Supreme Court Denies Default Bail: House Arrest Not Custody Under Section 167 CrPC (12 May 2021)

Case Background

The case began with an FIR registered on 08 January 2018, at Vishrambagh Police Station, Pune, Maharashtra, under various sections of the Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act, 1967 (UAPA). Gautam Navlakha, the appellant, was arrested from his Delhi residence on 28 August 2018. Following his arrest, the appellant filed a Writ Petition in the High Court of Delhi seeking a Writ of Habeas Corpus.

The High Court initially ordered that no action be taken to remove the appellant from Delhi until the matter was heard later that day. However, in the meantime, a Chief Metropolitan Magistrate (CMM) in Saket, Delhi, granted a transit remand for the appellant to be produced before the Special Court in Pune. When the High Court took up the matter at 4:00 PM, it directed that the appellant not be taken from Delhi and ordered that he be kept under house arrest until further orders. The High Court also sought translations of all documents produced before the CMM.

Timeline

Course of Proceedings

The appellant’s initial Writ Petition in the High Court of Delhi challenged the legality of the transit remand order. The High Court set aside the transit remand, holding it illegal. Subsequently, the appellant sought anticipatory bail, which was rejected at all stages. The appellant eventually surrendered on 14 April 2020, after which the Magistrate authorized police custody. The appellant then applied for default bail, including the period of house arrest, which was rejected by the NIA Special Court. The Bombay High Court also dismissed the appeal against this order.

Legal Framework

The judgment primarily revolves around the interpretation of Section 167 of the Code of Criminal Procedure, 1973 (CrPC), which deals with the procedure when an investigation cannot be completed within 24 hours. Section 167(2) of the CrPC empowers a Magistrate to authorize the detention of an accused in such custody as the Magistrate thinks fit, for a term not exceeding fifteen days in the whole. It also provides for the extension of detention beyond fifteen days under certain conditions. The Unlawful Activities (Prevention) Act, 1967 (UAPA), modifies the application of Section 167 of the CrPC, particularly concerning the period of custody.

Article 21 of the Constitution of India guarantees the right to life and personal liberty, while Article 22 provides safeguards against arbitrary arrest and detention. Section 57 of the CrPC mandates that a person arrested without a warrant cannot be detained for more than 24 hours without a special order from a Magistrate under Section 167 CrPC. Section 428 of the CrPC allows for the set-off of the period of detention undergone by an accused against the sentence of imprisonment.

The relevant legal provisions are:

• Section 167 of the CrPC: “Procedure when investigation cannot be completed in twenty-four hours.”
• Section 57 of the CrPC: “Person arrested not to be detained more than twenty- four hours.”
• Section 428 of the CrPC: “Period of detention undergone by the accused to be set-off against the sentence of imprisonment.”
• Article 21 of the Constitution of India: “Protection of life and personal liberty.”
• Article 22 of the Constitution of India: “Protection against arrest and detention in certain cases.”
• Section 43(D)(2) of UAPA: Modifies the application of Section 167 CrPC for UAPA offences.

Arguments

Appellant’s Submissions:

• The appellant argued that the 34-day period of house arrest should be included in the 90-day period for default bail calculation under Section 167 of the CrPC.
• It was contended that the Investigating Officer could have sought permission from the Delhi High Court to interrogate the appellant during house arrest.
• The appellant emphasized that Section 167 of the CrPC does not require access to the police for interrogation as a condition for custody.
• It was argued that judicial custody, where police do not have access, is also counted for default bail.
• The appellant contended that the High Court of Delhi did not treat the house arrest period as void and that the custody was authorized by the Magistrate under Section 167 of the CrPC.
• The appellant submitted that the High Court only modified the nature of the remand, not the remand itself.
• The appellant stated that the transit remand order was under Section 167 of the CrPC.
• The appellant argued that the High Court did not have inherent power to place a person in custody and that the power could only be sourced from Section 167 of the CrPC.
• The appellant submitted that the High Court or any superior Court can modify or change the nature of the Magisterial remand.

Respondent’s Submissions:

• The respondent argued that the house arrest was a protection from custody and not custody itself, and thus, it could not be counted under Section 167 of the CrPC.
• The respondent submitted that the house arrest was permitted in exercise of extraordinary powers available to the Court.
• It was contended that an accused remanded under Section 167 cannot come out of custody unless bailed out or acquitted, and the appellant was not bailed out.
• The respondent stated that the house arrest was neither judicial nor police custody.
• The respondent argued that the High Court’s judgment on 01.10.2018, ended the house arrest and treated the arrest as non-est.
• The respondent contended that the transit remand order was only an order for production, not detention.
• The respondent submitted that the transit remand order was in force only for a couple of hours.
• The respondent argued that the interpretation adopted by the appellant would render police custody under Section 167 illusory.
• The respondent contended that the period of arrest has to be excluded and the period has to be reckoned from the date of production.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. What is the nature of an order of transit remand? Is it an order passed under Section 167 of the CrPC?
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 CrPC?
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 CrPC? Is House arrest custody within the embrace of Section 167 of CrPC?
5. Is the House arrest of the appellant not custody under Section 167 of the CrPC 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 CrPC suffice to piece together the total maximum period of custody permitted beyond which the right to default bail arises or whether the law giver has envisaged only custody which is continuous?
8. What is the impact of mandate of Article 21 and Article 22 of the Constitution?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed Chaganti Satyanarayan & Ors. v. State of Andhra Pradesh [(1986) 3 SCC 141], holding that the period of 90 days commences from the date of remand.
• The Court referred to State of Punjab v. Ajaib Singh [AIR 1953 SC 10], regarding the scope of the expression “arrest” under Article 22(1).
• The Court referred to State of U.P. v. Abdul Samad [AIR 1962 SC 1506], regarding the production of an arrested person before a Magistrate within 24 hours.
• The Court referred to Lalita Kumari vs. Government of Uttar Pradesh and others [(2014) 2 SCC 1], regarding the mandatory duty of police to register an FIR.
• The Court referred to Maneka Gandhi vs. Union of India [AIR 1978 SC 597], regarding constitutional freedoms and enumerated rights.
• The Court referred to State rep. by Inspector of Police and others vs. N.M.T. Joy Immaculate [(2004) 5 SCC 729], regarding the maintainability of a revision against an order of remand.
• The Court referred to Central Bureau of Investigation, Special Investigation Cell v. Anupam J. Kulkarni [(1992) 3 SCC 141], regarding the object and scope of Section 167 CrPC.
• The Court followed Serious Fraud Investigation Office and Ors. vs. Rahul Modi and Ors. [(2019) 5 SCC 266], regarding habeas corpus not being entertained in remand orders.
• The Court referred to Manubhai Ratilal Patel v. State of Gujarat and others [(2013) 1 SCC 314], regarding habeas corpus not being entertained when a person is committed to judicial custody.
• The Court referred to State of Rajasthan and Ors. vs. Shamsher Singh [AIR (1985) SC 1082], a case under National Security Act, 1980.
• The Court referred to A.K. Roy and Ors. vs. Union of India (UOI) and Ors. [AIR (1982) SC 710], regarding preventive detention and house arrest.
• The Court referred to Govt. of Andhra Pradesh and another etc. v. Anne Venkateswara Rao etc. etc. [AIR 1977 SC 1096], regarding the non-applicability of Section 428 to preventive detention.
• The Court referred to Ajmer Singh and others v. Union of India and others [AIR 1987 SC 1646], regarding the non-applicability of Section 428 to court martial cases.
• The Court referred to The matter of: Madhu Limaye and Others [(1969)1 SCC 292], regarding the violation of Article 22(1) and the duty of the Magistrate.
• The Court referred to Arnesh Kumar vs. State of Bihar and Another [(2014) 8 SCC 273], regarding the Magistrate’s duty to be satisfied with the legality of arrest.
• The Court referred to In re. M.R. Venkataraman and Others [AIR 1948 Mad 100], regarding the Magistrate’s power to remand a prisoner to such custody as he thinks fit.
• The Court referred to State of West Bengal v. Dinesh Dalmia [(2007) 5 SC 773], regarding the period of detention for default bail.
• The Court referred to Niranjan Singh & Anr. vs. Prabhakar Rajaram Kharote & Ors. [(1980) 2 SCC 559], regarding detention in a previous case not being counted for a separate offence.
• The Court referred to Bikramjit Singh vs. The State of Punjab [(2020) 10 SCC 616], regarding the right to default bail being a fundamental right.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by a combination of legal principles and factual considerations. The Court emphasized that for a period to be counted as custody under Section 167 of the CrPC, it must be a detention authorized by a Magistrate under the said section. The Court also took into account the fact that the house arrest, in this case, was not ordered under Section 167, and that the appellant was not accessible for interrogation during this period. The Court also considered that the police custody of the appellant was not within the first 30 days of the remand as per Section 43D(2) of UAPA.

Ratio Decidendi

The ratio decidendi of the judgment is that house arrest, in the absence of a specific order under Section 167 of the CrPC, does not qualify as custody for the purposes of calculating the period for default bail. The Court clarified that for a period to be counted as custody under Section 167, it must be detention authorized by a Magistrate under the said section. The Court also emphasized that the nature of custody under Section 167 must allow for the possibility of interrogation by the investigating officer.

Obiter Dicta

The Court made several obiter dicta, including:

• Transit remand orders are passed under Section 167 of the CrPC.
• The High Court’s order for house arrest was a modification of the transit remand and not an order under Section 167 of the CrPC.
• Broken periods of custody, if traceable to Section 167 of the CrPC, can be pieced together to calculate the total period of custody for default bail.
• Police custody can only be sought within the first 30 days of remand, and beyond that, only from judicial custody by filing an affidavit.
• The right to default bail is a fundamental right.

Flowchart