GAUTAM NAVLAKHA versus NATIONAL INVESTIGATION AGENCY on 12 May 2021

[2021] 5 S.C.R. 87

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 citizenis placed on house arrest, which has the effect of depriving him ofany freedom, it will not only be custody but it would involve deprivinghim of the fundamental freedoms unless such freedoms arespecifically protected – In the case of a person undergoing a housearrest and in the teeth of an absolute prohibition, in the facts of thecase forbidding him from moving outside his home, the hallmark ofcustody 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 ofencompassing within its fold, many elements apart from the right tobe protected against the deprivation of liberty in the sense of thefreedom from all kinds of restraints imposed on a person, theirreducible core of personal liberty, undoubtedly, consist of thefreedom against compelled living in forced custody.

Code of Criminal Procedure, 1973: s.167 – Remedies opento an accused in the case of remand under s.167 – Held: An orderunder s.167 is purely an interlocutory order – No revision ismaintainable – A petition under s.482 cannot be ruled out – Whena person arrested in a non-bailable offence is in custody, subject tothe restrictions, contained therein, a court other than High Courtor Court of Session, before whom he is brought inter alia, can releasehim on bail under s.437 – s.439 deals with special powers of HighCourt and court of session to grant bail to a person in custody –The said courts may also set aside or modify any condition in anorder by a Magistrate – Ordinarily, when the court considers arequest for remand there would be an application for bail – It is forthe court to grant bail failing which an order of remand wouldfollow.

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ACode of Criminal Procedure, 1973: ss.437, 439 – While theremand report is considered by the Magistrate the application forbail may be moved under s.439 instead of moving under s.437 inview of the restrictions contained therein – Though an applicationunder s.397 would not lie against the remand, an application forbail would lie under s.439 – Therefore, ordinarily the accused wouldBseek bail and legality and the need for remand would also beconsidered by the High Court or court of session in an applicationunder s.439 – No doubt the additional restrictions under s.43(D)(5)of UAPA are applicable to citizens of India in cases under the saidlaw.C

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Code of Criminal Procedure, 1973: s.167 – Whether a Writof Habeas Corpus lies against an order of remand under s.167 ofthe Code – A Habeas Corpus petition is one seeking redress in thecase of illegal detention – It is intended to be a most expeditiousremedy as liberty is at stake – If the remand is absolutely illegal orDthe remand is afflicted with the vice of lack of jurisdiction, a HabeasCorpus petition would indeed lie – Equally, if an order of remand ispassed in an absolutely mechanical manner, the person affectedcan seek the remedy of Habeas Corpus – Barring such situations, aHabeas Corpus petition will not lie.

ECode of Criminal Procedure, 1973: ss.167, 439 – Whethersuperior courts (including High Court) can exercise power unders.167 of the Code – Can broken periods of custody count for thepurpose of default bail – Though the power is vested with theMagistrate to order remand by way, of appropriate jurisdictionexercised by the superior Courts, (it would, in fact, include the CourtFof Sessions acting under s.439) the power under s.167 could alsobe exercised by Courts which are superior to the Magistrate – Whileordinarily, the Magistrate is the original Court which would exercisepower to remand under s.167, the exercise of power by the superiorCourts which would result in custody being ordered ordinarily (policeGor judicial custody) by the superior Courts which includes the HighCourt, would indeed be the custody for the purpose of calculatingthe period within which the charge sheet must be filed, failing withthe accused acquires the statutory right to default bail – In suchcircumstances, broken periods of custody can be counted whether H

custody is suffered by the order of the Magistrate or superior courts,if investigation remains incomplete after the custody, whethercontinuous or broken periods pieced together reaches the requisiteperiod; 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 bejudicial custody as the police is exclusively entrusted with the manto produce him before the Magistrate having jurisdiction – It istherefore, police custody – If it is thought that during the journey, itis impermissible to interrogate the accused on the basis of transitorder, then such interrogation would equally be impermissible duringthe time of journey permitted without obtaining an order under s.167– If also during such journey, the accused volunteers with a statementotherwise falling under s.27 of Evidence Act, it would be one whenthe accused is in the custody of the police – If it is police custodythen, the order of the Magistrate granting transit remand would setthe clock ticking to complete the period for the purpose of defaultbail.

Code of Criminal Procedure, 1973: s.428 – Period ofdetention, set off of – Held: s.428 enables a person convicted tohave the period of detention which he has undergone during theinvestigation, enquiry or trial set off against the term ofimprisonment.

Code of Criminal Procedure, 1973: s.167 – Detention of anaccused – Police officer can detain accused and question him inthe course of the investigation – However, the officer cannot detainthe accused beyond 24 hours excluding the time taken for thejourney from the place of arrest to the place where the Magistratewho is competent to try the case sits – If he cannot so produce theaccused and the investigation is incomplete, the officer is duty boundto produce the arrested person before the nearest Magistrate – Thenearest Magistrate may or may not have jurisdiction – He may orderthe continued detention of the arrested person based on the requestfor remand – He would largely rely on the entries in the case diaryand on being satisfied of the need for such remand which must bemanifested by reasons – The Magistrate can order police custody AB

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Aduring the first 15 days (in cases under UAPA, the first 30 days) –Beyond such period, the Magistrate may direct detention which isdescribed as judicial custody or such other custody as he may thinkfit – It is, no doubt, open to a Magistrate to refuse police custodycompletely during the first 15 days – He may give police custodyduring the first 15 days not in one go but in instalments – It is alsoBopen to the Magistrate to release the arrested person on bail – Thescheme further under s.167 is that custody (detention/ custody) asauthorized under such provisions, if it exceeds the limit as tomaximum period without the charge sheet being filed, entitles theperson in detention to be released on default bail – In fact, theCperson may on account of his inability to offer the bail languish incustody but he would undoubtedly be entitled to count the entireperiod he has spent in detention under orders of the Magistrate/Superior Court exercising powers under s.167 for the purpose ofset off under s.428.

DCode of Criminal Procedure, 1973: s.167 – Effect of illegalityin the order under s.167 – An order purports to remand a personunder s.167 – It is made without complying with mandatoryrequirements thereunder – It results in actual custody – The periodof custody will count towards default bail. s.167(3) mandatesreasons be recorded if police custody is ordered – There has to beEapplication of mind – If there is complete non-application of mindor reasons are not recorded, while it may render the exercise illegaland liable to be interfered with, the actual detention undergoneunder the order, will certainly count towards default bail – Likewise,unlike the previous Code (1898), the present Code mandates theFproduction of the accused before the Magistrate as provided inclause (b) of the proviso to s.167(2) – Custody ordered withoutcomplying with the said provision, may be illegal – But actual custodyundergone will again count towards default bail.

Code of Criminal Procedure, 1973: s.167 – If the CourtGpurports to invoke and act under s.167, the detention will qualifyeven if there is illegality in the passing of the order – What matter insuch cases is the actual custody – However, when the Court doesnot purport to act under s.167, then the detention involved pursuantto the order of the Court cannot qualify as detention under s.167.

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Code of Criminal Procedure, 1973: s.167 – Judicial custodyand police custody – Difference between – When a person isremanded to police custody, he passes into the exclusive custody ofthe police officers – ‘Custodial Interrogation’ as is indispensableto unearth the truth in a given case is the substantial premise forsuch custody – The Magistrate must undoubtedly be convinced aboutthe need for remand to such custody – Reasons must be recorded –Judicial custody is ordinarily custody in a jail – It is referred toalso as jail custody – The jails come under the Department of Jailsand staffed by the employees of the said department – The personin jail custody is therefore indirectly, through the jail authorities,under the custody of the Court – The police officer does not haveaccess to a person in judicial custody as he would have in the caseof a person in police custody – Unless permission is sought andobtained which would apparently be subject to such conditions asa court places the person in judicial custody cannot be questionedby the police officers – Now in a case, ordinarily, instead of orderinga remand a person can be released on bail – As to whether a case ismade 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 lawwhich must be observed – But if bail is not granted then a personarrested by the police in connection with the cognizable offencemust be remanded to custody – This is inevitable from the readingof s.167 of the Cr.P.C.

Code of Criminal Procedure, 1973: s.167 – Judicial custodyof accused – The concept of house arrest as ordered in this casewith the complete prohibition on stepping out of the Appellantspremises and the injunction against interacting with persons otherthan ordinary residents, and the standing of guard not to protecthim but to enforce the condition would place the Appellant underjudicial custody – s.167 speaks of ‘such custody as it thinks fit’ – Ifit is found ordered under s.167 it will count.

Code of Criminal Procedure, 1973: s.167 – Does themagistrate/Court consider the legality of arrest/detention while actingunder s.167 – Held: Art.22(1) creates a fundamental right on aperson arrested to be not detained without being informed as soonas may be of the grounds for such arrest – It also declares it a AB

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Afundamental right for the detained person to consult and bedefended by a legal practitioner of his choice – Now, detentionfollows arrest – What Art.22(1) is concerned with is that thedetention must be supported by the fulfilment of the rights referredto therein – Strictly speaking, therefore, Art.22(1) does not go tothe legality of the arrest – Constitution of India – Art.22(1).B

Code of Criminal Procedure, 1973: s.167 – Impact of non-accessibility to the appellant for the investigating agency duringhouse arrest and the effect of the appellant being in police custodyfrom 14.4.2020 to 25.4.2020 – The very purpose of custody unders.167 is to enable the police to interrogate the accused and if thatCopportunity is not present then such period of custody as allegedwould not qualify for the purpose of s.167 – In other words, theargument appears to be that the object and scheme of s.167 is thatan investigation is carried out with opportunity to question theaccused and still it is not completed within the period of 90 daysDwhereupon right to default bail arises – By the proceedings on28.08.2018 when the petition was filed, the High Court stayed thetransit remand and the appellant could not be taken to Maharashtra– By the very same order, the High Court placed the appellant underhouse arrest – No access was provided to the investigating agenciesto question the appellant – In such circumstances, the periodEundergone as house arrest should be excluded.

Prisons: Conditions relating to jails and prisoners – Alarmingstate of affairs as far as occupancy rate is concerned –Overcrowding in jails, discussed.

FDismissing the appeal, the Court

HELD:

Whether the period of 34 days spent in house arrest by theappellant is to be counted towards the period of 90 days underSection 167 Cr.P.C.G

1.1. Under Section 156 Cr.P.C., any police officer in chargeof a police station can without order of a Magistrate investigateany cognizable case which a court having jurisdiction over thelocal area within the limits of such station have the power to try.

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Section 157 dealing with Procedure for investigation contemplatesinter alia the power to proceed, to the spot, to investigate thefacts and circumstance of the case, and if necessary, takemeasures for the discovery and arrest of the offender. With theproviso in the Cr.P.C., 1973, in Section 76, in the case of arrestunder a warrant, the person is to be produced before the Courtwithin 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 inlaws providing for preventive detention. Section 5 of the NationalSecurity Act, 1980, is a law providing for preventive detention.The safeguards under Article 22(1) and Article 22(2) are notavailable under a law providing for preventive detention. ‘Housearrests’ have been resorted to in India, in the context of lawrelating to ‘preventive detention’. What is however relevant isthat preventive detention is also a form of forced detention. Housearrest 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 CrimeRecords Bureau (NCRB) the conditions relating to jails andprisoners is fairly alarming. There were a total number of 1350prisons as of the year 2019. 1350 prisons consists of 617 SubJails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 SpecialJails, 31 Women Jails, 19 Borstal School and 2 Other than theabove jails. A perusal of the executive summary would reveal analarming state of affairs as far as occupancy rate is concerned. Ithas climbed to 118.5 percent in 2019 as on 31[st] December. The A

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Aoccupancy rate is alarming for male prisoners. In fact, during 2019,a total of 18,86,092 inmates were admitted in the jails. The figureof 4,78,600 prisoners as on 31[st] December, 2019 is the figureobviously after considering the number of prisoners who wouldhave been inter alia bailed out. The number of under trialprisoners in 2019 was 3,30,487 which in fact constituted 69.05Bper cent of the total no. of prisoners. Delhi had the highestoccupancy rate of 174.9 percent followed by Uttar Pradesh whichcame second with 167.9 percent. This means that in Delhi a prisonwhich was meant to be occupied by 100 persons, was used foraccommodating 174 persons. There is a tremendous amount ofCovercrowding in jails in India. Secondly, a very large sum (Rs.6818.1 crore) was the budget on prisons. Both aspects arerelevant 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 underDArticle 19 which are essentially constitutional freedoms or ratherthe enumerated rights as explained by this Court in ManekaGandhi vs. Union of India, when a citizen is placed on house arrest,which has the effect of depriving him of any freedom, it will notonly be custody but it would involve depriving citizens undercustody of the fundamental freedoms unless such freedoms areEspecifically protected. A person has a fundamental right to movein any part of the country. It is obvious that in the case of a personundergoing a house arrest and in the teeth of an absoluteprohibition, in the facts of the case forbidding the appellant frommoving outside his home, the hallmark of custody described inFthe case of incarceration is equally present. Personal libertyperhaps is the most important of all values recognized as suchunder the constitution. It is to be jealously guarded from anyencroachment, save where such intrusion has the clear sanctionof law. The expression “procedure established by law” has received an expansive and liberal exposition in decisions of thisGCourt commencing from Maneka Gandhi. Right to personal libertyis the birth right of every human being. The right under Article21 is undoubtedly available to citizens and non-citizens. Whilepersonal liberty is a wide expression capable of encompassingwithin its fold, many elements apart from the right to be protectedH

against the deprivation of liberty in the sense of the freedomfrom all kinds of restraints imposed on a person, the irreduciblecore of personal liberty, undoubtedly, consist of the freedomagainst 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 isdeprived of its content and meaning. The right to life and personalliberty is essentially also based on the principle that men in regardto fundamental rights be treated equal and that no man or a groupof men, even organized as a state under which he lives can deprivehim except without infringing the right to be treated equally unlessthere is a legitimate sanction of law. Personal liberty of itsmembers must continue to remain the most cherished goal ofany civilized state and interference with the same must be confinedto those cases where it is sanctioned by the law and genuinelyneeded. 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 availableto the Courts to send a person to house arrest which is in lieu ofa jail sentence. [Paras 53, 54][157-D-G]

Govt. of Andhra Pradesh and another etc. v. AnneVenkateswara Rao etc. etc. AIR 1977 SC 1096:[1977]3 SCR 7 – relied on THE REMEDIES OPEN TO AN ACCUSED IN THE CASEOF REMAND UNDER SECTION 167 OF THE CR.P.C.

3.1 An order under Section 167 is purely an interlocutoryorder. No revision is maintainable. A petition under Section 482cannot be ruled out. When a person arrested in a non-bailableoffence is in custody, subject to the restrictions, contained therein,a court other than High Court or Court of Session, before whomhe is brought inter alia, can release him on bail under Section437 of the Cr.P.C. Section 439 of the Cr.P.C. deals with special A

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Apowers of High Court and court of session to grant bail to a personin custody. The said courts may also set aside or modify anycondition in an order by a Magistrate. Ordinarily, when the courtconsiders a request for remand there would be an application forbail. It is for the court to grant bail failing which an order of remandwould follow. [Paras 57, 59][159-A-C; 159-G]B

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, SpecialInvestigation Cell v. Anupam J. Kulkarni (1992) 3 SCC141 : [1992] 3 SCR 158 – relied on C

3.2 No doubt, while the remand report is considered by theMagistrate the application for bail may be moved under Section439 instead of moving under Section 437 in view of therestrictions contained therein. Though an application underSection 397 would not lie against the remand, an application forDbail would lie under Section 439. Therefore, ordinarily the accusedwould seek bail and legality and the need for remand would alsobe considered by the High Court or court of session in anapplication under Section 439. No doubt the additional restrictionsunder section 43 (D) (5) of UAPA are applicable to citizens ofEIndia in cases under the said law. [Para 60][159-H; 160-A-B]

WHETHER A WRIT OF HABEAS CORPUS LIESAGAINST AN ORDER OF REMAND UNDER SECTION (167)OF CR.P.C.

4. A Habeas Corpus petition is one seeking redress in theFcase of illegal detention. It is intended to be a most expeditiousremedy as liberty is at stake. If the remand is absolutely illegalor the remand is afflicted with the vice of lack of jurisdiction, aHabeas Corpus petition would indeed lie. Equally, if an order ofremand is passed in an absolutely mechanical manner, the personaffected can seek the remedy of Habeas Corpus. Barring suchGsituations, 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 FraudInvestigation Office and Ors. v. Rahul Modi and Ors.H(2019) 5 SCC 266 : [2019] 5 SCR 91 – relied on.

WHETHER SUPERIOR COURTS (INCLUDING A HIGHCOURT) CAN EXERCISE POWER UNDER SECTION (167)OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNTFOR THE PURPOSE OF DEFAULT BAIL?

5.1 Though the power is vested with the Magistrate to orderremand by way, of appropriate jurisdiction exercised by thesuperior Courts, (it would, in fact, include the Court of Sessionsacting under Section 439) the power under Section 167 couldalso be exercised by Courts which are superior to the Magistrate.While ordinarily, the Magistrate is the original Court which wouldexercise power to remand under Section 167, the exercise ofpower by the superior Courts which would result in custody beingordered ordinarily (police or judicial custody) by the superiorCourts which includes the High Court, would indeed be thecustody for the purpose of calculating the period within whichthe charge sheet must be filed, failing with the accused acquiresthe statutory right to default bail. In such circumstances brokenperiods of custody can be counted whether custody is sufferedby the order of the Magistrate or superior courts, if investigationremains incomplete after the custody, whether continuous orbroken 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 APRODUCTION ORDER THOUGH SOURCED UNDERSECTION 167 CR.P.C.?

6.1 In this case, the transit remand was ordered on28.08.2018. The Appellant was to be produced under the sameon 30.08.2018 before the Magistrate in Pune. A person may bearrested by a police officer in any part of India (Section 48 ofCr.P.C.). Under Section 56, the person arrested without warrantis to be sent before the Magistrate having jurisdiction or beforethe officer in charge of a police station. It is thereafter, that Section57 forbids the person so arrested: from being detained for a periodmore than what is reasonable. from being detained beyond 24hours from the time of arrest, excluding the time necessary for A

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Athe journey from the place of arrest to the Magistrate Court.Now, the ‘Magistrate Court’ referred to in Section 57 is theMagistrate competent to try the case. Section 57 contains theperemptory 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]B

6.2 The remand pursuant to a transit remand cannot bejudicial custody as the police is exclusively entrusted with theman no doubt to produce him before the Magistrate havingjurisdiction. It is therefore, police custody. Could the police beengaged in questioning/ investigating the case by interrogatingCthe accused on the basis of the transit order either before,embarking on the journey or during the course of the journeyand after the journey before producing him? If it is thought thatduring the journey, it is impermissible, then such interrogationwould equally be impermissible during the time of journeyDpermitted without obtaining an order under Section 167. If alsoduring such journey, the accused volunteers with a statementotherwise falling under Section 27 of Evidence Act, it would beone when the accused is in the custody of the police. If it is policecustody then, the order of the Magistrate granting transit remandwould set the clock ticking to complete the period for the purposeEof default bail. The remand order be it a transit remand order isone which is passed under Section 167 of the Cr.P.C. and thoughit may be for the production of the Appellant, it involvedauthorising continued detention within the meaning of Section167. [Paras 76, 78][165-F-H; 166-A; 167-A]

FTHE IMPACT OF SECTION 428 OF CR.P.C.

7.1 If house arrest as ordered in this case is to be treatedas custody within the meaning of section 167 of the Cr.P.C. wouldit not entail the period of house arrest being treated as part ofthe detention within the meaning of Section 428 in case there isGa conviction followed by a sentence? Section 428 enables a personconvicted to have the period of detention which he has undergoneduring the investigation, enquiry or trial set off against the termof imprisonment. [Paras 80, 82][167-E-G]

7.2 There is a scheme which is unravelled by the Coderegarding detention of an accused. The starting point appears tobe the arrest and detention of the person in connection with thecognizable offence by a police officer without a warrant. He candetain him and question him in the course of the investigation.However, the officer cannot detain the accused beyond 24 hoursexcluding the time taken for the journey from the place of arrestto the place where the Magistrate who is competent to try thecase sits. If he cannot so produce the accused and the investigationis incomplete, the officer is duty bound to produce the arrestedperson before the nearest Magistrate. The nearest Magistratemay or may not have jurisdiction. He may order the continueddetention of the arrested person based on the request for remand.He would largely rely on the entries in the case diary and onbeing satisfied of the need for such remand which must bemanifested by reasons. The Magistrate can order police custodyduring the first 15 days (in cases under UAPA, the first 30 days).Beyond such period, the Magistrate may direct detention whichis described as judicial custody or such other custody as he maythink fit. It is, no doubt, open to a Magistrate to refuse policecustody completely during the first 15 days. He may give policecustody during the first 15 days not in one go but in instalments.It is also open to the Magistrate to release the arrested personon bail. [Para 85][169-B-E]

Ajmer Singh and others v. Union of India and othersAIR 1987 SC 1646 : [1987] 3 SCR 84 – relied on

7.3 The arrested person if detained during the period ofinvestigation can count this period, if he is ultimately charged,tried and convicted by virtue of the provisions of Section 428 ofCr.P.C. It is not every detention which can be relied upon to getthe benefit of set-off under Section 428. A period spent under anorder of preventive detention being not in connection with theinvestigation into an offence cannot be counted. Thus, detention‘during investigation’ under Section 428 is integrally connectedwith detention as ordered under Section 167. The scheme furtherunder Section 167 is that custody (detention/ custody) as AB

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Aauthorized under such provisions, if it exceeds the limit as tomaximum period without the charge sheet being filed, entitlesthe person in detention to be released on default bail. In fact, theperson may on account of his inability to offer the bail languish incustody but he would undoubtedly be entitled to count the entireperiod he has spent in detention under orders of the Magistrate/BSuperior Court exercising powers under Section 167 for thepurpose of set off under Section 428. [Paras 86, 88, 89][169-F-G;170-A-C]

EFFECT OF ILLEGALITY IN THE ORDER UNDERSECTION 167 CR.PC.C

8.1 An order purports to remand a person under Section167. It is made without complying with mandatory requirementsthereunder. It results in actual custody. The period of custodywill count towards default bail. Section 167(3) mandates reasonsbe recorded if police custody is ordered. There has to beDapplication of mind. If there is complete non-application of mindor reasons are not recorded, while it may render the exerciseillegal and liable to be interfered with, the actual detentionundergone under the order, will certainly count towards defaultbail. Likewise, unlike the previous Code (1898), the present CodeEmandates the production of the accused before the Magistrateas provided in clause (b) of the proviso to Section 167 (2). Custodyordered without complying with the said provision, may be illegal.But actual custody undergone will again count towards defaultbail. [Para 90][170-C-F]F8.2 The view taken in the impugned judgment that sansany valid authorisation/ order of the Magistrate detaining theAppellant there cannot be custody for the purpose of Section167 is not correct. Therefore, if the Court purports to invokeand act under Section 167, the detention will qualify even if thereis illegality in the passing of the order. What matter in such casesGis the actual custody. However, when the Court does not purportto act under Section 167, then the detention involved pursuantto the order of the Court cannot qualify as detention under Section167. [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 Courtamounts to custody within the meaning of Section 167 of theCr.P.C. Undoubtedly custody in Section 167 of the Cr.P.C. isunderstood as ordinarily meaning police custody and judicialcustody. The period of custody begins not from the time of arrestbut from time the accused is first remanded. Police custody can,in a case falling under the Cr.P.C. (not under the UAPA), be givenonly during the first 15 days. During the first 15 days no doubtthe Court may order judicial custody or police custody. No doubtthe last proviso to Section 167 (2) provides that detention of awoman under eighteen years of age, the detention shall beauthorised to be in the custody of a remand home or recognisedsocial institution. [Para 94][171-B-E]

