Gautam Navlakha vs National Investigation Agency on 12 May, 2021


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Supreme Court of India

Gautam Navlakha vs National Investigation Agency on 12 May, 2021

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Hon’Ble Ms. Banerjee, K.M. Joseph

                                                                  REPORTABLE


                              IN THE SUPREME COURT OF INDIA
                             CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.510 OF 2021
              [ARISING OUT OF SLP (CRIMINAL) NO. 1796/2021]



          GAUTAM NAVLAKHA                                … APPELLANT(S)



                                            VERSUS



          NATIONAL INVESTIGATION AGENCY … RESPONDENT (S)
                                       J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

2. On the basis of FIR No. 4 of 2018 dated

08.01.2018, registered at Vishrambagh Police

Station, Pune, Maharashtra, which was one
Signature Not Verified

registered
Digitally signed by
Indu Marwah
under Sections 153A, 505(1B) and
Date: 2021.05.12
16:39:51 IST
Reason:

Section 34 of IPC to which Section 120(B) was

1
added on 06.03.2018 and still further into

which, Sections 13, 16, 17, 18, 18B, 20, 38 and

40 of the Unlawful Activities (Prevention) Act,

1967 (hereinafter referred to as ‘the UAPA’,

for short), were added on 17.05.2018, and, in

which FIR, the name of the appellant was added

on 22.08.2018, the appellant came to be

arrested from his residence in Delhi on

28.08.2018. The appellant moved Writ Petition

No. 2559 of 2018 seeking a Writ of Habeas

Corpus in the High Court of Delhi. The High

Court, apart from issuing notice, inter alia,

ordered that no further precipitate action of

removing the appellant from Delhi be taken till

the matter was taken at 04:00 P.M.. The Order

was passed at 02:45 P.M.. In the meantime, the

CMM at Saket, Delhi disposed of an Application

seeking transit remand with the following

Order:

2
“FIR No. 4/18
PS: Vishrambagh, Pune, Maharashtra
U/s: 153A/505(1)(B)/117/341PC & u/s
13/15/17/18/185/20/39/40 of Unlawful
Activities Prevention Act
.

State Vs. Gautam Pratap Navlakha

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

Accused Gautam Pratap Navlakha
produced in Police custody.

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

This is a handwritten application
preferred by the 10 Assistant Police
Inspector Sushil V. Bodbe seeking
transit remand of two days the above
noted accused persons. The identity of
10 as a police officer of P
Vishrambagh, Pune, Maharashtra is
established upto my satisfaction upon
his having shown his identity card.

Heard. It is submitted by the IO
that above noted accused is required
in above noted case FIR registered at
PS Vishrambagh, Pune, Maharashtra and
has been arrested from his house at
Kalkaji, Delhi. It is further submitted
by the IO that the accused has been
arrested without warrant and he is

3
required to be produced before
competent Court i.e. Court of Ld.
Special Court, Shivaji Nagar, Pune,
Maharashtra and therefore, his transit
remand may be granted.

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

As per the police papers, FIR No
4/18 has been registered under sections
153A
/505(1)(B)/117/34 IPC & u/s
13/16/17/18/18B/20/39/40 of Unlawful
Activities Prevention Act
at police
station Vishronbagh, Pune, Maharashtra
wherein the accused is required. As per
the arrest memo the accused namely
Gautam Pratap Navlakha was arrested
on 28.08.2018 at. 2.15 pm at Kalkajl,
Delhi. Intimation of arrest of accused
has been given to his partner/friend.
As the accused is required for
further investigation of the case,
therefore, his transit remand Is
granted till 30.08.2018. The accused
be produced before the concerned Ld.
Special Court, Shivaji Nagar, Pune,
Maharashtra on or before 30.08.2018
without fail. Accused be got medically
examined as per rules and the
directions of the Hon’ble Supreme
Court. A copy of this order be given
dasti to the Investigating Officer.
Application of transit remand is
disposed of accordingly. Necessary
record be maintained by the
Ahlmad.

4
(Manish Khurana)
Commissioner/SE/
District Court, Saket
New.Delh1/28.08.2018”

3. Thereafter, when the Writ Petition, filed

by the appellant before the High Court, came up

at 04.00 P.M., the High Court passed the

following Order on 28.08.2018:

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

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

5

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

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

6. The petitioner shall, in the
meanwhile, be kept at the same
place from where the was picked
up with two guards of the
Special Cell, Delhi Police along
with local Police that was
originally here to arrest the
petitioner, outside the house.
Barring his lawyers, and the
ordinary residents of the house,
the petitioner shall not meet
any other persons or step out of
the premises till further
orders.”

4. A Writ Petition was filed in the Supreme

Court as Writ Petition (Criminal) Diary No.

32319 of 2018 on the next day. This Writ

6
Petition was filed by five illustrious persons

in their own fields, as is observed by this

Court in the Judgment, which is reported in

Romila Thapar and Others vs. Union of India

and others1. The subject matter of the Writ

Petition was the allegedly high-handed action

of the Maharashtra Police and the arrest of

five Activists which included the appellant on

28.08.2018 from their homes. The relief sought

by the Writ Petitioners was to ensure a

credible investigation into the arrest of the

five Human Rights Activists. Interim orders

were passed in the Writ Petition by this Court,

under which, the benefit of house arrest of the

appellant, inter alia, was also ordered to be

extended to others. The order of house arrest

of appellant was extended. The relief sought

for, namely, an independent investigation in

the Writ Petition, filed in this Court, was
1 (2018) 10 SCC 753
7
rejected by the majority of Judges with Dr.

D.Y. Chandrachud, J., dissenting. We notice

paragraph-40, which reads as follows:

       “40.    Accordingly,     this    writ
       petition   is   disposed    of   with

liberty to the accused concerned
to take recourse to appropriate
remedy as may be permissible in
law. The interim order passed by
this Court on 29-8-2018 (Romila
Thapar v. Union of India
, 2018
SCC OnLine SC 1343) shall
continue for a period of four
weeks to enable the accused to
move the court concerned. The
said proceedings shall be decided
on its own merits uninfluenced by
any observation made in this
judgment, which is limited to
the reliefs claimed in the writ
petition to transfer the
investigation to an independent
investigating agency and/or
court-monitored investigation.

       The   investigating     officer    is
       free   to   proceed    against    the

accused concerned as per law.

All the accompanying
applications are also disposed
of in terms of this judgment.”

5. This Judgment was rendered on 28.09.2018 by

this Court. Thereafter, the Writ Petition,

filed by the appellant, before the High Court

of Delhi, was allowed. We may, at once notice,

8
that the relief sought in the Writ Petition was

initially one seeking a Writ of Habeas Corpus.

Thereafter, the Court came to be concerned with

the legality of the Order of transit remand

passed by the CMM, which we have adverted to.

We may notice only, paragraphs-28 and 29, 30

and 31 of judgment dated 01.10.2018:

“28. With there being
several non-compliances of the
mandatory requirement of
Article 22(1), Article 22(2)
of the Constitution and
Section 167 read with Section
57 and 41(1)(ba) of the Cr PC,
which are mandatory in nature,
it is obvious to this Court
that the order passed by the
learned CMM on 28th August,
2018 granting transit remand
to the Petitioner is
unsustainable in law. The said
order is accordingly hereby
set aside.

29.In view of Section 56
read with Section 57 Cr PC, in
the absence of the remand
order of the learned CMM, the
detention of the Petitioner,
which has clearly exceeded 24

9
hours, is again untenable in
law. Consequently, the house
a r r e s t o f t h e P e t i t i o n e r comes
to an end as of now .

30. It is clarified that this
order will not preclude the
State       of    Maharashtra    from
p ro ce ed in g       fu rt he r   in
a cc or da nc e wi th l aw .

31. At this stage, Mr. Navare
submits          that     this      Court
should          extend      the     house
arrest of the Petitioner by
two        more     days     since    the
Supreme          Court     had    itself

extended his house arrest for
four weeks. This submission
overlooks the fact that the
S u p r e m e Court had extended the
Petitioner’s house arrest only
in order to enable him to
avail of t h e remedies that
were permissible to him in
accordance with law. As far
a s t h e present Petitioner is
concerned, the fact that this
writ petition filed by him was
already pending before this
Court, was noticed by the
Supreme Court and it was made
clear that he is free to
pursue this remedy among
others in accordance with
law. The extension of his
house arrest by the Supreme
was only for that limited
10
purpose. Co ns eq ue nt ly , th is
C ou rt is un ab le to ac ce de to
t he r eq ue st o f Mr . Na va re .”
(E mp ha si s su pp li ed )

6. The appellant filed Writ Petition No. 4425

of 2018 dated 05.10.2018 for quashing the FIR.

The High Court protected the appellant from

arrest during the pendency of the said Writ

Petition. Charge-sheet was filed against the

appellant’s co-accused on 15.11.2018. Then,

this is followed-up by a supplementary charge-

sheet against the co-accused on 21.02.2019. On

13.09.2019, the High Court of Bombay dismissed

the Writ Petition filed by appellant against

the FIR. The interim protection from arrest

was, however, extended by three weeks. The

Special Leave Petition filed by appellant, as

SLP (Criminal) No. 8862 of 2019, came to be

disposed of by acceding to the request of the

appellant that the appellant may apply for

11
anticipatory bail before the competent Court.

The Court extended the interim protection,

which was given to the appellant for another

period of four weeks, from 15.10.2019 and he

was given liberty to apply for

regular/anticipatory bail. The Application

seeking anticipatory bail came to be dismissed

by the Sessions Court by Order dated

12.11.2019.

7. The Appellant approached the High Court of

Bombay seeking anticipatory bail, which was

declined by Order dated 14.02.2020. However,

the High Court granted protection from arrest

for four weeks. The Special Leave Petition

filed, challenging the Order by the High Court,

came to be disposed of by Order dated

16.03.2020. By the said Order, this Court

dismissed the Special Leave Petition. In its

Order, this Court noticed that since the

12
appellant had enjoyed protection for

approximately one and a half years, three

weeks’ time was granted to surrender. It is,

thereafter, that on 08.04.2020, this Court

extended the time by a period of one week for

surrendering and, accordingly, on 14.04.2020,

the appellant surrendered before the NIA,

Delhi. On 15.04.2020, seven days police custody

was granted by the Sessions Court, New Delhi.

On 21.04.2020, the further remand of seven days

was ordered. Before the expiry of the

appellant’s policy custody, he was remanded to

judicial custody on 25.04.2020. The appellant

was transferred to Mumbai on 26.05.2020 and he

was remanded to judicial custody. It is,

thereafter, that the appellant moved for

default bail on 11.06.2020. In calculating the

period of custody for the purpose of filing the

Application for default bail, the appellant,

13
included the period of 34 days of house arrest

from 28.08.2018 to 01.10.2018. Further, eleven

days of custody with the NIA from 15.04.2020

till 25.04.2020 and forty-eight days in Tihar

Jail, Delhi and Taloja Jail, Mumbai from

25.04.2020 to 12.06.2020 (judicial custody),

were also added. The NIA, it would appear,

filed Application for extension of time to file

charge-sheet after 110 days of custody on

29.06.2020. The NIA Special Court, before which

the Application for default bail was moved,

rejected the Application on 12.07.2020. The

appellant preferred an Appeal before the High

Court of Bombay challenging the Order dated

12.07.2020. On 09.10.2020, the NIA filed the

charge-sheet against the appellant, inter alia.

By the impugned Order dated 08.02.2021, the

High Court of Bombay, dismissed the Appeal,

14
which was filed under Section 21 of the NIA

Act.

8. We heard Shri Kapil Sibal, learned Senior

Counsel as also Smt. Nitya Ramakrishnan,

learned Senior Counsel assisted by Shri Shadan

Farasat for the appellant and Shri S.V. Raju,

learned Additional Solicitor General, on behalf

of the respondent.

THE FINDINGS IN THE IMPUGNED ORDER

9. During the period of the house arrest, the

appellant was not supposed to meet anyone,

barring his lawyers and ordinary residents of

the house. He could not step out of the

premises. There were to be two Guards of the

Special Cell of Delhi Police outside the house.

The Investigating Agency/Investigating Officer

did not have any access to him or occasion to

interrogate him. The Transit Remand Order being

stayed, it could not be said that the appellant

15
was under the detention of the Police for

investigation. Under Section 167(2) of the Code

of Criminal Procedure, 1973 (hereinafter

referred to as ‘the CrPC’, for short), the

Magistrate has to authorise the detention.

The High Court having stayed the transit remand

and finally having set aside the transit

remand, thereby holding the detention to be

illegal, there was no authorised detention by

an Order of the Magistrate. Therefore, the

appellant cannot claim the benefit of default

bail. It is an indispensable requirement to

claim the benefit of default bail that the

detention of the accused has to be authorised

by the Magistrate. The authorisation by the

Magistrate having been declared illegal, the

detention itself was illegal. The said period

(house arrest custody) cannot be treated as

authorised custody under Section 167(2) of the

16
CrPC. The Court drew support from decision of

this Court which is reported in Chaganti

Satyanarayan & Ors. v. State of Andhra

Pradesh2, to hold that the period of 90 days

will commence only from the date of remand and

not from any anterior date in spite of the fact

that the accused may have been taken into

custody earlier. The Court held that it was not

possible for it to hold that every detention,

which may have resulted in deprivation of

liberty of the accused, to be an authorised

detention under Section 167(2) of the Cr.P.C.

Sans any valid authorisation of the Magistrate,

detaining the appellant, he was not entitled to

default bail. Thus, the Court took the view

that the period, when the appellant was under

the house arrest, i.e., 28.08.2018 to

01.10.2018, had to be excluded. After the High

Court of Delhi set aside the Transit Remand
2 (1986) 3 SCC 141
17
Order, it was noted that the appellant had

applied for anticipatory bail, which was

rejected at all stages and, ultimately, the

appellant surrendered only on 14.04.2020. It

was based on the said surrender that the

Magistrate authorised police custody.

SUBMISSIONS OF THE APPELLANT

10. The learned Senior Counsel for the

appellant contended that there is no substance

in the reasoning of the High Court that the

period of 34 days, during which, the appellant

was under house arrest, could not be included

within the period of 90 days, for the reason

that the Investigating Officer did not have

access to the appellant, and it is untenable.

It was contended that nothing prevented the

Officers from interrogating the

appellant/investigating the matter, if need be,

after obtaining the leave of the High Court of

18
Delhi. It the appellant’s contention that under

Section 167 of the CrPC, what is contemplated

is granting of such custody by the Magistrate,

as he thinks fit. The provision does not

contemplate access to the Police for

interrogation as a condition. It is pointed out

that it is open to the Magistrate and it is

often so done that right from the first day of

remand, what is granted is judicial custody,

wherein Police have no access to the accused.

However, such judicial custody is reckoned for

calculating the period for considering an

Application for default bail. Still further, it

is pointed out that under Section 43D(2)(b), of

UAPA Police Custody can be sought at any time.

It is further contended that there was no stay

of investigation. The two conditions required

for attracting Section 167 are pointed out to

be as follows: (a) A person is arrested under

19
Section 57 of the Cr.P.C. while investigating a

cognisable offence and (b) he is produced

before a Magistrate after his arrest. It is

contended that in the case of the appellant,

both the conditions were fulfilled having

regard to the fact that the appellant stood

arrested on 28.08.2018 and he was produced

before the Magistrate for the remand. It was

next contended that the fact that the High

Court of Delhi finally set aside the said

remand and held that the detention was illegal,

was an untenable ground to hold that there was

no remand under Section 167 of the CrPC.

Appellant lay store by the Order of the High

Court of Delhi, wherein it had concluded that

the house arrest of the appellant ‘comes to an

end as of now’. It is contended that the Court

has not treated the period of house arrest as

either nonest or void. Custody, it is pointed

20
out, was authorised by the Magistrate under

Section 167. It was extended by a modification

by the High Court and, thereafter, by this

Court. The High Court of Delhi, it is pointed

out, only stayed the transit and not the remand

Order. The Court only modified the nature of

the remand, i.e., from transit in Police

custody to within the confines of the

appellant’s house. The detention, being found

to be illegal, cannot wipe out the period of

detention. The Order of the High Court of

Delhi, providing for house arrest can only be

sourced from Section 167 of the CrPC. What is

required under Section 167 of the CrPC is the

total period of custody which can include

broken periods and the custody need not be one

continuous lot. It is contended that Section

167 does not distinguish between transit or

other remand. The remand, be it a transit

21
remand, has to be sourced to Section 167 of the

Cr.P.C. and there is no other provision for the

transit remand. The High Court has itself found

that appellant was in custody when he was under

the house arrest. It is then pointed out that

the High Court did not have any inherent power

to place a person in custody. In this case the

power can only, therefore, be what flows from

Section 167 of the CrPC. It is the Order of

transit remand which occasioned the custody. It

was contended that the High Court or any

superior Court can modify or change the nature

of the Magisterial remand. The modified nature

of the remand by the High Court of Delhi and

this Court was never set aside.

SUBMISSIONS OF THE RESPONDENT

11. Mr. S.V. Raju, learned Additional Solicitor

General would support the order of the High

Court:-

22
a. He points out that at the time when the

writ petition was filed in the High Court of

Delhi seeking a writ of habeas corpus, the

order of transit remand had not been passed

by the CMM, Saket.

b. In his application seeking for

anticipatory bail, the appellant had sought

through his pleadings to project the need to

be protected. The protection was granted

which was continued in various proceedings

as already noticed.

c. Reliance is placed on the bar under

Section 43(D)(4) of UAPA against the grant

of anticipatory bail.

d. He referred to paragraph 12 of the

order rejecting appellant’s plea for

anticipatory bail. It is pointed out that it

was the case of the appellant that this

Court had protected his liberty by granting

23
house arrest inter alia. The meat of the

matter is that it was understood by the

appellant himself that the house arrest was

a protection from custody and therefore it

could not be understood as custody within

the meaning of Section 167 of the Code of

Criminal Procedure. In short, house arrest

was permitted in exercise of the

extraordinary powers available to this

Court.

12. It is further pointed out that house arrest

according to the appellant itself was unknown

to the code. It is further the case of the

respondent that an accused who is remanded to

custody under Section 167 of the Cr.P.C. cannot

come out of the custody unless he is bailed out

or unless he is acquitted. There is no bail in

favour of the appellant. He was also not

remanded to judicial custody. The so-called

24
custody during the house arrest, in other

words, was not custody or detention within the

meaning of Section 167 of the Cr.P.C. It also

was not a police custody because the

investigating agency had no access to the

accused during this period. Thus, a period of

34 days in house arrest was neither judicial

custody nor police custody as provided in

Section 167 of the Cr.P.C. The order of the

High Court is relied upon to point out that the

Court contemplated that the house arrest came

to an end with the judgment. The fact that the

High Court did not grant bail when it

pronounced the judgment on 1.10.2018, would go

to show that it was not an order passed under

Section 167 of the Cr.P.C. The contention which

found favour with the High Court is reiterated,

namely, with its judgment on 01.10.2018, the

Court has set the clock back and treated the

25
arrest of the appellant as non-est. This is for

the reason that the appellant was not bailed

out. He was not placed in judicial custody.

With the house arrest coming to an end, the

appellant became a free person, entitled to

apply for anticipatory bail which he availed

of. The application for anticipatory bail

presupposes that the arrest on 28.08.2018 was

non-est since a person could not be arrested

for an offence twice. By refusing anticipatory

bail, the Courts including this Court permitted

the arrest of the appellant for the same

offences for which he was arrested earlier.

