Gautam Navlakha vs National Investigation Agency

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

Code of Criminal Procedure, 1973: s.167 – Whether a Writ of Habeas Corpus lies against an order of remand under s.167 of the Code – A Habeas Corpus petition is one seeking redress in the case of illegal detention – It is intended to be a most expeditious remedy as liberty is at stake – If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie – Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus – Barring such situations, a Habeas Corpus petition will not lie.

Code of Criminal Procedure, 1973: ss.167, 439 – Whether superior courts (including High Court) can exercise power under s.167 of the Code – Can broken periods of custody count for the purpose of default bail – Though the power is vested with the Magistrate to order remand by way, of appropriate jurisdiction exercised by the superior Courts, (it would, in fact, include the Court of Sessions acting under s.439) the power under s.167 could also be exercised by Courts which are superior to the Magistrate – While ordinarily, the Magistrate is the original Court which would exercise power to remand under s.167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail – In such circumstances, broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person.

Code of Criminal Procedure, 1973: s.167 – Transit order, effect of – The remand pursuant to a transit remand cannot be judicial custody as the police is exclusively entrusted with the man to produce him before the Magistrate having jurisdiction – It is therefore, police custody – If it is thought that during the journey, it is impermissible to interrogate the accused on the basis of transit order, then such interrogation would equally be impermissible during the time of journey permitted without obtaining an order under s.167 – If also during such journey, the accused volunteers with a statement otherwise falling under s.27 of Evidence Act, it would be one when the accused is in the custody of the police – If it is police custody then, the order of the Magistrate granting transit remand would set the clock ticking to complete the period for the purpose of default bail.

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

Code of Criminal Procedure, 1973: s.167 – Detention of an accused – Police officer can detain accused and question him in the course of the investigation – However, the officer cannot detain the accused beyond 24 hours excluding the time taken for the journey from the place of arrest to the place where the Magistrate who is competent to try the case sits – If he cannot so produce the accused and the investigation is incomplete, the officer is duty bound to produce the arrested person before the nearest Magistrate – The nearest Magistrate may or may not have jurisdiction – He may order the continued detention of the arrested person based on the request for remand – He would largely rely on the entries in the case diary and on being satisfied of the need for such remand which must be manifested by reasons – The Magistrate can order police custody during the first 15 days (in cases under UAPA, the first 30 days) – Beyond such period, the Magistrate may direct detention which is described as judicial custody or such other custody as he may think fit – It is, no doubt, open to a Magistrate to refuse police custody completely during the first 15 days – He may give police custody during the first 15 days not in one go but in instalments – It is also open to the Magistrate to release the arrested person on bail – The scheme further under s.167 is that custody (detention/ custody) as authorized under such provisions, if it exceeds the limit as to maximum period without the charge sheet being filed, entitles the person in detention to be released on default bail – In fact, the person may on account of his inability to offer the bail languish in custody but he would undoubtedly be entitled to count the entire period he has spent in detention under orders of the Magistrate/Superior Court exercising powers under s.167 for the purpose of set off under s.428.

Code of Criminal Procedure, 1973: s.167 – Effect of illegality in the order under s.167 – An order purports to remand a person under s.167 – It is made without complying with mandatory requirements thereunder – It results in actual custody – The period of custody will count towards default bail. s.167(3) mandates reasons be recorded if police custody is ordered – There has to be application of mind – If there is complete non-application of mind or reasons are not recorded, while it may render the exercise illegal and liable to be interfered with, the actual detention undergone under the order, will certainly count towards default bail – Likewise, unlike the previous Code (1898), the present Code mandates the production of the accused before the Magistrate as provided in clause (b) of the proviso to s.167(2) – Custody ordered without complying with the said provision, may be illegal – But actual custody undergone will again count towards default bail. Code of Criminal Procedure, 1973: s.167 – If the Court purports to invoke and act under s.167, the detention will qualify even if there is illegality in the passing of the order – What matter in such cases is the actual custody – However, when the Court does not purport to act under s.167, then the detention involved pursuant to the order of the Court cannot qualify as detention under s.167. Code of Criminal Procedure, 1973: s.167 – Judicial custody and police custody – Difference between – When a person is remanded to police custody, he passes into the exclusive custody of the police officers – ‘Custodial Interrogation’ as is indispensable to unearth the truth in a given case is the substantial premise for such custody – The Magistrate must undoubtedly be convinced about the need for remand to such custody – Reasons must be recorded – Judicial custody is ordinarily custody in a jail – It is referred to also as jail custody – The jails come under the Department of Jails and staffed by the employees of the said department – The person in jail custody is therefore indirectly, through the jail authorities, under the custody of the Court – The police officer does not have access to a person in judicial custody as he would have in the case of a person in police custody – Unless permission is sought and obtained which would apparently be subject to such conditions as a court places the person in judicial custody cannot be questioned by the police officers – Now in a case, ordinarily, instead of ordering a remand a person can be released on bail – As to whether a case is made out is a question to be decided in the facts of each case – There may be restrictions put in regard to the grant of bail by law which must be observed – But if bail is not granted then a person arrested by the police in connection with the cognizable offence must be remanded to custody – This is inevitable from the reading of s.167 of the Cr.P.C.

