdiction.
It is therefore, police custody. Could the police be engaged in questioning/
investigating the case by interrogating the accused on the basis of the
transit order either before, embarking on the journey or during the course
of the journey and after the journey before producing him? If it is thought
that during the journey it is impermissible, then such interrogation would
equally be impermissible during the time of journey permitted without
obtaining an order under Section 167. If also during such journey the
accused volunteers with a statement otherwise falling under Section 27
of Evidence Act, it would be one when the accused is in the custody of
the police. If it is police custody then, the order of the Magistrate granting
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transit remand would set the clock ticking in terms of (1986) 3 SCC 141
to complete the period for the purpose of default bail.
77. We may also notice that the interplay of Section 57 and 167
was considered in the judgment of this Court in Chaganti Satyanarayana
(supra). It was held as follows:
“(12) On a reading of the sub-sections (1) and (2) it may be seen
that sub-section (1) is a mandatory provision governing what a
police officer should do when a person is arrested and detained in
custody and it appears that the investigation cannot be completed
withing the period of 24 hours fixed by Section 57. Sub-section
(2) on the other hand pertains to the powers of remand available
to a Magistrate and the manner in which such powers should be
exercised. The terms of sub-section (1) of Section 167 have to be
read in conjunction with Section 57. Section 57 interdicts a police
officer from keeping in custody a person without warrant for a
longer period than 24 hours without production before a Magistrate,
subject to the exception that the time taken for performing the
journey from the place of arrest to the magistrate’s court can be
excluded from the prescribed period of 24 hours. Since sub-section
(1) provides that if the investigation cannot be completed within
the period of 24 hours fixed by Section 57 the accused has to be
forwarded to the magistrate along with the entries in the diary, it
follows that a police officer
is entitled to keep an arrested person
in custody for a maximum period of 24 hours for purposes of
investigation. The resultant position is that the initial period of
custody of an arrested person till he is produced before a
Magistrate is neither referable to nor in pursuance of an order of
remand passed by a magistrate. In fact the powers of remand
given to a magistrate become exercisable only after an accused
is produced before him in terms of sub-section (1) of Section
167.”
“(13) Keeping proviso (a) out of mind for some time let us look at
the wording of sub-section (2) of Section 167. This sub-section
empowers the magistrate before whom an accused is produced
for purpose of remand, whether he has jurisdiction or not to try
the case, to order the detention of the accused, either in police
custody or in judicial custody, for a term not exceeding 15 days in
the whole.”
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78. We would hold that the remand order be it a transit remand
order is one which is passed under Section 167 of the Cr.P.C. and though
it may be for the production of the Appellant, it involved authorising
continued detention within the meaning of Section 167.
THE IMPACT OF SECTION 428 OF CR.P.C.
79. Section 428 of the Code of Criminal Procedure reads as
follows:-
“(428) Period of detention undergone by the accused to be set-
off against the sentence of imprisonment.—Where an accused
person has, on conviction, been sentenced to imprisonment for a
term [, not being imprisonment in default of payment of fine,] the
period of detention, if any, undergone by him during the investigation,
inquiry or trial of the same case and before the date of such
conviction, shall be set off against the term of imprisonment
imposed on him on such conviction, and the liability of such person
to undergo imprisonment on such conviction shall be restricted to
the remainder, if any, of the term of imprisonment imposed on
him:
[Provided that in cases referred to in Section 433-A, such period
of detention shall be set off against the period of fourteen years
referred to in that section.]”
80. If house arrest as ordered in this case is to be treated as
custody within the meaning of section 167 of the Cr.P.C. would it not
entail the period of house arrest being treated as part of the detention
within the meaning of Section 428 in case there is a conviction followed
by a sentence?
81. Do the provisions of Section 428 throw light on the issues
which we are called upon to decide?
82. Section 428 enables a person convicted to have the period of
detention which he has undergone during the investigation, enquiry or
trial set off against the term of imprisonment.