This indicates that the earlier proceedings

were treated as non-est for all practical

purposes. The surrender by the appellant

estopped the appellant from projecting the

house arrest as custody within the meaning of

Section 167 of the Cr.P.C. The order passed by

26
CMM, Saket was only an order for production and

not an order for detention in custody. Reading

Section 167 alongwith Sections 56 and 57 of the

Cr.P.C., it is pointed out that the order of

transit remand is to be understood as an order

extending the period of arrest of 24 hours for

the purpose of facilitating the production of

accused before the competent Magistrate which

in this case, was the competent Court located

at Pune. Sections 56, 57 and

167 is relied upon to contend that since there

is a duty to produce an arrested person within

24 hours, Section 57 provided for a special

order under Section 167 for such detention

beyond 24 hours for production of the accused

before the competent Court. Orders are

ordinarily passed under this Section 167 are

either orders of police remand or orders

remanding an accused to judicial custody. The

27
special order referred to in Section 57 is the

order forwarding the accused to a Magistrate

having jurisdiction to either try the case or

commit the accused. In a case where an accused

is presented before a Magistrate not having

such jurisdiction, the Magistrate has no

authority or power to remand an accused to

judicial custody. Therefore, the order of

transit remand is not an order for the purpose

of including the period in computing 90 days

and it is only a production order. At any rate,

it is pointed out that the order of Saket Court

(transit order), even if it is considered to be

an order under Section 167 of Cr.PC, it was

hardly in force for a couple of hours till the

Delhi High Court stayed the same around 4.00

p.m. on the very day. Even if this period of 1

day is included for the purpose of computing

the period of 90 days, the appellant would not

28
become entitled to default bail. It is further

the case of the respondent that the

interpretation adopted by the appellant would

render police custody under Section 167

illusory.

13. The investigating authorities would be

deprived of the opportunity for custodial

interrogation during the first 15 days or 30

days in case of UAPA offences. The

interpretation which frustrates a fair

investigation under the statute should be

avoided.

14. Act of Court should not negatively impact

the investigating agency- the maxim “Actus

curiae neminem gravabit” would apply in the

present case.

15. The order passed by the High Court of Delhi

in the writ petition seeking habeas corpus was

not an order under Section 167 of the Cr.P.C.

29
If the submission of the appellant is accepted,

it would mean that the appellant was remanded

to police custody after 30 days i.e., on

15.04.2020 and 21.04.2020. The appellant never

objected to the same. This clearly shows that

the present contention of the appellant is a

mere after thought. The period of arrest has

to be excluded and the period has to be

reckoned from the date of production. The

submission is based on the decision of this

Court in Chaganti Satyanarayana(supra). This is

after treating 15.04.2020 to be the date of

production.

ANALYSIS

16. Though the final question to be answered is

whether the period of 34 days spent in house

arrest by the appellant is to be counted

towards the period of 90 days under Section 167

30
Cr.P.C., several issues arise which we

articulate as follows:

1) What is the nature of an order of

transit remand? Is it an order passed under

Section 167 of the Cr.PC.?

2) What is the nature of the interim order

dated 28.08.2018 passed in the writ petition

by the appellant in the High Court of Delhi

as extended? Are these orders passed under

Section 167 of the Cr.P.C.?

3) What is the effect of the judgment of

the High Court of Delhi dated 1.10.2018

wherein the arrest of the appellant and the

transit remand are found illegal?

4) Does the House arrest of the appellant

amount to police custody or judicial

custody? Can there be an order for custody

other than police custody and judicial

custody under Section 167 Cr.P.C.? Is House

31
arrest custody within the embrace of Section

167 of Cr.P.C.?

5) Is the House arrest of the appellant

not custody under Section 167 of the Cr.P.C.

on the score that the appellant could not be

interrogated by the competent investigating

officer?

6) What is the effect of the appellant

being in police custody from 15.4.2020 till

25.4.2020 and the alleged acquiescence of

the appellant in the order and the custody

undergone by the appellant?

7) Whether broken periods of custody

otherwise traceable to Section 167 Cr.P.C.

suffice to piece together the total maximum

period of custody permitted beyond which the

right to default bail arises or whether the

law giver has envisaged only custody which

is continuous?

32

8) What is the impact of mandate of

Article 21 and Article 22 of the

Constitution?

17. Before we deal with the various issues, it

is necessary to note certain salient features

of the Constitution, Cr.P.C. and also Unlawful

Activities (Prevention) Act (UAPA).

18. Article 21 of the Constitution incorporates

invaluable fundamental rights insofar as it

declares that no person shall be deprived of

his life or personal liberty except according

to procedure established by law. Article 22

(1) and (2) read as follows:

“2. Protection against arrest and
detention in certain cases
(1) No person who is arrested shall
be detained in custody without
being informed, as soon as may be,
of the grounds for such arrest nor
shall he be denied the right to
consult, and to be defended by, a
legal practitioner of his choice

33
(2) Every person who is arrested
and detained in custody shall be
produced before the nearest
magistrate within a period of
twenty-four hours of such arrest
excluding the time necessary for
the journey from the place of
arrest to the court of the
magistrate and no such person shall
be detained in custody beyond the
said period without the authority
of a magistrate”

19. Chapter V of the Cr.P.C. deals with “Arrest

of Persons”. Section 41 deals with situations

in which any police officer may arrest any

person without an order from a Magistrate or

without a warrant. Section 41 (1)(a) to 41 (1)

(d) provides for safeguards to avoid arbitrary

arrest and also confer certain rights on the

person arrested. They were inserted by Act 5

of 2009 with effect from 1.11.2010. Section

43 Cr.P.C. provides for power to arrest even by

a private person and the procedure to be

34
followed in such case. Section 48 Cr.P.C.

reads as follows:

“48. Pursuit of offenders into
other jurisdictions. A police
officer may, for the purpose of
arresting without warrant any
person whom he is authorised to
arrest, pursue such person into any
place in India.”

20. Sections 56 and 57 Cr.P.C. are also

relevant and we refer to the same.

“56. Person arrested to be taken
before Magistrate officer in charge
of police station. – A police
officer making an arrest without
warrant shall, without unnecessary
delay and subject to the provisions
herein contained as to bail, take
or send the person arrested before
a Magistrate having jurisdiction in
the case, or before the officer in
charge of a police station.

57. Person arrested not to be
detained more than twenty- four
hours. – No police officer shall
detain in custody a person arrested
without warrant for a longer period
than under all the circumstances of
the case is reasonable, and such
period shall not, in the absence of

35
a special order of a Magistrate
under section 167, exceed twenty-
four hours exclusive of the time
necessary for the journey from the
place of arrest to the Magistrate’
s Court.”

21. Chapter VI deals with Processes to compel

Appearance. Part A of Chapter VI deals with

Summons. Part B deals with Warrant of arrest.

Warrant of arrest contemplated are those issued

by a court under Cr.P.C. Section 76 Cr.P.C.

reads as follows:

“76. Person arrested to be brought
before Court without delay. The
police officer or other person
executing a warrant of arrest shall
(subject to the provisions of
section 71 as to security) without
unnecessary delay bring the person
arrested before the Court before
which he is required by law to
produce such person:

Provided that such delay shall not,
in any case, exceed twenty- four
hours exclusive of the time
necessary for the journey from the
place of arrest to the Magistrate’s
Court.”

36

22. Under Section 77 Cr.P.C., a warrant of

arrest may be executed at any place in India.

Chapter XII deals with Information to the

Police and their Powers to Investigate. The

mandatory duty of police officer to register

first information report has been elaborately

considered by a Constitution Bench of this

Court in the decision reported in Lalita

Kumari vs. Government of Uttar Pradesh and

others3.

23. Section 156 Cr.P.C. reads as follows:

“156. Police officer’ s power to
investigate cognizable case.
(1) Any officer in charge of a
police station may, without the
order of a Magistrate, investigate
any cognizable case which a Court
having jurisdiction over the local
area within the limits of such
station would have power to inquire
into or try under the provisions of
Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at
3 (2014) 2 SCC 1
37
any stage be called in question on
the ground that the case was one
which such officer was not
empowered under this section to
investigate.

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

24. Under Section 156 Cr.P.C., any police

officer in charge of a police station can

without order of a Magistrate investigate any

cognizable case which a court having

jurisdiction over the local area within the

limits of such station have the power to try.

Section 157 deals with Procedure for

investigation. The said provision contemplates

inter alia the power to proceed, to the spot,

to investigate the facts and circumstance of

the case, and if necessary, take measures for

the discovery and arrest of the offender. It

is also pertinent to notice Section 167 Cr.P.C.

It reads as under:

38

“167. Procedure when
investigation cannot be completed
in twenty-four hours.—(1) Whenever
any person is arrested and detained
in custody, and it appears that the
investigation cannot be completed
within the period of twenty-four
hours fixed by Section 57, and
there are grounds for believing
that the accusation or information
is well-founded, the officer in
charge of the police station or the
police officer making the
investigation, if he is not below
the rank of sub-inspector, shall
forthwith transmit to the nearest
Judicial Magistrate a copy of the
entries in the diary hereinafter
prescribed relating to the case,
and shall at the same time forward
the accused to such Magistrate.
(2) The Magistrate to whom an
accused person is forwarded under
this section may, whether he has or
has not jurisdiction to try the
case, from time to time, authorise
the detention of the accused in
such custody as such Magistrate
thinks fit, for a term not
exceeding fifteen days in the
whole; and if he has no
jurisdiction to try the case or

39
commit it for trial, and considers
further detention unnecessary, he
may order the accused to be
forwarded to a Magistrate having
such jurisdiction:

Provided that—
[(a) the Magistrate may authorise
the detention of the accused
person, otherwise than in the
custody of the police, beyond the
period of fifteen days, if he is
satisfied that adequate grounds
exist for doing so, but no
Magistrate shall authorise the
detention of the accused person in
custody under this paragraph for a
total period exceeding, —

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

(ii) sixty days, where the
investigation relates to any other
offence, and, on the expiry of the
said period of ninety days, or
sixty days, as the case may be, the
accused person shall be released on
bail if he is prepared to and does
furnish bail, and every person
released on bail under this sub-
section shall be deemed to be so
released under the provisions of

40
Chapter XXXIII for the purposes of
that Chapter;]
[(b) no Magistrate shall authorise
detention of the accused in custody
of the police under this section
unless the accused is produced
before him in person for the first
time and subsequently every time
till the accused remains in the
custody of the police, but the
Magistrate may extend further
detention in judicial custody on
production of the accused either in
person or through the medium of
electronic video linkage;]

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

[Explanation I.—For the
avoidance of doubts, it is hereby
declared that, notwithstanding the
expiry of the period specified in
paragraph (a), the accused shall be
detained in custody so long as he
does not furnish bail.]
[Explanation II. —If any
question arises whether an accused
person was produced before the
Magistrate as required under clause

(b), the production of the accused
person may be proved by his

41
signature on the order authorising
detention or by the order certified
by the Magistrate as to production
of the accused person through the
medium of electronic video linkage,
as the case may be:]
[Provided further that in case
of a woman under eighteen years of
age, the detention shall be
authorised to be in the custody of
a remand home or recognised social
institution.]
[(2-A) Notwithstanding anything
contained in sub-section (1) or
sub-section (2), the officer in
charge of the police station or the
police officer making the
investigation, if he is not below
the rank of a sub-inspector, may,
where a Judicial Magistrate is not
available, transmit to the nearest
Executive Magistrate, on whom the
powers of a Judicial Magistrate, or
Metropolitan Magistrate have been
conferred, a copy of the entry in
the diary hereinafter prescribed
relating to the case, and shall, at
the same time, forward the accused
to such Executive Magistrate, and
thereupon such Executive
Magistrate, may, for reasons to be
recorded in writing, authorise the

42
detention of the accused person in
such custody as he may think fit
for a term not exceeding seven days
in the aggregate; and, on the
expiry of the period of detention
so authorised, the accused person
shall be released on bail except
where an order for further
detention of the accused person has
been made by a Magistrate competent
to make such order; and, where an
order for such further detention is
made, the period during which the
accused person was detained in
custody under the orders made by an
Executive Magistrate under this
sub-section, shall be taken into
account in computing the period
specified in paragraph (a) of the
proviso to sub-section (2):

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

43
(3) A Magistrate authorising
under this section detention in the
custody of the police shall record
his reasons for so doing.

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

(5) If in any case triable by
Magistrate as a summons-case, the
investigation is not concluded
within a period of six months from
the date on which the accused was
arrested, the Magistrate shall make
an order stopping further
investigation into the offence
unless the officer making the
investigation satisfies the
Magistrate that for special reasons
and in the interests of justice the
continuation of the investigation
beyond the period of six months is
necessary.

(6) Where any order stopping
further investigation into an
offence has been made under sub-
section (5), the Sessions Judge
may, if he is satisfied, on an

44
application made to him or
otherwise, that further
investigation into the offence
ought to be made, vacate the order
made under sub-section (5) and
direct further investigation to be
made into the offence subject to
such directions with regard to bail
and other matters as he may
specify.”

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

modified application of Section 167.

26. In State of Punjab v. Ajaib Singh4, the

court had to deal with ambit of Article of

22(1) and also the scope of the expression

“arrest” contained therein.

“16. Broadly speaking, arrests
may be classified into two
categories, namely, arrests under
warrants issued by a court and
arrests otherwise than under such
warrants. As to the first category
of arrest, Sections 75 to 86
collected under sub-heading “B-
Warrant of Arrest” in Chapter VI of
the Code of Criminal Procedure deal
with arrests in execution of
warrants issued by a court under

4 AIR 1953 SC 10
45
that Code. Section 75 prescribes
that such a warrant must be in
writing signed by the presiding
officer, or in the case of a Bench
of Magistrates, by any Member of
such Bench and bear the seal of the
court. Form No. II of Schedule V to
the Code
is a form of warrant for
the arrest of an accused person.
The warrant quite clearly has to
state that the person to be
arrested stands charged with a
certain offence. Form No. VII of
that Schedule is used to bring up a
witness. The warrant itself recites
that the court issuing it has good
and sufficient reason to believe
that the witness will not attend as
a witness unless compelled to do
so. The point to be noted is that
in either case the warrant ex facie
sets out the reason for the arrest,
namely, that the person to be
arrested has committed or is
suspected to have committed or is
likely to commit some offence. In
short, the warrant contains a clear
accusation against the person to be
arrested. Section 80 requires that
the police officer or other person
executing a warrant must notify the
substance thereof to the person to
be arrested, and, if so required,
shall show him the warrant. It is
thus abundantly clear that the
person to be arrested is informed
of the grounds for his arrest
before he is actually arrested.

46
Then comes Section 81 which runs
thus:

“The police officer or other
person executing a warrant of
arrest shall (subject to the
provisions of Section 76 as to
security) without unnecessary delay
bring the person arrested before
the court before which he is
required by law to produce such
person.”

17. Apart from the Code of
Criminal Procedure, there are other
statutes which provide for arrest
in execution of a warrant of arrest
issued by a court. To take one
example, Order 38 Rule 1 of the
Code
of Civil Procedure authorises
the court to issue a warrant for
the arrest of a defendant before
judgment in certain circumstances.
Form No. 1 in Appendix F sets out
the terms of such a warrant. It
clearly recites that it has been
proved to the satisfaction of the
court that there is probable cause
for belief that the Defendant 1s
about to do one or other of the
things mentioned in Rule 1. The
court may under Section 55 read
with Order 21 Rule 38, issue a
warrant for the arrest of the
judgment-debtor in execution of the
decree. Form 13 sets out the terms
of such a warrant. The warrant
recites the decree and the failure
of the judgment-debtor to pay the
47
decretal amount to the decree-

holder and directs the bailiff of
the court to arrest the defaulting
judgment-debtor, unless he pays up
the decretal amount with costs and
to bring him before the court with
all convenient speed. The point to
be noted is that, as in the case of
a warrant of arrest issued by a
court under the Code of Criminal
Procedure, a warrant of arrest
issued by a court under the Code of
Civil Procedure quite plainly
discloses the reason for the arrest
in that it sets out an accusation
of default, apprehended or actual,
and that the person to be arrested
is made acquainted with the reasons
for his arrest before he is
actually arrested.”

Also in para 20, this Court laid down as

follows:-

“20. Turning now to Article 22(1)
and (2), we have to ascertain
whether its protection extends to
both categories of arrests
mentioned above, and, if not, then
which one of them comes within its
protection. There can be no manner
of doubt that arrests without
warrants issued by a court call for
greater protection than do arrests
under such warrants. The provision
that the arrested person should

48
within 24 hours be produced before
the nearest Magistrate is
particularly desirable in the case
of arrest otherwise than under a
warrant issued by the court, for it
ensures the immediate application
of a judicial mind to the legal
authority of the person making the
arrest and the regularity of the
procedure adopted by him. In the
case of arrest under a warrant
issued by a court, the judicial
mind had already been applied to
the case when the warrant was
issued and, therefore, there is
less reason for making such
production in that case a matter of
a substantive fundamental right. It
is also perfectly plain that the
language of Article 22(2) has been
practically copied from Sections 60
and 61 of the Code of Criminal
Procedure which admittedly
prescribe the procedure to be
followed after a person has been
arrested without warrant. The
requirement of Article 22(1) that
no person who is arrested shall be
detained in custody without being
informed, as soon as may be, of the
grounds for such arrest indicates
that the clause really contemplates
an arrest without a warrant of
court, for, as already noted, a
person arrested under a court’s
warrant is made acquainted with the
grounds of his arrest before the
arrest is actually effected. There

49
can be no doubt that the right to
consult a legal practitioner of his
choice is to enable the arrested
person to be advised about the
legality or sufficiency of the
grounds for his arrest. The right
of the arrested person to be
defended by a legal practitioner of
his choice postulates that there is
an accusation against him against
which he has to be defended. The
language of Article 22(1) and (2)
indicates that the fundamental
right conferred by it gives
protection against such arrests as
are effected otherwise than under a
warrant issued by a court on the
allegation or accusation that the
arrested person has, or is
suspected to have, committed, or is
about or likely to commit an act of
a criminal or quasi-criminal nature
or some activity prejudicial to the
public or the State interest. In
other words, there is indication in
the language of Article 22(1) and
(2) that it was designed to give
protection against the act of the
executive or other non-judicial
authority. The Blitz case (Petition
No. 75 of 1952), on which Sri
Dadachanji relies, proceeds on this
very view, for there the arrest was
made on a warrant issued, not by a
court, but, by the Speaker of State
Legislature and the arrest was made
on the distinct accusation of the
arrested person being guilty of

50
contempt of the legislature. It is
not, however, our purpose, nor do
we consider it desirable, to
attempt a precise and meticulous
enunciation of the scope and ambit
of this fundamental right or to
enumerate exhaustively the cases
that come within its protection.

Whatever else may come within the
purview of Article 22(1) and (2),
suffice it to say for the purposes
of this case, that we are satisfied
that the physical restraint put
upon an abducted person in the
process of recovering and taking
that person into custody without
any allegation or accusation of any
actual or suspected or apprehended
commission by that person of any
offence of a criminal or quasi-

criminal nature or of any act
prejudicial to the State or the
public interest, and delivery of
that person to the custody of the
officer in charge of the nearest
camp under Section 4 of the
impugned Act cannot be regarded as
arrest and detention within the
meaning of Article 22(1) and (2).
In our view, the learned Judges of
the High Court over-simplified the
matter while construing the
article, possibly because the
considerations hereinbefore
adverted to were not pointedly
brought to their attention.”
[Emphasis supplied]

51

27. It will be noted that with the proviso in

the Cr.P.C., 1973, in Section 76, in the case

of arrest under a warrant, the person is to be

produced before the Court within 24 hours with

the exclusion of time taken for travelling.

Such a proviso was absent in Section (81) of

the Cr.P.C., 1898 which was considered by the

Court.