Code of Criminal Procedure, 1973: s.167 – Judicial custody of accused – The concept of house arrest as ordered in this case with the complete prohibition on stepping out of the Appellants premises and the injunction against interacting with persons other than ordinary residents, and the standing of guard not to protect him but to enforce the condition would place the Appellant under judicial custody – s.167 speaks of ‘such custody as it thinks fit’ – If it is found ordered under s.167 it will count. Code of Criminal Procedure, 1973: s.167 – Does the magistrate/Court consider the legality of arrest/detention while acting under s.167 – Held: Art.22(1) creates a fundamental right on a person arrested to be not detained without being informed as soon as may be of the grounds for such arrest – It also declares it a fundamental right for the detained person to consult and be defended by a legal practitioner of his choice – Now, detention follows arrest – What Art.22(1) is concerned with is that the detention must be supported by the fulfilment of the rights referred to therein – Strictly speaking, therefore, Art.22(1) does not go to the legality of the arrest – Constitution of India – Art.22(1). Code of Criminal Procedure, 1973: s.167 – Impact of nonaccessibility to the appellant for the investigating agency during house arrest and the effect of the appellant being in police custody from 14.4.2020 to 25.4.2020 – The very purpose of custody under s.167 is to enable the police to interrogate the accused and if that opportunity is not present then such period of custody as alleged would not qualify for the purpose of s.167 – In other words, the argument appears to be that the object and scheme of s.167 is that an investigation is carried out with opportunity to question the accused and still it is not completed within the period of 90 days whereupon right to default bail arises – By the proceedings on 28.08.2018 when the petition was filed, the High Court stayed the transit remand and the appellant could not be taken to Maharashtra – By the very same order, the High Court placed the appellant under house arrest – No access was provided to the investigating agencies to question the appellant – In such circumstances, the period undergone as house arrest should be excluded.

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

Dismissing the appeal, the Court

HELD:

Whether the period of 34 days spent in house arrest by the appellant is to be counted towards the period of 90 days under Section 167 Cr.P.C.

1.1. Under Section 156 Cr.P.C., any police officer in charge of a police station can without order of a Magistrate investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station have the power to try. Section 157 dealing with Procedure for investigation contemplates inter alia the power to proceed, to the spot, to investigate the facts and circumstance of the case, and if necessary, take measures for the discovery and arrest of the offender. With the proviso in the Cr.P.C., 1973, in Section 76, in the case of arrest under a warrant, the person is to be produced before the Court within 24 hours with the exclusion of time taken for travelling. Such a proviso was absent in Section (81) of the Cr.P.C., 1898. [Paras 24, 27][127-F-H; 128-A; 134-C-D]

State of U.P. v. Abdul Samad AIR 1962 SC 1506 : [1962] Suppl. SCR 915 – held inapplicable.

1.2 In India, the concept of house arrest has its roots in laws providing for preventive detention. Section 5 of the National Security Act, 1980, is a law providing for preventive detention. The safeguards under Article 22(1) and Article 22(2) are not available under a law providing for preventive detention. ‘House arrests’ have been resorted to in India, in the context of law relating to ‘preventive detention’. What is however relevant is that preventive detention is also a form of forced detention. House arrest is also custody and forced detention. [Paras 43, 45] [145-G-H; 147-H; 148-A]

A.K. Roy and Ors. v. Union of India (UOI) and Ors. AIR (1982) SC 710 : [1982] 2 SCR 272 – followed.

State of Rajasthan and Ors. v. Shamsher Singh AIR (1985) SC 1082 : [1985] Suppl. SCR 83 – relied on. A LOOK AT PRISONS IN INDIA

2.1 According to the data published by the National Crime Records Bureau (NCRB) the conditions relating to jails and prisoners is fairly alarming. There were a total number of 1350 prisons as of the year 2019. 1350 prisons consists of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails. A perusal of the executive summary would reveal an alarming state of affairs as far as occupancy rate is concerned. It has climbed to 118.5 percent in 2019 as on 31st December. The 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 31 st December, 2019 is the figure obviously after considering the number of prisoners who would have been inter alia bailed out. The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05 per cent of the total no. of prisoners. Delhi had the highest occupancy rate of 174.9 percent followed by Uttar Pradesh which came second with 167.9 percent. This means that in Delhi a prison which was meant to be occupied by 100 persons, was used for accommodating 174 persons. There is a tremendous amount of overcrowding in jails in India. Secondly, a very large sum (Rs. 6818.1 crore) was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer. [Paras 48, 49, 50][154-H; 155-A-E]