83. In this context, we may notice the judgment of this court
reported in Govt. of Andhra Pradesh and another etc. v. Anne
Venkateswara Rao etc. etc.13. In the said case the Appellant in one of
13 AIR 1977 SC 1096
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the appeals had been detained under the Preventive Detention Act on
18.12.1969. He was produced before the Magistrate sometime in April,
1970 in connection with certain offences after he had been released
from preventive detention. He was later convicted. This Court while
dealing with the contention that the benefit of provisions of Section 428
must ennure to the Appellant held:-
“The argument is that the expression period of detention in Section
428 includes detention under the Preventive Detention Act or the
Maintenance of Internal Security Act. It is true that the section
speaks of the ‘period of detention’ undergone by an accused person,
but it expressly says that the detention mentioned refers to the
detention during the investigation, enquiry or trial of the case in
which the accused person has been convicted. The section makes
it clear that the period of detention which it allows to be set off
against the term of imprisonment imposed on the accused on
conviction must be during the investigation, enquiry or trial in
connection with the ‘same case’ in which he has been convicted.
We therefore agree with the High Court that the period during
which the writ petitioners were in preventive detention cannot be
set off under Section 428 against the term of imprisonment imposed
on them.”
84. We may also notice that in Ajmer Singh and others v. Union
of India and others14 dealing with the question as to whether the
benefit
of Section 428 of the Cr.PC. was available to a person convicted and
sentenced by court martial under the Army Act inter alia, this court
took the view that the benefit is not available.
The Court held: -
“(12) The section provides for set-off of the period of detention
undergone by an accused person during the ‘investigation, inquiry
or trial’ of the same case before the date of conviction. The
expression ‘investigation’ has been defined in Section 2 (h) of the
Code as follows:-
‘2(h) ‘investigation’ includes all the proceedings under this Code
for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised by a
14 AIR 1987 SC 1646
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Magistrate in this behalf’. In the case of persons tried by Courts-
Martial there is no investigation conducted by any police officer
under the Code or by any person authorised by Magistrate in that
behalf.”
85. There is a scheme which is unravelled by the Code regarding
detention of an accused. The starting point appears to be the arrest and
detention of the person in connection with the cognizable offence by a
police officer without a warrant. He can detain him and question him in
the course of the investigation. However, the officer cannot detain the
accused beyond 24 hours excluding the time taken for the journey from
the place of arrest to the place where the Magistrate who is competent
to try the case sits. If he cannot so produce the accused and the
investigation is incomplete, the officer is duty bound to produce the arrested
person before the nearest Magistrate. The nearest Magistrate may or
may not have jurisdiction. He may order the continued detention of the
arrested person based on the request for remand. He would largely rely
on the entries in the case diary and on being satisfied of the need for
such remand which must be manifested by reasons. The Magistrate can
order police custody during the first 15 days (in cases under UAPA, the
first 30 days). Beyond such period, the Magistrate may direct detention
which is described as judicial custody or such other custody as he may
think fit. It is, no doubt, open to a Magistrate to refuse police
custody
completely during the first 15 days. He may give police custody during
the first 15 days not in one go but in instalments. It is also open to the
Magistrate to release the arrested person on bail.
86. The arrested person if detained during the period of investigation
can count this period, if he is ultimately charged, tried and convicted by
virtue of the provisions of Section 428 of Cr.P.C. We are not concerned
with custody of the accused during the period of an inquiry or trial which
is a matter governed essentially by Section 309 of the Cr.P.C. In this
context, it must be remembered that it is not every detention which can
be relied upon to get the benefit of set-off under Section 428. A
period spent under an order of preventive detention being not in
connection with the investigation into an offence cannot be counted.
(See AIR 1977 SC 1096)
87. Detention pursuant to proceedings under the Army Act inter
alia does not count. (See AIR 1987 SC 1646)
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88. Thus, detention ‘during investigation’ under Section 428 is
integrally connected with detention as ordered under Section 167.