28. In State of U.P. v. Abdul Samad5, the

respondents who were husband and wife were

arrested for non-compliance with the order of

deportation passed against them. They were sent

to Amritsar for being deported to Pakistan.

They were produced before the Magistrate on

23rd July, 1960 at 10.00 A.M. who ordered them

to be kept in the Civil Lines Police Station.

They were brought back to Lucknow on the 25 th

July 1960 based on a message from the High

5 AIR 1962 SC 1506
52
Court of Allahabad requiring their production

and they were produced before the Deputy

Registrar, High Court who directed them to be

produced on the next day of the morning. The

court which was dealing with the writ of Habeas

Corpus by the respondents directed the

respondents be produced the next day. On 28th

July 1960, the High court focussing on the

second period i.e. 25th July 1960 to 2.00 p.m.

27th July, 1960 found that during this period

the respondents having not being produced

before a Magistrate within 24 hours of the

commencement of the custody the detention was

found to be violative of Article 22(2). It is

on these facts the majority (Justice K. Subba

Roa -dissenting)held as follows:

“….It is very difficult to
appreciate what exactly either of
the learned Judges had in mind in
making these observations holding
that the guarantee under Article
22(2)
had been violated. During the
53
“second stage” at which the learned
Judges held that the detention has
been illegal because of a violation
of Article 22(2), the facts were
these: The respondents had been
brought back to Lucknow on a
message requiring their production
before the High Court. They reached
Lucknow on the 25th at 1 p.m. and
were produced at 3 p.m. the same
day i.e. within two hours of
reaching Lucknow before the Deputy
Registrar. The Deputy Registrar had
directed their production the next
day and they were accordingly so
produced. Even taking it that the
Deputy Registrar was not a judicial
authority such as the learned
Judges had in mind, the respondents
had been produced on 26th morning
at 10.15 a.m. before the learned
Judges when they were at liberty to
make any order regarding the
custody which they considered
proper and the time when they were
produced before the Judges was
admittedly not beyond 24 hours from
the time the respondents reached
Lucknow. On the 26th the learned
Judges who took part in the final
decision passed an order directing
the production of the respondents
on July 27, 1960 at 2 p.m. which
obviously permitted the previous
custody to be continued till
further orders. They were produced
accordingly at 2 p.m. on that day
and by a further order of July 27,

54
1960 the learned Judges had
directed the release of the
respondents on bail and in
pursuance of this order the
respondents had been released on
July 27, 1960 itself. In these
circumstances we are at a loss to
understand which is the period
during “the second stage” or “on
the 27th”, when the respondents
could be said to have been
illegally detained for more than 24
hours without production before a
judicial authority as required by
Article 22(2). We would add that
even if Article 22(2) were
construed to require that a person
arrested and detained has to be
produced before a Magistrate every
24 hours during his detention, a
meaning which it assuredly cannot
bear, though it is not clear to us
whether the learned Judges did not
understand the article to require
this, even such a requirement was
satisfied in this case as the
respondents were during “the second
stage” produced before the High
Court itself “for suitable orders”
on the 26th and again on the 27th.
We have no desire to comment
further on this judgment of the
learned Judges except to say that
there was no justification
whatsoever for the finding on the
basis of which the learned Judges
directed the release of the
respondents.”

55
[Emphasis
supplied]

29. The aforesaid reasoning is not inapposite

in the context of Respondent’s case that only a

Magistrate can authorize detention under

Section 167 Cr.PC.

PROCEEDINGS IN THE HIGH COURT OF DELHI

30. The writ petition filed by the appellant

was mentioned before the Chief Justice of the

Court on 28.08.2018 at 2:15 p.m. From the

judgment, it is further clear that it was taken

up at 2:45 p.m. on the same day. The Court

initially ordered that ‘no precipitate action

be taken’ of removing the appellant till the

matter was taken up again at 4:00 p.m. In the

meantime, it would appear that in the transit

remand application moved by the Maharashtra

police, the CMM, Saket passed the order on the

56
transit remand application which we have

extracted.

31. We have also noticed the contents of the

order which was passed at 4:00 p.m. on

28.08.2018. The perusal of the judgment

further reveals that the counsel for the state

of Maharashtra, in fact, raised the preliminary

objection to the maintainability of the writ.

It reads as follows: –

“6. Mr. Vinay Navare, learned
counsel appearing for the State of
Maharashtra, raised a preliminary
objection to the maintainability of
the present writ petition relying
on the recent judgment dated
th
5 September 2018 of a three judge
bench of the Supreme Court in Crl.

        A.   1124   of    2018    (State    of
        Maharashtra v. Tasneem          Rizwan

Siddiquee). He submitted that the
Supreme Court has, in said
decision, reiterated the settled
position in law, as explained in
the decisions in Manubhai Ratilal
Patel v. State of Gujarat
, (2013) 1
SCC 314 and Saurabh
Kumar v. Jailor, Koneil
Jail
, (2014) 13 SCC 436, that once

57
a person is in judicial custody
pursuant to a remand order passed
by a magistrate in connection with
an offence under investigation, a
writ of habeas corpus is not
maintainable.”

32. The High Court tides over this objection by

holding as follows: –

     “9. On    the    question    of   the
     maintainability    of    the  present
     petition,     as   already    noticed

earlier, this Court had even prior
to the learned CMM passing the
order on the remand application
directed at around 2.45 pm on
28th August 2018 that “no further
precipitate action of removing the
Petitioner from Delhi be taken till
the matter be again taken up at 4
pm.” Mr. Rahul Mehra, learned
Standing Counsel for the State (NCT
of Delhi) informed the Court that
he had conveyed the aforementioned
interim order to the concerned
police officials at 2.54 pm on
28th August 2018. While it is not
clear if the learned CMM was
actually informed of this Court’s
interim order, the arrest memo of
the Petitioner shows that he was
arrested at 2.15 pm at his
58
residence in Nehru Enclave. Given a
reasonable time taken to reach the
Saket Court complex, it is unlikely
that the learned CMM heard the
matter, perused the remand
application and then passed the
order before 2.45 pm, i.e. before
this Court passed the interim
order.

10. Consequently, when the
present habeas corpus petition was
entertained and the above interim
order was passed by this Court,
there was no order of the learned
CMM granting transit remand of the
Petitioner. In each of the
aforementioned decisions cited by
Mr. Navlakha the entertaining of
the habeas corpus petition by the
High Court was subsequent to the
transit remand order passed by the
concerned Judicial Magistrate. This
one factor distinguishes the
present case from the above cases.
Consequently, this Court rejects
the preliminary objection raised by
Mr. Navakre as to the
maintainability of the present writ
petition.”

33. The High Court, thereafter, proceeded to

find that even before a Magistrate, before whom
59
the transit remand application is filed, the

mandatory requirement of Section 167 is that

the entries in the case diary should be

produced, is applicable. He is required to

apply his mind to ensure there exists material

in the form of entries to justify the prayer

for transit remand. While the Magistrate

examining the transit remand application is not

required to go into the adequacy of the

material, he is obliged to satisfy himself from

about the existence of the material. He further

found that the Magistrate is bound to ask the

arrested person whether in fact, he has been

informed about the grounds of arrest and

whether he requires to consult and be defended

by any legal practitioner of his choice.

Though, a duty lawyer empanelled under the

Legal Services Authority Act, 1987 was shown

representing the appellant, the High Court

60
noticed that the Magistrate did not ask the

counsel of the arrested person whether he was

informed about the grounds of arrest and

whether he asked to consult and be defended by

the legal practitioner of his choice. The High

Court emphasized that this requirement does not

get diluted only because the proceedings are

for transit remand. It was found be the mandate

under Article 22(1) of the Constitution. The

appearance of the duty lawyer was found to be

essentially cosmetic and not in the true spirit

of Article 22(1). The materials in the case

diary were found to be written in the Marathi

language. It was found undisputed that the

Magistrate was not conversant with the Marathi

language. This disabled the Magistrate from

appreciating whether the requirements under

Section 41(1)(b)(a) of the Cr.P.C. stood

satisfied. It is thereafter noticed that the

61
Court disposed of the writ petition with the

findings and the directions as noted in

paragraphs 28, 29, 30 and 31 which we have

already extracted.

34. The SLP against the judgment was disposed

of as follows on 11.08.2020:

“Heard the learned Solicitor
General and the learned counsel
appearing in the matter at length.
The learned Solicitor General has
submitted that the High Court
should not have interfered in the
matter and the order should not
have been passed and it is palpably
illegal. Ms. Nithya Ramakrishnan,
learned counsel, has submitted that
the order is absolutely correct and
there is no ground to make any
interference in the order.
Be that as it may, the exercise is
academic in nature and the accused
have surrendered on 14.04.2020,
pursuant to the order passed by
this Court on 08.04.2020. We do not
propose to go into the rival
submissions, as the petitions have
been rendered infructuous for
practical purposes.

However, we direct that the
impugned order shall not be treated

62
as a precedent for any other case,
questions of law are kept open.
The Special Leave Petitions and the
pending interlocutory
application(s), if any, is/are
disposed of.”

NATURE OF HOUSE ARREST

35. The High Court in the impugned order has

itself found that the period of 34 days spent

in house arrest by the appellant amounted to

custody. We, however, consider it necessary to

articulate our views regarding the nature of

house arrest.

36. In an article “A Brief History of House

Arrest and Electronic Monitoring” by J. Robert

Lilly and Richard A. Ball, we find the

following discussion:-

63
“HOME CONFINEMENT “House arrest”
has a long history dating at least
to St. Paul the Apostle, who is
reported to have been placed under
“house arrest” (custodia libera) in
Rome at about the age of 60. St.
Paul’s sentence lasted two years
during which time he paid rent and
earned his keep as a tent maker,
thus avoiding becoming a ward of
the church or state. While it would
go far beyond the historical record
to claim that St. Paul was the
first person to pay for his keep
under conditions of house arrest,
it is interesting to note that many
of today’s “house arrest” programs
expect their clients to pay
supervision fees, restitution, and
their living expenses. Galileo
Galilei, the Florentine
philosopher, physicist, and
astronomer, also experienced “house
arrest” after a “second
condemnation” trial in Rome in
1633. After the trial, he returned
to Florence and house arrest for
the rest of his life. More
recently, Czar Nicholas II of
Russia and his family were kept
under house arrest in 1917 until
their deaths in 1918. This history
is a cause for concern among some
because of the traditional use of
the practice as a means of
silencing political dissent. South
Africa, for example, has a long
history of control through

64
“banning” and societies found in
Poland, South Korea, India, and the
Soviet Union are known to employ
“house arrest” primarily to deal
with troublesome political
dissenters. On the other hand,
France introduced the concept of
control judiciare in 1970 as a
fairly straightforward form of pre-

trial    detention     involving    a
provision    that    employed    home

confinement as an alternative for
common offenders. In 1975, Italy
initiated a policy of affidamento
in provo ai servizio sociale (trial
custody), which may be described as
a form of parole following a shock
period of three months
incarceration. Other European
countries have also experimented
with some manner of home
confinement as a means of dealing
with a variety of offenders. The
traditional use of “house arrest”
should not in itself become a
rationale for rejecting it. In the
United States, “home detention” had
been put in practice in St. Louis
as early as 1971.

Home confinement as a policy for
use with adult offenders began to
draw more attention in 1983 with
the delivery of two different
papers on the subject, passage of
the Correctional Reform Act, and
the use of an “electronic bracelet”
to monitor compliance with home
confinement on the part of an
65
offender in New Mexico. The latter
was inspired by a New Mexico
district court judge, who read a
comic strip where “Spiderman” was
being tracked by a transmitter
fixed to his wrist. The judge
approached an engineer, who
designed a device consisting of an
electronic bracelet approximately
the size of a pack of cigarettes
that emitted an electronic signal
that was picked up by a receiver
placed in a home telephone. This
bracelet could be strapped to the
ankle of an offender in such a way
that if he or she moved more than
approximately 150 feet from the
home telephone, the transmission
signal would be broken, alerting
authorities that the offender had
left the premises. Officials in New
Mexico gave approval for trial use
of the device and a research
project funded by the National
Institute of Justice eventually
reported successful results with
this “electronic monitoring.”

37. In the United States, in December 1985, one

Ms. Murphy stood convicted in a case of

insurance fraud. She could have been packed off

to a jail for a maximum period of 50 years.

Instead, the Federal Judge placed her under

66
house arrest (See 108 F.R.D. 437, 439 (E.D.N.Y.

1985). This is what the Federal Judge inter

alia ordered: –

“The sentencing of Maureen Murphy
requires, in the court’s opinion, a
sentence not heretofore used in
this District and almost never used
in the country in the federal
court. It is used elsewhere in the
world and is considered by some to
be highly objectionable. The
difference, however, is that in
other countries it is used to
repress political dis- sent and
before trial. Here it will be used
after a full trial where the
defendant has been found guilty of
a serious offense. The penalty is
house arrest.”

She was allowed to leave her apartment only for

medical reasons, employment, religious services

or to conduct essential food shopping. House

arrest has been employed in the United States

essentially as an intermediate level penal

sanction. In other words, upon being found

guilty instead of sentencing the convict to a

67
term in prison and in lieu of incarceration, as

a condition of probation, the convict is

compelled to confine himself to his place of

residence. Interestingly, consistent with the

constitutional protection afforded under United

States constitution, the house arrest does not

visit the convict with an absolute restriction

from leaving his home. In the article “House

Arrest”, a critical analysis of an intermediate

level penal sanction by Jeffrey N. Hurwitz, we

notice the following:-

      “House   arrest      is    a    form   of
      intensive        law          enforcement
      supervision       characterized        by

confinement to the offender’s place
of residence with permission to
leave only for explicit, pre-
authorized purposes. Generally, it
is imposed as a penal sanction in
lieu of incarceration and mandated
by the sentencing judge as a
condition of probation. In
Florida, however, house arrest is
considered a criminal sanction
entirely separate from probation.

In addition, at least one
jurisdiction has reported using
68
house arrest for individuals who
have been released on their own
recognizance while awaiting trial.

For example, a number of states and
counties have recently added
intensive supervision to probation
programs in order to provide an
intermediate punishment in lieu of
incarceration for selected
offenders. Many of the reported
conditions of intensive supervision
strategies are similar or even
identical to those imposed as part
of the house arrest sanction. For
example, multiple weekly contacts
between offenders and probation
officers, as well as mandatory
employment, may be common to both
control techniques.

The unique restriction on the
offender’s freedom to leave home is
the distinguishing feature of the
house arrest sanction. Although
other heightened surveillance
sanctions generally include strict
curfews, house arrest allows the
offender to leave her residence
only for specific purposes, unless
time spent away from home is used
for pre-authorized ends, the
offender risks detention and
incarceration.

The Florida Community Control
statute mandates that the court
impose “intensive supervision and
surveillance for an offender placed
into community control, which may
69
include … confinement to an agreed-

upon residence during hours away
from employment and public service
activities. The Florida law has
classified three tiers of
permissible travel, ranked
according to the purposes for
spending time away from the site of
confinement. “Essential travel”
includes travel for work, religious
expression, vocational or
educational training, self-
improvement programming, public
service, and scheduled appointments
with the supervising officer.
Movement from the home oriented
toward “the fulfilment of the basic
needs of the community controllee”
is considered “acceptable travel.

All three types of travel must be
approved in advance, although
movements for family emergencies
may occur without pre-authorization
provided that they are reported no
later than the following day.”

We may also notice the following discussion in

the said article: –

“While the conditions of house
arrest imposed in Murphy are
highly restrictive, another
federally imposed home confinement
pro- gram establishes even greater
control. In United States v.

Wayte3 the defendant was
70
convicted for failure to register
with the Selective Service
System.” The imposition of
sentence was suspended and the
defendant was placed on probation
for six months. The court ordered
that the entire probationary
period be spent under house arrest
at the residence of Wayte’s
grandmother, and that Wayte be
allowed to leave his site of
confinement only for “emergency
purposes with the permission of
the probation officer.”3” The
house arrest regime in Wayte is
the most restrictive yet re-
ported. Because Wayte is unable to
leave home at all, he is precluded
from obtaining outside employment.

All travel from his site of
confinement must be only in
response to a life-threatening
crisis; apparently, even movement
for religious expression must be
approved by the probation officer
as an emergency. He is
functionally isolated and removed
from the outside world, as if he
were incarcerated, his wife acts
as his intermediary with the
community.”

38. In the caption “the goals of house arrest”,

we notice the following discussion: –

71
“Yet house arrest, generally
imposed as a special condition of
probation, includes a distinctly
retributive component.42 The
sentencing court in Murphy de-
scribes the incorporation of
retribution, humiliation, and
deterrence into the traditionally
palliative scheme of probation:
There will be some people who
will believe that this sentence
is much too lenient. Others will
believe it too humiliating.

Public humiliation is a part of
the punishment …. In many
respects the colonial use of
stocks and the equivalent
punishment in other societies
served a useful goal in providing
swift social disapproval as a
deterrent. It is obvious that
some form of this disapproval is
required under modern
conditions.”

39. Among the advantages which have been

perceived in promoting the house arrest, have

been avoidance of overcrowding of the prisons

and also cost saving. However, concerns have

also emerged in regard to the issues arising

out of the proper supervision of house arrest.

72

40. The said article goes on to describe house

arrest as a community based probationary

sanction. We may also notice the following

discussion under the heading of waiver and

probation being an act of grace: –

“Moreover, because of the
particularly restrictive nature
of home confinement, the
implicated constitutional right
might not be waivable. For
example, if a confinee’s housing
is substandard, home confinement
imposed by the state may violate
the eighth amendment ban on cruel
and unusual punishment.

Similarly, it is likely that the
offender might sacrifice a right
that is not alienable to the
state. If a regime of home
confinement does not include
access to a house of worship, the
state will have coerced from the
offender a waiver or transfer of
the inalienable right to freedom
of worship guaranteed by the free
exercise clause of the first
amendment.

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

73

41. It will be noticed that ordinarily in the

United States, house arrest is ordered after

the trial is conducted and an accused is found

guilty. No doubt, it has also been resorted in

respect of juveniles even during the pendency

of the proceedings against him.

42. In Buzadji v. Moldova; 398 Butterworths

Human Rights Cases 42, the European Court of

Human Rights (Grand Chamber), was dealing with

a case against the Republic of Moldova lodged

under Article 34 of the Convention for the

Protection of Human Rights and Fundamental

Freedoms, 1950. Dealing with the questions,

whether the applicant is deprived of liberty

and whether the applicant had waived his right

to liberty, inter alia, the Court held as

follows:-

“As it does in many other areas,
the court insists in its case law
on an autonomous interpretation of

74
the notion of deprivation of
liberty. A systematic reading of
the Convention shows that mere
restrictions on the liberty of
movement are not covered by art 5
but fall under art 2(1) of Protocol
No 4. However, the distinction
between the restriction of movement
and the deprivation of liberty is
merely one of degree or intensity,
and not one of nature or substance.

In order to determine whether
someone has been ‘deprived of his
liberty’ within the meaning of art
5, the starting point must be the
concrete situation and account must
be taken of a whole range of
criteria such as the type,
duration, effects and manner of
implementation of the measure in
question (see Guzzardi v Italy
(1980) 3 EHRR 333, [1980] ECHR
7367/76, paras 92–93).

According to the court’s case law
(see, among many others, Mancini v
Italy (App no 44955/98) (judgment,
2 August), para 17; Lavents v
Latvia (App no 58442/00) (judgment,
28 November 2002), paras 64–66;
Nikolova v Bulgaria (No 2) [2004]
ECHR 40896/98, para 60; Ninescu v
Moldova (App no 47306/07)
(judgment, 15 July 2014), para 53;
and Delijorgji v Albania [2015]
ECHR 6858/11, para 75), house
arrest is considered, in view of
its degree and intensity, to amount
to deprivation of liberty within
75
the meaning of art 5 of the
Convention.