2.2 In the context of the rights conferred on citizens under Article 19 which are essentially constitutional freedoms or rather the enumerated rights as explained by this Court in Maneka Gandhi vs. Union of India, when a citizen is placed on house arrest, which has the effect of depriving him of any freedom, it will not only be custody but it would involve depriving citizens under custody of the fundamental freedoms unless such freedoms are specifically protected. A person has a fundamental right to move in any part of the country. It is obvious that in the case of a person undergoing a house arrest and in the teeth of an absolute prohibition, in the facts of the case forbidding the appellant from moving outside his home, the hallmark of custody described in the case of incarceration is equally present. Personal liberty perhaps is the most important of all values recognized as such under the constitution. It is to be jealously guarded from any encroachment, save where such intrusion has the clear sanction of law. The expression “procedure established by law” has received an expansive and liberal exposition in decisions of this Court commencing from Maneka Gandhi. Right to personal liberty is the birth right of every human being. The right under Article

21 is undoubtedly available to citizens and non-citizens. While personal liberty is a wide expression capable of encompassing within its fold, many elements apart from the right to be protected against the deprivation of liberty in the sense of the freedom from all kinds of restraints imposed on a person, the irreducible core of personal liberty, undoubtedly, consist of the freedom against compelled living in forced custody. [Para 51][155-E-H; 156-A-B]

Maneka Gandhi v. Union of India AIR 1978 SC 597 : [1978] 2 SCR 621 – relied on

2.3 Personal liberty is interlinked with the right to life itself. It is an inseparable part without which the right to life itself is deprived of its content and meaning. The right to life and personal liberty is essentially also based on the principle that men in regard to fundamental rights be treated equal and that no man or a group of men, even organized as a state under which he lives can deprive him except without infringing the right to be treated equally unless there is a legitimate sanction of law. Personal liberty of its members must continue to remain the most cherished goal of any civilized state and interference with the same must be confined to those cases where it is sanctioned by the law and genuinely needed. The court would lean in favour of upholding this precious, inalienable and immutable value. In the United States ordinarily, house arrest follows a conviction and is a choice which is available to the Courts to send a person to house arrest which is in lieu of a jail sentence. [Paras 53, 54][157-D-G]

Govt. of Andhra Pradesh and another etc. v. Anne Venkateswara Rao etc. etc. AIR 1977 SC 1096:[1977]

3 SCR 7 – relied on

THE REMEDIES OPEN TO AN ACCUSED IN THE CASE

OF REMAND UNDER SECTION 167 OF THE CR.P.C.

3.1 An order under Section 167 is purely an interlocutory order. No revision is maintainable. A petition under Section 482 cannot be ruled out. When a person arrested in a non-bailable offence is in custody, subject to the restrictions, contained therein, a court other than High Court or Court of Session, before whom he is brought inter alia, can release him on bail under Section

437 of the Cr.P.C. Section 439 of the Cr.P.C. deals with special powers of High Court and court of session to grant bail to a person in custody. The said courts may also set aside or modify any condition in an order by a Magistrate. Ordinarily, when the court considers a request for remand there would be an application for bail. It is for the court to grant bail failing which an order of remand would follow. [Paras 57, 59][159-A-C; 159-G]

State rep. by Inspector of Police and others v. N.M.T. Joy Immaculate (2004) 5 SCC 729 : [2004] 2 Suppl. SCR 71; Central Bureau of Investigation, Special Investigation Cell v. Anupam J. Kulkarni (1992) 3 SCC

141 : [1992] 3 SCR 158 – relied on

3.2 No doubt, while the remand report is considered by the Magistrate the application for bail may be moved under Section

439 instead of moving under Section 437 in view of the restrictions contained therein. Though an application under Section 397 would not lie against the remand, an application for bail would lie under Section 439. Therefore, ordinarily the accused would seek bail and legality and the need for remand would also be considered by the High Court or court of session in an application under Section 439. No doubt the additional restrictions under section 43 (D) (5) of UAPA are applicable to citizens of India in cases under the said law. [Para 60][159-H; 160-A-B] WHETHER A WRIT OF HABEAS CORPUS LIES

AGAINST AN ORDER OF REMAND UNDER SECTION (167) OF CR.P.C.

4. A Habeas Corpus petition is one seeking redress in the case of illegal detention. It is intended to be a most expeditious remedy as liberty is at stake. If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie. [Paras 61, 63][160-C-D; 161-F-G]

Manubhai Ratilal Patel v. State of Gujarat and others (2013) 1 SCC 314 : [2012] 8 SCR 993; Serious Fraud Investigation Office and Ors. v. Rahul Modi and Ors. (2019) 5 SCC 266 : [2019] 5 SCR 91 – relied on. WHETHER SUPERIOR COURTS (INCLUDING A HIGH

COURT) CAN EXERCISE POWER UNDER SECTION (167)

OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT FOR THE PURPOSE OF DEFAULT BAIL?

5.1 Though the power is vested with the Magistrate to order remand by way, of appropriate jurisdiction exercised by the superior Courts, (it would, in fact, include the Court of Sessions acting under Section 439) the power under Section 167 could also be exercised by Courts which are superior to the Magistrate. While ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. In such circumstances broken periods of custody can be counted whether custody is suffered by the order of the Magistrate or superior courts, if investigation remains incomplete after the custody, whether continuous or broken periods pieced together reaches the requisite period; default bail becomes the right of the detained person. [Paras 66, 67][163-B-E]

THE EFFECT OF TRANSIT ORDER? IS IT A

PRODUCTION ORDER THOUGH SOURCED UNDER

SECTION 167 CR.P.C.?