9.2 Distinction between police custody and judicial custody

9.2 Distinction between police custody and judicial custody When a person is remanded to police custody, he passesinto the exclusive custody of the police officers. ‘CustodialInterrogation’ as is indispensable to unearth the truth in a givencase is the substantial premise for such custody. The Magistratemust undoubtedly be convinced about the need for remand tosuch custody. Reasons must be recorded. Judicial custody isordinarily custody in a jail. It is referred to also as jail custody.Thus, jail custody and judicial custody are the same. The jailscome under the Department of Jails and staffed by the employeesof the said department. The person in jail custody is thereforeindirectly, through the jail authorities, under the custody of theCourt. The police officer does not have access to a person injudicial custody as he would have in the case of a person in policecustody. Unless permission is sought and obtained which wouldapparently be subject to such conditions as a court places theperson in judicial custody cannot be questioned by the policeofficers. Now in a case, ordinarily, instead of ordering a remand aperson can be released on bail. As to whether a case is made outis a question to be decided in the facts of each case. There maybe restrictions put in regard to the grant of bail by law whichmust be observed. But if bail is not granted then a person arrested A

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Aby the police in connection with the cognizable offence must beremanded to custody. This is inevitable from the reading of Section167 of the Cr.P.C. [Para 95][171-E-H; 172-A-B]

9.3 The concept of house arrest though familiar in the lawrelating to preventive detention, therein the underpinnings areBdifferent. House arrest in the law of preventive detention is onewhich is permitted under the law itself and such orders are madein fact by the executive. Taking the ingredients of house arrestas are present in the order passed by the High Court of Delhi, ifit is found to be one passed under Section 167, then it would bedetention thereunder. The concept of house arrest as ordered inCthis case with the complete prohibition on stepping out of theAppellants premises and the injunction against interacting withpersons other than ordinary residents, and the standing of guardnot to protect him but to enforce the condition would place theAppellant under judicial custody. Section 167 speaks of ‘such Dcustody as it thinks fit’. If it is found ordered under Section 167 itwill count. [Paras 97, 98][172-G; 173-A-B]

DOES THE MAGISTRATE/ COURT CONSIDER THELEGALITY OF ARREST/ DETENTION WHILE ACTINGUNDER SECTION 167

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10. Article 22(1) creates a fundamental right on a personarrested to be not detained without being informed as soon asmay be of the grounds for such arrest. It also declares it afundamental right for the detained person to consult and bedefended by a legal practitioner of his choice. Now, detentionFfollows arrest. What Article 22(1) is concerned with is that thedetention must be supported by the fulfilment of the rightsreferred to therein. Strictly speaking, therefore, Article 22(1) doesnot go to the legality of the arrest. [Para 100][174-F-G]

CUSTODY UNDERGONE UNDER ORDERS OFSUPERIOR COURTS IN HABEAS CORPUS PETITIONS. ISGTHE 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 H

that a writ of Habeas Corpus be issued to set him at liberty. Thefurther relief sought was that the Appellant may not be arrestedwithout prior notice to enable him to seek appropriate remedies.As far as the prayer that the Appellant may not be arrested isconcerned, it is a relief which does not go hand in hand with Section167 of the Cr.P.C. This is for the reason that the power underSection 167 is invoked only after there has been an arrest andwhat is sought is the extension of the detention of the personarrested. Though, this was the position when the writ petitionwas filed, by the time, the writ petition came up for considerationat 2:45 p.m. on 28.08.2018, the Appellant stood arrested at 2:15p.m. It would appear, in the meantime, the appellant was producedbefore the Magistrate who passed the transit remand order.Thereafter when the matter was taken up for consideration at4:00 p.m. and on noticing the transit remand, order, dated28.08.2018, inter alia, ordering house arrest came to be passed.Therefore, at the time (4PM) when the order was passed, theCourt was dealing with the matter when the Appellant stoodarrested and also remanded by way of the transit remand order.As already found that the superior Courts including the HighCourt can exercise power under Section 167. The finding of theHigh Court in the impugned judgment appears to proceed on thebasis that only a Magistrate can order remand, does not appearto 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 cameto be detained on the basis of an arrest carried out by the policeofficer from the State of Maharashtra in connection with FIRdisclosing the commission of cognizable offences. The arrest isapparently effected in view of the powers available under Section48 of the Cr.P.C. Finding that an order under Section 167 wasrequired to produce the appellant before the competent Court inMaharashtra, he produced the appellant-in-person before thenearest Magistrate in Delhi and the Magistrate passed an orderwhich is an order of remand under Section 167. The High Courtcame to be concerned with the validity of the remand order anddetention of the appellant. A writ of habeas corpus does lie incertain exceptional cases even by way of challenging the orders AB

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Aof remand. If there is non-compliance with Article 22(1) and theperson is detained it is an aspect which has to be borne in mindby the Magistrate when ordering remand. Detention is the resultof an arrest. Article 22(1) applies at this stage after arrest. Iffundamental rights are violated in the matter of continueddetention, the Magistrate is not expected to be oblivious to it. ItBis in this sense that the High Court has found violation of Article22(1) inter alia and the Magistrate over-looking it as renderingthe transit remand illegal. As far as the arrest being made inviolation of Section 41(1)(ba), undoubtedly, it is a matter whichrelated to the legality of the arrest itself which is the stage priorCto detention. The High Court finds that the Magistrate hadnot applied his mind to the question as to whether the arrest wasin compliance with Section 41 (1) (ba) of Cr.P.C. [Para 117][181-B-F]

THE IMPACT OF THE NON-ACCESSIBILITY TO THEDAPPELLANT FOR THE INVESTIGATING AGENCY DURINGHOUSE ARREST AND THE EFFECT OF THE APPELLANTBEING IN POLICE CUSTODY FROM 14.4.2020 TO 25.4.2020.

12. The very purpose of custody under Section 167 is toenable the police to interrogate the accused and if that opportunityEis not present then such period of custody as alleged would notqualify for the purpose of Section 167. In other words, theargument appears to be that the object and scheme of Section167 is that an investigation is carried out with opportunity toquestion the accused and still it is not completed within the periodof 90 days whereupon right to default bail arises. By theFproceedings on 28.08.2018 when the petition was filed, the HighCourt stayed the transit remand and the appellant could not betaken to Maharashtra. By the very same order, the High Courtplaced the Appellant under house arrest. No access was providedto the investigating agencies to question the Appellant. In suchGcircumstances, the period undergone as house arrest should beexcluded. 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 thefirst 15 days, thereafter, police custody cannot be given. In thecase of UAPA, in view of the modified application of the Cr.P.C.H

under Section 43(D)(2), the period of 15 days stands enhanced to30 days. Thus, police custody by the Magistrate can be given onproduction for a period of 30 days. The argument further runsthat if it is on the basis of the Appellant having surrendered on14.04.2020 and upon being produced before the Court, he stoodremanded to police custody, the period of 90 days would begin torun only from the date of the remand i.e. 15.04.2020. If thecontention of the appellant is that the period of remandcommenced with the house arrest i.e., 28.08.2018, is accepted,it would result in the police custody given on 15.04.2020 asimpermissible. In this regard, the fact that the appellant did notobject to the police custody being given on 15.04.2020 isemphasized. The appellant acquiesced in the police custodycommencing from 15.04.2020. This is possible only on thebasis that the period of 90 days would commence only on15.04.2020 in terms of the law laid down in ChagantiSatyanarayana. [Para 119][182-B-H; 183-A]

Chaganti Satyanarayan & Ors. v. State of AndhraPradesh (1986) 3 SCC 141:[1986] 2 SCR 1128 – reliedon 13.1 The scheme of the law (Cr.P.C.) is that when a personis arrested without warrant in connection with a cognizableoffence, investigation is expected to be completed within 24 hoursfrom his arrest. If the investigation is not completed, as isordinarily the case, the accused must be produced before theMagistrate who is nearest from the place of arrest irrespectiveof whether he is having jurisdiction or not. The Magistrate onthe basis of the entries in the case diary maintained by the officeris expected to apply his mind and decide whether the accused isto be remanded or not. If the police makes a request for policecustody which is accepted then an order is to be passed andreasons are to be recorded under Section 167(3). Police custodyis an important tool in appropriate cases to carry on an effectiveinvestigation. It has several uses. It includes questioning theaccused with reference to the circumstances, and obtaining ifpossible, statements which are relevant in the future prosecution.

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ACustodial interrogation in some cases is clearly a dire need togive a prosecution and therefore the courts a complete picture.The contention of the appellant that it is always open to Magistrateto order only judicial custody and even exclusively with 90 daysof judicial custody alone, an application for default bail would liecannot be disputed. Whatever be the nature of the custody asBlong as it falls within four walls of Section 167, if the requisitenumber of days are spent in police/ judicial custody/ police andjudicial custody that suffices. [Para 121][184-C-F]

13.2 However, that may not mean applying the functionaltest or bearing in mind the object of the law that the purpose ofCobtaining police custody is lost sight of. According to theappellant, the period of house arrest is to be treated as judicialcustody on the terms of the order dated 28.08.2018 assubsequently extended. Investigating officers, undoubtedly, couldgo to the house of the appellant and question him. It is, however,Dtrue that if the High Court had been approached, it may havedirected the appellant to cooperate with the officers in theinvestigation. 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.EThereafter, a period of 7 days further remand to police custodywas granted by the order dated 21.04.2020. Still further, it appearson 25.04.2020, the Appellant was remanded in judicial custody inwhich he continued. The question would arise that all else beinganswered in favour of the Appellant whether his case isinconsistent with the police remand initially granted for 7 daysFon 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 policecustody can be given only for 15 days and that too, the first 15days, ordinarily. In the case of persons accused of offences, underUAPA, the maximum period of police custody is 30 days. If theGcase of the appellant is to be accepted then it must be consistentwith the subsequent proceedings, namely, police custody videorders dated 15.04.2020 and 21.04.2020. In other words, Section167 of the Cr.P.C. as modified by Section 43(D)(2) of UAPA, H

contemplates that remand to police custody on production of theaccused can be given only during the first 30 days from the dateof production and it advances the case of the respondent thatremand on production of the accused before the Special Judgetook 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 year2018 then it would be completely inconsistent with the remandto police custody well beyond the first 30 days of the remand inthe year 2018. [Para 124][185-C-F]

13.4 The answer of the Appellant is that apart from theperiod of 15 days being supplanted by 30 days under UAPA, policecustody can be sought and granted at any time in cases involvingUAPA. It appears to be the Appellants case in one breath thatthis is possible under the second proviso contemplated in Section43(2)(b) of UAPA. It is seen contended, that unlike the casesgenerally covered by the Cr.P.C., police custody can be soughtin cases under UAPA at any time. It is also contended howeverthat, it is only if a person is in judicial custody and the investigatorwants to get police custody in place of judicial custody that anaffidavit is required. In this case, it is the case of the appellantthat there is no such affidavit. This is for the reason that whenpolice custody was sought on 15.04.2020, the appellant was notin judicial custody. He had surrendered on the previous day i.e.on 14.04.2020 before the NIA. It is, therefore, to resolve thiscontroversy necessary to find out whether the case of theAppellant that the police custody can be sought at any time incases 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 maximumperiod of police custody which is permissible has been increasedfrom 15 days to 30 days. The further modification is that which isrelevant which is incorporated in the second proviso. Itcontemplates that the investigating officer can seek with reasonsand explaining the delay obtain the police custody of a personwho is in judicial custody. [Para 127][186-G]

15. Undoubtedly, the period of 30 days is permissible byway of police custody. This Court will proceed on the basis that A

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Athe legislature is aware of the existing law when it brings thechanges in the law. In other words, this Court had laid down inAnupam Kulkarni, inter alia, that under Section 167 whichprovides for 15 days as the maximum period of police custody,the custody of an accused with the police can be given only duringthe first 15 days from the date of the remand by the Magistrate.BBeyond 15 days, the remand can only be given to judicial custody.Ordinarily, since the period of 15 days has been increased to 30days, the effect would be that in cases falling under UAPA applyingthe principle declared in Anupam Kulkarni., the investigatingofficer in a case under UAPA, can get police custody for aCmaximum period of 30 days but it must be within the first 30 daysof the remand. In this regard, the number of days alone isincreased for granting remand to police custody. The principlethat it should be the first 30 days has not been altered in casesunder UAPA. [Para 128][187-A-D]

D16. As far as the second proviso in Section 43(D)(2)(b) isconcerned, it does bring about an alteration of the law in AnupamKulkarni. It is contemplated that a person who is remanded tojudicial custody and NIA has not been given police custody duringthe first 30 days, on reasons being given and also on explainingthe delay, Court may grant police custody. The proviso bringsEabout the change in the law to the extent that if a person is injudicial custody on the basis of the remand, then on reasons given,explaining the delay, it is open to the Court to give police custodyeven beyond 30 days from the date of the first remand.[Para 128][187-D-E]

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17. In this regard, it would appear that the appellant hadsurrendered on 14.04.2020. He was not in judicial custody. Hewas produced with a remand report seeking police custody on15.04.2020. Treating this as a remand sought within the first 30days, a remand is ordered for a period of 7 days initially. There isGno dispute that the period was police custody. An accused underUAPA may be sent to judicial custody, police custody or grantedbail. If the argument that the police custody can be sought at anytime and it is not limited to cases where there is judicial custody, it will go against the clear terms of the proviso and even a personwho is bailed out can after 30 days be remanded to police custody.This is untenable. The case of the appellant that the police custodygranted on 15.04.2020 was permissible and consistent withhis case does not appear to be correct. [Para 128][187-F-H;188-A-B]

THE CIRCUMSTANCES THAT MILITATE AGAINSTTHE ORDER OF HOUSE ARREST BEING ONE UNDERSECTION 167.

18. The High Court entertains the writ petition on28.08.2018. It intended to dispose of the matter on the very nextday. 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 casediary as the entries were in the Marathi language. In fact, thecourt expresses inability to make out from the documents whatprecisely the case against the appellant was. Translation of thedocuments were to be made available on the next day. Thetranslations were not made available. Yet the house arrest wasordered until further orders on 28.08.2018. What is pertinent isthat by the standards in law applicable to a Magistrate actingunder Section 167, the High Court did not purport to act underSection 167. This is different from saying that it acted in violationof the mandate of law. It is true that there was no stay ofinvestigation as such. However, what was challenged was thetransit remand. The FIR was lodged in another state.Interrogation of the appellant would be integral to theinvestigation. On the terms imposed by the High Court in regardto house arrest it was not possible for such interrogation to takeplace. It appears that the parties did not contemplate as it ispresently projected. It is no doubt true that the respondent couldhave moved the High Court. The house arrest according to theappellant is by way of modification of the order of remand. Inother words, the contention is that the High Court stayed thetransit. But the High Court when it passed the order of housearrest on 28.08.2018, it modified the remand from police custodyto house arrest. Subject to what follows we proceed on the basis A

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Athat the High Court modified the order of remand. The transitremand order of the CMM Saket provided for police custodywhich was to last for two days. But on the basis of the housearrest ordered by the High Court by interim order the appellantunderwent house arrest for 34 days. By the judgment dated01.10.2018 the High Court of Delhi set aside the transit remand,Bas the transit remand ordered by the magistrate was found illegal.On the said basis the High Court of Delhi finds that detentionbeyond 24 hours was clearly impermissible. Now it is relevant tonotice that the CMM Saket had not ordered detention for theperiod after 30.08.2018. Detention was ordered by him only forCtwo days and the appellant was to be produced on 30.08.2018. Bythe order of the High Court of Delhi, the transit could not takeeffect. Therefore, the entire period after 30.08.2018 till01.10.2018 cannot be said to be based on the order of themagistrate. The said period in fact is covered by the order ofhouse arrest. The period of house arrest covered the period fromD28.08.2018 based on the order of the High Court. The arrest waseffected at 2.15PM on 28.08.2018. The order of the CMM waspassed within the next hour or so. The order of the High Courtwas passed at about 4.30PM. No doubt, it is the order of themagistrate which originated the remand under Section 167 toEpolice custody. The High Court of Delhi proceeded to find thatwithout the support of a valid remand order by the magistrate,the detention exceeded 24 hours rendering it untenable in lawand the further finding however is that consequently the housearrest came to an end as of then (01.10.2018). Therefore, theHigh Court did not proceed to pronounce the house arrest asFnon est or illegal. On the other hand, when it is pronounced, it ashaving come to an end on 01.10.2018 and no part of it is found tobe illegal, it meant that it was valid from the point of time it waspassed till 01.10.2018. If this is perceived as an order passedunder Section 167 then there would not be any detention beyondG24 hours of the arrest which could be illegal. The illegality of thedetention is based on the transit order being found illegal. If thetransit order has been modified as claimed by the appellant, thenthe detention would be lawful as the order of house arrest ispassed well within 24 hours of the arrest. The High Court of H

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Delhi also did not contemplate that the order of house arrest waspassed by way of custody under Section 167. No doubt, thefoundational order, the transit remand, being set aside it couldbe said that the interim order will not survive. But then the ordershould have been so understood by the High Court. Undoubtedly,the appellant was placed in police custody from 15.04.2020 to25.04.2020. Even the enhanced period of 30 days of policecustody, permissible under Section 43 (D) (2) of UAPA, must beacquired within the first 30 days of the remand. Proceeding onthe basis of the case of the appellant that the first remand tookplace on 28.08.2018, the appellant being in police custody for aperiod of 11 days in 2020 is inconsistent with appellants case andthe law. Though police custody can be had under UAPA beyondthe first 30 days under the Second Proviso to Section 43(D)(2), itis permissible only in a situation, where the accused is in judicialcustody. The appellant was, admittedly, not in judicial custody,having surrendered to the NIA on 14.04.2020, which is on theeve of the first order directing police custody. One of thecontentions raised by the respondent is that if the order of housearrest was passed under Section 167 Cr.PC then the High Courtof Delhi would have after setting aside the transit remand, eitherreleased the appellant on bail or remanded him to custody.Instead, the High Court released the appellant on the basis thatas the remand order was illegal and set aside, in view of Section56 and Section 57 the detention beyond 24 hours, cannot besustained. Now in a proceeding under Section 167 where a remandorder is put in issue before a superior court it presupposes anarrest in connection with a cognizable offence. Now if the remandis set aside by the superior court, in a proceeding which originatedfrom a remand under Section 167, then the order that would followon setting aside the remand, would be to grant him bail or tomodify the remand. This is for the reason that there is an arrestwhich in the first place sets the ball rolling. Therefore, he haseither 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 courtcannot remand a person unless the court is authorised to do so AB

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Aby law. However, we are in this case not sitting in appeal over thelegality of the house arrest. But we are here to find whether thehouse arrest fell under Section 167. In the facts of this case, thehouse arrest was not ordered purporting to be under Section167. It cannot be treated as having being passed under Section167. The concept of house arrest as part of custody under SectionB167 has not engaged the courts including this Court. However,when the issue has come into focus, and noticing its ingredientswe have formed the view that it involves custody which falls underSection 167. Under Section 167 in appropriate cases it will beopen to courts to order house arrest. As to its employment,Cwithout being exhaustive, we may indicate criteria like age, healthcondition and the antecedents of the accused, the nature of thecrime, the need for other forms of custody and the ability toenforce the terms of the house arrest. Under Section 309 alsothat judicial custody being custody ordered, subject to followingthe criteria, the courts will be free to employ it in deserving andDsuitable cases. In view of the fact that the house arrest of theappellant was not purported to be under Section 167 and cannotbe treated as passed thereunder. [Paras 136, 138, 139, 140][195-B-G]

Lalita Kumari v. Government of Uttar Pradesh andEothers (2014) 2 SCC 1 : [2013] 14 SCR 713; BikramjitSingh v. The State of Punjab (2020) 10 SCC 616 – reliedon.

Romila Thapar and Others v. Union of India and others(2018) 10 SCC 753 : [2018] 11 SCR 951; State ofFPunjab v. Ajaib Singh AIR 1953 SC 10 : [1953] SCR254; In re. M.R. Venkataraman and Others AIR 1948Mad 100; The matter of: Madhu Limaye and Others(1969) 1 SCC 292 : [1969] 3 SCR 154; Arnesh Kumarv. State of Bihar and Another (2014) 8 SCC 273 : [2014]G8 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) 2SCC 559 : [1980] 3 SCR 15 – referred to.

Buzadji v. Moldova 398 Butterworths Human RightsCases 42 – referred to.H

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 510 of 2021.

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From the Judgment and Order dated 08.02.2021 of the High Courtof Judicature at Bombay in Criminal Appeal Stamp No. 1707 of 2020.

Kapil Sibal, Ms. Nitya Ramakrishnan, Sr. Advs., Ms. WarishaFarasat, Shadan Farasat, Nizam Pasha, Shourya Dasgupta, Ms. HafsaGKhan, Bharat Gupta, Advs. for the Appellant.

S.V. Raju, ASG., Ms. Sairica Raju, Guntur Pramod Kumar, B.V.Balaram Das, Advs. for the Respondent.

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AThe 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, registeredBat Vishrambagh Police Station, Pune, Maharashtra, which was oneregistered under Sections 153A, 505(1B) and Section 34 of IPC to whichSection 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 appellantCwas added on 22.08.2018, the appellant came to be arrested from hisresidence in Delhi on 28.08.2018. The appellant moved Writ PetitionNo. 2559 of 2018 seeking a Writ of Habeas Corpus in the High Court ofDelhi. The High Court, apart from issuing notice, inter alia, orderedthat no further precipitate action of removing the appellant from DelhiDbe taken till the matter was taken at 04:00 P.M.. The Order was passedat 02:45 P.M.. In the meantime, the CMM at Saket, Delhi disposed of anApplication seeking transit remand with the following Order:

“FIR No. 4/18

PS: Vishrambagh, Pune, MaharashtraEU/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

28.08.2018FPresent: Sh. Jagdamba Pandey, Ld. APP for the State IO Assistant Police Inspector Sushil V. Bobde alongwith ACP Ganesh Gawade and DCP Bachchan Singh InspectorSanjay Gupta, PS Special Cell, Lodhi Colony, New Delhi.

GAccused Gautam Pratap Navlakha produced in Police custody.

Sh. Om Prakash, Ld. LAC for the accused.

This is a handwritten application preferred by the 10 AssistantPolice Inspector Sushil V. Bodbe seeking transit remand of twodays the above noted accused persons. The identity of 10 as aH

police officer of P Vishrambagh, Pune, Maharashtra is establishedupto my satisfaction upon his having shown his identity card.