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

65).”

We may also notice:-

“The government submitted that
lesser reasons were required in
order to justify house arrest than
detention in an ordinary remand
facility because the former measure
was more lenient than the latter.

It is true that in most cases house
arrest implies fewer restrictions
and a lesser degree of suffering or
inconvenience for the detainee than
ordinary detention in prison. That
is the case because detention in
custody requires integrating the
individual into a new and sometimes

76
hostile environment, sharing of
activities and resources with other
inmates, observing discipline and
being subjected to supervision of
varying degrees by the authorities
twenty-four hours a day. For
example, detainees cannot freely
choose when to go to sleep, when to
take their meals, when to attend to
their personal hygiene needs or
when to perform outdoor exercise or
other activities. Therefore, when
faced with a choice between
imprisonment in a detention
facility and house arrest, as in
the present case, most individuals
would normally opt for the latter.
However, the court notes that no
distinction of regime between
different types of detention was
made in the Letellier principles
(see para 92, above). It further
reiterates that in Lavents (cited
above), where the court was called
upon to examine the relevance and
sufficiency of reasons for
depriving the applicant of liberty
pending trial for a considerable
period of time, the respondent
government had unsuccessfully
argued that different criteria
ought to apply to the assessment of
the reasons for the impugned
restriction on liberty as the
applicant had been detained not
only in prison but also been held
in house arrest and in hospital.
The court dismissed the argument,
77
stating that art 5 did not regulate
the conditions of detention,
referring to the approach
previously adopted in Mancini
(cited above) and other cases cited
therein. The court went on to
specify that the notions of
‘degree’ and ‘intensity’ in the
case law, as criteria for the
applicability of art 5, referred
only to the degree of restrictions
to the liberty of movement, not to
the differences in comfort or in
the internal regime in different
places of detention. Thus, the
court proceeded to apply the same
criteria for the entire period of
deprivation of liberty,
irrespective of the place where the
applicant was detained.”

HOUSE ARREST IN INDIA

43. In India, the concept of house arrest has

its roots in laws providing for preventive

detention. Section 5 of the National Security

Act, 1980, is a law providing for preventive

detention. Section 5 reads as follows:-

“5. Power to regulate place and
conditions of detention.—Every
person in respect of whom a

78
detention order has been made shall
be liable—

(a) to be detained in such place
and under such conditions,
including conditions as to
maintenance, discipline and
punishment for breaches of
discipline, as the appropriate
Government may, by general or
special order, specify; and

(b) to be removed from one place of
detention to another place of
detention, whether within the same
State or in another State, by order
of the appropriate Government:

Provided that no order shall be
made by a State Government under
clause (b) for the removal of a
person from one State to another
State except with the consent of
the Government of that other
State.”

Article 22(3) reads as follows: –

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

(a) to any person who for the time
being is an enemy alien; or

(b) to any person who is arrested
or detained under any law providing
for preventive detention.”

79
Thus, the safeguards under Article 22(1) and

Article 22(2) are not available under a law

providing for preventive detention.

44. We notice that State of Rajasthan and Ors.

vs. Shamsher Singh6 was a case under the said

act. It was a case where the High Court had

after quashing the order of detention on

certain grounds gave certain directions. The

detenu was to be released from the central jail

but thereafter it was directed that the detenu

be placed under house arrest or in place like

Dak Bungalow or Circuit House with members of

his family consisting of his wife and children.

The authorities were to permit interview with

other relatives also if the detenu was kept

outside the house. This Court allowed the

appeal of the state finding that the

requirements of law in relation to detention

6 AIR (1985) SC 1082
80
had been complied with and the detention was

wrongly quashed. In A.K. Roy and Ors. vs.

Union of India (UOI) and Ors.7 a Constitution

Bench also dealt with the issue relating to

preventive detention and house arrest in the

said context. We may notice only paragraph 74.

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

a. to be detained in such place
and under such conditions,
including conditions as to
maintainance, discipline and
punishment for breaches of
discipline, as the appropriate
Government may, by general or
special order, specify: and
b. to be removed from one place
of detention to another place of
detention, whether in the same
State or another State, by order of
the appropriate Government.
The objection of the petitioners to
these provisions on the ground of
their unreasonableness is not
wholly without substance. Laws of
preventive detention cannot, by the
back-door, introduce procedural
measures of a punitive kind.

7 AIR (1982) SC 710
81
Detention without trial is an evil
to be suffered, but to no greater
extent and in no greater measure
than is minimally necessary in the
interest of the country and the
community. It is neither fair nor
just that a detenu should have to
suffer detention in “such place” as
the Government may specify.

The normal rule has to be that the
detenu will be kept in detention in
a place which is within the
environs of his or her ordinary
place of residence. If a person
ordinarily resides in Delhi, to
keep him in detention in a far off
place like Madras or Calcutta is a
punitive measure by itself which,
in matters of preventive detention
at any rate, is not to be
encouraged. Besides, keeping a
person in detention in a place
other than the one where he
habitually resides makes it
impossible for his friends and
relatives to meet him or for the
detenu to claim the advantage of
facilities like having his own
food. The requirements of
administrative convenience, safety
and security may justify in a given
case the transfer of a detenu to a
place other than that where he
ordinarily resides, but that can
only be by way of an exception and
not as a matter of general rule.
Even when a detenu is required to
be kept in or transferred to a

82
place which is other than his usual
place of residence, he ought not to
be sent to any far-off place which,
by the very reason of its distance,
is likely to deprive him of the
facilities to which he is entitled.
Whatever smacks of punishment must
be scrupulous avoided in matters of
preventive detention.”

45. Thus ‘house arrests’ have been resorted to

in India, in the context of law relating to

‘preventive detention’. What is however

relevant is that preventive detention is also a

form of forced detention. House arrest is also

custody and forced detention.

46. As to whether such detention would qualify

as custody under Section 167 will be considered

when we discuss the provision relating to set

off under Section 428 of Cr.P.C.

A LOOK AT PRISONS IN INDIA

47. The executive summary published by the

National Crime Records Bureau for 2019 is as

follows: –

83

“Prison Statistics India – 2019
Executive Summary

Prisons – Types & Occupancy
Year No. of prisons Actual Capacity No. of Occupancy rate
of Priosns Prisoners at at the end of
the end of the year
the year
2017 1,361 3,91,574 4,50,696 115.1%
2018 1,339 3,96,223 4,66,084 117.6%

2019 1,350 4,03,739 4,78,600 118.5%

1. The total number of prisons at
national level has increased from
1,339 in 2018 to 1,350 in 2019,
having increased by 0.82%.

2. The 1,350 prisons in the country
consist of 617 Sub Jails, 410
District Jails, 144 Central Jails,
86 Open Jails, 41 Special Jails, 31
Women Jails, 19 Borstal School and
2 Other than the above Jails.

3. The highest number of jails was
reported in Rajasthan (144)
followed by Tamil Nadu (141),
Madhya Pradesh (131), Andhra
Pradesh (106), Karnataka (104) and
Odisha (91). These Six (6) States
together cover 53.11 % of total
jails in the country as on 31st
December, 2019.

4. Delhi has reported the highest
number of Central jails (14) in the
country. States/UTs like Arunachal
Pradesh, Meghalaya, A & N Island, D
& N Haveli, Daman & Diu and

84
Lakshadweep have no central Jail as
on 31st December, 2019.

5. Uttar Pradesh has reported the
highest number of District jails
(62). States/UTs like Goa,
Chandigarh, D & N Haveli, Daman &
Diu, Delhi, Lakshadweep and
Puducherry have no District Jail as
on 31st December, 2019.

6. Tamil Nadu has reported highest
number of Sub-jails (96).

States/UTs like Arunachal Pradesh,
Goa, Haryana, Meghalaya, Mizoram,
Nagaland, Sikkim, Chandigarh and
Delhi have no sub-jail in their
States/UTs, as on 31st December,
2019.

7. Only 15 States/UTs were having
Women Jails (31 Women Jails) with a
total capacity of 6,511 in India.
These States/UTs (number of Jails,
Inmates Capacity) are – Rajasthan
(7) (1048), Tamil Nadu (5) (2018),
Kerala (3) (232), Andhra Pradesh
(2) (280), Bihar (2) (152), Gujarat
(2) (410), Delhi (2) (648),
Karnataka(1) (100), Maharashtra(1)
(262), Mizoram (1) (90), Odisha(1)
(55), Punjab(1) (320), Telangana(1)
(250), Uttar Pradesh(1) (420) and
West Bengal(1) (226) and The rest
of 21 States/ UTs have no separate
Women Jail as on 31st December,
2019.

8. The actual capacity of prisons
has increased from 3,96,223 in 2018

85
to 4,03,739 in 2019 (as on 31st
December of each year), having
increased by 1.90%. Number of
prisoners lodged in various jails
has increased from 4,66,084 in 2018
to 4,78,600 in 2019 (as on 31st
December of each year), having
increased by 2.69% during the
period.

9. Out of the total capacity
4,03,739 in 1,350 prisons in 2019,
the Central Jails of the country
were having the highest capacity of
inmates (1,77,618) followed by the
District Jails (capacity of
1,58,986 inmates) and the Sub Jails
(capacity of 45,071 inmates). Among
the other types of jails, Special
Jails, Open Jails and Women Jails
were having a capacity of 7,262,
6,113 and 6,511 inmates
respectively as on 31st December,
2019. The highest number of inmates
were lodged in Central Jails
(2,20,021) followed by District
Jails (2,06,217) and Sub Jails
(38,030) as on 31st December, 2019.
The number of inmates in Women
Jails were 3,652.

10.Uttar Pradesh has reported the
highest capacity in their jails
(capacity of 60,340 inmates in 72
jails contributing 14.95% of total
capacity) followed by Bihar
(capacity of 42,222 inmates in 59
Jails contributing 10.46% of total
capacity) and Madhya Pradesh

86
(capacity of 28,718 inmates in 131
jails contributing 7.1% of total
capacity).

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

12.The occupancy rate has increased
from 117.6% in 2018 to 118.5% in
2019 (as on 31st December of each
year).

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

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

These States together are
contributing around 56.4% of total
prisoners in the country.

15.Delhi has reported the highest
occupancy rate (174.9%) followed by
Uttar Pradesh (167.9%) and
Uttarakhand (159.0%) as on 31st
December, 2019.

16.The capacity in 31 Women Jails
was 6,511 with the actual number of
women prisoners in these Women

87
Jails was 3,652 (Occupancy Rate:

56.1%). The capacity of Women
Inmates in other types of Jail
(i.e. except Women Jails) was
21,192 with the actual number of
women inmates in these jails was
16,261 (Occupancy Rate: 76.7%) as
on 31st December, 2019.

17.Uttarakhand has reported the
highest female occupancy rate
(170.1%) followed by Chhattisgarh
(136.1%) and Uttar Pradesh
(127.3%). However, the highest
number of female inmates were
confined in the Jails of Uttar
Pradesh (4,174) followed by Madhya
Pradesh (1,758) and Maharashtra
(1,569).

Prisoners – Types & Demography

Year No. of convicts No. of undertrial No. of No. of other Total no. of
prisoners Detenues inmates prisoners

2017 1,39,149 3,08,718 2,136 693 4,50,696
2018 1,39,488 3,23,537 2,384 675 4,66,084
2019 1,44,125 3,30,487 3,223 765 4,78,600

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

2. A total of (4,78,600) prisoners
as on 31st December, 2019 were
confined in various jails across
the country. The number of
Convicts, Undertrial inmates and
Detenues were reported as 1,44,125,
3,30,487 and 3,223 respectively
88
accounting for 30.11%, 69.05% and
0.67% respectively at the end of
2019. Other prisoners accounted for
0.2% (765 prisoners) of total
prisoners.

3. Convicted Prisoners
a.   The    number   of   convicted
prisoners    has   increased   from

1,39,488 in 2018 to 1,44,125 in
2019 (as on 31st December of each
year), having increased by 3.32%
during the period.

b. Out of total 1,44,125 convicts,
the highest number of convicted
prisoners were lodged in Central
Jails (66.2%, 95,470 convicts)
followed by District Jails (27.0%,
38,846 convicts) and Open Jails
(3.0%, 4,288 convicts) as on 31st
December,2019.

c. Uttar Pradesh has reported the
maximum number of convicts (19.2%,
27,612 convicts) in the country
followed by Madhya Pradesh (14.1%,
20,253 convicts) and Maharashtra
(6.3%, 9,096 convicts) at the end
of 2019.

d. Among the 1,44,125 convicts, 325
were civil convicts.

4. Undertrial Prisoners
a. The number of undertrial
prisoners has increased from
3,23,537 in 2018 to 3,30,487 in
2019 (as on 31st December of each

89
year), having increased by 2.15%
during this period.

b. Among the 3,30,487 undertrial
prisoners, the highest number of
undertrial prisoners was lodged in
District Jails(50.5%, 1,66,917
undertrials) followed by Central
Jails(36.7%, 1,21,342 undertrials)
and Sub Jails(10.6%, 35,059
undertrials) as on 31st December,
2019.

c. Uttar Pradesh has reported the
maximum number of undertrials
(22.2%, 73,418 undertrials) in the
country followed by Bihar (9.5%,
31,275 undertrials) and Maharashtra
(8.3%, 27,557 undertrials) at the
end of 2019.

d. Among the 3,30,487 undertrial
prisoners, only 91 were civil
inmates.

5. Detenues
a. The number of detenues has
increased from 2,384 in 2018 to
3,223 in 2019 (as on 31st December
of each year), having increased by
35.19% during this period.

b. Among the 3,223 detenues, the
highest number of detenues were
lodged in Central Jails (81.4%,
2,622 detenues) followed by
District Jails (9.9%, 318
detenues) and Special Jails (6.1%,
196 detenues) as on 31st
December,2019.

90
c. Tamil Nadu has reported the
maximum number of detenues (38.5%,
1,240) in the country followed by
Gujarat (21.7%, 698) and Jammu &
Kashmir (12.5%, 404) at the end of
2019.

6. Women Prisoners with Children
a. There were 1,543 women prisoners
with 1,779 children as on 31st
December, 2019.

b. Among these women prisoners,
1,212 women prisoners were
undertrial prisoners who were
accompanied by 1,409 children and
325 convicted prisoners who were
accompanied by 363 children.

7. Age-group of the Prisoners
a. As on 31st December, 2019 the
maximum number of inmates (2,07,942
inmates, 43.4%) were belonging to
the age group 18- 30 years followed
by the age group 30- 50 years
(2,07,104 inmates, 43.3%).

b. 63,336 inmates (13.2%) were
belonging to the age group above 50
years.

c. 218 inmates belonged to the age
group of 16-18 years.

8. Education
a. Among the 4,78,600 prisoners,
literacy profile of 1,98,872
(41.6%) prisoners was Below Class
X, 1,03,036 (21.5%) prisoners were
91
Class X & above but below
Graduation, 30,201 (6.3%) prisoners
were having a Degree, 8,085 (1.7%)
prisoners were Post Graduates and
5,677 (1.2%) prisoners were
Technical Diploma/Degree holders.
b. A total of 1,32,729 (27.7%)
prisoners were Illiterate.

9. Domicile of Origin of Prisoners
a. Among the 4,78,600 prisoners as
on 31st December, 2019, around
90.8% (4,34,564 inmates) of
prisoners belonged to the State
followed by prisoners belonging to
the Other States (8.0%, 38,428
inmates) and prisoners belonging to
the Other Country (1.2%, 5,608
inmates).

b. Among the 1,44,125 convicts,
92.4% convicts (1,33,228 inmates)
belonged to the State while 6.1%
(8,726 inmates) and 1.5% (2,171
inmates) belonged to the Other
States and Other Country
respectively.

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

d. Among the 3,30,487 undertrial
prisoners, 90.2% (2,98,208 inmates)
belonged to the State while 8.9%

92
(29,300 inmates) and 0.9% (2,979
inmates) belonged to the Other
States and Other Country
respectively.

e. Maharashtra has reported the
highest number of undertrial
prisoners of other states (16.0%,
4,675 inmates) followed by Uttar
Pradesh (11.8%, 3,470 inmates) and
Delhi (11.8%, 3,453 inmates) at the
end of 2019.

           Foreign Prisoners

Year   No. of prisons at     No.   of  foreign   Share   of   foreign
       the end of the year   prisoners           prisoners
2017   4,50,696              4,917               1.1%
2018   4,66,084              5,168               1.1%
2019   4,78,600              5,608               1.2%




           1. The number of prisoners of

foreign nationality (as on 31st
December of each year) has
increased from 5,168 in 2018 to
5,608 in 2019, having increased by
8.51% during this period.

2. The percentage share of foreign
prisoners out of total prisoners
has increased from 1.1% in 2018 to
1.2% in 2019 (as on 31st December
of each year).

3. Among 5,608 prisoners of foreign
nationality at the end of 2019,
4,776 were Males and 832 were
females.

           4. Among these foreign                       national
           prisoners, 38.7% (2,171                      inmates)
                                      93
were    Convicts,    53.1%  (2,979

inmates) were Undertrials and 0.7%
(40 inmates) were Detenues.

5. Among the foreign convicts, the
highest number of foreign convicts
were from Bangladesh (67.7%, 1,470
convicts) followed by Nepal (10.5%,
228 convicts) and Myanmar (7.1%,155
convicts) at the end of 2019.

Prison – Budget & Infrastructure

1. The total budget for the
financial year 2019-20 for all
prisons in the country was ` 6818.1
Crore. The actual expenditure was `
5958.3 Crore which is 87.39% of
total annual budget for FY 2019-20.

2. A total of ` 2060.96 Crore was
spent on inmates during FY 2019-20
which is almost 34.59% of total
annual expenditure of all prisons
for FY 2019-20.

3. Almost 47.9% (` 986.18 Crore) of
total expenses on inmates were
spent on Food followed by 4.3% (`
89.48 Crore) on Medical matters,
1.0% (` 20.27 Crore) on welfare
activities, 1.1 %(` 22.56 Crore) on
Clothing and 1.2% (` 24.20 Crore)
on Vocational/ Educational
trainings.

4. Among all the States/UTs, out of
total expenditure, Haryana has
spent the highest share of
expenditure on inmates (100.0%, `
272.62 Crore) followed by Andhra

94
Pradesh (88.1%, ` 152.24 Crore) and
Delhi (66.2%, ` 310.02 Crore)
during the Financial Year 2019-20.

5. Among the 1,350 prisons, 269
prisons were renovated/expanded
during 2019.

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

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

48. According to the data published by the

National Crime Records Bureau (NCRB) the

conditions relating to jails and prisoners is

fairly alarming. There were a total number of

1350 prisons as of the year 2019. 1350 prisons

consists of 617 Sub Jails, 410 District Jails,

144 Central Jails, 86 Open Jails, 41 Special

Jails, 31 Women Jails, 19 Borstal School and 2

Other than the above jails.

49. A perusal of the executive summary would

reveal an alarming state of affairs as far as

95
occupancy rate is concerned. It has climbed to

118.5 percent in 2019 as on 31st December. The

occupancy rate is alarming for male prisoners.

In fact, during 2019, a total of 18,86,092

inmates were admitted in the jails. The figure

of 4,78,600 prisoners as on 31st December, 2019

is the figure obviously after considering the

number of prisoners who would have been inter

alia bailed out. The number of under trial

prisoners in 2019 was 3,30,487 which in fact

constituted 69.05 per cent of the total no. of

prisoners. Delhi had the highest occupancy rate

of 174.9 percent followed by Uttar Pradesh

which came second with 167.9 percent. This

means that in Delhi a prison which was meant to

be occupied by 100 persons, was used for

accommodating 174 persons. We cannot also be

oblivious to the fact that the figures

represent the official version.