6.1 In this case, the transit remand was ordered on 28.08.2018. The Appellant was to be produced under the same on 30.08.2018 before the Magistrate in Pune. A person may be arrested by a police officer in any part of India (Section 48 of Cr.P.C.). Under Section 56, the person arrested without warrant is to be sent before the Magistrate having jurisdiction or before the officer in charge of a police station. It is thereafter, that Section

57 forbids the person so arrested: from being detained for a period more than what is reasonable. from being detained beyond 24 hours from the time of arrest, excluding the time necessary for the journey from the place of arrest to the Magistrate Court. Now, the ‘Magistrate Court’ referred to in Section 57 is the Magistrate competent to try the case. Section 57 contains the peremptory limit of 24 hours exclusive of the period for journey, in the absence of ‘special order’ under Section 167. [Paras 71, 72][164-B-E]

6.2 The remand pursuant to a transit remand cannot be judicial custody as the police is exclusively entrusted with the man no doubt to produce him before the Magistrate having jurisdiction. It is therefore, police custody. Could the police be engaged in questioning/ investigating the case by interrogating the accused on the basis of the transit order either before, embarking on the journey or during the course of the journey and after the journey before producing him? If it is thought that during the journey, it is impermissible, then such interrogation would equally be impermissible during the time of journey permitted without obtaining an order under Section 167. If also during such journey, the accused volunteers with a statement otherwise falling under Section 27 of Evidence Act, it would be one when the accused is in the custody of the police. If it is police custody then, the order of the Magistrate granting transit remand would set the clock ticking to complete the period for the purpose of default bail. The remand order be it a transit remand order is one which is passed under Section 167 of the Cr.P.C. and though it may be for the production of the Appellant, it involved authorising continued detention within the meaning of Section

167. [Paras 76, 78][165-F-H; 166-A; 167-A]

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

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

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

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

7.3 The arrested person if detained during the period of investigation can count this period, if he is ultimately charged, tried and convicted by virtue of the provisions of Section 428 of Cr.P.C. It is not every detention which can be relied upon to get the benefit of set-off under Section 428. A period spent under an order of preventive detention being not in connection with the investigation into an offence cannot be counted. Thus, detention ‘during investigation’ under Section 428 is integrally connected with detention as ordered under Section 167. The scheme further under Section 167 is that custody (detention/ custody) as authorized under such provisions, if it exceeds the limit as to maximum period without the charge sheet being filed, entitles the person in detention to be released on default bail. In fact, the person may on account of his inability to offer the bail languish in custody but he would undoubtedly be entitled to count the entire period he has spent in detention under orders of the Magistrate/Superior Court exercising powers under Section 167 for the purpose of set off under Section 428. [Paras 86, 88, 89][169-F-G; 170-A-C]

EFFECT OF ILLEGALITY IN THE ORDER UNDER

SECTION 167 CR.PC.

8.1 An order purports to remand a person under Section

167. It is made without complying with mandatory requirements thereunder. It results in actual custody. The period of custody will count towards default bail. Section 167(3) mandates reasons be recorded if police custody is ordered. There has to be application of mind. If there is complete non-application of mind or reasons are not recorded, while it may render the exercise illegal and liable to be interfered with, the actual detention undergone under the order, will certainly count towards default bail. Likewise, unlike the previous Code (1898), the present Code mandates the production of the accused before the Magistrate as provided in clause (b) of the proviso to Section 167 (2). Custody ordered without complying with the said provision, may be illegal. But actual custody undergone will again count towards default bail. [Para 90][170-C-F]

8.2 The view taken in the impugned judgment that sans any valid authorisation/ order of the Magistrate detaining the Appellant there cannot be custody for the purpose of Section

167 is not correct. Therefore, if the Court purports to invoke and act under Section 167, the detention will qualify even if there is illegality in the passing of the order. What matter in such cases is the actual custody. However, when the Court does not purport to act under Section 167, then the detention involved pursuant to the order of the Court cannot qualify as detention under Section

167. [Paras 91, 92, 93][170-G-H; 171-A-B]

JUDICIAL CUSTODY AND POLICE CUSTODY

9.1 Whether house arrest as ordered by the High Court amounts to custody within the meaning of Section 167 of the Cr.P.C. Undoubtedly custody in Section 167 of the Cr.P.C. is understood as ordinarily meaning police custody and judicial custody. The period of custody begins not from the time of arrest but from time the accused is first remanded. Police custody can, in a case falling under the Cr.P.C. (not under the UAPA), be given only during the first 15 days. During the first 15 days no doubt the Court may order judicial custody or police custody. No doubt the last proviso to Section 167 (2) provides that detention of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. [Para 94][171-B-E]