Heard. It is submitted by the IO that above noted accused isrequired in above noted case FIR registered at PS Vishrambagh,Pune, Maharashtra and has been arrested from his house atKalkaji, Delhi. It is further submitted by the IO that the accusedhas been arrested without warrant and he is required to be producedbefore competent Court i.e. Court of Ld. Special Court, ShivajiNagar, Pune, Maharashtra and therefore, his transit remand maybe granted.

Heard. Considered. I have given my thoughtful considerationto the submissions made by the IO and the APP for the State.

As per the police papers, FIR No 4/18 has been registered undersections 153A/505(1)(B)/117/34 IPC &u/s 13/16/17/18/18B/20/39/40 of Unlawful Activities Prevention Act at police stationVishronbagh, Pune, Maharashtra wherein the accused is required.As per the arrest memo the accused namely Gautam PratapNavlakha 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 accusedbe produced before the concerned Ld. Special Court, ShivajiNagar, Pune, Maharashtra on or before 30.08.2018 without fail.Accused be got medically examined as per rules and the directionsof the Hon’ble Supreme Court. A copy of this order be given dastito 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

NewDelh1/28.08.2018".

3. Thereafter, when the Writ Petition, filed by the appellant beforethe High Court, came up at 04.00 P.M., the High Court passed thefollowing Order on 28.08.2018:

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“2. Court is informed at 4 pm by Mr. Rahul Mehra, learnedStanding Counsel for the State that an order was passed today bythe learned Chief Metropolitan Magistrate (CMM), South EastDistrict, Saket in the post lunch session granting transit remandfor producing the Petitioner before the learned Special Court,Shivaji Nagar, Pune on or before 30[th] August, 2018.

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3. The Court is also shown the documents produced before thelearned CMM most of which (including FIR No. 4 of 2018registered at Police Station Vishrambagh, Pune) are in Marathilanguage and only the application filed for transit remand beforethe learned CMM is in Hindi. However, it is not possible to makeCout from these documents what precisely the case against thepetitioner is.

4. Since it is already 4.30 pm, the Court considers it appropriate todirect that pursuant to the order dated 28[th] August, 2018 of thelearned CMM, the petitioner will not be taken away from DelhiDand this case will be taken up as the first case tomorrow morning.

5. Translations of all the documents produced before the CMM beprovided to this Court tomorrow.

6. The petitioner shall, in the meanwhile, be kept at the sameEplace from where the was picked up with two guards of the SpecialCell, Delhi Police along with local Police that was originally hereto arrest the petitioner, outside the house. Barring his lawyers,and the ordinary residents of the house, the petitioner shall notmeet any other persons or step out of the premises till furtherorders.”F

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 Petitionwas filed by five illustrious persons in their own fields, as is observed bythis Court in the Judgment, which is reported in Romila Thapar andOthers vs. Union of India and others1. The subject matter of the WritGPetition was the allegedly high-handed action of the Maharashtra Policeand the arrest of five Activists which included the appellant on 28.08.2018from their homes. The relief sought by the Writ Petitioners was to ensurea credible investigation into the arrest of the five Human Rights Activists.

H1 (2018) 10 SCC 753

Interim orders were passed in the Writ Petition by this Court, underwhich, the benefit of house arrest of the appellant, inter alia, was alsoordered to be extended to others. The order of house arrest of appellantwas extended. The relief sought for, namely, an independent investigationin the Writ Petition, filed in this Court, was rejected by the majority ofJudges 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 tothe accused concerned to take recourse to appropriate remedyas may be permissible in law. The interim order passed by thisCourt on 29-8-2018 (Romila Thapar v. Union of India, 2018 SCCOnLine SC 1343) shall continue for a period of four weeks toenable the accused to move the court concerned. The saidproceedings shall be decided on its own merits uninfluenced byany observation made in this judgment, which is limited to thereliefs claimed in the writ petition to transfer the investigation toan independent investigating agency and/or court-monitoredinvestigation. The investigating officer is free to proceed againstthe accused concerned as per law. All the accompanyingapplications 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 Courtof Delhi, was allowed. We may, at once notice, that the relief sought inthe Writ Petition was initially one seeking a Writ of Habeas Corpus.Thereafter, the Court came to be concerned with the legality of theOrder of transit remand passed by the CMM, which we have advertedto. We may notice only, paragraphs-28 and 29, 30 and 31 of judgmentdated 01.10.2018:

“28. With there being several non-compliances of the mandatoryrequirement of Article 22(1), Article 22(2) of the Constitution andSection 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 theorder passed by the learned CMM on 28th August, 2018 grantingtransit remand to the Petitioner is unsustainable in law. The saidorder is accordingly hereby set aside.

29. In view of Section 56 read with Section 57 Cr PC, in theabsence of the remand order of the learned CMM, the detention A

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Aof the Petitioner, which has clearly exceeded 24 hours, is againuntenable in law. Consequently, the house arrest of the Petitionercomes to an end as of now.

30. It is clarified that this order will not preclude the State ofMaharashtra from proceeding further in accordance with law.

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31. At this stage, Mr. Navare submits that this Court should extendthe house arrest of the Petitioner by two more days since theSupreme Court had itself extended his house arrest for four weeks.This submission overlooks the fact that the Supreme Court hadextended the Petitioner’s house arrest only in order to enable himCto avail of the remedies that were permissible to him in accordancewith law. As far as the present Petitioner is concerned, the factthat this writ petition filed by him was already pending before thisCourt, was noticed by the Supreme Court and it was made clearthat he is free to pursue this remedy among others in accordancewith law. The extension of his house arrest by the Supreme wasDonly for that limited purpose. Consequently, this Court is unable toaccede to the request of Mr. Navare.”

(Emphasis supplied)

(Emphasis supplied)

6. The appellant filed Writ Petition No. 4425 of 2018 datedE05.10.2018 for quashing the FIR. The High Court protected the appellantfrom arrest during the pendency of the said Writ Petition. Charge-sheetwas filed against the appellant’s co-accused on 15.11.2018. Then, this isfollowed-up by a supplementary charge-sheet against the co-accusedon 21.02.2019. On 13.09.2019, the High Court of Bombay dismissed theWrit Petition filed by appellant against the FIR. The interim protectionFfrom arrest was, however, extended by three weeks. The Special LeavePetition filed by appellant, as SLP (Criminal) No. 8862 of 2019, came tobe disposed of by acceding to the request of the appellant that the appellantmay apply for anticipatory bail before the competent Court. The Courtextended the interim protection, which was given to the appellant forGanother period of four weeks, from 15.10.2019 and he was given libertyto apply for regular/anticipatory bail. The Application seeking anticipatorybail came to be dismissed by the Sessions Court by Order dated12.11.2019.7. The Appellant approached the High Court of Bombay seekingHanticipatory bail, which was declined by Order dated 14.02.2020.

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 Courtnoticed that since the appellant had enjoyed protection for approximatelyone 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 periodof one week for surrendering and, accordingly, on 14.04.2020, theappellant surrendered before the NIA, Delhi. On 15.04.2020, seven dayspolice custody was granted by the Sessions Court, New Delhi. On21.04.2020, the further remand of seven days was ordered. Before theexpiry of the appellant’s policy custody, he was remanded to judicialcustody on 25.04.2020. The appellant was transferred to Mumbai on26.05.2020 and he was remanded to judicial custody. It is, thereafter,that the appellant moved for default bail on 11.06.2020. In calculatingthe period of custody for the purpose of filing the Application for defaultbail, the appellant, included the period of 34 days of house arrest from28.08.2018 to 01.10.2018. Further, eleven days of custody with the NIAfrom 15.04.2020 till 25.04.2020 and forty-eight days in Tihar Jail, Delhiand Taloja Jail, Mumbai from 25.04.2020 to 12.06.2020 (judicial custody),were also added. The NIA, it would appear, filed Application for extensionof time to file charge-sheet after 110 days of custody on 29.06.2020.The NIA Special Court, before which the Application for default bailwas moved, rejected the Application on 12.07.2020. The appellantpreferred an Appeal before the High Court of Bombay challenging theOrder dated 12.07.2020. On 09.10.2020, the NIA filed the charge-sheetagainst the appellant, inter alia. By the impugned Order dated 08.02.2021,the High Court of Bombay, dismissed the Appeal, which was filed underSection 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 ShadanFarasat for the appellant and Shri S.V. Raju, learned Additional SolicitorGeneral, on behalf of the respondent.

THE FINDINGS IN THE IMPUGNED ORDER

9. During the period of the house arrest, the appellant was notsupposed to meet anyone, barring his lawyers and ordinary residents ofthe house. He could not step out of the premises. There were to be twoGuards of the Special Cell of Delhi Police outside the house. The ABC

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AInvestigating Agency/Investigating Officer did not have any access tohim or occasion to interrogate him. The Transit Remand Order beingstayed, it could not be said that the appellant was under the detention ofthe Police for investigation. Under Section 167(2) of the Code of CriminalProcedure, 1973 (hereinafter referred to as ‘the CrPC’, for short), theMagistrate has to authorise the detention. The High Court having stayedBthe transit remand and finally having set aside the transit remand, therebyholding the detention to be illegal, there was no authorised detention byan Order of the Magistrate. Therefore, the appellant cannot claim thebenefit of default bail. It is an indispensable requirement to claim thebenefit of default bail that the detention of the accused has to beCauthorised by the Magistrate. The authorisation by the Magistrate havingbeen declared illegal, the detention itself was illegal. The said period(house arrest custody) cannot be treated as authorised custody underSection 167(2) of the CrPC. The Court drew support from decision ofthis Court which is reported in Chaganti Satyanarayan & Ors. v. State 2of Andhra Pradesh, to hold that the period of 90 days will commenceDonly from the date of remand and not from any anterior date in spite ofthe fact that the accused may have been taken into custody earlier. TheCourt 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 bean authorised detention under Section 167(2) of the Cr.P.C. Sans anyEvalid authorisation of the Magistrate, detaining the appellant, he was notentitled 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 to01.10.2018, had to be excluded. After the High Court of Delhi set asidethe Transit Remand Order, it was noted that the appellant had appliedfor anticipatory bail, which was rejected at all stages and, ultimately, theFappellant surrendered only on 14.04.2020. It was based on the saidsurrender that the Magistrate authorised police custody.

SUBMISSIONS OF THE APPELLANT

10. The learned Senior Counsel for the appellant contended thatGthere is no substance in the reasoning of the High Court that the periodof 34 days, during which, the appellant was under house arrest, couldnot be included within the period of 90 days, for the reason that theInvestigating Officer did not have access to the appellant, and it isuntenable. It was contended that nothing prevented the Officers fromH2 (1986) 3 SCC 141

interrogating the appellant/investigating the matter, if need be, afterobtaining the leave of the High Court of Delhi. It the appellant’s contentionthat under Section 167 of the CrPC, what is contemplated is granting ofsuch custody by the Magistrate, as he thinks fit. The provision does notcontemplate access to the Police for interrogation as a condition. It ispointed out that it is open to the Magistrate and it is often so done thatright from the first day of remand, what is granted is judicial custody,wherein Police have no access to the accused. However, such judicialcustody is reckoned for calculating the period for considering anApplication for default bail. Still further, it is pointed out that under Section43D(2)(b), of UAPA Police Custody can be sought at any time. It isfurther contended that there was no stay of investigation. The twoconditions required for attracting Section 167 are pointed out to be asfollows: (a) A person is arrested under Section 57 of the Cr.P.C. whileinvestigating a cognisable offence and (b) he is produced before aMagistrate after his arrest. It is contended that in the case of the appellant,both the conditions were fulfilled having regard to the fact that theappellant stood arrested on 28.08.2018 and he was produced before theMagistrate for the remand. It was next contended that the fact that theHigh Court of Delhi finally set aside the said remand and held that thedetention was illegal, was an untenable ground to hold that there was noremand under Section 167 of the CrPC. Appellant lay store by the Orderof the High Court of Delhi, wherein it had concluded that the housearrest of the appellant ‘comes to an end as of now’. It is contended thatthe Court has not treated the period of house arrest as either nonest orvoid. Custody, it is pointed out, was authorised by the Magistrate underSection 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, onlystayed the transit and not the remand Order. The Court only modifiedthe nature of the remand, i.e., from transit in Police custody to within theconfines 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 ofDelhi, providing for house arrest can only be sourced from Section 167of the CrPC. What is required under Section 167 of the CrPC is the totalperiod of custody which can include broken periods and the custodyneed not be one continuous lot. It is contended that Section 167 does notdistinguish between transit or other remand. The remand, be it a transitremand, has to be sourced to Section 167 of the Cr.P.C. and there is noother provision for the transit remand. The High Court has itself found AB

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Athat appellant was in custody when he was under the house arrest. It isthen pointed out that the High Court did not have any inherent power toplace a person in custody. In this case the power can only, therefore, bewhat flows from Section 167 of the CrPC. It is the Order of transitremand which occasioned the custody. It was contended that the HighCourt or any superior Court can modify or change the nature of theBMagisterial remand. The modified nature of the remand by the HighCourt of Delhi and this Court was never set aside.

SUBMISSIONS OF THE RESPONDENT

11. Mr. S.V. Raju, learned Additional Solicitor General wouldCsupport the order of the High Court:-

a. He points out that at the time when the writ petition was filed inthe High Court of Delhi seeking a writ of habeas corpus, theorder of transit remand had not been passed by the CMM, Saket.

b. In his application seeking for anticipatory bail, the appellant hadDsought through his pleadings to project the need to be protected.The protection was granted which was continued in variousproceedings as already noticed.

c. Reliance is placed on the bar under Section 43(D)(4) of UAPAagainst the grant of anticipatory bail.

Ed. He referred to paragraph 12 of the order rejecting appellant’splea for anticipatory bail. It is pointed out that it was the case ofthe appellant that this Court had protected his liberty by grantinghouse arrest inter alia. The meat of the matter is that it wasunderstood by the appellant himself that the house arrest was aFprotection from custody and therefore it could not be understoodas custody within the meaning of Section 167 of the Code ofCriminal Procedure. In short, house arrest was permitted inexercise of the extraordinary powers available to this Court.

12. It is further pointed out that house arrest according to theGappellant itself was unknown to the code. It is further the case of therespondent that an accused who is remanded to custody under Section167 of the Cr.P.C. cannot come out of the custody unless he is bailed outor unless he is acquitted. There is no bail in favour of the appellant. Hewas also not remanded to judicial custody. The so-called custody duringthe house arrest, in other words, was not custody or detention within theH

meaning of Section 167 of the Cr.P.C. It also was not a police custodybecause the investigating agency had no access to the accused duringthis period. Thus, a period of 34 days in house arrest was neither judicialcustody nor police custody as provided in Section 167 of the Cr.P.C. Theorder of the High Court is relied upon to point out that the Courtcontemplated that the house arrest came to an end with the judgment.The fact that the High Court did not grant bail when it pronounced thejudgment on 1.10.2018, would go to show that it was not an order passedunder Section 167 of the Cr.P.C. The contention which found favourwith 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 appellantas 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 toan end, the appellant became a free person, entitled to apply foranticipatory bail which he availed of. The application for anticipatorybail presupposes that the arrest on 28.08.2018 was non-est since a personcould not be arrested for an offence twice. By refusing anticipatory bail,the Courts including this Court permitted the arrest of the appellant forthe same offences for which he was arrested earlier. This indicates thatthe earlier proceedings were treated as non-est for all practical purposes.The surrender by the appellant estopped the appellant from projectingthe house arrest as custody within the meaning of Section 167 of theCr.P.C. The order passed by CMM, Saket was only an order forproduction and not an order for detention in custody. Reading Section167 alongwith Sections 56 and 57 of the Cr.P.C., it is pointed out that theorder of transit remand is to be understood as an order extending theperiod of arrest of 24 hours for the purpose of facilitating the productionof accused before the competent Magistrate which in this case, was thecompetent Court located at Pune. Sections 56, 57 and 167 is relied uponto contend that since there is a duty to produce an arrested person within24 hours, Section 57 provided for a special order under Section 167 forsuch detention beyond 24 hours for production of the accused beforethe competent Court. Orders are ordinarily passed under this Section167 are either orders of police remand or orders remanding an accusedto judicial custody. The special order referred to in Section 57 is theorder forwarding the accused to a Magistrate having jurisdiction to eithertry the case or commit the accused. In a case where an accused ispresented before a Magistrate not having such jurisdiction, the Magistratehas no authority or power to remand an accused to judicial custody.

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ATherefore, the order of transit remand is not an order for the purpose ofincluding the period in computing 90 days and it is only a productionorder. At any rate, it is pointed out that the order of Saket Court (transitorder), 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 Courtstayed the same around 4.00 p.m. on the very day. Even if this period ofB1 day is included for the purpose of computing the period of 90 days, theappellant would not become entitled to default bail. It is further the caseof the respondent that the interpretation adopted by the appellant wouldrender police custody under Section 167 illusory.

13. The investigating authorities would be deprived of theCopportunity for custodial interrogation during the first 15 days or 30 daysin case of UAPA offences. The interpretation which frustrates a fairinvestigation under the statute should be avoided.

14. Act of Court should not negatively impact the investigatingagency- the maxim “Actus curiae neminem gravabit” would apply in theDpresent case.

15. The order passed by the High Court of Delhi in the writ petitionseeking 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 theappellant was remanded to police custody after 30 days i.e., on 15.04.2020Eand 21.04.2020. The appellant never objected to the same. This clearlyshows 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 reckonedfrom the date of production. The submission is based on the decision ofthis Court in Chaganti Satyanarayana(supra). This is after treatingF15.04.2020 to be the date of production.

ANALYSIS

16. Though the final question to be answered is whether the periodof 34 days spent in house arrest by the appellant is to be counted towardsthe period of 90 days under Section 167 Cr.P.C., several issues ariseGwhich we articulate as follows:

1) What is the nature of an order of transit remand? Is it an orderpassed under Section 167 of the Cr.PC.?

2) What is the nature of the interim order dated 28.08.2018 passedin the writ petition by the appellant in the High Court of Delhi as H

extended? Are these orders passed under Section 167 of theCr.P.C.?

3) What is the effect of the judgment of the High Court of Delhidated 1.10.2018 wherein the arrest of the appellant and the transitremand are found illegal?

4) Does the House arrest of the appellant amount to police custodyor judicial custody? Can there be an order for custody other thanpolice custody and judicial custody under Section 167 Cr.P.C.? IsHouse arrest custody within the embrace of Section 167 ofCr.P.C.?

5) Is the House arrest of the appellant not custody under Section167 of the Cr.P.C. on the score that the appellant could not beinterrogated by the competent investigating officer?

6) What is the effect of the appellant being in police custody from15.4.2020 till 25.4.2020 and the alleged acquiescence of theappellant in the order and the custody undergone by the appellant?

7) Whether broken periods of custody otherwise traceable toSection 167 Cr.P.C. suffice to piece together the total maximumperiod of custody permitted beyond which the right to default bailarises or whether the law giver has envisaged only custody whichis continuous?

8) What is the impact of mandate of Article 21 and Article 22 ofthe Constitution?

17. Before we deal with the various issues, it is necessary to notecertain salient features of the Constitution, Cr.P.C. and also UnlawfulActivities (Prevention) Act (UAPA).

18. Article 21 of the Constitution incorporates invaluablefundamental rights insofar as it declares that no person shall be deprivedof his life or personal liberty except according to procedure establishedby 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 withoutbeing informed, as soon as may be, of the grounds for such arrestnor shall he be denied the right to consult, and to be defended by,a legal practitioner of his choice A

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A(2) Every person who is arrested and detained in custody shall beproduced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for thejourney from the place of arrest to the court of the magistrate andno such person shall be detained in custody beyond the said periodwithout the authority of a magistrate”B

19. Chapter V of the Cr.P.C. deals with “Arrest of Persons”.Section 41 deals with situations in which any police officer may arrestany person without an order from a Magistrate or without a warrant.Section 41 (1)(a) to 41 (1)(d) provides for safeguards to avoid arbitraryarrest and also confer certain rights on the person arrested. They wereCinserted 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 procedureto be followed in such case. Section 48 Cr.P.C. reads as follows:

“48. Pursuit of offenders into other jurisdictions. A police officermay, for the purpose of arresting without warrant any person whomDhe is authorised to arrest, pursue such person into any place inIndia.”

20. Sections 56 and 57 Cr.P.C. are also relevant and we refer tothe same.

E“56. Person arrested to be taken before Magistrate officer incharge of police station. - A police officer making an arrest withoutwarrant shall, without unnecessary delay and subject to theprovisions herein contained as to bail, take or send the personarrested before a Magistrate having jurisdiction in the case,orbefore the officer in charge of a police station.F57. Person arrested not to be detained more than twenty- fourhours. - No police officer shall detain in custody a person arrestedwithout warrant for a longer period than under all the circumstancesof the case is reasonable, and such period shall not, in the absenceof a special order of a Magistrate under section 167, exceedGtwenty- four hours exclusive of the time necessary for the journeyfrom 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 Warrantof arrest. Warrant of arrest contemplated are those issued by a courtHunder Cr.P.C. Section 76 Cr.P.C. reads as follows:

“76. Person arrested to be brought before Court without delay.The police officer or other person executing a warrant of arrestshall (subject to the provisions of section 71 as to security) withoutunnecessary delay bring the person arrested before the Courtbefore 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 fromthe place of arrest to the Magistrate’s Court.”

22. Under Section 77 Cr.P.C., a warrant of arrest may be executedat any place in India. Chapter XII deals with Information to the Policeand their Powers to Investigate. The mandatory duty of police officerto register first information report has been elaborately considered by aConstitution Bench of this Court in the decision reported inLalita Kumari3vs. Government of Uttar Pradesh and others.

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 orderof a Magistrate, investigate any cognizable case which a Courthaving jurisdiction over the local area within the limits of suchstation would have power to inquire into or try under the provisionsof Chapter XIII.

(2) No proceeding of a police officer in any such case shall at anystage be called in question on the ground that the case was onewhich such officer was not empowered under this section toinvestigate.

(3) Any Magistrate empowered under section 190 may order suchan investigation as above- mentioned.”

24. Under Section 156 Cr.P.C., any police officer in charge of apolice station can without order of a Magistrate investigate any cognizablecase which a court having jurisdiction over the local area within thelimits of such station have the power to try. Section 157 deals withProcedure for investigation. The said provision contemplates interalia the power to proceed, to the spot, to investigate the facts andcircumstance of the case, and if necessary, take measures for the A

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Adiscovery and arrest of the offender. It is also pertinent to notice Section167 Cr.P.C. It reads as under:

“167. Procedure when investigation cannot be completed intwenty-four hours.—(1) Whenever any person is arrested anddetained in custody, and it appears that the investigation cannotbe completed within the period of twenty-four hours fixed bySection 57, and there are grounds for believing that the accusationor information is well-founded, the officer in charge of the policestation or the police officer making the investigation, if he is notbelow the rank of sub-inspector, shall forthwith transmit to thenearest Judicial Magistrate a copy of the entries in the diaryhereinafter prescribed relating to the case, and shall at the sametime forward the accused to such Magistrate.