96

50. There is a tremendous amount of

overcrowding in jails in India. Secondly, a

very large sum (Rs. 6818.1 crore) was the

budget on prisons. Both aspects are relevant

in the context of the possibilities that house

arrest offer.

51. In the context of the rights conferred on

citizens under Article 19 which are essentially

constitutional freedoms or rather the

enumerated rights as explained by this Court in

Maneka Gandhi vs. Union of India,8 when a

citizen is placed on house arrest, which has

the effect of depriving him of any freedom, it

will not only be custody but it would involve

depriving citizens under custody of the

fundamental freedoms unless such freedoms are

specifically protected. A person has a

fundamental right to move in any part of the

country. It is obvious that in the case of a
8 AIR 1978 SC 597
97
person undergoing a house arrest and in the

teeth of an absolute prohibition, in the facts

of the case forbidding the appellant from

moving outside his home, the hallmark of

custody described in the case of incarceration

is equally present. Personal liberty perhaps

is the most important of all values recognized

as such under the constitution. It is to be

jealously guarded from any encroachment, save

where such intrusion has the clear sanction of

law. The expression “procedure established by

law” has received an expansive and liberal

exposition in decisions of this Court

commencing from Maneka Gandhi(supra). Right to

personal liberty is the birth right of every

human being. The right under Article 21 is

undoubtedly available to citizens and non-

citizens. While personal liberty is a wide

expression capable of encompassing within its

98
fold, many elements apart from the right to be

protected against the deprivation of liberty in

the sense of the freedom from all kinds of

restraints imposed on a person, the irreducible

core of personal liberty, undoubtedly, consist

of the freedom against compelled living in

forced custody.

52. Here we bear in mind the concept of

negative liberty. In the celebrated lecture,

“Two Concepts of Liberty” by Isaiah Berlin, he

states as follows, inter alia:-

“The notion of ‘negative’ freedom
I am normally said to be free to
the degree to which no human being
interferes with my activity.

Political liberty in this sense is
simply the area within which a man
can do what he wants. If I am
prevented by other persons from
doing what I want I am to that
degree unfree; and if the area
within which I can do what I want
is contracted by other men beyond a
certain minimum, I can be described
as being coerced, or, it may be,
enslaved. Coercion of not,

99
however, a term that covers every
form of inability. If I say that I
am unable to jump more than 10 feet
in the air, or cannot read because
I am blind or cannot understand the
darker pages of Hegel, it would be
eccentric to say that I am to that
degree enslaved or coerced.

Coercion implies the deliberate
interference of other human beings
within the area in which I wish to
act. You lack political liberty or
freedom only if you are prevented
from attaining your goal by human
beings. Mere incapacity to attain
your goal is not lack of political
freedom. This is brought out by
the use of such modern expressions
as ‘economic freedom’ and its
counterpart, ‘economic slavery’.
It is argued, very plausibly, that
if a man is too poor to afford
something on which there is no
legal ban- a loaf of bread, a
journey round the world, recourse
to the law courts- he is as little
free to have it as he would be if
it were forbidden him by law. If
my poverty were a kind of disease,
which prevented me from buying
bread or paying for the journey
round the world, or getting my case
heard, as lameness prevents me from
running, this inability would not
naturally be described as a lack of
freedom at all, least of all
political freedom. It is only
because I believe that my inability

100
to get what I want is due to the
fact that other human beings have
made arrangements whereby I am,
whereas others are not, prevented
from having enough money with which
to pay for it, that I think myself
a victim of coercion or slavery.
In other words, this use of the
term depends on a particular social
and economic theory about the
causes of my poverty or weakness.

If my lack of means is due to my
lack of mental or physical
capacity, then I begin to speak of
being deprived of freedom (and not
simply of poverty) only if I accept
the theory. If, in addition, I
believe that I am being kept in
want by a definite arrangement
which I consider unjust or unfair,
I speak of economic slavery or
oppression. ‘The nature of things
does not madden us, only ill will
does’, said Rousseau. The
criterion of oppression is the part
that I believe to be played by
other human beings, directly or
indirectly, in frustrating my
wishes. By being free in this
sense I mean not being interfered
with by others. The wider the area
of non-interference the wider my
freedom.”

53. In fact, personal liberty is interlinked

with the right to life itself. It is an

101
inseparable part without which the right to

life itself is deprived of its content and

meaning. The right to life and personal

liberty is essentially also based on the

principle that men in regard to fundamental

rights be treated equal and that no man or a

group of men, even organized as a state under

which he lives can deprive him except without

infringing the right to be treated equally

unless there is a legitimate sanction of law.

Personal liberty of its members must continue

to remain the most cherished goal of any

civilized state and its interference with the

same must be confined to those cases where it

is sanctioned by the law and genuinely needed.

The court would lean in favour of upholding

this precious, inalienable and immutable value.

54. We have noticed that in the United States

ordinarily, house arrest follows a conviction

102
and is a choice which is available to the

Courts to send a person to house arrest which

is in lieu of a jail sentence.

55. We will use this opportunity to echo the

argument of Sh. Kapil Sibal, learned senior

counsel for the appellant that no Court even if

it is the High Court has any inherent power to

deprive any person of his personal liberty by

placing him under house arrest. Placing a

person in custody depriving him of his rights

which would include his fundamental rights as

he would stand deprived of on giving effect to

the term of house arrest, would amount to a

completely illegal exercise, were it not for

the fact that the High Court must be treated as

having exercised powers available to a Judge

under Section 167 of the Cr.P.C. Thus, runs the

argument.

103
THE REMEDIES OPEN TO AN ACCUSED IN THE
CASE OF REMAND UNDER SECTION 167 OF THE
CR.P.C.

56. In State rep. by Inspector of Police and

others vs. N.M.T. Joy Immaculate9, a bench of 3

learned judges considered the question of

maintainability of a revision under Section 397

of the Cr.P.C. against an order of remand. We

notice para 13 which reads as follows:

“(13) Section 167 Cr.PC. empowers a
Judicial Magistrate to authorise
the detention of an accused in the
custody of police. Section 209
Cr.P.C. confers power upon a
Magistrate to remand an accused to
custody until the case has been
committed to the Court of Session
and also until the conclusion of
the trial. Section 309 Cr.PC.

confers power upon a court to
remand an accused to custody after
taking cognisance of an offence or
during commencement of trial when
it finds it necessary to adjourn
the enquiry or trial. The order of
remand has no bearing on the
proceedings of the trial itself nor
can it have any effect on the
ultimate decision of the case. If

9 (2004) 5 SCC 729
104
an order of remand is found to be
illegal, it cannot result in
acquittal of the accused or in
termination of proceedings. A
remand order cannot affect the
progress of the trial or its
decision in any manner. Therefore,
applying the test laid down in
Madhu Limaye case [(1977) 4 SCC 551
: 1978 SCC (Cri) 10 : AIR 1978 SC
47] it cannot be categorised even
as an “intermediate order”. The
order is, therefore, a pure and
simple interlocutory order and in
view of the bar created by sub-
section (2) of Section 397 Cr.P.C,
a revision against the said order
is not maintainable. The High
Court, therefore, erred in
entertaining the revision against
the order dated 6-11-2001 of the
Metropolitan Magistrate granting
police custody of the accused Joy
Immaculate for one day.”

57. Thus, an order under Section 167 is purely

an interlocutory order. No revision is

maintainable. A petition under Section 482

cannot be ruled out. Now at this juncture we

must notice the following dimension. When a

person arrested in a non-bailable offence is in

105
custody, subject to the restrictions, contained

therein, a court other than High Court or Court

of Session, before whom he is brought inter

alia, can release him on bail under Section 437

of the Cr.P.C. Section 439 of the Cr.P.C. deals

with special powers of High Court and court of

session to grant bail to a person in custody.

The said courts may also set aside or modify

any condition in an order by a Magistrate.

58. In Central Bureau of Investigation, Special

Investigation Cell v. Anupam J. Kulkarni10, we

may notice the following statement: –

“Now coming to the object and scope
of Section 167 it is well-settled
that it is supplementary to Section

57. It is clear from Section 57
that the investigation should be
completed in the first instance
within 24 hours; if not the
arrested person should be brought
by the police before a Magistrate
as provided under Section 167. The
law does not authorise a police
officer to detain an arrested
person for more than 24 hours
exclusive of the time necessary for

10 (1992) 3 SCC 141
106
the journey from the place of
arrest to the Magistrate court.
Sub-section (1) of Section 167
covers all this procedure and also
lays down that the police officer
while forwarding the accused to the
nearest Magistrate should also
transmit a copy of the entries in
the diary relating to the case. The
entries in the diary are meant to
afford to the Magistrate the
necessary information upon which he
can take the decision whether the
accused should be detained in the
custody further or not. It may be
noted even at this stage the
Magistrate can release him on bail
if an application is made and if he
is satisfied that there are no
grounds to remand him to custody
but if he is satisfied that further
remand is necessary then he should
act as provided under Section 167.”

59. Thus, ordinarily, when the court considers

a request for remand there would be an

application for bail. It is for the court to

grant bail failing which an order of remand

would follow.

60. No doubt, while the remand report is

considered by the Magistrate the application

107
for bail may be moved under Section 439 instead

of moving under Section 437 in view of the

restrictions contained therein. Though an

application under Section 397 would not lie

against the remand, as already noticed, an

application for bail would lie under Section

439. Therefore, ordinarily the accused would

seek bail and legality and the need for remand

would also be considered by the High Court or

court of session in an application under

Section 439. No doubt the additional

restrictions under section 43 (D) (5) of UAPA

are applicable to citizens of India in cases

under the said law.

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

61. A Habeas Corpus petition is one seeking

redress in the case of illegal detention. It is

intended to be a most expeditious remedy as

108
liberty is at stake. Whether a Habeas Corpus

petition lies when a person is remanded to

judicial custody or police custody is not res

integra. We may notice only two judgments of

this court. In Manubhai Ratilal Patel v. State

of Gujarat and others,11. We may notice

paragraph 24.

“(24) The act of directing remand
of an accused is fundamentally a
judicial function. The Magistrate
does not act in executive capacity
while ordering the detention of an
accused. While exercising this
judicial act, it is obligatory on
the part of the Magistrate to
satisfy himself whether the
materials placed before him justify
such a remand or, to put it
differently, whether there exist
reasonable grounds to commit the
accused to custody and extend his
remand. The purpose of remand as
postulated under Section 167 is
that investigation cannot be
completed within 24 hours. It
enables the Magistrate to see that
the remand is really necessary.
This requires the investigating
agency to send the case diary along

11 (2013) 1 SCC 314
109
with the remand report so that the
Magistrate can appreciate the
factual scenario and apply his mind
whether there is a warrant for
police remand or justification for
judicial remand or there is no need
for any remand at all. It is
obligatory on the part of the
Magistrate to apply his mind and
not to pass an order of remand
automatically or in a mechanical
manner.”

However, the Court also held as follows:

“31. It is well-accepted principle
that a writ of habeas corpus is not
to be entertained when a person is
committed to judicial custody or
police custody by the competent
court by an order which prima facie
does not appear to be without
jurisdiction or passed in an
absolutely mechanical manner or
wholly illegal. As has been stated
in B. Ramachandra Rao [(1972) 3 SCC
256 : 1972 SCC (Cri) 481 : AIR 1971
SC 2197] and Kanu Sanyal [(1974) 4
SCC 141 : 1974 SCC (Cri) 280] , the
court is required to scrutinise the
legality or otherwise of the order
of detention which has been passed.

Unless the court is satisfied that
a person has been committed to jail
custody by virtue of an order that
suffers from the vice of lack of
jurisdiction or absolute
110
illegality, a writ of habeas corpus
cannot be granted.”

62. One of us (U.U. Lalit, J.) speaking for a

Bench of two, followed the aforesaid line of

thought in the decision of Serious Fraud

Investigation Office and Ors. vs. Rahul Modi

and Ors.12 and held as follows:

“(21) The act of directing remand
of an accused is thus held to be a
judicial function and the challenge
to the order of remand is not to be
entertained in a habeas corpus
petition.”

We may also notice paragraph 19 from the same

judgment.

“(19) The law is thus clear that “in
habeas corpus proceedings a court is to
have regard to the legality or
otherwise of the detention at the time
of the return and not with reference to
the institution of the proceedings”.

63. Thus, we would hold as follows:

12 (2019) 5 SCC 266
111
If the remand is absolutely illegal or the

remand is afflicted with the vice of lack

of jurisdiction, a Habeas Corpus petition

would indeed lie. Equally, if an order of

remand is passed in an absolutely

mechanical manner, the person affected can

seek the remedy of Habeas Corpus. Barring

such situations, a Habeas Corpus petition

will not lie.

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

64. One of the contentions raised is that the

order passed by the High Court of Delhi, is not

one passed under Section 167 of the Cr.P.C.,

for the reason that what the Cr.P.C.

contemplates is an order passed by a

Magistrate. It, therefore, becomes necessary

to consider whether a Court other than a

112
Magistrate can order remand under Section 167.

In the first place, going by the words used in

Section 167, what is contemplated is that

Magistrate orders remand under Section 167(2).

65. Let us, however, delve a little more into

the issue. Let us take a case where a

Magistrate orders a remand under Section 167

and at the same time, he also rejects the

application for bail preferred by the accused.

The accused approaches the High Court under

Section 439 of the Cr.P.C. The court reverses

the order and grants him bail. The accused who

was sent to custody means police custody or

judicial custody is brought out of his custody

and is released on bail pursuing to the order

of the High Court. This order is challenged

before the Apex Court. The Apex Court reverses

the order granting bail. The original order

passed by the Magistrate is revived. It is

113
apparent that the accused goes back to custody.

Since assuming that the period of 15 days is

over and police custody is not permissible, he

is sent back to judicial custody. Equally if he

was already in judicial custody, the order

granting judicial custody is revived. Let us

assume in the illustration that the accused was

in custody only for a period of 10 days and

after the order passed by this Court and the

accused who spent another 80 days, he

completes, in other words, a total period of

custody of 90 days adding the period of

custody, he suffered consequent upon the remand

by the Magistrate. That is by piecing up these

broken periods of custody, the statutory period

of 90 days entitling the accused to default

bail, is reached. Can it be said that the

order of this Court granting custody should not

be taken into consideration for calculating the

114
period of 90 days, upon completion of which the

accused can set up a case for default bail. We

would think that the mere fact is that it is

the Apex Court which exercised the power to

remand, which was wrongly appreciated by the

High Court in the illustration, would not

detract from the custody being authorized under

Section 167.

66. Let us take another example. After

ordering remand, initially for a period of 15

days of which 10 days is by way of police

custody and 5 days by way of judicial custody,

the Magistrate enlarges an accused on bail. The

High Court interferes with the order granting

bail on the basis that the bail ought not to

have been granted. Resultantly, the person who

on the basis of the order of bail, has come out

of jail custody, is put back into the judicial

custody or jail custody. The order is one

115
passed by the High Court. The order granting

custody by the High Court cannot be treated as

one which is not anchored in Section 167 of the

Cr.P.C. Therefore, we would think that though

the power is vested with the Magistrate to

order remand by way, of appropriate

jurisdiction exercised by the superior Courts,

(it would, in fact, include the Court of

Sessions acting under Section 439) the power

under Section 167 could also be exercised by

Courts which are superior to the Magistrate.

67. Therefore, while ordinarily, the Magistrate

is the original Court which would exercise

power to remand under Section 167, the exercise

of power by the superior Courts which would

result in custody being ordered ordinarily

(police or judicial custody) by the superior

Courts which includes the High Court, would

indeed be the custody for the purpose of

116
calculating the period within which the charge

sheet must be filed, failing with the accused

acquires the statutory right to default bail.

We have also noticed the observations of this

Court in AIR 1962 SC 1506 (supra). In such

circumstances broken periods of custody can be

counted whether custody is suffered by the

order of the Magistrate or superior courts, if

investigation remains incomplete after the

custody, whether continuous or broken periods

pieced together reaches the requisite period;

default bail becomes the right of the detained

person.

68. Equally when an order in bail application

is put in issue, orders passed resulting in

detaining the accused would if passed by a

superior court be under Section 167.

THE EFFECT OF TRANSIT ORDER? IS IT A
PRODUCTION ORDER THOUGH SOURCED UNDER
SECTION 167 CR.P.C.?

117

69. The Respondent contends that the transit

remand order is not a remand for detention

under Section 167 of the Cr.P.C. but only one

for production. Reliance is placed on Section

57. It is in other words, pointed out that

Section 57 contemplates that in the absence of

‘special order’ under Section 167, a person

arrested without warrant must be produced

withing 24 hours excluding the time taken for

journey from the place of arrest to the place

where the Magistrate is located. Therefore, if

a ‘special order’ under Section 167 is

obtained, it is for the purpose of extending

the time in Section 57 for production of the

arrestee.

70. Per contra, Appellant contends that Section

167 specially covers cases where a judicial

Magistrate who has no jurisdiction to try a

118
case, can order a remand. There is no other

provision for ordering transit remand.

71. In this case the transit remand was ordered

on 28.08.2018. The Appellant was to be produced

under the same on 30.08.2018 before the

Magistrate in Pune. A person may be arrested by

a police officer in any part of India (Section

48 of Cr.P.C.). Under Section 56 the person

arrested without warrant is to be sent before

the Magistrate having jurisdiction or before

the officer in charge of a police station. It

is thereafter, that Section 57 forbids the

person so arrested:

i. from being detained for a period more

than what is reasonable.

ii. from being detained beyond 24 hours

from the time of arrest, excluding the

time necessary for the journey from the

place of arrest to the Magistrate

Court.

119

72. Now, the ‘Magistrate Court’ referred to in

Section 57 is the Magistrate competent to try

the case. Section 57 contains the peremptory

limit of 24 hours exclusive of the period for

journey, in the absence of ‘special order’

under Section 167.

73. The words ‘special order’ is not found in

Section 167 of the Cr.P.C. Therefore, could it

not be said that but for Section 57 permitting

the Magistrate to allowing time by passing an

order under Section 167, detention in violation

of Section 57 would be rendered illegal? What

is the nature of the custody on the basis of

the special order under Section 167 referred to

in Section 57? Is it police custody or is it

judicial custody? Is it any other custody? Will

the period of remand for statutory bail begin

from the date of this ‘special order’? Will it

120
begin only when the competent Magistrate orders

remand?

74. Now as far as this case is concerned, we

notice findings of the High Court of Delhi as

follows: (para 11 and para 15)

“(11) Mr. Navare next tried to draw
a distinction between the scope of
the function of a Magistrate before
whom an application for transit
remand is moved and the
jurisdictional Magistrate who
should be approached for an order
of remand in terms of Section 56 of
the Cr.P.C. According to Mr.
Navare, at the stage of transit
remand the concerned Magistrate
would not be required to satisfy
himself anything more than whether
an offence is made out and whether
the Police Officer seeking the
remand is in fact the one
authorized to do so.”
“(15) Therefore, when a person who
after arrest is required to be
produced before a jurisdiction
Judicial Magistrate is detained in
a place which is away from that
jurisdiction, and therefore cannot
be produced before the
jurisdictional Magistrate within 24
hours, as mandated both by Article
22(2)
of the Constitution and by

121
Section 57 Cr.P.C., he will be
produced before the ‘nearest
Judicial Magistrate’ together with
‘a copy of the entries in the
diary’. Therefore, even before a
Magistrate before whom a transit
remand application is filed, the
mandatory requirement of Section
167
(1) Cr.P.C. is that a copy of
the entries in the case diary
should also be produced. It is on
that basis that under Section 167
(2) such ‘nearest Judicial
Magistrate’ will pass an order
authorising the detention of the
person arrested for a term not
exceeding 15 days in the whole.
Where he has no jurisdiction to try
the case and he finds further
detention unnecessary, he may order
the accused to be forwarded to the
jurisdictional Magistrate.”