9.2 Distinction between police custody and judicial custody When a person is remanded to police custody, he passes into the exclusive custody of the police officers. ‘Custodial Interrogation’ as is indispensable to unearth the truth in a given case is the substantial premise for such custody. The Magistrate must undoubtedly be convinced about the need for remand to such custody. Reasons must be recorded. Judicial custody is ordinarily custody in a jail. It is referred to also as jail custody. Thus, jail custody and judicial custody are the same. The jails come under the Department of Jails and staffed by the employees of the said department. The person in jail custody is therefore indirectly, through the jail authorities, under the custody of the Court. The police officer does not have access to a person in judicial custody as he would have in the case of a person in police custody. Unless permission is sought and obtained which would apparently be subject to such conditions as a court places the person in judicial custody cannot be questioned by the police officers. Now in a case, ordinarily, instead of ordering a remand a person can be released on bail. As to whether a case is made out is a question to be decided in the facts of each case. There may be restrictions put in regard to the grant of bail by law which must be observed. But if bail is not granted then a person arrested by the police in connection with the cognizable offence must be remanded to custody. This is inevitable from the reading of Section

167 of the Cr.P.C. [Para 95][171-E-H; 172-A-B]

9.3 The concept of house arrest though familiar in the law relating to preventive detention, therein the underpinnings are different. House arrest in the law of preventive detention is one which is permitted under the law itself and such orders are made in fact by the executive. Taking the ingredients of house arrest as are present in the order passed by the High Court of Delhi, if it is found to be one passed under Section 167, then it would be detention thereunder. The concept of house arrest as ordered in this case with the complete prohibition on stepping out of the Appellants premises and the injunction against interacting with persons other than ordinary residents, and the standing of guard not to protect him but to enforce the condition would place the Appellant under judicial custody. Section 167 speaks of ‘such custody as it thinks fit’. If it is found ordered under Section 167 it will count. [Paras 97, 98][172-G; 173-A-B]

DOES THE MAGISTRATE/ COURT CONSIDER THE

LEGALITY OF ARREST/ DETENTION WHILE ACTING

UNDER SECTION 167

10. Article 22(1) creates a fundamental right on a person arrested to be not detained without being informed as soon as may be of the grounds for such arrest. It also declares it a fundamental right for the detained person to consult and be defended by a legal practitioner of his choice. Now, detention follows arrest. What Article 22(1) is concerned with is that the detention must be supported by the fulfilment of the rights referred to therein. Strictly speaking, therefore, Article 22(1) does not go to the legality of the arrest. [Para 100][174-F-G] CUSTODY UNDERGONE UNDER ORDERS OF

SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS THE CR.P.C APPLICABLE TO WRIT PETITIONS?

11.1 The proceeding in the High Court was a writ petition. At the time when the writ petition was filed, the relief sought was that a writ of Habeas Corpus be issued to set him at liberty. The further relief sought was that the Appellant may not be arrested without prior notice to enable him to seek appropriate remedies. As far as the prayer that the Appellant may not be arrested is concerned, it is a relief which does not go hand in hand with Section

167 of the Cr.P.C. This is for the reason that the power under Section 167 is invoked only after there has been an arrest and what is sought is the extension of the detention of the person arrested. Though, this was the position when the writ petition was filed, by the time, the writ petition came up for consideration at 2:45 p.m. on 28.08.2018, the Appellant stood arrested at 2:15 p.m. It would appear, in the meantime, the appellant was produced before the Magistrate who passed the transit remand order. Thereafter when the matter was taken up for consideration at 4:00 p.m. and on noticing the transit remand, order, dated 28.08.2018, inter alia, ordering house arrest came to be passed. Therefore, at the time (4PM) when the order was passed, the Court was dealing with the matter when the Appellant stood arrested and also remanded by way of the transit remand order. As already found that the superior Courts including the High Court can exercise power under Section 167. The finding of the High Court in the impugned judgment appears to proceed on the basis that only a Magistrate can order remand, does not appear to be correct.[Paras 104, 106, 108, 116][178-B-D; 179-A-B; 181-A]

11.2 Undoubtedly, as pointed out by the appellant, he came to be detained on the basis of an arrest carried out by the police officer from the State of Maharashtra in connection with FIR disclosing the commission of cognizable offences. The arrest is apparently effected in view of the powers available under Section

48 of the Cr.P.C. Finding that an order under Section 167 was required to produce the appellant before the competent Court in Maharashtra, he produced the appellant-in-person before the nearest Magistrate in Delhi and the Magistrate passed an order which is an order of remand under Section 167. The High Court came to be concerned with the validity of the remand order and detention of the appellant. A writ of habeas corpus does lie in certain exceptional cases even by way of challenging the orders of remand. If there is non-compliance with Article 22(1) and the person is detained it is an aspect which has to be borne in mind by the Magistrate when ordering remand. Detention is the result of an arrest. Article 22(1) applies at this stage after arrest. If fundamental rights are violated in the matter of continued detention, the Magistrate is not expected to be oblivious to it. It is in this sense that the High Court has found violation of Article 22(1) inter alia and the Magistrate over-looking it as rendering the transit remand illegal. As far as the arrest being made in violation of Section 41(1)(ba), undoubtedly, it is a matter which related to the legality of the arrest itself which is the stage prior to detention. The High Court finds that the Magistrate had not applied his mind to the question as to whether the arrest was in compliance with Section 41 (1) (ba) of Cr.P.C. [Para 117] [181-B-F]

THE IMPACT OF THE NON-ACCESSIBILITY TO THE

APPELLANT FOR THE INVESTIGATING AGENCY DURING

HOUSE ARREST AND THE EFFECT OF THE APPELLANT

BEING IN POLICE CUSTODY FROM 14.4.2020 TO 25.4.2020.