B

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(2) The Magistrate to whom an accused person is forwardedunder this section may, whether he has or has not jurisdiction totry the case, from time to time, authorise the detention of theaccused in such custody as such Magistrate thinks fit, for a termnot exceeding fifteen days in the whole; and if he has no jurisdictionto try the case or commit it for trial, and considers further detentionunnecessary, he may order the accused to be forwarded to aMagistrate having such jurisdiction:

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EProvided that—

[(a) the Magistrate may authorise the detention of the accusedperson, otherwise than in the custody of the police, beyond theperiod of fifteen days, if he is satisfied that adequate groundsexist for doing so, but no Magistrate shall authorise the detentionof the accused person in custody under this paragraph for a totalperiod exceeding, —

F

(i) ninety days, where the investigation relates to an offencepunishable with death, imprisonment for life or imprisonment fora term of not less than ten years; G

(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 bailif he is prepared to and does furnish bail, and every person releasedon bail under this sub-section shall be deemed to be so released H

under the provisions of Chapter XXXIII for the purposes of thatChapter;]

[(b) no Magistrate shall authorise detention of the accused incustody of the police under this section unless the accused isproduced before him in person for the first time and subsequentlyevery time till the accused remains in the custody of the police,but the Magistrate may extend further detention in judicial custodyon production of the accused either in person or through the mediumof electronic video linkage;]

(c) no Magistrate of the second class, not specially empowered inthis behalf by the High Court, shall authorise detention in the custodyof the police.

[Explanation I.—For the avoidance of doubts, it is hereby declaredthat, notwithstanding the expiry of the period specified in paragraph(a), the accused shall be detained in custody so long as he doesnot furnish bail.]

[Explanation II. —If any question arises whether an accusedperson was produced before the Magistrate as required underclause (b), the production of the accused person may be provedby his signature on the order authorising detention or by the ordercertified by the Magistrate as to production of the accused personthrough the medium of electronic video linkage, as the case maybe:]

[Provided further that in case of a woman under eighteen yearsof age, the detention shall be authorised to be in the custody of aremand home or recognised social institution.]

[(2-A) Notwithstanding anything contained in sub-section (1) orsub-section (2), the officer in charge of the police station or thepolice officer making the investigation, if he is not below the rankof a sub-inspector, may, where a Judicial Magistrate is notavailable, transmit to the nearest Executive Magistrate, on whomthe powers of a Judicial Magistrate, or Metropolitan Magistratehave been conferred, a copy of the entry in the diary hereinafterprescribed relating to the case, and shall, at the same time, forwardthe accused to such Executive Magistrate, and thereupon suchExecutive Magistrate, may, for reasons to be recorded in writing, AB

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authorise the detention of the accused person in such custody ashe may think fit for a term not exceeding seven days in theaggregate; and, on the expiry of the period of detention soauthorised, the accused person shall be released on bail exceptwhere an order for further detention of the accused person hasbeen made by a Magistrate competent to make such order; and,where an order for such further detention is made, the periodduring which the accused person was detained in custody underthe orders made by an Executive Magistrate under this sub-section,shall be taken into account in computing the period specified inparagraph (a) of the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid, theExecutive Magistrate shall transmit to the nearest JudicialMagistrate the records of the case together with a copy of theentries in the diary relating to the case which was transmitted tohim by the officer in charge of the police station or the policeofficer making the investigation, as the case may be.]

(3) A Magistrate authorising under this section detention in thecustody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate makingsuch order shall forward a copy of his order, with his reasons formaking it to the Chief Judicial Magistrate.

(5) If in any case triable by Magistrate as a summons-case, theinvestigation is not concluded within a period of six months fromthe date on which the accused was arrested, the Magistrate shallmake an order stopping further investigation into the offence unlessthe officer making the investigation satisfies the Magistrate thatfor special reasons and in the interests of justice the continuationof the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offencehas been made under sub-section (5), the Sessions Judge may, ifhe is satisfied, on an application made to him or otherwise, thatfurther investigation into the offence ought to be made, vacatethe order made under sub-section (5) and direct furtherinvestigation to be made into the offence subject to such directionswith regard to bail and other matters as he may specify.”

25. Section 43(D) (2) of UAPA provides for the modifiedapplication of Section 167.

26. In State of Punjab v. Ajaib Singh[4], the court had to deal withambit of Article of 22(1) and also the scope of the expression “arrest”contained therein.

“16. Broadly speaking, arrests may be classified into twocategories, namely, arrests under warrants issued by a court andarrests otherwise than under such warrants. As to the first categoryof arrest, Sections 75 to 86 collected under sub-heading “B-Warrant of Arrest” in Chapter VI of the Code of CriminalProcedure deal with arrests in execution of warrants issued by acourt under that Code. Section 75 prescribes that such a warrantmust be in writing signed by the presiding officer, or in the case ofa Bench of Magistrates, by any Member of such Bench and bearthe seal of the court. Form No. II of Schedule V to the Code is aform of warrant for the arrest of an accused person. The warrantquite clearly has to state that the person to be arrested standscharged with a certain offence. Form No. VII of that Schedule isused to bring up a witness. The warrant itself recites that thecourt issuing it has good and sufficient reason to believe that thewitness will not attend as a witness unless compelled to do so.The point to be noted is that in either case the warrant ex faciesets out the reason for the arrest, namely, that the person to bearrested has committed or is suspected to have committed or islikely to commit some offence. In short, the warrant contains aclear accusation against the person to be arrested. Section 80requires that the police officer or other person executing a warrantmust notify the substance thereof to the person to be arrested,and, if so required, shall show him the warrant. It is thus abundantlyclear that the person to be arrested is informed of the grounds forhis arrest before he is actually arrested. Then comes Section 81which runs thus:

“The police officer or other person executing a warrant of arrestshall (subject to the provisions of Section 76 as to security) withoutunnecessary delay bring the person arrested before the courtbefore which he is required by law to produce such person.”

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17. Apart from the Code of Criminal Procedure, there are otherstatutes which provide for arrest in execution of a warrant ofarrest issued by a court. To take one example, Order 38 Rule 1 ofthe Code of Civil Procedure authorises the court to issue a warrantfor the arrest of a defendant before judgment in certaincircumstances. Form No. 1 in Appendix F sets out the terms ofsuch a warrant. It clearly recites that it has been proved to thesatisfaction of the court that there is probable cause for beliefthat the Defendant 1s about to do one or other of the thingsmentioned in Rule 1. The court may under Section 55 read withOrder 21 Rule 38, issue a warrant for the arrest of the judgment-debtor in execution of the decree. Form 13 sets out the terms ofsuch a warrant. The warrant recites the decree and the failure ofthe judgment-debtor to pay the decretal amount to the decree-holder and directs the bailiff of the court to arrest the defaultingjudgment-debtor, unless he pays up the decretal amount with costsand to bring him before the court with all convenient speed. Thepoint to be noted is that, as in the case of a warrant of arrestissued by a court under the Code of Criminal Procedure, a warrantof arrest issued by a court under the Code of Civil Procedurequite plainly discloses the reason for the arrest in that it sets outan accusation of default, apprehended or actual, and that the personto be arrested is made acquainted with the reasons for his arrestbefore he is actually arrested.”

Also in para 20, this Court laid down as follows:-

Also in para 20, this Court laid down as follows:- “20. Turning now to Article 22(1) and (2), we have to ascertainwhether its protection extends to both categories of arrestsmentioned above, and, if not, then which one of them comes withinits protection. There can be no manner of doubt that arrests withoutwarrants issued by a court call for greater protection than doarrests under such warrants. The provision that the arrested personshould within 24 hours be produced before the nearest Magistrateis particularly desirable in the case of arrest otherwise than undera warrant issued by the court, for it ensures the immediateapplication of a judicial mind to the legal authority of the personmaking the arrest and the regularity of the procedure adopted byhim. In the case of arrest under a warrant issued by a court, thejudicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making suchproduction in that case a matter of a substantive fundamentalright. It is also perfectly plain that the language of Article 22(2)has been practically copied from Sections 60 and 61 of the Codeof Criminal Procedure which admittedly prescribe the procedureto be followed after a person has been arrested without warrant.The requirement of Article 22(1) that no person who is arrestedshall be detained in custody without being informed, as soon asmay be, of the grounds for such arrest indicates that the clausereally contemplates an arrest without a warrant of court, for, asalready noted, a person arrested under a court’s warrant is madeacquainted with the grounds of his arrest before the arrest isactually effected.There can be no doubt that the right to consulta legal practitioner of his choice is to enable the arrested personto be advised about the legality or sufficiency of the grounds forhis arrest. The right of the arrested person to be defended by alegal practitioner of his choice postulates that there is an accusationagainst him against which he has to be defended. The languageof Article 22(1) and (2) indicates that the fundamental rightconferred by it gives protection against such arrests as are effectedotherwise than under a warrant issued by a court on the allegationor 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-quasicriminal nature or some activity prejudicial to the public orthe State interest. In other words, there is indication in the languageof Article 22(1) and (2) that it was designed to give protection-against the act of the executive or other nonjudicial authority.The Blitz case (Petition No. 75 of 1952), on which Sri Dadachanjirelies, proceeds on this very view, for there the arrest was madeon a warrant issued, not by a court, but, by the Speaker of StateLegislature and the arrest was made on the distinct accusation ofthe arrested person being guilty of contempt of the legislature. Itis not, however, our purpose, nor do we consider it desirable, toattempt a precise and meticulous enunciation of the scope andambit of this fundamental right or to enumerate exhaustively thecases that come within its protection. Whatever else may comewithin the purview of Article 22(1) and (2), suffice it to say forthe purposes of this case, that we are satisfied that the physicalrestraint put upon an abducted person in the process of recovering AB

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Aand taking that person into custody without any allegation oraccusation of any actual or suspected or apprehended commissionby that person of any offence of a criminal or quasi-criminal natureor of any act prejudicial to the State or the public interest, anddelivery of that person to the custody of the officer in charge ofthe nearest camp under Section 4 of the impugned Act cannot beBregarded as arrest and detention within the meaning of Article22(1) and (2). In our view, the learned Judges of the High Courtover-simplified the matter while construing the article, possiblybecause the considerations hereinbefore adverted to were notpointedly brought to their attention.”

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27. It will be noted that with the proviso in the Cr.P.C., 1973, inSection 76, in the case of arrest under a warrant, the person is to beproduced before the Court within 24 hours with the exclusion of timetaken for travelling. Such a proviso was absent in Section (81) of theDCr.P.C., 1898 which was considered by the Court.

28. In State of U.P. v. Abdul Samad5, the respondents who werehusband and wife were arrested for non-compliance with the order ofdeportation passed against them. They were sent to Amritsar for beingdeported to Pakistan. They were produced before the Magistrate onE23[rd] July, 1960 at 10.00 A.M. who ordered them to be kept in the CivilLines Police Station. They were brought back to Lucknow on the 25[th]July 1960 based on a message from the High Court of Allahabad requiringtheir production and they were produced before the Deputy Registrar,High Court who directed them to be produced on the next day of theFmorning. The court which was dealing with the writ of Habeas Corpusby the respondents directed the respondents be produced the next day.On 28[th] July 1960, the High court focussing on the second period i.e.25[th] July 1960 to 2.00 p.m. 27th July, 1960 found that during this periodthe respondents having not being produced before a Magistrate within24 hours of the commencement of the custody the detention was foundGto be violative of Article 22(2). It is on these facts the majority (JusticeK. Subba Roa -dissenting)held as follows:

“….It is very difficult to appreciate what exactly either of thelearned Judges had in mind in making these observations holding H5 AIR 1962 SC 1506

that the guarantee under Article 22(2) had been violated. Duringthe “second stage” at which the learned Judges held that thedetention has been illegal because of a violation of Article 22(2),the facts were these: The respondents had been brought back toLucknow on a message requiring their production before the HighCourt. They reached Lucknow on the 25[th] at 1 p.m. and wereproduced at 3 p.m. the same day i.e. within two hours of reachingLucknow before the Deputy Registrar. The Deputy Registrar haddirected their production the next day and they were accordinglyso produced. Even taking it that the Deputy Registrar was not ajudicial authority such as the learned Judges had in mind, therespondents had been produced on 26thmorning at 10.15 a.m.before the learned Judges when they were at liberty to make anyorder regarding the custody which they considered proper andthe time when they were produced before the Judges wasadmittedly not beyond 24 hours from the time the respondentsreached Lucknow. On the 26th the learned Judges who took partin the final decision passed an order directing the production ofthe respondents on July 27, 1960 at 2 p.m. which obviouslypermitted the previous custody to be continued till further orders.They were produced accordingly at 2 p.m. on that day and by afurther order of July 27, 1960 the learned Judges had directed therelease of the respondents on bail and in pursuance of this orderthe respondents had been released on July 27, 1960 itself. In thesecircumstances we are at a loss to understand which is the periodduring “the second stage” or “on the 27[th]”, when the respondentscould be said to have been illegally detained for more than 24hours without production before a judicial authority as required byArticle 22(2). We would add that even if Article 22(2) wereconstrued to require that a person arrested and detained has to beproduced before a Magistrate every 24 hours during his detention,a meaning which it assuredly cannot bear, though it is not clear tous whether the learned Judges did not understand the article torequire this, even such a requirement was satisfied in this case asthe respondents were during “the second stage” produced beforethe High Court itself “for suitable orders” on the 26th and againon the 27th. We have no desire to comment further on this judgmentof the learned Judges except to say that there was no justification AB

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Awhatsoever for the finding on the basis of which the learned Judgesdirected the release of the respondents.”

[Emphasis supplied]

29. The aforesaid reasoning is not inapposite in the context ofRespondent’s case that only a Magistrate can authorize detention underBSection 167 Cr.PC.

PROCEEDINGS IN THE HIGH COURT OF DELHI

30. The writ petition filed by the appellant was mentioned beforethe Chief Justice of the Court on 28.08.2018 at 2:15 p.m. From theCjudgment, it is further clear that it was taken up at 2:45 p.m. on the sameday. The Court initially ordered that ‘no precipitate action be taken’ ofremoving the appellant till the matter was taken up again at 4:00 p.m. Inthe meantime, it would appear that in the transit remand application movedby the Maharashtra police, the CMM, Saket passed the order on thetransit remand application which we have extracted.D

31. We have also noticed the contents of the order which waspassed at 4:00 p.m. on 28.08.2018. The perusal of the judgment furtherreveals that the counsel for the state of Maharashtra, in fact, raised thepreliminary objection to the maintainability of the writ. It reads as follows:-

E“6. Mr. Vinay Navare, learned counsel appearing for the State ofMaharashtra, raised a preliminary objection to the maintainabilityof the present writ petition relying on the recent judgment dated5[th] September 2018 of a three judge bench of the Supreme Courtin Crl. A. 1124 of 2018 (State of Maharashtra v. Tasneem RizwanSiddiquee). He submitted that the Supreme Court has, in saidFdecision, reiterated the settled position in law, as explained in thedecisions 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 toa remand order passed by a magistrate in connection with anGoffence under investigation, a writ of habeas corpus is notmaintainable.”

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 H

CMM passing the order on the remand application directed ataround 2.45 pm on 28[th] August 2018 that “no further precipitateaction of removing the Petitioner from Delhi be taken till the matterbe again taken up at 4 pm.” Mr. Rahul Mehra, learned StandingCounsel for the State (NCT of Delhi) informed the Court that hehad conveyed the aforementioned interim order to the concernedpolice officials at 2.54 pm on 28[th] August 2018. While it is notclear if the learned CMM was actually informed of this Court’sinterim order, the arrest memo of the Petitioner shows that hewas arrested at 2.15 pm at his residence in Nehru Enclave. Givena reasonable time taken to reach the Saket Court complex, it isunlikely that the learned CMM heard the matter, perused theremand 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 wasentertained and the above interim order was passed by this Court,there was no order of the learned CMM granting transit remandof the Petitioner. In each of the aforementioned decisions citedby Mr. Navlakha the entertaining of the habeas corpus petitionby the High Court was subsequent to the transit remand orderpassed by the concerned Judicial Magistrate. This one factordistinguishes the present case from the above cases. Consequently,this Court rejects the preliminary objection raised by Mr. Navakreas to the maintainability of the present writ petition.”

33. The High Court, thereafter, proceeded to find that even beforea Magistrate, before whom the transit remand application is filed, themandatory requirement of Section 167 is that the entries in the casediary should be produced, is applicable. He is required to apply his mindto ensure there exists material in the form of entries to justify the prayerfor transit remand. While the Magistrate examining the transit remandapplication is not required to go into the adequacy of the material, he isobliged to satisfy himself from about the existence of the material. Hefurther found that the Magistrate is bound to ask the arrested personwhether in fact, he has been informed about the grounds of arrest andwhether he requires to consult and be defended by any legal practitionerof his choice. Though, a duty lawyer empanelled under the Legal ServicesAuthority Act, 1987 was shown representing the appellant, the HighCourt noticed that the Magistrate did not ask the counsel of the arrested AB

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Aperson whether he was informed about the grounds of arrest and whetherhe asked to consult and be defended by the legal practitioner of hischoice. The High Court emphasized that this requirement does not getdiluted only because the proceedings are for transit remand. It was foundbe the mandate under Article 22(1) of the Constitution. The appearanceof the duty lawyer was found to be essentially cosmetic and not in theBtrue spirit of Article 22(1).The materials in the case diary were found tobe written in the Marathi language. It was found undisputed that theMagistrate was not conversant with the Marathi language. This disabledthe Magistrate from appreciating whether the requirements under Section41(1)(b)(a) of the Cr.P.C. stood satisfied. It is thereafter noticed that theCCourt disposed of the writ petition with the findings and the directions asnoted in paragraphs 28, 29, 30 and 31 which we have already extracted.34. The SLP against the judgment was disposed of as follows on11.08.2020:

“Heard the learned Solicitor General and the learned counselDappearing in the matter at length.

The learned Solicitor General has submitted that the High Courtshould not have interfered in the matter and the order should nothave been passed and it is palpably illegal. Ms. NithyaRamakrishnan, learned counsel, has submitted that the order isEabsolutely correct and there is no ground to make any interferencein the order.

Be that as it may, the exercise is academic in nature and theaccused have surrendered on 14.04.2020, pursuant to the orderpassed by this Court on 08.04.2020. We do not propose to go intoFthe rival submissions, as the petitions have been renderedinfructuous for practical purposes.

However, we direct that the impugned order shall not be treatedas a precedent for any other case, questions of law are kept open.

The Special Leave Petitions and the pending interlocutoryGapplication(s), if any, is/are disposed of.”

NATURE OF HOUSE ARREST

35. The High Court in the impugned order has itself found that theperiod of 34 days spent in house arrest by the appellant amounted to H

custody. We, however, consider it necessary to articulate our viewsregarding the nature of house arrest.

36. In an article “A Brief History of House Arrest and ElectronicMonitoring” by J. Robert Lilly and Richard A. Ball, we find the followingdiscussion:-

“HOME CONFINEMENT “House arrest” has a long historydating at least to St. Paul the Apostle, who is reported to havebeen placed under “house arrest” (custodia libera) in Rome atabout the age of 60. St. Paul’s sentence lasted two years duringwhich time he paid rent and earned his keep as a tent maker, thusavoiding becoming a ward of the church or state. While it wouldgo far beyond the historical record to claim that St. Paul was thefirst person to pay for his keep under conditions of house arrest, itis interesting to note that many of today’s “house arrest” programsexpect their clients to pay supervision fees, restitution, and theirliving expenses. Galileo Galilei, the Florentine philosopher, physicist,and astronomer, also experienced “house arrest” after a “secondcondemnation” trial in Rome in 1633. After the trial, he returnedto Florence and house arrest for the rest of his life. More recently,Czar Nicholas II of Russia and his family were kept under housearrest in 1917 until their deaths in 1918. This history is a cause forconcern among some because of the traditional use of the practiceas a means of silencing political dissent. South Africa, for example,has a long history of control through “banning” and societies foundin Poland, South Korea, India, and the Soviet Union are known toemploy “house arrest” primarily to deal with troublesome politicaldissenters. On the other hand, France introduced the concept ofcontrol judiciare in 1970 as a fairly straightforward form of pre-trial detention involving a provision that employed homeconfinement 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 parolefollowing a shock period of three months incarceration. OtherEuropean countries have also experimented with some mannerof home confinement as a means of dealing with a variety ofoffenders. The traditional use of “house arrest” should not in itselfbecome a rationale for rejecting it. In the United States, “homedetention” had been put in practice in St. Louis as early as 1971.

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AHome confinement as a policy for use with adult offenders beganto draw more attention in 1983 with the delivery of two differentpapers on the subject, passage of the Correctional Reform Act,and the use of an “electronic bracelet” to monitor compliancewith home confinement on the part of an offender in New Mexico.The latter was inspired by a New Mexico district court judge,Bwho read a comic strip where “Spiderman” was being tracked bya transmitter fixed to his wrist. The judge approached an engineer,who designed a device consisting of an electronic braceletapproximately the size of a pack of cigarettes that emitted anelectronic signal that was picked up by a receiver placed in aChome telephone. This bracelet could be strapped to the ankle ofan offender in such a way that if he or she moved more thanapproximately 150 feet from the home telephone, the transmissionsignal would be broken, alerting authorities that the offender hadleft the premises. Officials in New Mexico gave approval for trialuse of the device and a research project funded by the NationalDInstitute of Justice eventually reported successful results with this“electronic monitoring.”

37. In the United States, in December 1985, one Ms. Murphystood convicted in a case of insurance fraud. She could have been packedoff to a jail for a maximum period of 50 years. Instead, the FederalEJudge 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 neverused in the country in the federal court. It is used elsewhere in theFworld and is considered by some to be highly objectionable. Thedifference, however, is that in other countries it is used to represspolitical dis- sent and before trial. Here it will be used after a fulltrial where the defendant has been found guilty of a seriousoffense. The penalty is house arrest.”G

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 anintermediate level penal sanction. In other words, upon being found guiltyinstead of sentencing the convict to a term in prison and in lieu ofHincarceration, as a condition of probation, the convict is compelled to confine himself to his place of residence. Interestingly, consistent withthe constitutional protection afforded under United States constitution,the house arrest does not visit the convict with an absolute restrictionfrom leaving his home. In the article “House Arrest”, a critical analysisof an intermediate level penal sanction by Jeffrey N. Hurwitz, we noticethe following:- “House arrest is a form of intensive law enforcement supervisioncharacterized by confinement to the offender’s place of residencewith permission to leave only for explicit, pre-authorized purposes.Generally, it is imposed as a penal sanction in lieu of incarcerationand mandated by the sentencing judge as a condition of probation.In Florida, however, house arrest is considered a criminal sanctionentirely separate from probation. In addition, at least one jurisdictionhas reported using house arrest for individuals who have beenreleased on their own recognizance while awaiting trial.

For example, a number of states and counties have recently addedintensive supervision to probation programs in order to provide anintermediate punishment in lieu of incarceration for selectedoffenders. Many of the reported conditions of intensive supervisionstrategies are similar or even identical to those imposed as part ofthe house arrest sanction. For example, multiple weekly contactsbetween offenders and probation officers, as well as mandatoryemployment, may be common to both control techniques.