75. In fact, as already noticed the submission

of the State of Maharashtra was also that once

a person was in judicial custody a writ of

habeas corpus would not lie which also was

rejected.

76. Now, the question may persist as to whether

the remand pursuant to a transit remand is to

police custody or judicial custody. It cannot
122
be judicial custody as the police is

exclusively entrusted with the man no doubt to

produce him before the Magistrate having

jurisdiction. It is therefore, police custody.

Could the police be engaged in questioning/

investigating the case by interrogating the

accused on the basis of the transit order

either before, embarking on the journey or

during the course of the journey and after the

journey before producing him? If it is thought

that during the journey it is impermissible,

then such interrogation would equally be

impermissible during the time of journey

permitted without obtaining an order under

Section 167. If also during such journey the

accused volunteers with a statement otherwise

falling under Section 27 of Evidence Act, it

would be one when the accused is in the custody

of the police. If it is police custody then,

123
the order of the Magistrate granting transit

remand would set the clock ticking in terms of

(1986) 3 SCC 141 to complete the period for the

purpose of default bail.

77. We may also notice that the interplay of

Section 57 and 167 was considered in the

judgment of this Court in Chaganti

Satyanarayana (supra). It was held as follows:

“(12) On a reading of the sub-
sections (1) and (2) it may be seen
that sub-section (1) is a mandatory
provision governing what a police
officer should do when a person is
arrested and detained in custody
and it appears that the
investigation cannot be completed
withing the period of 24 hours
fixed by Section 57. Sub-section
(2) on the other hand pertains to
the powers of remand available to a
Magistrate and the manner in which
such powers should be exercised.
The terms of sub-section (1) of
Section 167 have to be read in
conjunction with Section 57.

Section 57 interdicts a police
officer from keeping in custody a
person without warrant for a longer
period than 24 hours without

124
production before a Magistrate,
subject to the exception that the
time taken for performing the
journey from the place of arrest to
the magistrate’s court can be
excluded from the prescribed period
of 24 hours. Since sub-section (1)
provides that if the investigation
cannot be completed within the
period of 24 hours fixed by Section
57
the accused has to be forwarded
to the magistrate along with the
entries in the diary, it follows
that a police officer is entitled
to keep an arrested person in
custody for a maximum period of 24
hours for purposes of
investigation. The resultant
position is that the initial period
of custody of an arrested person
till he is produced before a
Magistrate is neither referable to
nor in pursuance of an order of
remand passed by a magistrate. In
fact the powers of remand given to
a magistrate become exercisable
only after an accused is produced
before him in terms of sub-section
(1) of Section 167.”
“(13) Keeping proviso (a) out of
mind for some time let us look at
the wording of sub-section (2) of
Section 167. This sub-section
empowers the magistrate before whom
an accused is produced for purpose
of remand, whether he has
jurisdiction or not to try the
case, to order the detention of the
125
accused, either in police custody
or in judicial custody, for a term
not exceeding 15 days in the
whole.”

78. We would hold that the remand order be it a

transit remand order is one which is passed

under Section 167 of the Cr.P.C. and though it

may be for the production of the Appellant, it

involved authorising continued detention within

the meaning of Section 167.

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

79. Section 428 of the Code of Criminal

Procedure reads as follows:-

“(428) Period of detention
undergone by the accused to be set-

      off    against    the     sentence   of
      imprisonment.—Where       an    accused

person has, on conviction, been
sentenced to imprisonment for a
term [, not being imprisonment in
default of payment of fine,] the
period of detention, if any,
undergone by him during the
investigation, inquiry or trial of
the same case and before the date
of such conviction, shall be set

126
off against the term of
imprisonment imposed on him on such
conviction, and the liability of
such person to undergo imprisonment
on such conviction shall be
restricted to the remainder, if
any, of the term of imprisonment
imposed on him:

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

80. If house arrest as ordered in this case is

to be treated as custody within the meaning of

section 167 of the Cr.P.C. would it not entail

the period of house arrest being treated as

part of the detention within the meaning of

Section 428 in case there is a conviction

followed by a sentence?

81. Do the provisions of Section 428 throw

light on the issues which we are called upon to

decide?

82. Section 428 enables a person convicted to

have the period of detention which he has

127
undergone during the investigation, enquiry or

trial set off against the term of imprisonment.

83. In this context, we may notice the judgment

of this court reported in Govt. of Andhra

Pradesh and another etc. v. Anne Venkateswara

Rao etc. etc.13 . In the said case the

Appellant in one of the appeals had been

detained under the Preventive Detention Act on

18.12.1969. He was produced before the

Magistrate sometime in April, 1970 in

connection with certain offences after he had

been released from preventive detention. He was

later convicted. This Court while dealing with

the contention that the benefit of provisions

of Section 428 must ennure to the Appellant

held:-

“The argument is that the
expression period of detention in
Section 428 includes detention
under the Preventive Detention Act

13AIR 1977 SC 1096
128
or the Maintenance of Internal
Security Act. It is true that the
section speaks of the ‘period of
detention’ undergone by an accused
person, but it expressly says that
the detention mentioned refers to
the detention during the
investigation, enquiry or trial of
the case in which the accused
person has been convicted. The
section makes it clear that the
period of detention which it allows
to be set off against the term of
imprisonment imposed on the accused
on conviction must be during the
investigation, enquiry or trial in
connection with the ‘same case’ in
which he has been convicted. We
therefore agree with the High Court
that the period during which the
writ petitioners were in preventive
detention cannot be set off under
Section 428 against the term of
imprisonment imposed on them.”

84. We may also notice that in Ajmer Singh and

others v. Union of India and others14 dealing

with the question as to whether the benefit of

Section 428 of the Cr.PC. was available to a

person convicted and sentenced by court martial

14AIR 1987 SC 1646
129
under the Army Act inter alia, this court took

the view that the benefit is not available.

The Court held: –

“(12) The section provides for set-
off of the period of detention
undergone by an accused person
during the ‘investigation, inquiry
or trial’ of the same case before
the date of conviction. The
expression ‘investigation’ has been
defined in Section 2 (h) of the
Code
as follows:-

‘2(h) ‘investigation’ includes all
the proceedings under this Code for
the collection of evidence
conducted by a police officer or by
any person (other than a
Magistrate) who is authorised by a
Magistrate in this behalf’. In the
case of persons tried by Courts-
Martial there is no investigation
conducted by any police officer
under the Code or by any person
authorised by Magistrate in that
behalf.”

85. There is a scheme which is unravelled by

the Code regarding detention of an accused. The

starting point appears to be the arrest and

detention of the person in connection with the

130
cognizable offence by a police officer without

a warrant. He can detain him and question him

in the course of the investigation. However,

the officer cannot detain the accused beyond 24

hours excluding the time taken for the journey

from the place of arrest to the place where the

Magistrate who is competent to try the case

sits. If he cannot so produce the accused and

the investigation is incomplete, the officer is

duty bound to produce the arrested person

before the nearest Magistrate. The nearest

Magistrate may or may not have jurisdiction. He

may order the continued detention of the

arrested person based on the request for

remand. He would largely rely on the entries in

the case diary and on being satisfied of the

need for such remand which must be manifested

by reasons. The Magistrate can order police

custody during the first 15 days (in cases

131
under UAPA, the first 30 days). Beyond such

period, the Magistrate may direct detention

which is described as judicial custody or such

other custody as he may think fit. It is, no

doubt, open to a Magistrate to refuse police

custody completely during the first 15 days. He

may give police custody during the first 15

days not in one go but in instalments. It is

also open to the Magistrate to release the

arrested person on bail.

86. The arrested person if detained during the

period of investigation can count this period,

if he is ultimately charged, tried and

convicted by virtue of the provisions of

Section 428 of Cr.P.C. We are not concerned

with custody of the accused during the period

of an inquiry or trial which is a matter

governed essentially by Section 309 of the

Cr.P.C. In this context, it must be remembered

132
that it is not every detention which can be

relied upon to get the benefit of set-off under

Section 428. A period spent under an order of

preventive detention being not in connection

with the investigation into an offence cannot

be counted. (See AIR 1977 SC 1096)

87. Detention pursuant to proceedings under the

Army Act inter alia does not count. (See AIR

1987 SC 1646)

88. Thus, detention ‘during investigation’

under Section 428 is integrally connected with

detention as ordered under Section 167.

89. The scheme further under Section 167 is

that custody (detention/ custody) as authorized

under such provisions, if it exceeds the limit

as to maximum period without the charge sheet

being filed, entitles the person in detention

to be released on default bail. In fact, the

person may on account of his inability to offer

the bail languish in custody but he would

133
undoubtedly be entitled to count the entire

period he has spent in detention under orders

of the Magistrate/ Superior Court exercising

powers under Section 167 for the purpose of set

off under Section 428.

EFFECT OF ILLEGALITY IN THE ORDER UNDER
SECTION 167 CR.PC.

90. Now, it is necessary to make one aspect

clear. An order purports to remand a person

under Section 167. It is made without complying

with mandatory requirements thereunder. It

results in actual custody. The period of

custody will count towards default bail.

Section 167(3) mandates reasons be recorded if

police custody is ordered. There has to be

application of mind. If there is complete non-

application of mind or reasons are not

recorded, while it may render the exercise

illegal and liable to be interfered with, the

actual detention undergone under the order,

134
will certainly count towards default bail.

Likewise, unlike the previous Code (1898), the

present Code mandates the production of the

accused before the Magistrate as provided in

clause (b) of the proviso to Section 167 (2).

Custody ordered without complying with the said

provision, may be illegal. But actual custody

undergone will again count towards default

bail.

91. Take another example. The Magistrate gives

police custody for 15 days but after the first

15 days, (Not in a case covered by UAPA). It is

not challenged. Actual custody is undergone.

Will it not count? Undoubtedly, it will. The

power was illegally exercised but is

nonetheless purportedly under Section 167. What

matters is ‘detention’ suffered. The view taken

in the impugned judgment that sans any valid

authorisation/ order of the Magistrate

135
detaining the Appellant there cannot be custody

for the purpose of Section 167 does not appear

to us to be correct. The finding that if any

illegality afflicts the authorisation, it will

render the ‘detention’ not authorised is

inconsistent with our conclusion as aforesaid.

92. Therefore, if the Court purports to invoke

and act under Section 167, the detention will

qualify even if there is illegality in the

passing of the order. What matter in such cases

is the actual custody.

93. However, when the Court does not purport to

act under Section 167, then the detention

involved pursuant to the order of the Court

cannot qualify as detention under Section 167.

JUDICIAL CUSTODY AND POLICE CUSTODY

94. Now, we must squarely deal with the

question as to whether house arrest as ordered

by the High Court amounts to custody within the
136
meaning of Section 167 of the Cr.P.C.

Undoubtedly custody in the said provision is

understood as ordinarily meaning police custody

and judicial custody. The period of custody

begins not from the time of arrest but from

time the accused is first remanded (1986 (3)

SCC 141). Police custody can, in a case falling

under the Cr.P.C. (not under the UAPA), be

given only during the first 15 days ((1992) 3

SCC 141). During the first 15 days no doubt the

Court may order judicial custody or police

custody. No doubt the last proviso to Section

167 (2) provides that detention of a woman

under eighteen years of age, the detention

shall be authorised to be in the custody of a

remand home or recognised social institution.

95. What is the distinction between police

custody and judicial custody? When a person is

remanded to police custody, he passes into the

137
exclusive custody of the police officers.

‘Custodial Interrogation’ as is indispensable

to unearth the truth in a given case is the

substantial premise for such custody. The

Magistrate must undoubtedly be convinced about

the need for remand to such custody. Reasons

must be recorded. Judicial custody is

ordinarily custody in a jail. It is referred to

also as jail custody. Thus, jail custody and

judicial custody are the same. The jails come

under the Department of Jails and staffed by

the employees of the said department. The

person in jail custody is therefore indirectly,

through the jail authorities, under the custody

of the Court. The police officer does not have

access to a person in judicial custody as he

would have in the case of a person in police

custody. Unless permission is sought and

obtained which would apparently be subject to

138
such conditions as a court places the person in

judicial custody cannot be questioned by the

police officers. Now in a case, ordinarily,

instead of ordering a remand a person can be

released on bail. As to whether a case is made

out is a question to be decided in the facts of

each case. There may be restrictions put in

regard to the grant of bail by law which must

be observed. But if bail is not granted then a

person arrested by the police in connection

with the cognizable offence must be remanded to

custody. This is inevitable from the reading of

Section 167 of the Cr.P.C.

96. In re. M.R. Venkataraman and Others15, a

petition was filed seeking a writ of Habeas

Corpus inter alia on the ground that the

petitioners were remanded to a central jail of

a district which was other than the one in

15 AIR 1948 Mad 100
139
which there were being tried. The court inter

alia held as follows:-

“On the first point, it seems to us
that no illegality or irregularity
was committed. Section (167)
empowers a Magistrate having
jurisdiction to remand a prisoner
to such custody as he thinks fit.
Section 344 does not use the words
“as he thinks fit” with regard to
the order of remand; but there is
nothing in the section which
suggests that after a charge-sheet
has been filed, the Magistrate has
not the same freedom with regard to
the custody to which he commits the
accused as he had before a charge-

sheet was filed. The learned
Advocate for the petitioners has
referred to the wording of Section
29
of the Prisoners’ Act, as
indicating that the only person who
can transfer a prisoner from one
Jail to another within the same
province is the Inspector-General
of Prisons; but by its very wording
Section 29 of the Prisoners’ Act
does not apply to an under-trial
prisoner; nor are we dealing with a
transfer of a prisoner. Whenever an
accused is brought before the Court
and the Court issues an order of
remand, the Magistrate has complete
freedom, as far as we can see, to
remand the accused to whatever
custody he thinks fit.”

140
[Emphasis
supplied]

97. The concept of house arrest though familiar

in the law relating to preventive detention,

therein the underpinnings are different. House

arrest in the law of preventive detention is

one which is permitted under the law itself and

such orders are made in fact by the executive.

Also, detention under Section (167) would not

embrace preventive detention in the form of

house arrest as noticed by us in the discussion

relating to impact of Section 428 of Cr.P.C.

98. However, taking the ingredients of house

arrest as are present in the order passed by

the High Court of Delhi in its order dated

28.08.2018, if it is found to be one passed

under Section 167, then it would be detention

thereunder. The concept of house arrest as

ordered in this case with the complete

prohibition on stepping out of the Appellants

141
premises and the injunction against interacting

with persons other than ordinary residents, and

the standing of guard not to protect him but to

enforce the condition would place the Appellant

under judicial custody. Section 167 speaks of

‘such custody as it thinks fit’. If it is found

ordered under Section 167 it will count.

99. In the impugned judgment the High Court

reasons as follows to deny default bail:

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

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

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

(4) Pursuant to the declaration of
the detention as illegal, the
appellant was set at liberty.

It is not as if the appellant
was released on bail but after
being set at liberty, the

142
appellant is protected by an
order of this Court restraining
the investigating agency from
taking coercive steps during
the pendency of appellant’s
challenge to the FIR.

(5) The Hon’ble Supreme Court
having dismissed the challenge
of the appellant to quash FIR
granted 4 weeks protection with
liberty to seek pre arrest
bail/protection before the
Sessions Court. The Hon’ble
Supreme Court granted the
appellant time to surrender
after the appellant failed to
serve pre arrest bail. The
appellant ultimately
surrendered to NIA Delhi on
14/04/2020. Only after the
appellant surrendered, the
Magistrate authorised the
police custody whereupon the
appellant was interrogated.

It further held:

“The CMM granted transit remand on
28.08.2018. The High Court of
Delhi by an interim order having
stayed the transit remand and then
having finally set aside the order
of transit remand thereby holding
the detention during the period
28.08.2018 upto 01.10,2018 (period
of house arrest) as illegal, then,
in our opinion, in the absence of
143
there being an authorised detention
by an order of Magistrate, the
Appellant cannot claim entitlement
to statutory default bail under
Sub-Section (2) of Section 167 of
Cr.PC…”

It goes on to hold:

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

Finally, it holds:

“Resultantly, we hold that the
period from 28.08.2018 to
01.10.2018 has to be excluded from
computing the period of 90 days as
the said custody has been held to
be unsustainable in law by the High
Court of Delhi.”

144
DOES THE MAGISTRATE/ COURT CONSIDER THE
LEGALITY OF ARREST/ DETENTION WHILE ACTING
UNDER SECTION (167).

100. The High Court of Delhi in its judgment

dated 01.10.2018 has found that the order of

remand is illegal as there was violation of

Article 22(1). Article 22(1) creates a

fundamental right on a person arrested to be

not detained without being informed as soon as

may be of the grounds for such arrest. It also

declares it a fundamental right for the

detained person to consult and be defended by a

legal practitioner of his choice. Now,

detention follows arrest. What

Article 22(1) is concerned with is that the

detention must be supported by the fulfilment

of the rights referred to therein. Strictly

speaking, therefore, Article 22(1) does not go

to the legality of the arrest.

145

101. Now, as far as the non-fulfilment of

the conditions under Article 22(1) and the duty

of a Magistrate exercising power to remand, we

notice the judgment of this Court rendered by a

Bench of three learned Judges in The matter

of: Madhu Limaye and Others;16. Therein, the

petitioners were arrested apparently for

offence under Section 188 of the IPC which was

non-cognizable. The officer did not give the

arrested persons the reasons for their arrest

or information about the offences for which

they had been taken into custody. this was a

case where the Magistrate offered to release

the petitioners on bail but on the petitioners

refusing to furnish bail, the Magistrate

remanded them to custody. The proceeding before

this Court was under Article 32. It was in

fact, initiated on a letter complaining that

the arrest and detention were illegal. It was
16(1969)1 SCC 292
146
contended that the arrests were illegal as they

were arrested for offences which were non-

cognizable. In fact, it was found that the

arrest were effected without specific order of

Magistrate. It was also contended that Article

22(1) was violated. What is relevant is the

following discussion:-

“12. Once it is shown that the
arrests made by the police
officers were illegal, it was
necessary for the State to
establish that at the stage of
remand the Magistrate directed
detention in jail custody after
applying his mind to all relevant
matters. This the State has
failed to do. The remand orders
are patently routine and appear
to have been made mechanically.

All that Mr Chagla has said is
that if the arrested persons
wanted to challenge their
legality the High Court should
have been moved under appropriate
provisions of the Criminal
Procedure Code
. But it must be
remembered that Madhu Limaye and
others have, by moving this Court
under Article 32 of the
Constitution, complained of
detention or confinement in jail
147
without compliance with the
constitutional and legal
provisions. If their detention in
custody could not continue after
their arrest because of the
violation of Article 22(1) of the
Constitution they were entitled
to be released forthwith. The
orders of remand are not such as
would cure the constitutional
infirmities. This disposes of the
third contention of Madhu
Limaye.”

102. We may further notice that in In Arnesh

Kumar vs. State of Bihar and Another;17, this

Court taking note of indiscriminate arrests

issued certain directions. We may notice: –

“8.2. Before a Magistrate
authorises detention under Section
167
CrPC, he has to be first
satisfied that the arrest made is
legal and in accordance with law
and all the constitutional rights
of the person arrested are
satisfied. If the arrest effected
by the police officer does not
satisfy the requirements of Section
41
of the Code, Magistrate is duty-
bound not to authorise his further
detention and release the accused.
In other words, when an accused is

17 (2014) 8 SCC 273
148
produced before the Magistrate, the
police officer effecting the arrest
is required to furnish to the
Magistrate, the facts, reasons and
its conclusions for arrest and the
Magistrate in turn is to be
satisfied that the condition
precedent for arrest under Section
41
CrPC has been satisfied and it
is only thereafter that he will
authorise the detention of an
accused.