12. The very purpose of custody under Section 167 is to enable the police to interrogate the accused and if that opportunity is not present then such period of custody as alleged would not qualify for the purpose of Section 167. In other words, the argument appears to be that the object and scheme of Section

167 is that an investigation is carried out with opportunity to question the accused and still it is not completed within the period of 90 days whereupon right to default bail arises. By the proceedings on 28.08.2018 when the petition was filed, the High Court stayed the transit remand and the appellant could not be taken to Maharashtra. By the very same order, the High Court placed the Appellant under house arrest. No access was provided to the investigating agencies to question the Appellant. In such circumstances, the period undergone as house arrest should be excluded. The argument is that under the general law, namely, the Cr.P.C. without the modification effected under Section 43(D) of UAPA, police custody can be sought and given only during the first 15 days, thereafter, police custody cannot be given. In the case of UAPA, in view of the modified application of the Cr.P.C. under Section 43(D)(2), the period of 15 days stands enhanced to

30 days. Thus, police custody by the Magistrate can be given on production for a period of 30 days. The argument further runs that if it is on the basis of the Appellant having surrendered on 14.04.2020 and upon being produced before the Court, he stood remanded to police custody, the period of 90 days would begin to run only from the date of the remand i.e. 15.04.2020. If the contention of the appellant is that the period of remand commenced with the house arrest i.e., 28.08.2018, is accepted, it would result in the police custody given on 15.04.2020 as impermissible. In this regard, the fact that the appellant did not object to the police custody being given on 15.04.2020 is emphasized. The appellant acquiesced in the police custody commencing from 15.04.2020. This is possible only on the basis that the period of 90 days would commence only on 15.04.2020 in terms of the law laid down in Chaganti Satyanarayana. [Para 119][182-B-H; 183-A]

Chaganti Satyanarayan & Ors. v. State of Andhra Pradesh (1986) 3 SCC 141:[1986] 2 SCR 1128 – relied on

13.1 The scheme of the law (Cr.P.C.) is that when a person is arrested without warrant in connection with a cognizable offence, investigation is expected to be completed within 24 hours from his arrest. If the investigation is not completed, as is ordinarily the case, the accused must be produced before the Magistrate who is nearest from the place of arrest irrespective of whether he is having jurisdiction or not. The Magistrate on the basis of the entries in the case diary maintained by the officer is expected to apply his mind and decide whether the accused is to be remanded or not. If the police makes a request for police custody which is accepted then an order is to be passed and reasons are to be recorded under Section 167(3). Police custody is an important tool in appropriate cases to carry on an effective investigation. It has several uses. It includes questioning the accused with reference to the circumstances, and obtaining if possible, statements which are relevant in the future prosecution. Custodial interrogation in some cases is clearly a dire need to give a prosecution and therefore the courts a complete picture. The contention of the appellant that it is always open to Magistrate to order only judicial custody and even exclusively with 90 days of judicial custody alone, an application for default bail would lie cannot be disputed. Whatever be the nature of the custody as long as it falls within four walls of Section 167, if the requisite number of days are spent in police/ judicial custody/ police and judicial custody that suffices. [Para 121][184-C-F]

13.2 However, that may not mean applying the functional test or bearing in mind the object of the law that the purpose of obtaining police custody is lost sight of. According to the appellant, the period of house arrest is to be treated as judicial custody on the terms of the order dated 28.08.2018 as subsequently extended. Investigating officers, undoubtedly, could go to the house of the appellant and question him. It is, however, true that if the High Court had been approached, it may have directed the appellant to cooperate with the officers in the investigation. It however remains in the region of conjecture. [Para 122][184-G-H; 185-A]

13.3 The special Judge ordered remand for 7 days. Thereafter, a period of 7 days further remand to police custody was granted by the order dated 21.04.2020. Still further, it appears on 25.04.2020, the Appellant was remanded in judicial custody in which he continued. The question would arise that all else being answered in favour of the Appellant whether his case is inconsistent with the police remand initially granted for 7 days on 15.04.2020 and further extended on 21.04.2020 which was, no doubt, cut short on 25.04.2020. The point to be noted is police custody can be given only for 15 days and that too, the first 15 days, ordinarily. In the case of persons accused of offences, under UAPA, the maximum period of police custody is 30 days. If the case of the appellant is to be accepted then it must be consistent with the subsequent proceedings, namely, police custody vide orders dated 15.04.2020 and 21.04.2020. In other words, Section