The unique restriction on the offender’s freedom to leave home isthe distinguishing feature of the house arrest sanction. Althoughother heightened surveillance sanctions generally include strictcurfews, house arrest allows the offender to leave her residenceonly for specific purposes, unless time spent away from home isused for pre-authorized ends, the offender risks detention andincarceration.

The Florida Community Control statute mandates that the courtimpose “intensive supervision and surveillance for an offenderplaced into community control, which may include … confinementto an agreed-upon residence during hours away from employmentand public service activities. The Florida law has classified threetiers of permissible travel, ranked according to the purposes forspending time away from the site of confinement. “Essential travel”

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includes travel for work, religious expression, vocational oreducational training, self-improvement programming, public service,and scheduled appointments with the supervising officer.Movement from the home oriented toward “the fulfilment of thebasic needs of the community controllee” is considered “acceptabletravel. All three types of travel must be approved in advance,although movements for family emergencies may occur withoutpre-authorization provided that they are reported no later than thefollowing day.”

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We may also notice the following discussion in the said article: - C“While the conditions of house arrest imposed in Murphy are highlyrestrictive, another federally imposed home confinement pro- gramestablishes even greater control. In United States v. Wayte3 thedefendant was convicted for failure to register with the SelectiveService System.” The imposition of sentence was suspended andthe defendant was placed on probation for six months. The courtDordered that the entire probationary period be spent under housearrest at the residence of Wayte’s grandmother, and that Waytebe allowed to leave his site of confinement only for “emergencypurposes with the permission of the probation officer.”3" The housearrest regime in Wayte is the most restrictive yet re- ported.EBecause Wayte is unable to leave home at all, he is precludedfrom obtaining outside employment. All travel from his site ofconfinement must be only in response to a life-threatening crisis;apparently, even movement for religious expression must beapproved by the probation officer as an emergency. He isfunctionally isolated and removed from the outside world, as if heFwere incarcerated, his wife acts as his intermediary with thecommunity.”

38. In the caption “the goals of house arrest”, we notice thefollowing discussion: - “Yet house arrest, generally imposed as a special condition ofprobation, includes a distinctly retributive component.42 Thesentencing court in Murphy de- scribes the incorporation ofretribution, humiliation, and deterrence into the traditionally palliativescheme of probation: There will be some people who will believethat this sentence is much too lenient. Others will believe it too G

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humiliating. Public humiliation is a part of the punishment.... Inmany respects the colonial use of stocks and the equivalentpunishment in other societies served a useful goal in providingswift social disapproval as a deterrent. It is obvious that someform of this disapproval is required under modern conditions.”

39. Among the advantages which have been perceived in promotingthe house arrest, have been avoidance of overcrowding of the prisonsand also cost saving. However, concerns have also emerged in regardto the issues arising out of the proper supervision of house arrest.

40. The said article goes on to describe house arrest as a communitybased probationary sanction. We may also notice the following discussionunder the heading of waiver and probation being an act of grace: -

“Moreover, because of the particularly restrictive nature of homeconfinement, the implicated constitutional right might not bewaivable. For example, if a confinee’s housing is substandard,home confinement imposed by the state may violate the eighthamendment ban on cruel and unusual punishment.Similarly, it islikely that the offender might sacrifice a right that is not alienableto the state. If a regime of home confinement does not includeaccess to a house of worship, the state will have coerced fromthe offender a waiver or transfer of the inalienable right to freedomof worship guaranteed by the free exercise clause of the firstamendment.

[Refer to decision by EC. Also refer to Russian.]”

41. It will be noticed that ordinarily in the United States, housearrest is ordered after the trial is conducted and an accused is foundguilty. No doubt, it has also been resorted in respect of juveniles evenduring the pendency of the proceedings against him.

42. In Buzadji v. Moldova; 398 Butterworths Human RightsCases 42, the European Court of Human Rights (Grand Chamber), wasdealing with a case against the Republic of Moldova lodged under Article34 of the Convention for the Protection of Human Rights and FundamentalFreedoms, 1950. Dealing with the questions, whether the applicant isdeprived of liberty and whether the applicant had waived his right toliberty, inter alia, the Court held as follows:- A

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“As it does in many other areas, the court insists in its case law onan autonomous interpretation of the notion of deprivation of liberty.A systematic reading of the Convention shows that mererestrictions on the liberty of movement are not covered by art 5but fall under art 2(1) of Protocol No 4. However, the distinctionbetween the restriction of movement and the deprivation of libertyis merely one of degree or intensity, and not one of nature orsubstance. In order to determine whether someone has been‘deprived of his liberty’ within the meaning of art 5, the startingpoint must be the concrete situation and account must be taken ofa whole range of criteria such as the type, duration, effects andmanner of implementation of the measure in question (see Guzzardiv Italy (1980) 3 EHRR 333, [1980] ECHR 7367/76, paras 92–93).

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According to the court’s case law (see, among many others,Mancini v Italy (App no 44955/98) (judgment, 2 August), para 17;DLavents v Latvia (App no 58442/00) (judgment, 28 November2002), paras 64–66; Nikolova v Bulgaria (No 2) [2004] ECHR40896/98, 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 ofits degree and intensity, to amount to deprivation of liberty withinEthe meaning of art 5 of the Convention.

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In Storck v Germany (2005) 43 EHRR 96, [2005] ECHR 61603/00, para 75 the court held that the right to liberty is too importantin a ‘democratic society’ within the meaning of the Conventionfor a person to lose the benefit of the protection of the ConventionFfor the sole reason that he gives himself up to be taken intodetention. Detention might violate art 5 even though the personconcerned might have agreed to it (see De Wilde v Belgium (1971)1 EHRR 373, [1971] ECHR 2832/66, para 65).”

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“The government submitted that lesser reasons were required inorder to justify house arrest than detention in an ordinary remandfacility because the former measure was more lenient than thelatter.

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It is true that in most cases house arrest implies fewer restrictionsand a lesser degree of suffering or inconvenience for the detaineethan ordinary detention in prison. That is the case because detentionin custody requires integrating the individual into a new andsometimes hostile environment, sharing of activities and resourceswith other inmates, observing discipline and being subjected tosupervision of varying degrees by the authorities twenty-four hoursa day. For example, detainees cannot freely choose when to go tosleep, when to take their meals, when to attend to their personalhygiene needs or when to perform outdoor exercise or otheractivities. Therefore, when faced with a choice betweenimprisonment in a detention facility and house arrest, as in thepresent case, most individuals would normally opt for the latter.

However, the court notes that no distinction of regime betweendifferent types of detention was made in the Letellier principles(see para 92, above). It further reiterates that in Lavents (citedabove), where the court was called upon to examine the relevanceand sufficiency of reasons for depriving the applicant of libertypending trial for a considerable period of time, the respondentgovernment had unsuccessfully argued that different criteria oughtto apply to the assessment of the reasons for the impugnedrestriction on liberty as the applicant had been detained not only inprison but also been held in house arrest and in hospital. The courtdismissed the argument, stating that art 5 did not regulate theconditions of detention, referring to the approach previouslyadopted 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 differentplaces of detention. Thus, the court proceeded to apply the samecriteria for the entire period of deprivation of liberty, irrespectiveof the place where the applicant was detained.”

HOUSE ARREST IN INDIA

43. In India, the concept of house arrest has its roots in lawsproviding for preventive detention. Section 5 of the National SecurityAct, 1980, is a law providing for preventive detention. Section 5 reads asfollows:- AB

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A“5. Power to regulate place and conditions of detention.—Everyperson in respect of whom a detention order has been made shallbe liable—

(a) to be detained in such place and under such conditions, includingconditions as to maintenance, discipline and punishment forBbreaches of discipline, as the appropriate Government may, bygeneral or special order, specify; and (b) to be removed from one place of detention to another place ofdetention, whether within the same State or in another State, byorder of the appropriate Government: Provided that no order shallCbe made by a State Government under clause (b) for the removalof a person from one State to another State except with the consentof the Government of that other State.”

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“22(3).Nothing in clauses (1) and (2) shall apply D

(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) areEnot available under a law providing for preventive detention.

44. We notice that State of Rajasthan and Ors. vs. ShamsherSingh6 was a case under the said act. It was a case where the HighCourt had after quashing the order of detention on certain grounds gavecertain directions. The detenu was to be released from the central jailFbut thereafter it was directed that the detenu be placed under housearrest or in place like Dak Bungalow or Circuit House with members ofhis family consisting of his wife and children. The authorities were topermit interview with other relatives also if the detenu was kept outsidethe house. This Court allowed the appeal of the state finding that therequirements of law in relation to detention had been complied with andGthe detention was wrongly quashed. In A.K. Roy and Ors. vs. Unionof India (UOI) and Ors.[7] a Constitution Bench also dealt with the issuerelating to preventive detention and house arrest in the said context. Wemay notice onlyparagraph 74.6 AIR (1985) SC 1082H7 AIR (1982) SC 710

“74. By Section 5, every person in respect of whom a detentionorder has been made is liable-

a. to be detained in such place and under such conditions, includingconditions as to maintainance, discipline and punishment forbreaches of discipline, as the appropriate Government may, bygeneral or special order, specify: and b. to be removed from one place of detention to another place ofdetention, whether in the same State or another State, by order ofthe appropriate Government.

The objection of the petitioners to these provisions on the groundof their unreasonableness is not wholly without substance. Lawsof preventive detention cannot, by the back-door, introduceprocedural measures of a punitive kind. Detention without trial isan evil to be suffered, but to no greater extent and in no greatermeasure than is minimally necessary in the interest of the countryand the community. It is neither fair nor just that a detenu shouldhave to suffer detention in “such place” as the Government mayspecify. The normal rule has to be that the detenu will be kept indetention in a place which is within the environs of his or herordinary place of residence.If a person ordinarily resides in Delhi,to keep him in detention in a far off place like Madras or Calcuttais a punitive measure by itself which, in matters of preventivedetention at any rate, is not to be encouraged. Besides, keeping aperson in detention in a place other than the one where he habituallyresides makes it impossible for his friends and relatives to meethim or for the detenu to claim the advantage of facilities like havinghis own food. The requirements of administrative convenience,safety and security may justify in a given case the transfer of adetenu to a place other than that where he ordinarily resides, butthat can only be by way of an exception and not as a matter ofgeneral rule. Even when a detenu is required to be kept in ortransferred to a place which is other than his usual place ofresidence, he ought not to be sent to any far-off place which, bythe very reason of its distance, is likely to deprive him of thefacilities to which he is entitled. Whatever smacks of punishmentmust be scrupulous avoided in matters of preventive detention.”

45. Thus ‘house arrests’ have been resorted to in India, in thecontext of law relating to ‘preventive detention’. What is however relevant AB

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Ais that preventive detention is also a form of forced detention. Housearrest is also custody and forced detention.

46. As to whether such detention would qualify as custody underSection 167 will be considered when we discuss the provision relating toset off under Section 428 of Cr.P.C.

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A LOOK AT PRISONS IN INDIA

47. The executive summary published by the National CrimeRecords Bureau for 2019 is as follows: - “Prison Statistics India – 2019

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Executive Summary

Prisons – Types & Occupancy

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1. The total number of prisons at national level has increasedfrom 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, 410District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31Women Jails, 19 Borstal School and 2 Other than the above Jails.

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3. The highest number of jails was reported in Rajasthan (144)followed by Tamil Nadu (141), Madhya Pradesh (131), AndhraFPradesh (106), Karnataka (104) and Odisha (91). These Six (6)States together cover 53.11 % of total jails in the country as on31st December, 2019.

4. Delhi has reported the highest number of Central jails (14) inthe country. States/UTs like Arunachal Pradesh, Meghalaya, A &N Island, D & N Haveli, Daman & Diu and Lakshadweep haveGno 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 ason 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 theirStates/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 (numberof 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 WestBengal(1) (226) and The rest of 21 States/ UTs have no separateWomen Jail as on 31st December, 2019.

8. The actual capacity of prisons has increased from 3,96,223 in2018 to 4,03,739 in 2019 (as on 31st December of each year),having increased by 1.90%. Number of prisoners lodged in variousjails has increased from 4,66,084 in 2018 to 4,78,600 in 2019 (ason 31st December of each year), having increased by 2.69% duringthe period.

9. Out of the total capacity 4,03,739 in 1,350 prisons in 2019, theCentral Jails of the country were having the highest capacity ofinmates (1,77,618) followed by the District Jails (capacity of1,58,986 inmates) and the Sub Jails (capacity of 45,071 inmates).Among the other types of jails, Special Jails, Open Jails and WomenJails were having a capacity of 7,262, 6,113 and 6,511 inmatesrespectively as on 31st December, 2019. The highest number ofinmates were lodged in Central Jails (2,20,021) followed by DistrictJails (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 totalcapacity) followed by Bihar (capacity of 42,222 inmates in 59Jails contributing 10.46% of total capacity) and Madhya Pradesh(capacity of 28,718 inmates in 131 jails contributing 7.1% of totalcapacity).

11. Out of the 4,78,600 prisoners, 4,58,687 were male prisonersand 19,913 were female prisoners.

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12. The occupancy rate has increased from 117.6% in 2018 to118.5% in 2019 (as on 31st December of each year).

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13. The highest occupancy rate was in District Jails (129.7%)followed by Central Jails (123.9%) and Sub Jails (84.4%). Theoccupancy rate in Women Jails was 56.1% as on 31st December,2019.

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14. Uttar Pradesh has reported the highest number of prisoners(1,01,297) in its jails contributing 21.2% followed by MadhyaPradesh (44,603), Bihar (39,814), Maharashtra (36,798), Punjab(24,174) and West Bengal (23,092) as on 31st December, 2019.CThese States together are contributing around 56.4% of totalprisoners 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.

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16. The capacity in 31 Women Jails was 6,511 with the actualnumber of women prisoners in these Women Jails was 3,652(Occupancy Rate: 56.1%). The capacity of Women Inmates inother types of Jail (i.e. except Women Jails) was 21,192 with theactual number of women inmates in these jails was 16,261E(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 wereconfined in the Jails of Uttar Pradesh (4,174) followed by MadhyaFPradesh (1,758) and Maharashtra (1,569).

Prisoners – Types & Demography

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1. During the year 2019, a total of 18,86,092 inmates were admittedin various jails of the country.

2. A total of (4,78,600) prisoners as on 31st December, 2019 wereconfined in various jails across the country. The number of H

Convicts, Undertrial inmates and Detenues were reported as1,44,125, 3,30,487 and 3,223 respectively accounting for 30.11%,69.05% and 0.67% respectively at the end of 2019. Other prisonersaccounted for 0.2% (765 prisoners) of total prisoners.

3. Convicted Prisoners

a. The number of convicted prisoners has increased from 1,39,488in 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 convictedprisoners 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 MadhyaPradesh (14.1%, 20,253 convicts) and Maharashtra (6.3%, 9,096convicts) 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 3,23,537in 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 ofundertrial prisoners was lodged in District Jails(50.5%, 1,66,917undertrials) 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 civilinmates.

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A5. Detenues

a. The number of detenues has increased from 2,384 in 2018 to3,223 in 2019 (as on 31st December of each year), havingincreased by 35.19% during this period.

b. Among the 3,223 detenues, the highest number of detenuesBwere lodged in Central Jails (81.4%, 2,622 detenues) followed byDistrict Jails (9.9%, 318 detenues) and Special Jails (6.1%, 196detenues) 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)Cand 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 on31st December, 2019.

Db. Among these women prisoners, 1,212 women prisoners wereundertrial prisoners who were accompanied by 1,409 children and325 convicted prisoners who were accompanied by 363 children.

7. Age-group of the Prisoners

a. As on 31st December, 2019 the maximum number of inmatesE(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 above50 years.

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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%) prisonersGwere Class X & above but below Graduation, 30,201 (6.3%)prisoners were having a Degree, 8,085 (1.7%) prisoners werePost Graduates and 5,677 (1.2%) prisoners were TechnicalDiploma/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 theState 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% (2,171inmates) belonged to the Other States and Other Countryrespectively.

c. Haryana has reported the most number of other State domicileconvicts (15.5%, 1,353 convicts) followed by Delhi (9.8%, 855convicts) and Maharashtra (9.2%, 800 convicts) as on 31stDecember, 2019.

d. Among the 3,30,487 undertrial prisoners, 90.2% (2,98,208inmates) belonged to the State while 8.9% (29,300 inmates) and0.9% (2,979 inmates) belonged to the Other States and OtherCountry respectively.

e. Maharashtra has reported the highest number of undertrialprisoners of other states (16.0%, 4,675 inmates) followed by UttarPradesh (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 31stDecember of each year) has increased from 5,168 in 2018 to5,608 in 2019, having increased by 8.51% during this period.

2. The percentage share of foreign prisoners out of total prisonershas increased from 1.1% in 2018 to 1.2% in 2019 (as on 31stDecember 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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A4. 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 foreignconvicts were from Bangladesh (67.7%, 1,470 convicts) followedBby 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 inthe country was ‘ 6818.1 Crore. The actual expenditure was ‘C5958.3 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 FY2019-20 which is almost 34.59% of total annual expenditure of allprisons for FY 2019-20.

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3. Almost 47.9% (‘ 986.18 Crore) of total expenses on inmateswere spent on Food followed by 4.3% (‘ 89.48 Crore) on Medicalmatters, 1.0% (‘ 20.27 Crore) on welfare activities, 1.1 %(‘ 22.56Crore) on Clothing and 1.2% (‘ 24.20 Crore) on Vocational/Educational trainings.E

4. Among all the States/UTs, out of total expenditure, Haryanahas spent the highest share of expenditure on inmates (100.0%, ‘272.62 Crore) followed by Andhra Pradesh (88.1%, ‘ 152.24Crore) and Delhi (66.2%, ‘ 310.02 Crore) during the FinancialYear 2019-20.

F5. Among the 1,350 prisons, 269 prisons were renovated/expandedduring 2019.

6. Among the 1,350 prisons, 808 prisons were having VideoConference facility as on 31st December 2019.

G7. A total of 33,537 quarters were available against the actualstaff strength of 60,787 as on 31st December, 2019.”

48. According to the data published by the National Crime RecordsBureau (NCRB) the conditions relating to jails and prisoners is fairlyalarming. There were a total number of 1350 prisons as of the year H

2019. 1350 prisons consists of 617 Sub Jails, 410 District Jails, 144 CentralJails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal Schooland 2 Other than the above jails.

49. A perusal of the executive summary would reveal an alarmingstate of affairs as far as occupancy rate is concerned. It has climbed to118.5 percent in 2019 as on 31[st] December. The occupancy rate isalarming for male prisoners. In fact, during 2019, a total of 18,86,092inmates were admitted in the jails. The figure of 4,78,600 prisoners as on31[st] December, 2019 is the figure obviously after considering the numberof prisoners who would have been inter alia bailed out. The number ofunder trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05per cent of the total no. of prisoners. Delhi had the highest occupancyrate of 174.9 percent followed by Uttar Pradesh which came secondwith 167.9 percent. This means that in Delhi a prison which was meantto be occupied by 100 persons, was used for accommodating 174 persons.We cannot also be oblivious to the fact that the figures represent theofficial 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 housearrest offer.

51. In the context of the rights conferred on citizens under Article19 which are essentially constitutional freedoms or rather the enumeratedrights as explained by this Court inManeka Gandhi vs. Union of India,[8]when a citizen is placed on house arrest, which has the effect of deprivinghim of any freedom, it will not only be custody but it would involvedepriving citizens under custody of the fundamental freedoms unlesssuch freedoms are specifically protected. A person has a fundamentalright to move in any part of the country. It is obvious that in the case ofa person undergoing a house arrest and in the teeth of an absoluteprohibition, in the facts of the case forbidding the appellant from movingoutside his home, the hallmark of custody described in the case ofincarceration is equally present. Personal liberty perhaps is the mostimportant of all values recognized as such under the constitution. It is tobe jealously guarded from any encroachment, save where such intrusionhas the clear sanction of law. The expression “procedure established by A

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Alaw” has received an expansive and liberal exposition in decisions of thisCourt commencing from Maneka Gandhi(supra). Right to personal libertyis the birth right of every human being. The right under Article 21 isundoubtedly available to citizens and non-citizens. While personal libertyis a wide expression capable of encompassing within its fold, manyelements apart from the right to be protected against the deprivation ofBliberty in the sense of the freedom from all kinds of restraints imposedon a person, the irreducible core of personal liberty, undoubtedly, consistof the freedom against compelled living in forced custody.

52. Here we bear in mind the concept of negative liberty. In thecelebrated lecture, “Two Concepts of Liberty” by Isaiah Berlin, he statesCas follows, inter alia:- “The notion of ‘negative’ freedom I am normally said to be free to the degree to which no humanbeing interferes with my activity. Political liberty in this sense isDsimply the area within which a man can do what he wants. If Iam prevented by other persons from doing what I want I am tothat degree unfree; and if the area within which I can do what Iwant is contracted by other men beyond a certain minimum, I canbe described as being coerced, or, it may be, enslaved. Coercionof not, however, a term that covers every form of inability. If IEsay that I am unable to jump more than 10 feet in the air, orcannot read because I am blind or cannot understand the darkerpages of Hegel, it would be eccentric to say that I am to thatdegree enslaved or coerced. Coercion implies the deliberateinterference of other human beings within the area in which IFwish to act. You lack political liberty or freedom only if you areprevented from attaining your goal by human beings. Mereincapacity to attain your goal is not lack of political freedom. Thisis brought out by the use of such modern expressions as ‘economicfreedom’ and its counterpart, ‘economic slavery’. It is argued,very plausibly, that if a man is too poor to afford something onGwhich there is no legal ban- a loaf of bread, a journey round theworld, recourse to the law courts- he is as little free to have it ashe would be if it were forbidden him by law. If my poverty werea kind of disease, which prevented me from buying bread or payingfor the journey round the world, or getting my case heard, asHlameness prevents me from running, this inability would not naturally be described as a lack of freedom at all, least of allpolitical freedom. It is only because I believe that my inability toget what I want is due to the fact that other human beings havemade 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 economictheory about the causes of my poverty or weakness. If my lackof means is due to my lack of mental or physical capacity, then Ibegin to speak of being deprived of freedom (and not simply ofpoverty) only if I accept the theory. If, in addition, I believe that Iam being kept in want by a definite arrangement which I considerunjust or unfair, I speak of economic slavery or oppression. ‘Thenature of things does not madden us, only ill will does’, saidRousseau. The criterion of oppression is the part that I believe tobe played by other human beings, directly or indirectly, in frustratingmy wishes. By being free in this sense I mean not being interferedwith by others. The wider the area of non-interference the widermy 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 deprivedof its content and meaning. The right to life and personal liberty isessentially also based on the principle that men in regard to fundamentalrights be treated equal and that no man or a group of men, even organizedas a state under which he lives can deprive him except without infringingthe right to be treated equally unless there is a legitimate sanction of law.Personal liberty of its members must continue to remain the most cherishedgoal of any civilized state and its interference with the same must beconfined to those cases where it is sanctioned by the law and genuinelyneeded. The court would lean in favour of upholding this precious,inalienable and immutable value.