8.3. The Magistrate before
authorising detention will record
his own satisfaction, may be in
brief but the said satisfaction
must reflect from his order. It
shall never be based upon the ipse
dixit of the police officer, for
example, in case the police officer
considers the arrest necessary to
prevent such person from committing
any further offence or for proper
investigation of the case or for
preventing an accused from
tampering with evidence or making
inducement, etc. the police officer
shall furnish to the Magistrate the
facts, the reasons and materials on
the basis of which the police
officer had reached its conclusion.
Those shall be perused by the
Magistrate while authorising the
detention and only after recording
his satisfaction in writing that
the Magistrate will authorise the
detention of the accused.”

149

103. In terms of paragraph 8.2, it is clear

that if the arrest does not satisfy the

requirements of Section 41, the Magistrate is

duty bound not to authorize further detention.

The Magistrate is to be satisfied that the

condition precedent for arrest under Section 41

of the CrPC has being satisfied. He must also

be satisfied that all the constitutional rights

of the person arrested are satisfied.

Therefore, it is not as if an arrest becomes a

fait accompli, however, illegal it may be, and

the Magistrate mechanically and routinely

orders remand. On the other hand, the

Magistrate is to be alive to the need to

preserve the liberty of the accused guaranteed

under law even in the matter of arrest and

detention before he orders remand. This is no

doubt apart from being satisfied about the

continued need to detain the accused.

150
CUSTODY UNDERGONE UNDER ORDERS OF
SUPERIOR COURTS IN HABEAS CORPUS
PETITIONS. IS THE CR.P.C APPLICABLE TO WRIT
PETITIONS?

104. We have noticed that there is no

absolute taboo against an order of remand being

challenged in a habeas corpus petition. Should

the remand be absolutely illegal or be

afflicted with vice of lack of jurisdiction

such a writ would lie? If it is established in

a case that the order of remand is passed in an

absolutely mechanical manner again it would

lie. Now in such cases the person would be in

custody pursuant to the remand ordinarily. What

would be the position if the writ court were to

modify the order of remand passed by the

magistrate. Take a case where police custody is

ordered by the Magistrate. By an interim order

of the High court let us take it the High Court

provides for judicial custody. It is done after

the accused undergoes police custody for 5
151
days. Finally, the writ petition is however

dismissed. What would happen to the period of

judicial custody? Will it be excluded from the

period undergone for the purpose of grant of

default bail? Another pertinent question which

arises is whether Section 167 of the Cr.P.C. is

applicable in writ proceedings. If a writ

petition is not a criminal proceeding, Will

Section 167 apply or does the provision apply

only to the proceedings which arise under the

Code? In the example, we have given if we hold

that irrespective of facts which otherwise

justified including the period of jail custody

as part of the custody under one Section 167,

it will not be reckoned it may produce

anomalous and unjust results. We expatiate as

follows:

In the example we have given the High Court

does not stay the investigation. The petitioner who

152
has been in police custody is made over to

judicial custody by the interim order of the

High Court. The High Court also applies its

mind and finds that no case is made out at any

rate for continuing the writ petitioner in

police custody and then passes the order to

continue the petitioner in judicial custody.

Finally, the writ petition is dismissed. In

such a case where there is no stay of

investigation and in fact even the police

custody was obtained and thereafter the High

Court after looking into the records also find

that the petitioner should only be continued in

the modified form of remand, the custody, which

is undergone under an order of the court being

also ‘during the investigation’ which the

investigation is also not stayed, ought to be

counted.

153

105. Now though the Cr.P.C. will not apply

to a writ petition, what is required to include

custody under Section 167 is that the detention

brought about by the court ordering it during

the investigation into an offence. It is a

matter which will turn on the facts.

106. The crucial question to be answered is

whether the High Court of Delhi was exercising

power under Section 167 when it ordered house

arrest. The proceeding in the High Court was a

writ petition. At the time when the writ

petition was filed, the relief sought was that

a writ of Habeas Corpus be issued to set him at

liberty. The further relief sought was that the

Appellant may not be arrested without prior

notice to enable him to seek appropriate

remedies. As far as the prayer that the

Appellant may not be arrested is concerned, it

is a relief which does not go hand in hand with

154
Section 167 of the Cr.P.C. This is for the

reason that the power under Section 167 is

invoked only after there has been an arrest and

what is sought is the extension of the

detention of the person arrested.

107. Though, this was the position when the

writ petition was filed, by the time, the writ

petition came up for consideration at 2:45 p.m.

on 28.08.2018, the Appellant stood arrested at

2:15 p.m. The Court initially at 2:45 p.m.

passed the following order: –

“4. When the matter was taken up
at 2:25 pm yesterday, Mr. Rahul
Mehra, learned Standing Counsel
(Criminal) for the State of NCT
of Delhi appeared. The Court then
passed the following order at
around 2:45 pm:

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

155

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

3. The Court is informed by Ms.
Nitya Ramakrishnan, learned
counsel appearing for the
Petitioner, that her information
is that the Petitioner is just
being taken away from his house.
No further precipitate action of
removing the Petitioner from
Delhi be taken till the matter is
taken up again at 4 pm.”
[This is taken from order dated 29.08.2018
extracted in the judgment.]

108. It would appear, in the meantime, the

appellant was produced before the Magistrate

who passed the transit remand order. Thereafter

when the matter was taken up for consideration

at 4:00 p.m. and on noticing the transit

remand, order, dated 28.08.2018, inter alia,

ordering house arrest came to be passed.

Therefore, at the time (4PM) when the order was

passed, the Court was dealing with the matter

156
when the Appellant stood arrested and also

remanded by way of the transit remand order.

109. One way to look at the matter is to

remind ourselves of the contents of the order

dated 28.08.2018. In the said order, we notice

the following portion which we recapture at

this juncture: –

“The Court is also shown the
documents produced before the
learned CMM most of which
(including FIR No. 4 of 2018
registered at Police Station,
Vishrambagh, Pune) are in Marathi
language and only the application
filed for transit remand before
the learned CMM is in Hindi.
However, it is not possible to
make out from these documents
what precisely the case against
the Petitioner is.”

110. The Court further proceeded to direct

that the translations of all the documents be

provided to the Court on the next date

(29.8.2018).

157

111. Now, the direction to supply the

translation could not be complied with as is

the evident from the order dated 29.08.2018

(See para 6 of the said order) as reproduced in

the judgment.

112. Finally, we may notice paragraphs 18

and 19 of the order dated 29.08.2018 reproduced

in the judgment:-

“He is informed that the Supreme
Court has in the said petition
passed an interim order today
staying the transit remand
orders, including the one passed
by the CMM in respect of the
Petitioner, and has ordered that
all those who have been arrested
including the Petitioner shall
continue under house arrest.

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

158

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

113. On the next day i.e., on 30.08.2018,

the Court passed a further order. Therein, in

fact the order recites that the Court was in

the process of pronouncement an order on the

validity of the transit remand and consequently

on the validity of the arrest of the appellant.

It is further stated that the court was

informed by the counsel for the State of

Maharashtra that an interim order continuing

the house arrest of the appellant and some

other similarly situated had been passed. It is

specifically recorded that the dictation of the

order was then halted in order to peruse the

order passed by the Supreme Court. Thereafter,

it is stated that as the Supreme Court as per

the interim order extended the house arrest of

the appellant, the court did not consider it

159
appropriate to proceed with the matter. Orders

of the Supreme Court were awaited.

114. It was further adjourned. Thereafter,

this Court pronounced the judgment on

28.09.2018 and finally, the judgment was

pronounced on 01.10.2018 by the High Court. We

may also notice: – para 5

“5. This writ petition was listed
for hearing today at 2:15 pm
before this Court. It is noted
that the Supreme Court in para 7
of the majority judgment notes
that the Petitioner has filed the
present petition on 28th August
2018 “challenging the transit
remand order passed by the Chief
Metropolitan Magistrate (CMM) on
28th August 2018”. At this stage
it is required to be noted that
although when the writ petition
was originally filed the ground
of challenge was that the arrest
of the Petitioner was in
violation of Section 165 and 166
Cr PC, during the course of
arguments on 28th August 2018 in
light of the developments that
took place subsequent to the
filing of the petition, challenge
was laid to the remand order of

160
the learned CMM. It was further
contended that there had been a
violation of the mandatory
provision contained in Section
41(1)(ba) Cr PC.”

115. The Court went on to find that the writ

petition was maintainable as the writ petition

was entertained at a time when the transit

remand order had not been passed. The Court

finally proceeds to find violations of Articles

22(1) and 22(2)of the Constitution and Section

167 read with Section 57 and also Section 41(1)

(ba) of the Cr.P.C. The remand order is set

aside. The continued detention beyond 24 hours

of the arrest of the appellant, in the absence

of the remand order which stood set aside, was

found untenable. Consequently, the house arrest

of the appellant was pronounced as having “come

to an end as of now”.

116. We have already found that the superior

Courts including the High Court can exercise

161
power under Section 167. The finding of the

High Court in the impugned judgment appears to

proceed on the basis that only a Magistrate can

order remand, does not appear to be correct.

117. Undoubtedly, as pointed out by the

appellant, he came to be detained on the basis

of an arrest carried out by the police officer

from the State of Maharashtra in connection

with FIR No. 84 of 2018 disclosing the

commission of cognizable offences. The arrest

is apparently effected in view of the powers

available under Section 48 of the Cr.P.C.

Finding that an order under Section 167 was

required to produce the appellant before the

competent Court in Maharashtra, he produced the

appellant-in-person before the nearest

Magistrate in Delhi and the Magistrate passed

an order which we have found to be an order of

remand under Section 167. The High Court came

162
to be concerned with the validity of the remand

order and detention of the appellant. A writ of

habeas corpus does lie in certain exceptional

cases even by way of challenging the orders of

remand. If there is non-compliance with

Article 22(1) and the person is detained it is

an aspect which has to be borne in mind by the

Magistrate when ordering remand. Detention is

the result of an arrest. Article 22(1) applies

at this stage after arrest. If fundamental

rights are violated in the matter of continued

detention, the Magistrate is not expected to be

oblivious to it. It is in this sense that the

High Court has found violation of Article 22(1)

inter alia and the Magistrate over-looking it

as rendering the transit remand illegal. As far

as the arrest being made in violation of

Section 41(1)(ba), undoubtedly, it is a matter

which related to the legality of the arrest

163
itself which is the stage prior to detention.

The High Court finds that the Magistrate had

not applied his mind to the question as to

whether the arrest was in compliance with

Section 41 (1) (ba) of Cr.P.C.

118. This is unlike the decision in Madhu

Limaye(supra) where this court found that there

was a violation of Article 22(1) and even

during the course of arguments before this

court, it could not be explained to the court

as to why the arrested persons were not told of

the reasons for their arrest or of the offences

for which they had been taken into custody. In

the said case in fact one of the specific

issues was about the legality of the arrest

both on the ground that the offences being non

cognizable arrest which was illegally effected

by the police officer and also there was

violation of Article 22(1).

164
THE IMPACT OF THE NON-ACCESSIBILITY TO THE
APPELLANT FOR THE INVESTIGATING AGENCY
DURING HOUSE ARREST AND THE EFFECT OF THE
APPELLANT BEING IN POLICE CUSTODY FROM
14.4.2020 TO 25.4.2020.

119. This is the most serious contention

raised by the respondent to exclude the period

of house arrest. The contention is that having

regard to the nature of the proceedings in the

High Court of Delhi during the period of house

arrest, no investigation could be carried out.

The very purpose of custody under Section 167

is to enable the police to interrogate the

accused and if that opportunity is not present

then such period of custody as alleged would

not qualify for the purpose of Section 167. In

other words, the argument appears to be that

the object and scheme of Section 167 is that an

investigation is carried out with opportunity

to question the accused and still it is not

completed within the period of 90 days

165
whereupon right to default bail arises. By the

proceedings on 28.08.2018 when the petition was

filed, the High Court stayed the transit remand

and the appellant could not be taken to

Maharashtra. By the very same order, the High

Court placed the Appellant under house arrest.

No access was provided to the investigating

agencies to question the Appellant. In such

circumstances, the period undergone as house

arrest should be excluded. It is appropriate

that the allied argument, namely, the effect of

the Appellant surrendering on 14.04.2020, being

produced on 15.04.2020 and being remanded to

police custody in which he remained till

25.04.2020, is considered. The argument is that

under the general law, namely, the Cr.P.C.

without the modification effected under Section

43(D) of UAPA, police custody can be sought and

given only during the first 15 days,

166
thereafter, police custody cannot be given. In

the case of UAPA, in view of the modified

application of the Cr.P.C. under Section 43(D)

(2), the period of 15 days stands enhanced to

30 days. Thus, police custody by the Magistrate

can be given on production for a period of 30

days. The argument further runs that if it is

on the basis of the Appellant having

surrendered on 14.04.2020 and upon being

produced before the Court, he stood remanded to

police custody, the period of 90 days would

begin to run only from the date of the remand

i.e. 15.04.2020. If the contention of the

appellant is that the period of remand

commenced with the house arrest i.e.,

28.08.2018, is accepted, it would result in the

police custody given on 15.04.2020 as

impermissible. In this regard, the fact that

the appellant did not object to the police

167
custody being given on 15.04.2020 is

emphasized. The appellant acquiesced in the

police custody commencing from 15.04.2020.

This is possible only on the basis that the

period of 90 days would commence only on

15.04.2020 in terms of the law laid down in

Chaganti Satyanarayana(supra).

120. Per contra, the case of the appellant

is as follows: –

There is no requirement in law that the person

should be granted police custody in all cases.

Section 167 of Cr.P.C. confers a power with the

Magistrate to grant either police or other

custody (judicial custody) during the first 15

days in a case not covered by UAPA. After the

first period of 15 days, undoubtedly, custody

cannot be police custody but there is no

requirement that any police custody at all

should be given. It is entirely with the

168
Magistrate/ Court to determine as to whether

the custody should be police or judicial.

Furthermore, it is contended that in this case,

the offences under UAPA are the main offences.

A period of 30 days is available by way of

police custody. It is open to the investigator

to seek police custody at any time.

It is contended that in any event, a

reading of the second proviso under Section

43(D)(2)(b) of the UAPA shows that in cases

under the said act for the purpose of

investigation, police custody can be sought any

time and is not limited by 30 days/ 15 days

period. It is submitted that the principle in

Central Bureau of Investigation,Special

Investigation Cell(supra) that police custody

is limited to the first 15 days of remand, does

not apply. It is further contended that there

was no stay of investigation and police could

169
have sought access to the appellant during the

30 days period of interrogation or

investigation but this was not done. It is also

seen contended in the written submissions that

the second proviso to Section 43(2)(D) of UAPA

nullifies the judgment in Anupam Kulkarni

(supra) in UAPA cases and custody can,

therefore, be sought at any time even from

judicial custody without the limit of first 15

days or even 30 days. The requirement of an

affidavit in terms of the proviso arises only

when custody is taken by the police from

judicial custody. It was open to the

investigating agency to file such an affidavit

and seek such custody or even the permission to

interrogate during the period of house arrest

which was not done. It is seen further

contended that on 14.04.2020, the appellant

surrendered before the NIA i.e. police custody.

170
Therefore, when the police custody was sought

on 15.04.2020 and extended again on 21.04.2020,

there is no transfer from judicial custody to

police custody. Therefore, it is contended that

the police custody was not under the second

proviso to Section 43(D)(2)(b). This explains

why no affidavit as required thereunder was

filed by the police. The conduct of the

appellant in not objecting to the application

seeking police custody cannot defeat the case

for counting the period of 34 days of house

arrest. The appellant was indeed in police

custody on 28.08.2018 for the purpose of

investigation. All his devices were seized by

the investigating agency who had spent several

hours at his house and restrained him from

morning till 2:15 P.M. when they proceeded with

him to the Magistrate.

171

121. The scheme of the law (Cr.P.C.) is that

when a person is arrested without warrant in

connection with a cognizable offence,

investigation is expected to be completed

within 24 hours from his arrest. If the

investigation is not completed, as is

ordinarily the case, the accused must be

produced before the Magistrate who is nearest

from the place of arrest irrespective of

whether he is having jurisdiction or not. The

Magistrate on the basis of the entries in the

case diary maintained by the officer is

expected to apply his mind and decide whether

the accused is to be remanded or not. If the

police makes a request for police custody which

is accepted then an order is to be passed and

reasons are to be recorded under Section

167(3). Police custody is an important tool in

appropriate cases to carry on an effective

172
investigation. It has several uses. It

includes questioning the accused with reference

to the circumstances, and obtaining if

possible, statements which are relevant in the

future prosecution. Custodial interrogation in

some cases is clearly a dire need to give a

prosecution and therefore the courts a complete

picture. The contention of the appellant that

it is always open to Magistrate to order only

judicial custody and even exclusively with 90

days of judicial custody alone, an application

for default bail would lie cannot be disputed.

Whatever be the nature of the custody as long

as it falls within four walls of Section 167,

if the requisite number of days are spent in

police/ judicial custody/ police and judicial

custody that suffices.

122. However, that may not mean applying the

functional test or bearing in mind the object

173
of the law that the purpose of obtaining police

custody is lost sight of. According to the

appellant, the period of house arrest is to be

treated as judicial custody on the terms of the

order dated 28.08.2018 as subsequently

extended. Investigating officers, undoubtedly,

could go to the house of the appellant and

question him. It is, however, true that if the

High Court had been approached, it may have

directed the appellant to cooperate with the

officers in the investigation. It however

remains in the region of conjecture. The impact

of this aspect, will be further considered

later.

123. We must, in this regard, also consider

the impact of the police custody, admittedly,

obtained on 15.04.2020. The order which is

produced before us would show that police

custody was sought for 10 days. Custodial

interrogation was necessary, it is seen

174
pleaded, for analysing the retrieved electronic

data/ documents from the electronic devices

recovered during the investigation.

124. The special Judge ordered remand for 7

days. Thereafter, a period of 7 days further

remand to police custody was granted by the

order dated 21.04.2020. Still further, it

appears on 25.04.2020, the Appellant was

remanded in judicial custody in which he

continued. The question would arise that all

else being answered in favour of the Appellant

whether his case is inconsistent with the

police remand initially granted for 7 days on

15.04.2020 and further extended on 21.04.2020

which was, no doubt, cut short on 25.04.2020.

The point to be noted is police custody can be

given only for 15 days and that too, the first

15 days, ordinarily. In the case of persons

accused of offences, under UAPA, the maximum

175
period of police custody is 30 days. If the

case of the appellant is to be accepted then it

must be consistent with the subsequent

proceedings, namely, police custody vide orders

dated 15.04.2020 and 21.04.2020. In other

words, Section 167 of the Cr.P.C. as modified

by Section 43(D)(2) of UAPA, contemplates that

remand to police custody on production of the

accused can be given only during the first 30

days from the date of production and it

advances the case of the respondent that remand

on production of the accused before the Special

Judge took place only with the production of

the accused on 15.04.2020. If the remand in the

case of the appellant took place in the year

2018 then it would be completely inconsistent

with the remand to police custody well beyond

the first 30 days of the remand in the year

2018.