167 of the Cr.P.C. as modified by Section 43(D)(2) of UAPA, contemplates that remand to police custody on production of the accused can be given only during the first 30 days from the date of production and it advances the case of the respondent that remand on production of the accused before the Special Judge took place only with the production of the accused on 15.04.2020. If the remand in the case of the appellant took place in the year 2018 then it would be completely inconsistent with the remand to police custody well beyond the first 30 days of the remand in the year 2018. [Para 124][185-C-F]

13.4 The answer of the Appellant is that apart from the period of 15 days being supplanted by 30 days under UAPA, police custody can be sought and granted at any time in cases involving UAPA. It appears to be the Appellants case in one breath that this is possible under the second proviso contemplated in Section 43(2)(b) of UAPA. It is seen contended, that unlike the cases generally covered by the Cr.P.C., police custody can be sought in cases under UAPA at any time. It is also contended however that, it is only if a person is in judicial custody and the investigator wants to get police custody in place of judicial custody that an affidavit is required. In this case, it is the case of the appellant that there is no such affidavit. This is for the reason that when police custody was sought on 15.04.2020, the appellant was not in judicial custody. He had surrendered on the previous day i.e. on 14.04.2020 before the NIA. It is, therefore, to resolve this controversy necessary to find out whether the case of the Appellant that the police custody can be sought at any time in cases falling under UAPA is tenable. [Para 125][185-G-H; 186-A-B]

14. Under Section 43(D)(2)(a), it is clear that the maximum period of police custody which is permissible has been increased from 15 days to 30 days. The further modification is that which is relevant which is incorporated in the second proviso. It contemplates that the investigating officer can seek with reasons and explaining the delay obtain the police custody of a person who is in judicial custody. [Para 127][186-G]

15. Undoubtedly, the period of 30 days is permissible by way of police custody. This Court will proceed on the basis that the legislature is aware of the existing law when it brings the changes in the law. In other words, this Court had laid down in Anupam Kulkarni, inter alia, that under Section 167 which provides for 15 days as the maximum period of police custody, the custody of an accused with the police can be given only during the first 15 days from the date of the remand by the Magistrate. Beyond 15 days, the remand can only be given to judicial custody. Ordinarily, since the period of 15 days has been increased to 30 days, the effect would be that in cases falling under UAPA applying the principle declared in Anupam Kulkarni., the investigating officer in a case under UAPA, can get police custody for a maximum period of 30 days but it must be within the first 30 days of the remand. In this regard, the number of days alone is increased for granting remand to police custody. The principle that it should be the first 30 days has not been altered in cases under UAPA. [Para 128][187-A-D]

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

17. In this regard, it would appear that the appellant had surrendered on 14.04.2020. He was not in judicial custody. He was produced with a remand report seeking police custody on 15.04.2020. Treating this as a remand sought within the first 30 days, a remand is ordered for a period of 7 days initially. There is no dispute that the period was police custody. An accused under UAPA may be sent to judicial custody, police custody or granted bail. If the argument that the police custody can be sought at any time and it is not limited to cases where there is judicial custody, it will go against the clear terms of the proviso and even a person who is bailed out can after 30 days be remanded to police custody. This is untenable. The case of the appellant that the police custody granted on 15.04.2020 was permissible and consistent with his case does not appear to be correct. [Para 128][187-F-H; 188-A-B]

THE CIRCUMSTANCES THAT MILITATE AGAINST

THE ORDER OF HOUSE ARREST BEING ONE UNDER

SECTION 167.

18. The High Court entertains the writ petition on 28.08.2018. It intended to dispose of the matter on the very next day. The order of house arrest was passed in such circumstances. But there was custody and what is more, it went on for 34 days. The High Court was unable to go through the entries in the case diary as the entries were in the Marathi language. In fact, the court expresses inability to make out from the documents what precisely the case against the appellant was. Translation of the documents were to be made available on the next day. The translations were not made available. Yet the house arrest was ordered until further orders on 28.08.2018. What is pertinent is that by the standards in law applicable to a Magistrate acting under Section 167, the High Court did not purport to act under Section 167. This is different from saying that it acted in violation of the mandate of law. It is true that there was no stay of investigation as such. However, what was challenged was the transit remand. The FIR was lodged in another state. Interrogation of the appellant would be integral to the investigation. On the terms imposed by the High Court in regard to house arrest it was not possible for such interrogation to take place. It appears that the parties did not contemplate as it is presently projected. It is no doubt true that the respondent could have moved the High Court. The house arrest according to the appellant is by way of modification of the order of remand. In other words, the contention is that the High Court stayed the transit. But the High Court when it passed the order of house arrest on 28.08.2018, it modified the remand from police custody to house arrest. Subject to what follows we proceed on the basis that the High Court modified the order of remand. The transit remand order of the CMM Saket provided for police custody which was to last for two days. But on the basis of the house arrest ordered by the High Court by interim order the appellant underwent house arrest for 34 days. By the judgment dated 01.10.2018 the High Court of Delhi set aside the transit remand, as the transit remand ordered by the magistrate was found illegal. On the said basis the High Court of Delhi finds that detention beyond 24 hours was clearly impermissible. Now it is relevant to notice that the CMM Saket had not ordered detention for the period after 30.08.2018. Detention was ordered by him only for two days and the appellant was to be produced on 30.08.2018. By the order of the High Court of Delhi, the transit could not take effect. Therefore, the entire period after 30.08.2018 till 01.10.2018 cannot be said to be based on the order of the magistrate. The said period in fact is covered by the order of house arrest. The period of house arrest covered the period from 28.08.2018 based on the order of the High Court. The arrest was effected at 2.15PM on 28.08.2018. The order of the CMM was passed within the next hour or so. The order of the High Court was passed at about 4.30PM. No doubt, it is the order of the magistrate which originated the remand under Section 167 to police custody. The High Court of Delhi proceeded to find that without the support of a valid remand order by the magistrate, the detention exceeded 24 hours rendering it untenable in law and the further finding however is that consequently the house arrest came to an end as of then (01.10.2018). Therefore, the High Court did not proceed to pronounce the house arrest as non est or illegal. On the other hand, when it is pronounced, it as having come to an end on 01.10.2018 and no part of it is found to be illegal, it meant that it was valid from the point of time it was passed till 01.10.2018. If this is perceived as an order passed under Section 167 then there would not be any detention beyond