54. We have noticed that in the United States ordinarily, housearrest follows a conviction and is a choice which is available to theCourts 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. KapilSibal, learned senior counsel for the appellant that no Court even if it isthe High Court has any inherent power to deprive any person of hispersonal liberty by placing him under house arrest. Placing a person in ABC

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Acustody depriving him of his rights which would include his fundamentalrights as he would stand deprived of on giving effect to the term ofhouse arrest, would amount to a completely illegal exercise, were it notfor the fact that the High Court must be treated as having exercisedpowers available to a Judge under Section 167 of the Cr.P.C. Thus, runsthe argument.BTHE REMEDIES OPEN TO AN ACCUSED IN THE CASEOF 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 questionCof maintainability of a revision under Section 397 of the Cr.P.C. againstan order of remand. We notice para 13 which reads as follows:

“(13) Section 167 Cr.PC. empowers a Judicial Magistrate toauthorise the detention of an accused in the custody of police.Section 209 Cr.P.C. confers power upon a Magistrate to remandDan accused to custody until the case has been committed to theCourt of Session and also until the conclusion of the trial. Section309 Cr.PC. confers power upon a court to remand an accused tocustody after taking cognisance of an offence or duringcommencement of trial when it finds it necessary to adjourn theenquiry or trial. The order of remand has no bearing on theEproceedings of the trial itself nor can it have any effect on theultimate decision of the case. If an order of remand is found to beillegal, it cannot result in acquittal of the accused or in terminationof proceedings. A remand order cannot affect the progress of thetrial or its decision in any manner. Therefore, applying the test laidFdown 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 simpleinterlocutory 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 notmaintainable. The High Court, therefore, erred in entertaining theGrevision against the order dated 6-11-2001 of the MetropolitanMagistrate granting police custody of the accused Joy Immaculatefor one day.”

57. Thus, an order under Section 167 is purely an interlocutoryorder. No revision is maintainable. A petition under Section 482 cannotbe ruled out. Now at this juncture we must notice the following dimension.When a person arrested in a non-bailable offence is in custody, subjectto the restrictions, contained therein, a court other than High Court orCourt of Session, before whom he is brought inter alia, can release himon bail under Section 437 of the Cr.P.C. Section 439 of the Cr.P.C. dealswith special powers of High Court and court of session to grant bail to aperson in custody. The said courts may also set aside or modify anycondition in an order by a Magistrate.

58. In Central Bureau of Investigation, Special Investigation10Cell v. Anupam J. Kulkarni,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 Section57 that the investigation should be completed in the first instancewithin 24 hours; if not the arrested person should be brought bythe police before a Magistrate as provided under Section 167.The law does not authorise a police officer to detain an arrestedperson for more than 24 hours exclusive of the time necessaryfor the journey from the place of arrest to the Magistrate court.Sub-section (1) of Section 167 covers all this procedure and alsolays down that the police officer while forwarding the accused tothe nearest Magistrate should also transmit a copy of the entriesin the diary relating to the case. The entries in the diary are meantto afford to the Magistrate the necessary information upon whichhe can take the decision whether the accused should be detainedin the custody further or not. It may be noted even at this stagethe Magistrate can release him on bail if an application is madeand if he is satisfied that there are no grounds to remand him tocustody but if he is satisfied that further remand is necessary thenhe should act as provided under Section 167.”

59. Thus, ordinarily, when the court considers a request for remandthere would be an application for bail. It is for the court to grant bailfailing which an order of remand would follow.

60. No doubt, while the remand report is considered by theMagistrate the application for bail may be moved under Section 439

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Ainstead of moving under Section 437 in view of the restrictions containedtherein. Though an application under Section 397 would not lie againstthe remand, as already noticed, an application for bail would lie underSection 439. Therefore, ordinarily the accused would seek bail and legalityand the need for remand would also be considered by the High Court orcourt of session in an application under Section 439. No doubt theBadditional restrictions under section 43 (D) (5) of UAPA are applicableto citizens of India in cases under the said law.

WHETHER A WRIT OF HABEAS CORPUS LIESAGAINST AN ORDER OF REMAND UNDER SECTION (167)OF CR.P.C.C

61. A Habeas Corpus petition is one seeking redress in the caseof illegal detention. It is intended to be a most expeditious remedy asliberty is at stake. Whether a Habeas Corpus petition lies when a personis remanded to judicial custody or police custody is not res integra. Wemay notice only two judgments of this court. InManubhai Ratilal PatelDv. State of Gujarat and others,11. We may notice paragraph 24.

“(24) The act of directing remand of an accused is fundamentallya judicial function. The Magistrate does not act in executivecapacity while ordering the detention of an accused. Whileexercising this judicial act, it is obligatory on the part of theEMagistrate to satisfy himself whether the materials placed beforehim justify such a remand or, to put it differently, whether thereexist reasonable grounds to commit the accused to custody andextend his remand. The purpose of remand as postulated underSection 167 is that investigation cannot be completed within 24Fhours. It enables the Magistrate to see that the remand is reallynecessary. This requires the investigating agency to send the casediary along with the remand report so that the Magistrate canappreciate the factual scenario and apply his mind whether thereis a warrant for police remand or justification for judicial remandor there is no need for any remand at all. It is obligatory on theGpart of the Magistrate to apply his mind and not to pass an orderof remand automatically or in a mechanical manner.”

However, the Court also held as follows:

“31. It is well-accepted principle that a writ of habeas corpus isnot to be entertained when a person is committed to judicial custodyor police custody by the competent court by an order which primafacie does not appear to be without jurisdiction or passed in anabsolutely mechanical manner or wholly illegal. As has been statedin 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 legalityor otherwise of the order of detention which has been passed.Unless the court is satisfied that a person has been committed tojail custody by virtue of an order that suffers from the vice of lackof jurisdiction or absolute illegality, a writ of habeas corpus cannotbe granted.”

62. One of us (U.U. Lalit, J.) speaking for a Bench of two, followedthe aforesaid line of thought in the decision of Serious FraudInvestigation Office and Ors. vs. Rahul Modi and Ors.12 and held asfollows:

“(21) The act of directing remand of an accused is thus held to bea judicial function and the challenge to the order of remand is notto 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 acourt is to have regard to the legality or otherwise of the detentionat the time of the return and not with reference to the institutionof the proceedings”.

63. Thus, we would hold as follows:

If the remand is absolutely illegal or the remand is afflicted withthe vice of lack of jurisdiction, a Habeas Corpus petition would indeedlie. Equally, if an order of remand is passed in an absolutely mechanicalmanner, 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 HIGHCOURT) CAN EXERCISE POWER UNDER SECTION (167)OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNTFOR THE PURPOSE OF DEFAULT BAIL?

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A64. One of the contentions raised is that the order passed by theHigh 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 bya Magistrate. It, therefore, becomes necessary to consider whether aCourt other than a Magistrate can order remand under Section 167. Inthe first place, going by the words used in Section 167, what isBcontemplated is that Magistrate orders remand under Section 167(2).

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65. Let us, however, delve a little more into the issue. Let us takea case where a Magistrate orders a remand under Section 167 and atthe same time, he also rejects the application for bail preferred by theaccused. The accused approaches the High Court under Section 439 ofCthe Cr.P.C. The court reverses the order and grants him bail. The accusedwho was sent to custody means police custody or judicial custody isbrought out of his custody and is released on bail pursuing to the order ofthe High Court. This order is challenged before the Apex Court. TheApex Court reverses the order granting bail. The original order passedDby the Magistrate is revived. It is apparent that the accused goes backto custody. Since assuming that the period of 15 days is over and policecustody is not permissible, he is sent back to judicial custody. Equally ifhe was already in judicial custody, the order granting judicial custody isrevived. Let us assume in the illustration that the accused was in custodyonly for a period of 10 days and after the order passed by this Court andEthe accused who spent another 80 days, he completes, in other words, atotal period of custody of 90 days adding the period of custody, he sufferedconsequent upon the remand by the Magistrate. That is by piecing upthese broken periods of custody, the statutory period of 90 days entitlingthe accused to default bail, is reached. Can it be said that the order ofFthis Court granting custody should not be taken into consideration forcalculating the period of 90 days, upon completion of which the accusedcan set up a case for default bail. We would think that the mere fact isthat it is the Apex Court which exercised the power to remand, whichwas wrongly appreciated by the High Court in the illustration, would notdetract from the custody being authorized under Section 167.G

66. Let us take another example. After ordering remand, initiallyfor a period of 15 days of which 10 days is by way of police custody and5 days by way of judicial custody, the Magistrate enlarges an accusedon bail. The High Court interferes with the order granting bail on thebasis that the bail ought not to have been granted. Resultantly, the personH

who on the basis of the order of bail, has come out of jail custody, is putback into the judicial custody or jail custody. The order is one passed bythe High Court. The order granting custody by the High Court cannot betreated 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 theMagistrate to order remand by way, of appropriate jurisdiction exercisedby the superior Courts, (it would, in fact, include the Court of Sessionsacting under Section 439) the power under Section 167 could also beexercised by Courts which are superior to the Magistrate.

67. Therefore, while ordinarily, the Magistrate is the original Courtwhich would exercise power to remand under Section 167, the exerciseof power by the superior Courts which would result in custody beingordered ordinarily (police or judicial custody) by the superior Courts whichincludes the High Court, would indeed be the custody for the purpose ofcalculating the period within which the charge sheet must be filed, failingwith the accused acquires the statutory right to default bail. We havealso noticed the observations of this Court in AIR 1962 SC 1506 (supra).In such circumstances broken periods of custody can be counted whethercustody is suffered by the order of the Magistrate or superior courts, ifinvestigation remains incomplete after the custody, whether continuousor broken periods pieced together reaches the requisite period; defaultbail becomes the right of the detained person.

68. Equally when an order in bail application is put in issue, orderspassed resulting in detaining the accused would if passed by a superiorcourt be under Section 167.

THE EFFECT OF TRANSIT ORDER? IS IT A

PRODUCTION ORDER THOUGH SOURCED UNDERSECTION 167 CR.P.C.?

69. The Respondent contends that the transit remand order is nota remand for detention under Section 167 of the Cr.P.C. but only one forproduction. Reliance is placed on Section 57. It is in other words, pointedout that Section 57 contemplates that in the absence of ‘special order’under Section 167, a person arrested without warrant must be producedwithing 24 hours excluding the time taken for journey from the place ofarrest to the place where the Magistrate is located. Therefore, if a ‘specialorder’ under Section 167 is obtained, it is for the purpose of extendingthe time in Section 57 for production of the arrestee.

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A70. Per contra, Appellant contends that Section 167 speciallycovers cases where a judicial Magistrate who has no jurisdiction to try acase, can order a remand. There is no other provision for ordering transitremand.

71. In this case the transit remand was ordered on 28.08.2018.BThe Appellant was to be produced under the same on 30.08.2018 beforethe Magistrate in Pune. A person may be arrested by a police officer inany part of India (Section 48 of Cr.P.C.). Under Section 56 the personarrested without warrant is to be sent before the Magistrate havingjurisdiction or before the officer in charge of a police station. It isthereafter, that Section 57 forbids the person so arrested:C

i.from being detained for a period more than what isreasonable.

ii.from being detained beyond 24 hours from the time of arrest,excluding the time necessary for the journey from the placeDof arrest to the Magistrate Court.

72. Now, the ‘Magistrate Court’ referred to in Section 57 is theMagistrate competent to try the case. Section 57 contains the peremptorylimit of 24 hours exclusive of the period for journey, in the absence of‘special order’ under Section 167.

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E73. The words ‘special order’ is not found in Section 167 of theCr.P.C. Therefore, could it not be said that but for Section 57 permittingthe Magistrate to allowing time by passing an order under Section 167,detention in violation of Section 57 would be rendered illegal? What isthe nature of the custody on the basis of the special order under SectionF167 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 beginfrom the date of this ‘special order’? Will it begin only when the competentMagistrate orders remand?

74. Now as far as this case is concerned, we notice findings ofthe High Court of Delhi as follows: (para 11 and para 15)G

“(11) Mr. Navare next tried to draw a distinction between thescope of the function of a Magistrate before whom an applicationfor transit remand is moved and the jurisdictional Magistrate whoshould be approached for an order of remand in terms of Section56 of the Cr.P.C. According to Mr. Navare, at the stage of transitH

remand the concerned Magistrate would not be required to satisfyhimself anything more than whether an offence is made out andwhether the Police Officer seeking the remand is in fact the oneauthorized to do so.”

“(15) Therefore, when a person who after arrest is required to beproduced before a jurisdiction Judicial Magistrate is detained in aplace which is away from that jurisdiction, and therefore cannotbe produced before the jurisdictional Magistrate within 24 hours,as mandated both by Article 22(2) of the Constitution and bySection 57 Cr.P.C., he will be produced before the ‘nearest JudicialMagistrate’ together with ‘a copy of the entries in the diary’.Therefore, even before a Magistrate before whom a transitremand application is filed, the mandatory requirement of Section167 (1) Cr.P.C. is that a copy of the entries in the case diaryshould also be produced. It is on that basis that under Section 167(2) such ‘nearest Judicial Magistrate’ will pass an order authorisingthe detention of the person arrested for a term not exceeding 15days in the whole. Where he has no jurisdiction to try the caseand he finds further detention unnecessary, he may order theaccused to be forwarded to the jurisdictional Magistrate.”

75. In fact, as already noticed the submission of the State ofMaharashtra was also that once a person was in judicial custody a writof habeas corpus would not lie which also was rejected.

76. Now, the question may persist as to whether the remandpursuant to a transit remand is to police custody or judicial custody. Itcannot be judicial custody as the police is exclusively entrusted with theman 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 thetransit order either before, embarking on the journey or during the courseof the journey and after the journey before producing him? If it is thoughtthat during the journey it is impermissible, then such interrogation wouldequally be impermissible during the time of journey permitted withoutobtaining an order under Section 167. If also during such journey theaccused volunteers with a statement otherwise falling under Section 27of Evidence Act, it would be one when the accused is in the custody ofthe police. If it is police custody then, the order of the Magistrate granting A

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Atransit remand would set the clock ticking in terms of (1986) 3 SCC 141to complete the period for the purpose of default bail.

77. We may also notice that the interplay of Section 57 and 167was considered in the judgment of this Court inChaganti Satyanarayana(supra). It was held as follows:

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“(12) On a reading of the sub-sections (1) and (2) it may be seenthat sub-section (1) is a mandatory provision governing what apolice officer should do when a person is arrested and detained incustody and it appears that the investigation cannot be completedwithing the period of 24 hours fixed by Section 57. Sub-sectionC(2) on the other hand pertains to the powers of remand availableto a Magistrate and the manner in which such powers should beexercised. The terms of sub-section (1) of Section 167 have to beread in conjunction with Section 57. Section 57 interdicts a policeofficer from keeping in custody a person without warrant for alonger period than 24 hours without production before a Magistrate,Dsubject to the exception that the time taken for performing thejourney from the place of arrest to the magistrate’s court can beexcluded from the prescribed period of 24 hours. Since sub-section(1) provides that if the investigation cannot be completed withinthe period of 24 hours fixed by Section 57 the accused has to beEforwarded to the magistrate along with the entries in the diary, itfollows that a police officer is entitled to keep an arrested personin custody for a maximum period of 24 hours for purposes ofinvestigation. The resultant position is that the initial period ofcustody of an arrested person till he is produced before aMagistrate is neither referable to nor in pursuance of an order ofFremand passed by a magistrate. In fact the powers of remandgiven to a magistrate become exercisable only after an accusedis produced before him in terms of sub-section (1) of Section167.”

“(13) Keeping proviso (a) out of mind for some time let us look atthe wording of sub-section (2) of Section 167. This sub-sectionempowers the magistrate before whom an accused is producedfor purpose of remand, whether he has jurisdiction or not to trythe case, to order the detention of the accused, either in policecustody or in judicial custody, for a term not exceeding 15 days inthe whole.”

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78. We would hold that the remand order be it a transit remandorder is one which is passed under Section 167 of the Cr.P.C. and thoughit may be for the production of the Appellant, it involved authorisingcontinued 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 asfollows:- “(428) Period of detention undergone by the accused to be set-off against the sentence of imprisonment.—Where an accusedperson has, on conviction, been sentenced to imprisonment for aterm [, not being imprisonment in default of payment of fine,] theperiod of detention, if any, undergone by him during the investigation,inquiry or trial of the same case and before the date of suchconviction, shall be set off against the term of imprisonmentimposed on him on such conviction, and the liability of such personto undergo imprisonment on such conviction shall be restricted tothe remainder, if any, of the term of imprisonment imposed onhim:

[Provided that in cases referred to in Section 433-A, such periodof detention shall be set off against the period of fourteen yearsreferred to in that section.]”

80. If house arrest as ordered in this case is to be treated ascustody within the meaning of section 167 of the Cr.P.C. would it notentail the period of house arrest being treated as part of the detentionwithin the meaning of Section 428 in case there is a conviction followedby a sentence?

81. Do the provisions of Section 428 throw light on the issueswhich we are called upon to decide?

82. Section 428 enables a person convicted to have the period ofdetention which he has undergone during the investigation, enquiry ortrial set off against the term of imprisonment.

83. In this context, we may notice the judgment of this courtreported in Govt. of Andhra Pradesh and another etc. v. AnneVenkateswara Rao etc. etc.13. In the said case the Appellant in one of A

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Athe appeals had been detained under the Preventive Detention Act on18.12.1969. He was produced before the Magistrate sometime in April,1970 in connection with certain offences after he had been releasedfrom preventive detention. He was later convicted. This Court whiledealing with the contention that the benefit of provisions of Section 428must ennure to the Appellant held:-B

“The argument is that the expression period of detention in Section428 includes detention under the Preventive Detention Act or theMaintenance of Internal Security Act. It is true that the sectionspeaks of the ‘period of detention’ undergone by an accused person,but it expressly says that the detention mentioned refers to theCdetention during the investigation, enquiry or trial of the case inwhich the accused person has been convicted. The section makesit clear that the period of detention which it allows to be set offagainst the term of imprisonment imposed on the accused onconviction must be during the investigation, enquiry or trial inDconnection with the ‘same case’ in which he has been convicted.We therefore agree with the High Court that the period duringwhich the writ petitioners were in preventive detention cannot beset off under Section 428 against the term of imprisonment imposedon them.”

E84. We may also notice that in Ajmer Singh and others v. Unionof India and others14 dealing with the question as to whether the benefitof Section 428 of the Cr.PC. was available to a person convicted andsentenced by court martial under the Army Act inter alia, this courttook the view that the benefit is not available.FThe Court held: - “(12) The section provides for set-off of the period of detentionundergone by an accused person during the ‘investigation, inquiryor trial’ of the same case before the date of conviction. Theexpression ‘investigation’ has been defined in Section 2 (h) of theGCode as follows:-‘2(h) ‘investigation’ includes all the proceedings under this Codefor the collection of evidence conducted by a police officer or byany person (other than a Magistrate) who is authorised by a Magistrate in this behalf’. In the case of persons tried by Courts-Martial there is no investigation conducted by any police officerunder the Code or by any person authorised by Magistrate in thatbehalf.”

85. There is a scheme which is unravelled by the Code regardingdetention of an accused. The starting point appears to be the arrest anddetention of the person in connection with the cognizable offence by apolice officer without a warrant. He can detain him and question him inthe course of the investigation. However, the officer cannot detain theaccused beyond 24 hours excluding the time taken for the journey fromthe place of arrest to the place where the Magistrate who is competentto try the case sits. If he cannot so produce the accused and theinvestigation is incomplete, the officer is duty bound to produce the arrestedperson before the nearest Magistrate. The nearest Magistrate may ormay not have jurisdiction. He may order the continued detention of thearrested person based on the request for remand. He would largely relyon the entries in the case diary and on being satisfied of the need forsuch remand which must be manifested by reasons. The Magistrate canorder police custody during the first 15 days (in cases under UAPA, thefirst 30 days). Beyond such period, the Magistrate may direct detentionwhich is described as judicial custody or such other custody as he maythink fit. It is, no doubt, open to a Magistrate to refuse police custodycompletely during the first 15 days. He may give police custody duringthe first 15 days not in one go but in instalments. It is also open to theMagistrate to release the arrested person on bail.

86. The arrested person if detained during the period of investigationcan count this period, if he is ultimately charged, tried and convicted byvirtue of the provisions of Section 428 of Cr.P.C. We are not concernedwith custody of the accused during the period of an inquiry or trial whichis a matter governed essentially by Section 309 of the Cr.P.C. In thiscontext, it must be remembered that it is not every detention which canbe relied upon to get the benefit of set-off under Section 428. Aperiod spent under an order of preventive detention being not inconnection with the investigation into an offence cannot be counted.(See AIR 1977 SC 1096)

87. Detention pursuant to proceedings under the Army Act interalia does not count. (See AIR 1987 SC 1646)

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A88. Thus, detention ‘during investigation’ under Section 428 isintegrally 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 exceedsthe limit as to maximum period without the charge sheet being filed,Bentitles the person in detention to be released on default bail. In fact, theperson may on account of his inability to offer the bail languish in custodybut he would undoubtedly be entitled to count the entire period he hasspent in detention under orders of the Magistrate/ Superior Courtexercising powers under Section 167 for the purpose of set off underSection 428.C

EFFECT OF ILLEGALITY IN THE ORDER UNDERSECTION 167 CR.PC.

EFFECT OF ILLEGALITY IN THE ORDER UNDERSECTION 167 CR.PC.

90. Now, it is necessary to make one aspect clear. An order purportsto remand a person under Section 167. It is made without complyingDwith 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 tobe application of mind. If there is complete non-application of mind orreasons are not recorded, while it may render the exercise illegal andliable to be interfered with, the actual detention undergone under theEorder, will certainly count towards default bail. Likewise, unlike theprevious Code (1898), the present Code mandates the production of theaccused before the Magistrate as provided in clause (b) of the provisoto Section 167 (2). Custody ordered without complying with the saidprovision, may be illegal. But actual custody undergone will again counttowards default bail.F

91. Take another example. The Magistrate gives police custodyfor 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 nonethelessGpurportedly 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 custodyfor the purpose of Section 167 does not appear to us to be correct. Thefinding that if any illegality afflicts the authorisation, it will render the‘detention’ not authorised is inconsistent with our conclusion as aforesaid.H

92. Therefore, if the Court purports to invoke and act under Section167, the detention will qualify even if there is illegality in the passing ofthe order. What matter in such cases is the actual custody.

93. However, when the Court does not purport to act underSection 167, then the detention involved pursuant to the order of theCourt cannot qualify as detention under Section 167.

JUDICIAL CUSTODY AND POLICE CUSTODY

94. Now, we must squarely deal with the question as to whetherhouse arrest as ordered by the High Court amounts to custody withinthe meaning of Section 167 of the Cr.P.C. Undoubtedly custody in thesaid provision is understood as ordinarily meaning police custody andjudicial custody. The period of custody begins not from the time of arrestbut from time the accused is first remanded (1986 (3) SCC 141). Policecustody 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 thefirst 15 days no doubt the Court may order judicial custody or policecustody. No doubt the last proviso to Section 167 (2) provides thatdetention of a woman under eighteen years of age, the detention shall beauthorised to be in the custody of a remand home or recognised socialinstitution.