176

125. The answer of the Appellant is that

apart from the period of 15 days being

supplanted by 30 days under UAPA, police

custody can be sought and granted at any time

in cases involving UAPA. It appears to be the

Appellants case in one breath that this is

possible under the second proviso contemplated

in Section 43(2)(b) of UAPA. It is seen

contended, that unlike the cases generally

covered by the Cr.P.C., police custody can be

sought in cases under UAPA at any time. It is

also contended however that, it is only if a

person is in judicial custody and the

investigator wants to get police custody in

place of judicial custody that an affidavit is

required. In this case, it is the case of the

appellant that there is no such affidavit. This

is for the reason that when police custody was

sought on 15.04.2020, the appellant was not in

177
judicial custody. He had surrendered on the

previous day i.e. on 14.04.2020 before the NIA.

It is, therefore, to resolve this controversy

necessary to find out whether the case of the

Appellant that the police custody can be sought

at any time in cases falling under UAPA is

tenable.

126. Section 43 D(2) of UAPA reads as

follows:-

” (2) Section 167 of the Code shall
apply in relation to a case
involving an offence punishable
under this Act subject to the
modification that in sub-section
(2), —

(a) the references to “fifteen
days”, “ninety days” and “sixty
days”, wherever they occur, shall
be construed as references to
“thirty days”, “ninety days” and
“ninety days” respectively; and

(b) after the proviso, the
following provisos shall
be inserted, namely:—

178
“Provided further that if it is not
possible to complete the
investigation within the said
period of ninety days, the Court
may if it is satisfied with the
report of the Public Prosecutor
indicating the progress of the
investigation and the specific
reasons for the detention of the
accused beyond the said period of
ninety days, extend the said period
up to one hundred and eighty days:
Provided also that if the police
officer making the investigation
under this Act, requests, for the
purposes of investigation, for
police custody from judicial
custody of any person in judicial
custody, he shall file an affidavit
stating the reasons for doing so
and shall also explain the delay,
if any, for requesting such police
custody”.

127. Under Section 43(D)(2)(a), it is clear

that the maximum period of police custody which

is permissible has been increased from 15 days

to 30 days. The further modification is that

which is relevant which is incorporated in the

179
second proviso. It contemplates that the

investigating officer can seek with reasons and

explaining the delay obtain the police custody

of a person who is in judicial custody.

128. We would think that the position under

Section 167 as applicable in cases under UAPA

is as follows:-

Undoubtedly, the period of 30 days is

permissible by way of police custody. This

Court will proceed on the basis that the

legislature is aware of the existing law when

it brings the changes in the law. In other

words, this Court had laid down in Anupam

Kulkarni (supra), inter alia, that under

Section 167 which provides for 15 days as the

maximum period of police custody, the custody

of an accused with the police can be given

only during the first 15 days from the date

of the remand by the Magistrate. Beyond 15

180
days, the remand can only be given to

judicial custody. Ordinarily, since the

period of 15 days has been increased to 30

days, the effect would be that in cases

falling under UAPA applying the principle

declared in (1992) 3 SCC 141, the

investigating officer in a case under UAPA,

can get police custody for a maximum period

of 30 days but it must be within the first 30

days of the remand. In this regard, the

number of days alone is increased for

granting remand to police custody. The

principle that it should be the first 30 days

has not been altered in cases under UAPA.

As far as the second proviso in Section

43(D)(2)(b) is concerned, it does bring about

an alteration of the law in Anupam Kulkarni

(supra). It is contemplated that a person who

is remanded to judicial custody and NIA has not

181
been given police custody during the first 30

days, on reasons being given and also on

explaining the delay, Court may grant police

custody. The proviso brings about the change in

the law to the extent that if a person is in

judicial custody on the basis of the remand,

then on reasons given, explaining the delay, it

is open to the Court to give police custody

even beyond 30 days from the date of the first

remand. We may notice that Section 49 (2) of

Prevention of Terrorism Act is pari materia

which has been interpreted by this Court in AIR

2004 SC 3946 and the decision does not advance

the case of Appellant though that was a case

where the police custody was sought of a person

in judicial custody but beyond 30 days.

In this regard, it would appear that the

appellant had surrendered on 14.04.2020. He

was not in judicial custody. He was produced

182
with a remand report seeking police custody on

15.04.2020. Treating this as a remand sought

within the first 30 days, a remand is ordered

for a period of 7 days initially. There is no

dispute that the period was police custody. We

may notice that an accused under UAPA may be

sent to judicial custody, police custody or

granted bail. If the argument that the police

custody can be sought at any time and it is

not limited to cases where there is judicial

custody, it will go against the clear terms of

the proviso and even a person who is bailed

out can after 30 days be remanded to police

custody. This is untenable. The case of the

appellant that the police custody granted on

15.04.2020 was permissible and consistent with

his case does not appear to be correct.

THE DECISION IN (2007) 5 SCC 773

183

129. The High Court placed considerable

reliance on the judgment reported in State of

West Bengal v. Dinesh Dalmia18. So also the

Additional Solicitor General, Shri Raju. In the

said case, the Respondent was arrested in New

Delhi. He was produced before the Magistrate on

transit remand in Chennai. The Investigating

Officer, in cases in Calcutta, prayed for

production warrant before the Court at Calcutta

as the Respondent was arrested and detained in

the CBI case before the Magistrate at Chennai.

The said prayer was allowed and the order was

sent to the Court at Chennai. There was a

further order by the Calcutta Court issued that

the Respondent should not be released in the

CBI cases in Chennai. The Respondent also came

to know that he was wanted in two more cases

pending in Calcutta. He voluntarily surrendered

before the Magistrate in Chennai. It was on the
18(2007) 5 SC 773
184
basis of the cases at Calcutta. The Respondent

stood remanded to judicial custody till

13.03.2006. Finally, after the procedures were

under gone the Respondent was produced before

the Magistrate at Calcutta. The Investigating

Officer in the case at Calcutta sought police

custody of 15 days. The Respondent moved for

bail contending that he had surrendered in the

Court at Chennai and the period of 15 days had

elapsed from the date of surrender. Finally,

the matter reached before the Calcutta High

Court against the order of the Magistrate

rejecting the application for bail and ordering

police custody. The Calcutta High Court in the

revision filed by the Respondent found that

more than 90 days, had expired from the time of

the detention which should have been counted

from 27.02.2006 when the Respondent had

surrendered before the Court at Chennai.

185
Therefore, the question for consideration

before this Court was whether the period of

detention started from 27.02.2006 when the

Respondent had surrendered before the Court at

Chennai in connection with the CBI case or

whether it should be counted from 13.03.2006

when the Respondent was actually taken into

custody by the police and produced before the

Magistrate at Calcutta. This Court held that

the respondent having voluntarily surrendered

before the Court at Chennai could not be

treated as being in detention under the cases

registered at Calcutta. The accused, in fact,

it was found continued to be under the judicial

custody in relation with the CBI case in

Chennai. The Court referred to the decision of

this Court in Niranjan Singh & Anr. vs.

Prabhakar Rajaram Kharote & Ors.19 and

reiterated that if there is a totally different
19(1980) 2 SCC 559
186
offence then it will be a separate offence for

which the detention in the previous case cannot

be counted for the purpose Section 167.

130. The present is a case where there is

only one FIR, one case. This is a case where

following arrest and production before the

Magistrate a remand is made which is then

questioned. The High Court orders house arrest.

131. THE CIRCUMSTANCES THAT MILITATE
AGAINST THE ORDER OF HOUSE ARREST BEING
ONE UNDER SECTION 167.

1. The High Court entertains the writ

petition on 28.08.2018. It intended to

dispose of the matter on the very next

day. The order of house arrest was passed

in such circumstances. But there was

custody and what is more, it went on for

34 days.

2. The High Court was unable to go through

the entries in the case diary as the

187
entries were in the Marathi language. In

fact, the court expresses inability to

make out from the documents what

precisely the case against the appellant

was. Translation of the documents were to

be made available on the next day. The

translations were not made available. Yet

the house arrest was ordered until

further orders on 28.08.2018. What is

pertinent is that by the standards in law

applicable to a Magistrate acting under

Section 167, the High Court did not

purport to act under Section 167. This is

different from saying that it acted in

violation of the mandate of law.

3. It is true that there was no stay of

investigation as such. However, what was

challenged was the transit remand. The

FIR was lodged in another state.

188
Interrogation of the appellant would be

integral to the investigation. On the

terms imposed by the High Court in regard

to house arrest it was not possible for

such interrogation to take place. It

appears that the parties did not

contemplate as it is presently projected.

It is no doubt true that the respondent

could have moved the High Court.

4. The house arrest according to the

appellant is by way of modification of

the order of remand. In other words, the

contention is that the High Court stayed

the transit. But the High Court when it

passed the order of house arrest on

28.08.2018, it modified the remand from

police custody to house arrest. Subject

to what follows we proceed on the basis

that the High Court modified the order of

189
remand. The transit remand order of the

CMM Saket provided for police custody

which was to last for two days. But on

the basis of the house arrest ordered by

the High Court by interim order the

appellant underwent house arrest for 34

days. By the judgment dated 01.10.2018

the High Court of Delhi set aside the

transit remand, as the transit remand

ordered by the magistrate was found

illegal. On the said basis the High Court

of Delhi finds that detention beyond 24

hours was clearly impermissible. Now it

is relevant to notice that the CMM Saket

had not ordered detention for the period

after 30.08.2018. Detention was ordered

by him only for two days and the

appellant was to be produced on

30.08.2018. By the order of the High

190
Court of Delhi, the transit could not

take effect. Therefore, the entire period

after 30.08.2018 till 01.10.2018 cannot

be said to be based on the order of the

magistrate. The said period in fact is

covered by the order of house arrest. The

period of house arrest covered the period

from 28.08.2018 based on the order of the

High Court. The arrest was effected at

2.15PM on 28.08.2018. The order of the

CMM was passed within the next hour or

so. The order of the High Court was

passed at about 4.30PM. No doubt, it is

the order of the magistrate which

originated the remand under Section 167

to police custody. The High Court of

Delhi proceeded to find that without the

support of a valid remand order by the

magistrate, the detention exceeded 24

191
hours rendering it untenable in law and

the further finding however is that

consequently the house arrest came to an

end as of then (01.10.2018). Therefore,

the High Court did not proceed to

pronounce the house arrest as non est or

illegal. On the other hand, when it is

pronounced, it as having come to an end

on 01.10.2018 and no part of it is found

to be illegal, it meant that it was valid

from the point of time it was passed till

01.10.2018. If this is perceived as an

order passed under Section 167 then there

would not be any detention beyond 24

hours of the arrest which could be

illegal. The illegality of the detention

is based on the transit order being found

illegal. If the transit order has been

modified as claimed by the appellant,

192
then the detention would be lawful as the

order of house arrest is passed well

within 24 hours of the arrest. We are

highlighting this aspect to emphasize

this as a circumstance to show that the

High Court of Delhi also did not

contemplate that the order of house

arrest was passed by way of custody under

Section 167. No doubt, the foundational

order, the transit remand, being set

aside it could be said that the interim

order will not survive. But then the

order should have been so understood by

the High Court.

5. Undoubtedly, the appellant was placed in

police custody from 15.04.2020 to

25.04.2020. Even the enhanced period of

30 days of police custody, permissible

under Section 43 (D) (2) of UAPA, must be

193
acquired within the first 30 days of the

remand. Proceeding on the basis of the

case of the appellant that the first

remand took place on 28.08.2018, the

appellant being in police custody for a

period of 11 days in 2020 is inconsistent

with appellants case and the law. Though

police custody can be had under UAPA

beyond the first 30 days under the Second

Proviso to Section 43(D)(2), it is

permissible only in a situation, where

the accused is in judicial custody. The

appellant was, admittedly, not in

judicial custody, having surrendered to

the NIA on 14.04.2020, which is on the

eve of the first order directing police

custody.

6. One of the contentions raised by the

respondent is that if the order of house

194
arrest was passed under Section 167 Cr.PC

then the High Court of Delhi would have

after setting aside the transit remand,

either released the appellant on bail or

remanded him to custody. Instead, the

High Court released the appellant on the

basis that as the remand order was

illegal and set aside, in view of Section

56 and Section 57 the detention beyond 24

hours, cannot be sustained. Now in a

proceeding under Section 167 where a

remand order is put in issue before a

superior court it presupposes an arrest

in connection with a cognizable offence.

Now if the remand is set aside by the

superior court, we are of the view that

in a proceeding which originated from a

remand under Section 167, then the order

that would follow on setting aside the

195
remand, would be to grant him bail or to

modify the remand. This is for the

reason that there is an arrest which in

the first place sets the ball rolling.

Therefore, he has either to be released

on bail, if not, he would have to be

remanded. It is here that we may remember

the decision of this Court in (1969) 1

SCC 292 (supra). There was a remand.

Violation of Article 22(1) was found in a

Writ Petition under Article 32. It was,

in fact, a non-cognizable offence, which

was involved. The Court released the

petitioners. The remand orders were found

patently routine and were not such as

would cure the constitutional

infirmities. In the said case, arrest was

put in issue and found bad in law.

196

7. No doubt there is the filing of

application for anticipatory bail wherein

the appellant has clearly projected the

period of house arrest as protection of

this liberty. It was also sought to be

rested under the extraordinary power of

this Court. [We would observe that while

his conduct is not irrelevant in

appreciating the matter, the contours of

personal liberty would better rest on

surer foundation. Estoppel, may not

apply to deprive a person from asserting

his fundamental right. A right to

default bail is fundamental right [See

Bikramjit Singh vs. The State of

Punjab20]. But hereagain, it must depends

upon fulfilment of conditions in Section

167.

20(2020) 10 SCC 616
197
THE KNOT TIGHTENED

132. Now, the argument, which survives is as

follows:

What mattered was that the appellant

actually underwent the actual custody of

34 days by way of house arrest. The fact

that there may have been illegality in

the Order of the Magistrate, will not

take away, the factum of actual custody.

The fact that the appellant was given in

Police custody and he did not object,

cannot defeat appellant’s right. What is

relevant is that a period of 90 days had

run out. It is emphasised before us that

be it the High Court, it could not have

ordered the detention of the appellant

without authority of the law. The only

law, which supports the house arrest, is

Section 167 of the CrPC.

198

133. We have already noticed the

circumstances surrounding the Order passed by

the High Court. We would also, at this

juncture, again capture the Order dated

29.08.2018, passed by this Court:

“Taken on Board.

Issue notice.

Mr. Tushar Mehta and Mr. Maninder
Singh, learned Additional Solicitor
Generals being assisted by Mr. R.
Balasubramanian, learned counsel
shall file the counter affidavit by
5.9.2018. Rejoinder thereto, if any,
be filed within three days therefrom.
We have considered the prayer for
interim relief. It is submitted by
Dr. Abhishek Manu Singhvi, learned
senior counsel appearing for the
petitioners that in pursuance of the
order of the High Court, Mr. Gautam
Navalakha and Ms. Sudha Bharadwaj
have been kept under house arrest. It
is suggested by him that as an
interim measure, he has no objection
if this Court orders that Mr.
Varavara Rao, Mr. Arun Ferreira and
Mr. Vernon Gonsalves, if arrested,
they are kept under house arrest at
their own homes. We order
accordingly. The house arrest of Mr.
Gautam Navalakha and Ms. Sudha
Bharadwaj may be extended in terms of
our orders.

199

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

Let the matter be listed on
6.9.2018.”

134. We would think that the reality of the

situation is explained by the said Order. Upon

being informed that the appellant and another

were kept under house arrest, on the suggestion

of the Counsel for the petitioners in the

Public Interest Litigation before this Court,

that he had no objection in three others, if

arrested, they be kept under house arrest, at

their own homes, it was so ordered. It is not

a case where this Court even had in its mind

the duty to go through the entries in the case

diaries relating to them, leave alone actually

going through them. Quite clearly, in respect

of those persons, house arrest even was the

result of the choice exercised by the Senior

Counsel for the Writ Petitioners, who were not
200
the persons to undergo the house arrest. No

doubt, the Public Interest Litigation was

launched to have an impartial enquiry regarding

their arrests. It is thereafter that it was

ordered that the house arrest of appellant and

other (Sudha Bharadwaj), may be extended in

terms of the order. House arrest was,

undoubtedly, perceived as the softer

alternative to actual incarceration. It was in

that light that the Court proceeded in the

matter. That house arrest, in turn, involved,

deprivation of liberty and will fall within the

embrace of custody under Section 167 of the

CrPC, was not apparently in the minds of both

this Court and the High Court of Delhi. This is

our understanding of the orders passed by the

court.

135. Now, here, we are confronted with a

clash between the two values. On the one hand,

201
there is the deprivation, in law, of the

liberty of the appellant, by way of house

arrest for 34 days. On the other hand, it does

not fall actually in the facts of this case

within the ambit of Section 167 of the CrPC,

for the reasons, which have been discussed

earlier. While, the Right to Default Bail is a

Fundamental Right, it is subject to the

conditions, obtaining in Section 167 of the

CrPC, being satisfied. It must be purported to

be passed under Section 167 CrPC. The right to

statutory bail arises dehors the merits of the

case. The fundamental right arises when the

conditions are fulfilled. The nature of

detention, being one under Section 167 is

indispensable to count the period.

136. On the other hand, Article 21 of the

Constitution of India, provides that no person

shall be deprived of his life or personal

202
liberty except in accordance with the procedure

prescribed by law. This Article, creates a

Fundamental Right, which cannot be waived.

Moreover, unlike the persons, who apparently

underwent house arrest on the basis of the

offer made on their behalf, in the case of the

appellant, even prior to the order dated

29.08.2018, the High Court had ordered house

arrest, which constituted house arrest. The

appellant was an accused in a FIR invoking

cognizable offences. He stood arrested by a

Police Officer. He was produced before a

Magistrate. A transit remand, which was a

remand, under Section 167, was passed. Police

custody followed. The High Court ordered that

the appellant be kept in house arrest. The

setting aside of the Order of transit remand

will not wipe out the Police custody or the

house arrest. We agree that illegality in order

203
of the CMM, Saket, will not erase the

deprivation of liberty. But other aspects

already discussed militate against the order

being treated as passed purportedly under

Section 167. There can be no quarrel with the

proposition that a court cannot remand a person

unless the court is authorised to do so by law.

However, we are in this case not sitting in

appeal over the legality of the house arrest.

But we are here to find whether the house

arrest fell under Section 167. We are of the

view, that in the facts of this case, the house

arrest was not ordered purporting to be under

Section 167. It cannot be treated as having

being passed under Section 167.

137. There is one aspect which stands out.

Custody under Section 167 has been understood

hitherto as police custody and judicial

204
custody, with judicial custody being conflated

to jail custody ordinarily.

138. The concept of house arrest as part of

custody under Section 167 has not engaged the

courts including this Court. However, when the

issue has come into focus, and noticing its

ingredients we have formed the view that it

involves custody which falls under Section 167.

139. We observe that under Section 167 in

appropriate cases it will be open to courts to

order house arrest. As to its employment,

without being exhaustive, we may indicate

criteria like age, health condition and the

antecedents of the accused, the nature of the

crime, the need for other forms of custody and

the ability to enforce the terms of the house

arrest. We would also indicate under Section

309 also that judicial custody being custody

ordered, subject to following the criteria, the

205
courts will be free to employ it in deserving

and suitable cases.

140. As regards post-conviction cases we

would leave it open to the legislature to

ponder over its employment. We have indicated

the problems of overcrowding in prisons and the

cost to the state in maintaining prisons.

141. In view of the fact that the house

arrest of the appellant was not purported to be

under Section 167 and cannot be treated as

passed thereunder, we dismiss the appeal.

There will be no order as to costs.

…………….J.

[UDAY UMESH LALIT]

…………….J.

[K.M. JOSEPH]

NEW DELHI;

Dated: MAY 12, 2021.

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