89. The scheme further under Section 167 is that custody
(detention/custody) as authorized under such provisions, if it exceeds
the limit as to maximum period without the charge sheet being filed,
entitles the person in detention to be released on default bail. In fact, the
person may on account of his inability to offer the bail languish in custody
but he would undoubtedly be entitled to count the entire period he has
spent in detention under orders of the Magistrate/ Superior Court
exercising powers under Section 167 for the purpose of set off under
Section 428.
EFFECT OF ILLEGALITY IN THE ORDER UNDER
SECTION 167 CR.PC.
90. Now, it is necessary to make one aspect clear. An order purports
to remand a person under Section 167. It is made without complying
with mandatory requirements thereunder. It results in actual custody.
The period of custody will count towards default bail. Section 167(3)
mandates reasons be recorded if police custody is ordered. There has to
be application of mind. If there is complete non-application of mind or
reasons are not recorded, while it may render the exercise illegal and
liable to be interfered with, the actual detention undergone under the
order, will certainly count towards default bail. Likewise, unlike the
previous Code (1898), the present Code mandates
the production of the
accused before the Magistrate as provided in clause (b) of the proviso
to Section 167 (2). Custody ordered without complying with the said
provision, may be illegal. But actual custody undergone will again count
towards default bail.
91. Take another example. The Magistrate gives police custody
for 15 days but after the first 15 days, (Not in a case covered by UAPA).
It is not challenged. Actual custody is undergone. Will it not count?
Undoubtedly, it will. The power was illegally exercised but is nonetheless
purportedly under Section 167. What matters is ‘detention’ suffered.
The view taken in the impugned judgment that sans any valid authorisation/
order of the Magistrate detaining the Appellant there cannot be custody
for the purpose of Section 167 does not appear to us to be correct. The
finding that if any illegality afflicts the authorisation, it will render the
‘detention’ not authorised is inconsistent with our conclusion as aforesaid.
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92. Therefore, if the Court purports to invoke and act under Section
167, the detention will qualify even if there is illegality in the passing of
the order. What matter in such cases is the actual custody.
93. However, when the Court does not purport to act under
Section 167, then the detention involved pursuant to the order of the
Court cannot qualify as detention under Section 167.
JUDICIAL CUSTODY AND POLICE CUSTODY
94. Now, we must squarely deal with the question as to whether
house arrest as ordered by the High Court amounts to custody within
the meaning of Section 167 of the Cr.P.C. Undoubtedly custody in the
said provision is understood as ordinarily meaning police custody and
judicial custody. The period of custody begins not from the time of arrest
but from time the accused is first remanded (1986 (3) SCC 141). Police
custody can, in a case falling under the Cr.P.C. (not under the UAPA),
be given only during the first 15 days ((1992) 3 SCC 141). During the
first 15 days no doubt the Court may order judicial custody or police
custody. No doubt the last proviso to Section 167 (2) provides that
detention of a woman under eighteen years of age, the detention shall be
authorised to be in the custody of a remand home or recognised social
institution.
95. What is the distinction between police custody and judicial
custody? When a person is remanded to police custody, he passes into
the exclusive custody of the police officers. ‘Custodial Interrogation’
as
is indispensable to unearth the truth in a given case is the substantial
premise for such custody. The Magistrate must undoubtedly be convinced
about the need for remand to such custody. Reasons must be recorded.
Judicial custody is ordinarily custody in a jail. It is referred to also as jail
custody. Thus, jail custody and judicial custody are the same. The jails
come under the Department of Jails and staffed by the employees of the
said department. The person in jail custody is therefore indirectly, through
the jail authorities, under the custody of the Court. The police officer
does not have access to a person in judicial custody as he would have in
the case of a person in police custody. Unless permission is sought and
obtained which would apparently be subject to such conditions as a court
places the person in judicial custody cannot be questioned by the police
officers. Now in a case, ordinarily, instead of ordering a remand a person
can be released on bail. As to whether a case is made out is a question
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to be decided in the facts of each case. There may be restrictions put in
regard to the grant of bail by law which must be observed. But if bail is
not granted then a person arrested by the police in connection with the
cognizable offence must be remanded to custody. This is inevitable from
the reading of Section 167 of the Cr.P.C.