95. What is the distinction between police custody and judicialcustody? When a person is remanded to police custody, he passes intothe exclusive custody of the police officers. ‘Custodial Interrogation’ asis indispensable to unearth the truth in a given case is the substantialpremise for such custody. The Magistrate must undoubtedly be convincedabout 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 jailcustody. Thus, jail custody and judicial custody are the same. The jailscome under the Department of Jails and staffed by the employees of thesaid department. The person in jail custody is therefore indirectly, throughthe jail authorities, under the custody of the Court. The police officerdoes not have access to a person in judicial custody as he would have inthe case of a person in police custody. Unless permission is sought andobtained which would apparently be subject to such conditions as a courtplaces the person in judicial custody cannot be questioned by the policeofficers. Now in a case, ordinarily, instead of ordering a remand a personcan be released on bail. As to whether a case is made out is a question AB

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Ato be decided in the facts of each case. There may be restrictions put inregard to the grant of bail by law which must be observed. But if bail isnot granted then a person arrested by the police in connection with thecognizable offence must be remanded to custody. This is inevitable fromthe reading of Section 167 of the Cr.P.C.

B96. In re. M.R. Venkataraman and Others15, a petition was filedseeking a writ of Habeas Corpus inter alia on the ground that thepetitioners were remanded to a central jail of a district which was otherthan the one in which there were being tried. The court inter alia held asfollows:- C“On the first point, it seems to us that no illegality or irregularitywas committed. Section (167) empowers a Magistrate havingjurisdiction to remand a prisoner to such custody as he thinks fit.Section 344 does not use the words “as he thinks fit” with regardto the order of remand; but there is nothing in the section whichsuggests that after a charge-sheet has been filed, the MagistrateDhas not the same freedom with regard to the custody to which hecommits the accused as he had before a charge-sheet was filed.The learned Advocate for the petitioners has referred to the wordingof Section 29 of the Prisoners’ Act, as indicating that the onlyperson who can transfer a prisoner from one Jail to another within-Ethe same province is the InspectorGeneral of Prisons; but by itsvery wording Section 29 of the Prisoners’ Act does not apply toan under-trial prisoner; nor are we dealing with a transfer of aprisoner. Whenever an accused is brought before the Court andthe Court issues an order of remand, the Magistrate has completefreedom, as far as we can see, to remand the accused to whateverF”custody he thinks fit.

97. The concept of house arrest though familiar in the law relatingto preventive detention, therein the underpinnings are different. HouseGarrest in the law of preventive detention is one which is permitted underthe law itself and such orders are made in fact by the executive. Also,detention under Section (167) would not embrace preventive detentionin the form of house arrest as noticed by us in the discussion relating toimpact of Section 428 of Cr.P.C.

98. However, taking the ingredients of house arrest as are presentin the order passed by the High Court of Delhi in its order dated28.08.2018, if it is found to be one passed under Section 167, then itwould be detention thereunder. The concept of house arrest as orderedin this case with the complete prohibition on stepping out of the Appellantspremises and the injunction against interacting with persons other thanordinary residents, and the standing of guard not to protect him but toenforce the condition would place the Appellant under judicial custody.Section 167 speaks of ‘such custody as it thinks fit’. If it is found orderedunder Section 167 it will count.

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99. In the impugned judgment the High Court reasons as followsto deny default bail:

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(1) The transit remand order came to be stayed by the DelhiHigh Court on 28/10/2018.

(2) The appellant was placed under house arrest pursuant tothe directions of the Delhi High court during which periodDthe investigating officer did not get the opportunity ofinterrogating him.

(3) The High court of Delhi quashed the appellant’s arrestholding that the appellant’s detention is illegal.

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(4) Pursuant to the declaration of the detention as illegal, theappellant was set at liberty. It is not as if the appellant wasreleased on bail but after being set at liberty, the appellantis protected by an order of this Court restraining theinvestigating agency from taking coercive steps during thependency of appellant’s challenge to the FIR.

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(5) The Hon’ble Supreme Court having dismissed the challengeof the appellant to quash FIR granted 4 weeks protectionwith liberty to seek pre arrest bail/protection before theSessions Court. The Hon’ble Supreme Court granted theappellant time to surrender after the appellant failed to servepre arrest bail. The appellant ultimately surrendered to NIADelhi on 14/04/2020. Only after the appellant surrendered,the Magistrate authorised the police custody whereuponthe appellant was interrogated.

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It further held:

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A“The CMM granted transit remand on 28.08.2018. The High Courtof Delhi by an interim order having stayed the transit remand andthen having finally set aside the order of transit remand therebyholding the detention during the period 28.08.2018 upto 01.10,2018(period of house arrest) as illegal, then, in our opinion, in theabsence of there being an authorised detention by an order ofBMagistrate, the Appellant cannot claim entitlement to statutorydefault bail under Sub-Section (2) of Section 167 of Cr.PC…”

It goes on to hold:

“It is not possible for us to fathom a situation where detention ofCthe Appellant though held to be illegal & unlawful rendering theauthorisation by the Magistrate untenable should still be construedas an authorised detention for the purpose of Sub-Section (2) ofSection 167 of the Cr.P.C. In our view sans any valid authorisation/order of the Magistrate detaining the appellant, the incumbent willnot be entitled to a default bail…”

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Finally, it holds:

“Resultantly, we hold that the period from 28.08.2018 to 01.10.2018has to be excluded from computing the period of 90 days as thesaid custody has been held to be unsustainable in law by the HighCourt of Delhi.”EDOES THE MAGISTRATE/ COURT CONSIDER THELEGALITY OF ARREST/ DETENTION WHILE ACTINGUNDER SECTION (167).

100. The High Court of Delhi in its judgment dated 01.10.2018Fhas found that the order of remand is illegal as there was violation ofArticle 22(1). Article 22(1) creates a fundamental right on a personarrested to be not detained without being informed as soon as may be ofthe grounds for such arrest. It also declares it a fundamental right forthe detained person to consult and be defended by a legal practitioner ofGhis choice. Now, detention follows arrest. What Article 22(1) is concernedwith is that the detention must be supported by the fulfilment of therights referred to therein. Strictly speaking, therefore, Article 22(1) doesnot go to the legality of the arrest.

101. Now, as far as the non-fulfilment of the conditions underArticle 22(1) and the duty of a Magistrate exercising power to remand,H

we notice the judgment of this Court rendered by a Bench of threelearned Judges inThe matter of: Madhu Limaye and Others;[16]. Therein,the petitioners were arrested apparently for offence under Section 188of the IPC which was non-cognizable. The officer did not give thearrested persons the reasons for their arrest or information about theoffences for which they had been taken into custody. this was a casewhere the Magistrate offered to release the petitioners on bail but on thepetitioners refusing to furnish bail, the Magistrate remanded them tocustody. The proceeding before this Court was under Article 32. It wasin fact, initiated on a letter complaining that the arrest and detentionwere illegal. It was contended that the arrests were illegal as they werearrested for offences which were non-cognizable. In fact, it was foundthat the arrest were effected without specific order of Magistrate. Itwas also contended that Article 22(1) was violated. What is relevant isthe following discussion:- “12. Once it is shown that the arrests made by the police officerswere illegal, it was necessary for the State to establish that at thestage of remand the Magistrate directed detention in jail custodyafter applying his mind to all relevant matters. This the State hasfailed to do. The remand orders are patently routine and appearto have been made mechanically. All that Mr Chagla has said isthat if the arrested persons wanted to challenge their legality theHigh Court should have been moved under appropriate provisionsof the Criminal Procedure Code. But it must be remembered thatMadhu Limaye and others have, by moving this Court under Article32 of the Constitution, complained of detention or confinement injail without compliance with the constitutional and legal provisions.If their detention in custody could not continue after their arrestbecause of the violation of Article 22(1) of the Constitution theywere entitled to be released forthwith. The orders of remand arenot such as would cure the constitutional infirmities. This disposes”of the third contention of Madhu Limaye.

102. We may further notice that in In Arnesh Kumar vs. State ofBihar and Another;[17], this Court taking note of indiscriminate arrestsissued certain directions. We may notice: - 16 (1969)1 SCC 292

17 (2014) 8 SCC 273

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SUPREME COURT REPORTS

A“8.2. Before a Magistrate authorises detention under Section 167CrPC, he has to be first satisfied that the arrest made is legal andin accordance with law and all the constitutional rights of the personarrested are satisfied. If the arrest effected by the police officerdoes not satisfy the requirements of Section 41 of the Code,Magistrate is duty-bound not to authorise his further detentionBand release the accused. In other words, when an accused isproduced before the Magistrate, the police officer effecting thearrest is required to furnish to the Magistrate, the facts, reasonsand its conclusions for arrest and the Magistrate in turn is to besatisfied that the condition precedent for arrest under Section 41CCrPC has been satisfied and it is only thereafter that he willauthorise the detention of an accused.

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8.3. The Magistrate before authorising detention will record hisown satisfaction, may be in brief but the said satisfaction mustreflect from his order. It shall never be based upon the ipse dixitDof the police officer, for example, in case the police officerconsiders the arrest necessary to prevent such person fromcommitting any further offence or for proper investigation of thecase or for preventing an accused from tampering with evidenceor making inducement, etc. the police officer shall furnish to theMagistrate the facts, the reasons and materials on the basis ofEwhich the police officer had reached its conclusion. Those shallbe perused by the Magistrate while authorising the detention andonly after recording his satisfaction in writing that the Magistratewill authorise the detention of the accused.”

103. In terms of paragraph 8.2, it is clear that if the arrest doesFnot satisfy the requirements of Section 41, the Magistrate is duty boundnot to authorize further detention. The Magistrate is to be satisfied thatthe condition precedent for arrest under Section 41 of the CrPC hasbeing satisfied. He must also be satisfied that all the constitutional rightsof the person arrested are satisfied. Therefore, it is not as if an arrestGbecomes a fait accompli, however, illegal it may be, and the Magistratemechanically and routinely orders remand. On the other hand, theMagistrate is to be alive to the need to preserve the liberty of the accusedguaranteed under law even in the matter of arrest and detention beforehe orders remand. This is no doubt apart from being satisfied about thecontinued need to detain the accused.H

CUSTODY UNDERGONE UNDER ORDERS OFSUPERIOR COURTS IN HABEAS CORPUS PETITIONS. ISTHE CR.P.C APPLICABLE TO WRIT PETITIONS?

104. We have noticed that there is no absolute taboo against anorder of remand being challenged in a habeas corpus petition. Shouldthe remand be absolutely illegal or be afflicted with vice of lack ofjurisdiction such a writ would lie? If it is established in a case that theorder of remand is passed in an absolutely mechanical manner again itwould lie. Now in such cases the person would be in custody pursuant tothe remand ordinarily. What would be the position if the writ court wereto modify the order of remand passed by the magistrate. Take a casewhere police custody is ordered by the Magistrate. By an interim orderof the High court let us take it the High Court provides for judicial custody.It is done after the accused undergoes police custody for 5 days. Finally,the writ petition is however dismissed. What would happen to the periodof judicial custody? Will it be excluded from the period undergone forthe purpose of grant of default bail? Another pertinent question whicharises is whether Section 167 of the Cr.P.C. is applicable in writproceedings. If a writ petition is not a criminal proceeding, Will Section167 apply or does the provision apply only to the proceedings whicharise under the Code? In the example, we have given if we hold thatirrespective of facts which otherwise justified including the period of jailcustody as part of the custody under one Section 167, it will not bereckoned it may produce anomalous and unjust results. We expatiate asfollows:

In the example we have given the High Court does not stay theinvestigation. The petitioner who has been in police custody is madeover to judicial custody by the interim order of the High Court. The HighCourt also applies its mind and finds that no case is made out at any ratefor continuing the writ petitioner in police custody and then passes theorder to continue the petitioner in judicial custody. Finally, the writ petitionis dismissed. In such a case where there is no stay of investigation andin fact even the police custody was obtained and thereafter the HighCourt after looking into the records also find that the petitioner shouldonly be continued in the modified form of remand, the custody, which isundergone under an order of the court being also ‘during the investigation’which the investigation is also not stayed, ought to be counted.

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A105. Now though the Cr.P.C. will not apply to a writ petition, whatis required to include custody under Section 167 is that the detentionbrought about by the court ordering it during the investigation into anoffence. It is a matter which will turn on the facts.

106. The crucial question to be answered is whether the HighBCourt of Delhi was exercising power under Section 167 when it orderedhouse arrest. The proceeding in the High Court was a writ petition. Atthe time when the writ petition was filed, the relief sought was that awrit of Habeas Corpus be issued to set him at liberty. The further reliefsought was that the Appellant may not be arrested without prior noticeto enable him to seek appropriate remedies. As far as the prayer that theCAppellant may not be arrested is concerned, it is a relief which does notgo hand in hand with Section 167 of the Cr.P.C. This is for the reasonthat the power under Section 167 is invoked only after there has been anarrest and what is sought is the extension of the detention of the personarrested.D107. Though, this was the position when the writ petition wasfiled, by the time, the writ petition came up for consideration at 2:45 p.m.on 28.08.2018, the Appellant stood arrested at 2:15 p.m. The Court initiallyat 2:45 p.m. passed the following order: - “4. When the matter was taken up at 2:25 pm yesterday, Mr.ERahul Mehra, learned Standing Counsel (Criminal) for the Stateof NCT of Delhi appeared. The Court then passed the followingorder at around 2:45 pm:

“1. The petition complains of the Petitioner and his companionSehba Husain being restrained in his house by the MaharashtraFPolice pursuant to FIR No. 4/2018, registered at P.S. Vishrambagh,Pune.

2. Notice. Mr. Rahul Mehra, who appears and accepts notice andinforms that he will take some instructions.

3. The Court is informed by Ms. Nitya Ramakrishnan, learnedGcounsel appearing for the Petitioner, that her information is thatthe Petitioner is just being taken away from his house. No furtherprecipitate action of removing the Petitioner from Delhi be takentill the matter is taken up again at 4 pm.”

[This is taken from order dated 29.08.2018 extracted in theHjudgment.]

108. It would appear, in the meantime, the appellant was producedbefore the Magistrate who passed the transit remand order. Thereafterwhen the matter was taken up for consideration at 4:00 p.m. and onnoticing the transit remand, order, dated 28.08.2018, inter alia, orderinghouse arrest came to be passed. Therefore, at the time (4PM) when theorder was passed, the Court was dealing with the matter when theAppellant stood arrested and also remanded by way of the transit remandorder.

109. One way to look at the matter is to remind ourselves of thecontents of the order dated 28.08.2018. In the said order, we notice thefollowing portion which we recapture at this juncture: - “The Court is also shown the documents produced before thelearned CMM most of which (including FIR No. 4 of 2018registered at Police Station, Vishrambagh, Pune) are in Marathilanguage and only the application filed for transit remand beforethe learned CMM is in Hindi. However, it is not possible to makeout from these documents what precisely the case against thePetitioner is.”

110. The Court further proceeded to direct that the translations ofall the documents be provided to the Court on the next date (29.8.2018).

111. Now, the direction to supply the translation could not becomplied with as is the evident from the order dated 29.08.2018 (Seepara 6 of the said order) as reproduced in the judgment.

112. Finally, we may notice paragraphs 18 and 19 of the orderdated 29.08.2018 reproduced in the judgment:- “He is informed that the Supreme Court has in the said petitionpassed an interim order today staying the transit remand orders,including the one passed by the CMM in respect of the Petitioner,and has ordered that all those who have been arrested includingthe Petitioner shall continue under house arrest.

In view of the above development, it would not be appropriate forthis Court to continue considering the validity of the transit remandorder passed by the learned CMM. The Court considers itappropriate to list this matter tomorrow at 2:15 pm by which timethe order of Supreme Court would be available.

List on 30[th] August 2018 at 2:15pm.”

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A113. On the next day i.e., on 30.08.2018, the Court passed a furtherorder. Therein, in fact the order recites that the Court was in the processof pronouncement an order on the validity of the transit remand andconsequently on the validity of the arrest of the appellant. It is furtherstated that the court was informed by the counsel for the State ofMaharashtra that an interim order continuing the house arrest of theBappellant and some other similarly situated had been passed. It isspecifically recorded that the dictation of the order was then halted inorder to peruse the order passed by the Supreme Court.Thereafter, it isstated that as the Supreme Court as per the interim order extended thehouse arrest of the appellant, the court did not consider it appropriate toCproceed with the matter. Orders of the Supreme Court were awaited.114. It was further adjourned. Thereafter, this Court pronouncedthe judgment on 28.09.2018 and finally, the judgment was pronouncedon 01.10.2018 by the High Court. We may also notice: - para 5

“5. This writ petition was listed for hearing today at 2:15 pm beforeDthis Court. It is noted that the Supreme Court in para 7 of themajority judgment notes that the Petitioner has filed the presentpetition on 28th August 2018 “challenging the transit remand orderpassed by the Chief Metropolitan Magistrate (CMM) on28th August 2018”. At this stage it is required to be noted thatEalthough when the writ petition was originally filed the ground ofchallenge was that the arrest of the Petitioner was in violation ofSection 165 and 166 Cr PC, during the course of arguments on28th August 2018 in light of the developments that took placesubsequent to the filing of the petition, challenge was laid to theremand order of the learned CMM. It was further contended thatFthere had been a violation of the mandatory provision contained inSection 41(1)(ba) Cr PC.”

115. The Court went on to find that the writ petition wasmaintainable as the writ petition was entertained at a time when thetransit remand order had not been passed. The Court finally proceeds toGfind violations of Articles 22(1) and 22(2)of the Constitution and Section167 read with Section 57 and also Section 41(1)(ba) of the Cr.P.C. Theremand order is set aside. The continued detention beyond 24 hours ofthe arrest of the appellant, in the absence of the remand order whichstood set aside, was found untenable. Consequently, the house arrest ofHthe appellant was pronounced as having “come to an end as of now”.

116. We have already found that the superior Courts including theHigh Court can exercise power under Section 167. The finding of theHigh Court in the impugned judgment appears to proceed on the basisthat only a Magistrate can order remand, does not appear to be correct.

117. Undoubtedly, as pointed out by the appellant, he came to bedetained on the basis of an arrest carried out by the police officer fromthe State of Maharashtra in connection with FIR No. 84 of 2018 disclosingthe commission of cognizable offences. The arrest is apparently effectedin view of the powers available under Section 48 of the Cr.P.C. Findingthat an order under Section 167 was required to produce the appellantbefore the competent Court in Maharashtra, he produced the appellant-in-person before the nearest Magistrate in Delhi and the Magistratepassed an order which we have found to be an order of remand underSection 167. The High Court came to be concerned with the validity ofthe remand order and detention of the appellant. A writ of habeas corpusdoes lie in certain exceptional cases even by way of challenging theorders of remand. If there is non-compliance with Article 22(1) and theperson is detained it is an aspect which has to be borne in mind by theMagistrate when ordering remand. Detention is the result of an arrest.Article 22(1) applies at this stage after arrest. If fundamental rights areviolated in the matter of continued detention, the Magistrate is notexpected to be oblivious to it. It is in this sense that the High Court hasfound violation of Article 22(1) inter alia and the Magistrate over-lookingit as rendering the transit remand illegal. As far as the arrest being madein violation of Section 41(1)(ba), undoubtedly, it is a matter which relatedto 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 thequestion as to whether the arrest was in compliance with Section 41 (1)(ba) of Cr.P.C.

118. This is unlike the decision in Madhu Limaye(supra) wherethis court found that there was a violation of Article 22(1) and evenduring the course of arguments before this court, it could not be explainedto the court as to why the arrested persons were not told of the reasonsfor their arrest or of the offences for which they had been taken intocustody. In the said case in fact one of the specific issues was about thelegality of the arrest both on the ground that the offences being noncognizable arrest which was illegally effected by the police officer andalso there was violation of Article 22(1).

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ATHE IMPACT OF THE NON-ACCESSIBILITY TO THEAPPELLANT FOR THE INVESTIGATING AGENCY DURINGHOUSE ARREST AND THE EFFECT OF THE APPELLANTBEING IN POLICE CUSTODY FROM 14.4.2020 TO 25.4.2020.

119. This is the most serious contention raised by the respondentBto exclude the period of house arrest. The contention is that having regardto the nature of the proceedings in the High Court of Delhi during theperiod of house arrest, no investigation could be carried out. The verypurpose of custody under Section 167 is to enable the police to interrogatethe accused and if that opportunity is not present then such period ofcustody as alleged would not qualify for the purpose of Section 167. InCother words, the argument appears to be that the object and scheme ofSection 167 is that an investigation is carried out with opportunity toquestion the accused and still it is not completed within the period of 90days whereupon right to default bail arises. By the proceedings on28.08.2018 when the petition was filed, the High Court stayed the transitDremand and the appellant could not be taken to Maharashtra. By thevery same order, the High Court placed the Appellant under house arrest.No access was provided to the investigating agencies to question theAppellant. In such circumstances, the period undergone as house arrestshould be excluded. It is appropriate that the allied argument, namely,the effect of the Appellant surrendering on 14.04.2020, being producedEon 15.04.2020 and being remanded to police custody in which he remainedtill 25.04.2020, is considered. The argument is that under the generallaw, namely, the Cr.P.C. without the modification effected under Section43(D) of UAPA, police custody can be sought and given only during thefirst 15 days, thereafter, police custody cannot be given. In the case ofFUAPA, in view of the modified application of the Cr.P.C. under Section43(D)(2), the period of 15 days stands enhanced to 30 days. Thus, policecustody by the Magistrate can be given on production for a period of 30days. The argument further runs that if it is on the basis of the Appellanthaving surrendered on 14.04.2020 and upon being produced before the Court, he stood remanded to police custody, the period of 90 days wouldGbegin to run only from the date of the remand i.e. 15.04.2020. If thecontention of the appellant is that the period of remand commenced withthe house arrest i.e., 28.08.2018, is accepted, it would result in the policecustody given on 15.04.2020 as impermissible. In this regard, the factthat the appellant did not object to the police custody being given onH15.04.2020 is emphasized. The appellant acquiesced in the police custody commencing from 15.04.2020. This is possible only on the basis that theperiod of 90 days would commence only on 15.04.2020 in terms of thelaw laid down in Chaganti Satyanarayana(supra).

120. Per contra, the case of the appellant is as follows: - There is no requirement in law that the person should be grantedpolice custody in all cases. Section 167 of Cr.P.C. confers a power withthe Magistrate to grant either police or other custody (judicial custody)during the first 15 days in a case not covered by UAPA. After the firstperiod of 15 days, undoubtedly, custody cannot be police custody butthere is no requirement that any police custody at all should be given. Itis entirely with the Magistrate/ Court to determine as to whether thecustody should be police or judicial. Furthermore, it is contended that inthis case, the offences under UAPA are the main offences. A period of30 days is available by way of police custody. It is open to the investigatorto seek police custody at any time.