24 hours of the arrest which could be illegal. The illegality of the detention is based on the transit order being found illegal. If the transit order has been modified as claimed by the appellant, then the detention would be lawful as the order of house arrest is passed well within 24 hours of the arrest. The High Court of Delhi also did not contemplate that the order of house arrest was passed by way of custody under Section 167. No doubt, the foundational order, the transit remand, being set aside it could be said that the interim order will not survive. But then the order should have been so understood by the High Court. Undoubtedly, the appellant was placed in police custody from 15.04.2020 to 25.04.2020. Even the enhanced period of 30 days of police custody, permissible under Section 43 (D) (2) of UAPA, must be acquired within the first 30 days of the remand. Proceeding on the basis of the case of the appellant that the first remand took place on 28.08.2018, the appellant being in police custody for a period of 11 days in 2020 is inconsistent with appellants case and the law. Though police custody can be had under UAPA beyond the first 30 days under the Second Proviso to Section 43(D)(2), it is permissible only in a situation, where the accused is in judicial custody. The appellant was, admittedly, not in judicial custody, having surrendered to the NIA on 14.04.2020, which is on the eve of the first order directing police custody. One of the contentions raised by the respondent is that if the order of house arrest was passed under Section 167 Cr.PC then the High Court of Delhi would have after setting aside the transit remand, either released the appellant on bail or remanded him to custody. Instead, the High Court released the appellant on the basis that as the remand order was illegal and set aside, in view of Section

56 and Section 57 the detention beyond 24 hours, cannot be sustained. Now in a proceeding under Section 167 where a remand order is put in issue before a superior court it presupposes an arrest in connection with a cognizable offence. Now if the remand is set aside by the superior court, in a proceeding which originated from a remand under Section 167, then the order that would follow on setting aside the remand, would be to grant him bail or to modify the remand. This is for the reason that there is an arrest which in the first place sets the ball rolling. Therefore, he has either to be released on bail, if not, he would have to be remanded. [Para 131][189-C-H; 190-A-H; 191-A-H; 192-A-D]

19. There can be no quarrel with the proposition that a court cannot remand a person unless the court is authorised to do so by law. However, we are in this case not sitting in appeal over the legality of the house arrest. But we are here to find whether the house arrest fell under Section 167. In the facts of this case, the house arrest was not ordered purporting to be under Section

167. It cannot be treated as having being passed under Section

167. The concept of house arrest as part of custody under Section

167 has not engaged the courts including this Court. However, when the issue has come into focus, and noticing its ingredients we have formed the view that it involves custody which falls under Section 167. Under Section 167 in appropriate cases it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest. Under Section 309 also that judicial custody being custody ordered, subject to following the criteria, the courts will be free to employ it in deserving and suitable cases. In view of the fact that the house arrest of the appellant was not purported to be under Section 167 and cannot be treated as passed thereunder. [Paras 136, 138, 139, 140] [195-B-G]

Lalita Kumari v. Government of Uttar Pradesh and others (2014) 2 SCC 1 : [2013] 14 SCR 713; Bikramjit Singh v. The State of Punjab (2020) 10 SCC 616 – relied on.

Romila Thapar and Others v. Union of India and others (2018) 10 SCC 753 : [2018] 11 SCR 951; State of Punjab v. Ajaib Singh AIR 1953 SC 10 : [1953] SCR 254; In re. M.R. Venkataraman and Others AIR 1948 Mad 100; The matter of: Madhu Limaye and Others (1969) 1 SCC 292 : [1969] 3 SCR 154; Arnesh Kumar v. State of Bihar and Another (2014) 8 SCC 273 : [2014]

8 SCR 128; State of West Bengal v. Dinesh Dalmia (2007) 5 SC 773 : [2007] 5 SCR 561; Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors. (1980) 2 SCC 559 : [1980] 3 SCR 15 – referred to.

Buzadji v. Moldova 398 Butterworths Human Rights Cases 42 – referred to.