96. In re. M.R. Venkataraman and Others15, a petition was filed
seeking a writ of Habeas Corpus inter alia on the ground that the
petitioners were remanded to a central jail of a district which was other
than the one in which there were being tried. The court inter alia held as
follows:-
“On the first point, it seems to us that no illegality or irregularity
was committed. Section (167) empowers a Magistrate having
jurisdiction to remand a prisoner to such custody as he thinks fit.
Section 344 does not use the words “as he thinks fit” with regard
to the order of remand; but there is nothing in the section which
suggests that after a charge-sheet has been filed, the Magistrate
has not the same freedom with regard to the custody to which he
commits the accused as he had before a charge-sheet was filed.
The learned Advocate for the petitioners has referred to the wording
of Section 29 of the Prisoners’ Act, as indicating that the only
person who can transfer a prisoner from one Jail to another within
the same province is the Inspector-General of Prisons; but by its
very wording Section 29 of
the Prisoners’ Act does not apply to
an under-trial prisoner; nor are we dealing with a transfer of a
prisoner. Whenever an accused is brought before the Court and
the Court issues an order of remand, the Magistrate has complete
freedom, as far as we can see, to remand the accused to whatever
custody he thinks fit.”
[Emphasis supplied]
97. The concept of house arrest though familiar in the law relating
to preventive detention, therein the underpinnings are different. House
arrest in the law of preventive detention is one which is permitted under
the law itself and such orders are made in fact by the executive. Also,
detention under Section (167) would not embrace preventive detention
in the form of house arrest as noticed by us in the discussion relating to
impact of Section 428 of Cr.P.C.
15 AIR 1948 Mad 100
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98. However, taking the ingredients of house arrest as are present
in the order passed by the High Court of Delhi in its order dated
28.08.2018, if it is found to be one passed under Section 167, then it
would be detention thereunder. The concept of house arrest as ordered
in this case with the complete prohibition on stepping out of the Appellants
premises and the injunction against interacting with persons other than
ordinary residents, and the standing of guard not to protect him but to
enforce the condition would place the Appellant under judicial custody.
Section 167 speaks of ‘such custody as it thinks fit’. If it is found ordered
under Section 167 it will count.
99. In the impugned judgment the High Court reasons as follows
to deny default bail:
(1)
The transit remand order came to be stayed by the Delhi
High Court on 28/10/2018.
(2)
The appellant was placed under house arrest pursuant to
the directions of the Delhi High court during which period
the investigating officer did not get the opportunity of
interrogating him.
(3)
The High court of Delhi quashed the appellant’s arrest
holding that the appellant’s detention is illegal.
(4)
Pursuant to the declaration of the detention as illegal, the
appellant was set at liberty. It is not as if the appellant was
released on bail but after being set at liberty, the appellant
is protected by an order of this Court restraining the
investigating agency from taking coercive steps during the
pendency of
appellant’s challenge to the FIR.
(5)
The Hon’ble Supreme Court having dismissed the challenge
of the appellant to quash FIR granted 4 weeks protection
with liberty to seek pre arrest bail/protection before the
Sessions Court. The Hon’ble Supreme Court granted the
appellant time to surrender after the appellant failed to serve
pre arrest bail. The appellant ultimately surrendered to NIA
Delhi on 14/04/2020. Only after the appellant surrendered,
the Magistrate authorised the police custody whereupon
the appellant was interrogated.
It further held:
GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION
AGENCY [K. M. JOSEPH, J.]