It is contended that in any event, a reading of the second provisounder Section 43(D)(2)(b) of the UAPA shows that in cases under thesaid act for the purpose of investigation, police custody can be soughtany time and is not limited by 30 days/ 15 days period. It is submittedthat the principle in Central Bureau of Investigation,SpecialInvestigation Cell(supra)that police custody is limited to the first 15days of remand, does not apply. It is further contended that there was nostay of investigation and police could have sought access to the appellantduring the 30 days period of interrogation or investigation but this wasnot done. It is also seen contended in the written submissions that thesecond proviso to Section 43(2)(D) of UAPA nullifies the judgment inAnupam Kulkarni (supra) in UAPA cases and custody can, therefore,be sought at any time even from judicial custody without the limit of first15 days or even 30 days. The requirement of an affidavit in terms of theproviso arises only when custody is taken by the police from judicialcustody. It was open to the investigating agency to file such an affidavitand seek such custody or even the permission to interrogate during theperiod of house arrest which was not done. It is seen further contendedthat on 14.04.2020, the appellant surrendered before the NIA i.e. policecustody. Therefore, when the police custody was sought on 15.04.2020and extended again on 21.04.2020, there is no transfer from judicialcustody to police custody. Therefore, it is contended that the policecustody was not under the second proviso to Section 43(D)(2)(b). This A

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Aexplains why no affidavit as required thereunder was filed by the police.The conduct of the appellant in not objecting to the application seekingpolice custody cannot defeat the case for counting the period of 34 daysof house arrest. The appellant was indeed in police custody on 28.08.2018for the purpose of investigation. All his devices were seized by theinvestigating agency who had spent several hours at his house andBrestrained him from morning till 2:15 P.M. when they proceeded withhim to the Magistrate.

121. The scheme of the law (Cr.P.C.) is that when a person isarrested without warrant in connection with a cognizable offence,investigation is expected to be completed within 24 hours from his arrest.CIf the investigation is not completed, as is ordinarily the case, the accusedmust be produced before the Magistrate who is nearest from the placeof arrest irrespective of whether he is having jurisdiction or not. TheMagistrate on the basis of the entries in the case diary maintained by theofficer is expected to apply his mind and decide whether the accused isDto be remanded or not. If the police makes a request for police custodywhich is accepted then an order is to be passed and reasons are to berecorded under Section 167(3). Police custody is an important tool inappropriate cases to carry on an effective investigation. It has severaluses. It includes questioning the accused with reference to thecircumstances, and obtaining if possible, statements which are relevantEin the future prosecution. Custodial interrogation in some cases is clearlya dire need to give a prosecution and therefore the courts a completepicture. The contention of the appellant that it is always open to Magistrateto order only judicial custody and even exclusively with 90 days of judicialcustody alone, an application for default bail would lie cannot be disputed.FWhatever be the nature of the custody as long as it falls within fourwalls of Section 167, if the requisite number of days are spent in police/judicial custody/ police and judicial custody that suffices.

122. However, that may not mean applying the functional test orbearing in mind the object of the law that the purpose of obtaining policeGcustody is lost sight of. According to the appellant, the period of housearrest is to be treated as judicial custody on the terms of the order dated28.08.2018 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 directedthe appellant to cooperate with the officers in the investigation. It howeverH

remains in the region of conjecture. The impact of this aspect, will befurther considered later.

123. We must, in this regard, also consider the impact of the policecustody, admittedly, obtained on 15.04.2020. The order which is producedbefore us would show that police custody was sought for 10 days.Custodial interrogation was necessary, it is seen pleaded, for analysingthe retrieved electronic data/ documents from the electronic devicesrecovered during the investigation.

124. The special Judge ordered remand for 7 days. Thereafter, aperiod of 7 days further remand to police custody was granted by theorder dated 21.04.2020. Still further, it appears on 25.04.2020, theAppellant was remanded in judicial custody in which he continued. Thequestion would arise that all else being answered in favour of the Appellantwhether his case is inconsistent with the police remand initially grantedfor 7 days on 15.04.2020 and further extended on 21.04.2020 whichwas, no doubt, cut short on 25.04.2020. The point to be noted is policecustody 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 theappellant is to be accepted then it must be consistent with the subsequentproceedings, namely, police custody vide orders dated 15.04.2020 and21.04.2020. In other words, Section 167 of the Cr.P.C. as modified bySection 43(D)(2) of UAPA, contemplates that remand to police custodyon production of the accused can be given only during the first 30 daysfrom the date of production and it advances the case of the respondentthat remand on production of the accused before the Special Judge tookplace only with the production of the accused on 15.04.2020. If theremand in the case of the appellant took place in the year 2018 then itwould be completely inconsistent with the remand to police custody wellbeyond the first 30 days of the remand in the year 2018.

125. The answer of the Appellant is that apart from the period of15 days being supplanted by 30 days under UAPA, police custody canbe sought and granted at any time in cases involving UAPA. It appearsto be the Appellants case in one breath that this is possible under thesecond proviso contemplated in Section 43(2)(b) of UAPA. It is seencontended, that unlike the cases generally covered by the Cr.P.C., policecustody can be sought in cases under UAPA at any time. It is alsocontended however that, it is only if a person is in judicial custody and A

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Athe investigator wants to get police custody in place of judicial custodythat an affidavit is required. In this case, it is the case of the appellantthat there is no such affidavit. This is for the reason that when policecustody was sought on 15.04.2020, the appellant was not in judicialcustody. He had surrendered on the previous day i.e. on 14.04.2020before the NIA. It is, therefore, to resolve this controversy necessary toBfind out whether the case of the Appellant that the police custody can besought at any time in cases falling under UAPA is tenable.

126. Section 43 D(2) of UAPA reads as follows:- “(2) Section 167 of the Code shall apply in relation to a caseCinvolving an offence punishable under this Act subject to themodification that in sub-section (2), —

(a) the references to “fifteen days”, “ninety days” and “sixty days”,wherever they occur, shall be construed as references to “thirtydays”, “ninety days” and “ninety days” respectively; and D(b) after the proviso, the following provisos shall be inserted,namely:—

“Provided further that if it is not possible to complete theinvestigation within the said period of ninety days, the Court mayif it is satisfied with the report of the Public Prosecutor indicatingEthe progress of the investigation and the specific reasons for thedetention of the accused beyond the said period of ninety days,extend the said period up to one hundred and eighty days:

Provided also that if the police officer making the investigationunder this Act, requests, for the purposes of investigation, for policeFcustody from judicial custody of any person in judicial custody, heshall file an affidavit stating the reasons for doing so and shall alsoexplain the delay, if any, for requesting such police custody”.

127. Under Section 43(D)(2)(a), it is clear that the maximum periodof police custody which is permissible has been increased from 15 daysGto 30 days. The further modification is that which is relevant which isincorporated in the second proviso. It contemplates that the investigatingofficer can seek with reasons and explaining the delay obtain the policecustody of a person who is in judicial custody.

128. We would think that the position under Section 167 asHapplicable in cases under UAPA is as follows:- Undoubtedly, the period of 30 days is permissible by way of policecustody. This Court will proceed on the basis that the legislature is awareof the existing law when it brings the changes in the law. In other words,this Court had laid down in Anupam Kulkarni (supra), inter alia, thatunder Section 167 which provides for 15 days as the maximum period ofpolice custody, the custody of an accused with the police can be givenonly 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 principledeclared in (1992) 3 SCC 141, the investigating officer in a case underUAPA, can get police custody for a maximum period of 30 days but itmust be within the first 30 days of the remand. In this regard, the numberof days alone is increased for granting remand to police custody. Theprinciple that it should be the first 30 days has not been altered in casesunder UAPA.

As far as the second proviso in Section 43(D)(2)(b) is concerned,it does bring about an alteration of the law in Anupam Kulkarni (supra).It is contemplated that a person who is remanded to judicial custody andNIA has not been given police custody during the first 30 days, on reasonsbeing given and also on explaining the delay, Court may grant policecustody. The proviso brings about the change in the law to the extentthat if a person is in judicial custody on the basis of the remand, then onreasons given, explaining the delay, it is open to the Court to give policecustody even beyond 30 days from the date of the first remand. We maynotice that Section 49 (2) of Prevention of Terrorism Act is pari materiawhich has been interpreted by this Court in AIR 2004 SC 3946 and thedecision does not advance the case of Appellant though that was a casewhere the police custody was sought of a person in judicial custody butbeyond 30 days.

In this regard, it would appear that the appellant had surrenderedon 14.04.2020. He was not in judicial custody. He was produced with aremand report seeking police custody on 15.04.2020. Treating this as aremand sought within the first 30 days, a remand is ordered for a periodof 7 days initially. There is no dispute that the period was police custody.We may notice that an accused under UAPA may be sent to judicialcustody, police custody or granted bail. If the argument that the policecustody can be sought at any time and it is not limited to cases where A

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Athere is judicial custody, it will go against the clear terms of the provisoand even a person who is bailed out can after 30 days be remanded topolice custody. This is untenable. The case of the appellant that thepolice custody granted on 15.04.2020 was permissible and consistentwith his case does not appear to be correct.

BTHE DECISION IN (2007) 5 SCC 773

129. The High Court placed considerable reliance on the judgmentreported in State of West Bengal v. Dinesh Dalmia18. So also theAdditional Solicitor General, Shri Raju. In the said case, the Respondentwas arrested in New Delhi. He was produced before the Magistrate onCtransit remand in Chennai. The Investigating Officer, in cases in Calcutta,prayed for production warrant before the Court at Calcutta as theRespondent was arrested and detained in the CBI case before theMagistrate at Chennai. The said prayer was allowed and the order wassent to the Court at Chennai. There was a further order by the CalcuttaCourt issued that the Respondent should not be released in the CBIDcases in Chennai. The Respondent also came to know that he waswanted in two more cases pending in Calcutta. He voluntarily surrenderedbefore the Magistrate in Chennai. It was on the basis of the cases atCalcutta. The Respondent stood remanded to judicial custody till13.03.2006. Finally, after the procedures were under gone the RespondentEwas produced before the Magistrate at Calcutta. The InvestigatingOfficer in the case at Calcutta sought police custody of 15 days. TheRespondent moved for bail contending that he had surrendered in theCourt at Chennai and the period of 15 days had elapsed from the date ofsurrender. Finally, the matter reached before the Calcutta High Courtagainst the order of the Magistrate rejecting the application for bail andFordering police custody. The Calcutta High Court in the revision filed bythe Respondent found that more than 90 days, had expired from the timeof the detention which should have been counted from 27.02.2006 whenthe Respondent had surrendered before the Court at Chennai. Therefore,the question for consideration before this Court was whether the periodGof detention started from 27.02.2006 when the Respondent hadsurrendered before the Court at Chennai in connection with the CBIcase or whether it should be counted from 13.03.2006 when theRespondent was actually taken into custody by the police and producedbefore the Magistrate at Calcutta. This Court held that the respondent having voluntarily surrendered before the Court at Chennai could not betreated as being in detention under the cases registered at Calcutta. Theaccused, in fact, it was found continued to be under the judicial custodyin relation with the CBI case in Chennai. The Court referred to thedecision of this Court in Niranjan Singh & Anr. vs. Prabhakar RajaramKharote & Ors.[19] and reiterated that if there is a totally different offencethen it will be a separate offence for which the detention in the previouscase cannot be counted for the purpose Section 167.

130. The present is a case where there is only one FIR, one case.This is a case where following arrest and production before theMagistrate a remand is made which is then questioned. The High Courtorders house arrest.

131. THE CIRCUMSTANCES THAT MILITATE AGAINSTTHE ORDER OF HOUSE ARREST BEING ONE UNDER SECTION167.

1. The High Court entertains the writ petition on 28.08.2018.It intended to dispose of the matter on the very next day.The order of house arrest was passed in such circumstances.But there was custody and what is more, it went on for 34days.

2. The High Court was unable to go through the entries in thecase diary as the entries were in the Marathi language. Infact, the court expresses inability to make out from thedocuments what precisely the case against the appellantwas. Translation of the documents were to be made availableon the next day. The translations were not made available.Yet the house arrest was ordered until further orders on28.08.2018. What is pertinent is that by the standards inlaw 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 themandate of law.

3. It is true that there was no stay of investigation as such.However, what was challenged was the transit remand.The FIR was lodged in another state. Interrogation of theappellant would be integral to the investigation. On the terms A

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imposed by the High Court in regard to house arrest it wasnot possible for such interrogation to take place. It appearsthat the parties did not contemplate as it is presentlyprojected. It is no doubt true that the respondent could havemoved the High Court.

4. The house arrest according to the appellant is by way ofmodification of the order of remand. In other words, thecontention is that the High Court stayed the transit. But theHigh Court when it passed the order of house arrest on28.08.2018, it modified the remand from police custody tohouse arrest. Subject to what follows we proceed on thebasis that the High Court modified the order of remand.The transit remand order of the CMM Saket provided forpolice custody which was to last for two days. But on thebasis of the house arrest ordered by the High Court byinterim order the appellant underwent house arrest for 34days. By the judgment dated 01.10.2018 the High Court ofDelhi set aside the transit remand, as the transit remandordered by the magistrate was found illegal. On the saidbasis the High Court of Delhi finds that detention beyond24 hours was clearly impermissible. Now it is relevant tonotice that the CMM Saket had not ordered detention forthe period after 30.08.2018. Detention was ordered by himonly for two days and the appellant was to be produced on30.08.2018. By the order of the High Court of Delhi, thetransit could not take effect. Therefore, the entire periodafter 30.08.2018 till 01.10.2018 cannot be said to be basedon the order of the magistrate. The said period in fact iscovered by the order of house arrest. The period of housearrest covered the period from 28.08.2018 based on theorder of the High Court. The arrest was effected at 2.15PMon 28.08.2018. The order of the CMM was passed withinthe next hour or so. The order of the High Court was passedat about 4.30PM. No doubt, it is the order of the magistratewhich originated the remand under Section 167 to policecustody. The High Court of Delhi proceeded to find thatwithout the support of a valid remand order by themagistrate, the detention exceeded 24 hours rendering it

untenable in law and the further finding however is thatconsequently the house arrest came to an end as of then(01.10.2018). Therefore, the High Court did not proceed topronounce the house arrest as non est or illegal. On theother hand, when it is pronounced, it as having come to anend on 01.10.2018 and no part of it is found to be illegal, itmeant that it was valid from the point of time it was passedtill 01.10.2018. If this is perceived as an order passed underSection 167 then there would not be any detention beyond24 hours of the arrest which could be illegal. The illegalityof the detention is based on the transit order being foundillegal. If the transit order has been modified as claimed bythe appellant, then the detention would be lawful as theorder of house arrest is passed well within 24 hours of thearrest. We are highlighting this aspect to emphasize this asa circumstance to show that the High Court of Delhi alsodid not contemplate that the order of house arrest waspassed by way of custody under Section 167. No doubt,the foundational order, the transit remand, being set aside itcould be said that the interim order will not survive. Butthen the order should have been so understood by the HighCourt.

5. Undoubtedly, the appellant was placed in police custodyfrom 15.04.2020 to 25.04.2020. Even the enhanced periodof 30 days of police custody, permissible under Section 43(D) (2) of UAPA, must be acquired within the first 30 daysof the remand. Proceeding on the basis of the case of theappellant that the first remand took place on 28.08.2018,the appellant being in police custody for a period of 11 daysin 2020 is inconsistent with appellants case and the law.Though police custody can be had under UAPA beyondthe first 30 days under the Second Proviso to Section43(D)(2), it is permissible only in a situation, where theaccused is in judicial custody. The appellant was, admittedly,not in judicial custody, having surrendered to the NIA on14.04.2020, which is on the eve of the first order directingpolice custody.

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A6.One of the contentions raised by the respondent is that ifthe order of house arrest was passed under Section 167Cr.PC then the High Court of Delhi would have after settingaside the transit remand, either released the appellant onbail or remanded him to custody. Instead, the High Courtreleased the appellant on the basis that as the remand orderBwas illegal and set aside, in view of Section 56 and Section57 the detention beyond 24 hours, cannot be sustained. Nowin a proceeding under Section 167 where a remand order isput in issue before a superior court it presupposes an arrestin connection with a cognizable offence. Now if the remandCis set aside by the superior court, we are of the view that ina proceeding which originated from a remand under Section167, then the order that would follow on setting aside theremand, would be to grant him bail or to modify the remand.This is for the reason that there is an arrest which in thefirst place sets the ball rolling. Therefore, he has either toDbe released on bail, if not, he would have to be remanded.It is here that we may remember the decision of this Courtin (1969) 1 SCC 292 (supra). There was a remand. Violationof Article 22(1) was found in a Writ Petition under Article32. It was, in fact, a non-cognizable offence, which wasEinvolved. The Court released the petitioners. The remandorders were found patently routine and were not such aswould cure the constitutional infirmities. In the said case,arrest was put in issue and found bad in law.

7. No doubt there is the filing of application for anticipatoryFbail wherein the appellant has clearly projected the periodof house arrest as protection of this liberty. It was alsosought to be rested under the extraordinary power of thisCourt. [We would observe that while his conduct is notirrelevant in appreciating the matter, the contours of personalliberty would better rest on surer foundation. Estoppel, mayGnot apply to deprive a person from asserting his fundamentalright. A right to default bail is fundamental right [SeeBikramjit Singh vs. The State of Punjab[20]]. But hereagain,it must depends upon fulfilment of conditions in Section 167.

H20 (2020) 10 SCC 616

THE KNOT TIGHTENED

132. Now, the argument, which survives is as follows:

What mattered was that the appellant actually underwent theactual custody of 34 days by way of house arrest. The fact thatthere may have been illegality in the Order of the Magistrate, willnot take away, the factum of actual custody. The fact that theappellant was given in Police custody and he did not object, cannotdefeat appellant’s right. What is relevant is that a period of 90days had run out. It is emphasised before us that be it the HighCourt, it could not have ordered the detention of the appellantwithout authority of the law. The only law, which supports thehouse arrest, is Section 167 of the CrPC.

133. We have already noticed the circumstances surrounding theOrder passed by the High Court. We would also, at this juncture, againcapture the Order dated 29.08.2018, passed by this Court:

“Taken on Board.

Issue notice.

Mr. Tushar Mehta and Mr. Maninder Singh, learned AdditionalSolicitor Generals being assisted by Mr. R. Balasubramanian,learned counsel shall file the counter affidavit by 5.9.2018.Rejoinder thereto, if any, be filed within three days therefrom.

We have considered the prayer for interim relief. It is submittedby Dr. Abhishek Manu Singhvi, learned senior counsel appearingfor the petitioners that in pursuance of the order of the High Court,Mr. Gautam Navalakha and Ms. Sudha Bharadwaj have beenkept under house arrest. It is suggested by him that as an interimmeasure, he has no objection if this Court orders that Mr. VaravaraRao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if arrested,they are kept under house arrest at their own homes. We orderaccordingly. The house arrest of Mr. Gautam Navalakha and Ms.Sudha Bharadwaj may be extended in terms of our orders.

Needless to say, an interim order is an interim order and allcontentions are kept open.

Let the matter be listed on 6.9.2018.”

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A134. We would think that the reality of the situation is explainedby the said Order. Upon being informed that the appellant and anotherwere kept under house arrest, on the suggestion of the Counsel for thepetitioners in the Public Interest Litigation before this Court, that he hadno objection in three others, if arrested, they be kept under house arrest,at their own homes, it was so ordered. It is not a case where this CourtBeven had in its mind the duty to go through the entries in the case diariesrelating to them, leave alone actually going through them. Quite clearly,in respect of those persons, house arrest even was the result of thechoice exercised by the Senior Counsel for the Writ Petitioners, whowere not the persons to undergo the house arrest. No doubt, the PublicCInterest Litigation was launched to have an impartial enquiry regardingtheir arrests. It is thereafter that it was ordered that the house arrest ofappellant and other (Sudha Bharadwaj), may be extended in terms ofthe order. House arrest was, undoubtedly, perceived as the softeralternative to actual incarceration. It was in that light that the Courtproceeded in the matter. That house arrest, in turn, involved, deprivationDof liberty and will fall within the embrace of custody under Section 167of the CrPC, was not apparently in the minds of both this Court and theHigh Court of Delhi. This is our understanding of the orders passed bythe court.

135. Now, here, we are confronted with a clash between the twoEvalues. On the one hand, there is the deprivation, in law, of the liberty ofthe appellant, by way of house arrest for 34 days. On the other hand, itdoes not fall actually in the facts of this case within the ambit of Section167 of the CrPC, for the reasons, which have been discussed earlier.While, the Right to Default Bail is a Fundamental Right, it is subject toFthe conditions, obtaining in Section 167 of the CrPC, being satisfied. Itmust be purported to be passed under Section 167 CrPC. The right tostatutory bail arises dehors the merits of the case. The fundamentalright arises when the conditions are fulfilled. The nature of detention,being one under Section 167 is indispensable to count the period.

136. On the other hand, Article 21 of the Constitution of India,Gprovides that no person shall be deprived of his life or personal libertyexcept in accordance with the procedure prescribed by law. This Article,creates a Fundamental Right, which cannot be waived. Moreover, unlikethe persons, who apparently underwent house arrest on the basis of theoffer made on their behalf, in the case of the appellant, even prior to theHorder dated 29.08.2018, the High Court had ordered house arrest, which constituted house arrest. The appellant was an accused in a FIR invokingcognizable offences. He stood arrested by a Police Officer. He wasproduced before a Magistrate. A transit remand, which was a remand,under Section 167, was passed. Police custody followed. The High Courtordered that the appellant be kept in house arrest. The setting aside ofthe Order of transit remand will not wipe out the Police custody or thehouse arrest. We agree that illegality in order of the CMM, Saket, willnot erase the deprivation of liberty. But other aspects already discussedmilitate against the order being treated as passed purportedly underSection 167. There can be no quarrel with the proposition that a courtcannot remand a person unless the court is authorised to do so by law.However, we are in this case not sitting in appeal over the legality of thehouse arrest. But we are here to find whether the house arrest fellunder Section 167. We are of the view, that in the facts of this case, thehouse arrest was not ordered purporting to be under Section 167. Itcannot be treated as having being passed under Section 167.

137. There is one aspect which stands out. Custody under Section167 has been understood hitherto as police custody and judicial custody,with judicial custody being conflated to jail custody ordinarily.

138. The concept of house arrest as part of custody under Section167 has not engaged the courts including this Court. However, when theissue has come into focus, and noticing its ingredients we have formedthe view that it involves custody which falls under Section 167.

139. We observe that under Section 167 in appropriate cases itwill be open to courts to order house arrest. As to its employment, withoutbeing exhaustive, we may indicate criteria like age, health condition andthe antecedents of the accused, the nature of the crime, the need forother forms of custody and the ability to enforce the terms of the housearrest. We would also indicate under Section 309 also that judicial custodybeing custody ordered, subject to following the criteria, the courts will befree to employ it in deserving and suitable cases.

140. As regards post-conviction cases we would leave it open tothe legislature to ponder over its employment. We have indicated theproblems of overcrowding in prisons and the cost to the state in maintainingprisons.

141. In view of the fact that the house arrest of the appellant wasnot purported to be under Section 167 and cannot be treated as passedthereunder, we dismiss the appeal. There will be no order as to costs.

Devika Gujral

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