# GAUTAM NAVLAKHA v. NATIONAL INVESTIGATION AGENCY

- **Citation:** [2021] 5 S.C.R. 87
- **Court:** Supreme Court of India
- **Decided:** 2021-05-12
- **Case number:** Criminal Appeal No. 510 of 2021
- **Bench:** Uday Umesh Lalit, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gautam-navlakha-v-national-investigation-agency-35016
- **Pages:** 109

## Headnote

Constitution of India: Art.21 - House arrest - When a citizen
is placed on house arrest, which has the effect of depriving him of
any freedom, it will not only be custody but it would involve depriving
him of the fundamental freedoms unless such freedoms are
specifically protected - In the case of a person undergoing a house
arrest and in the teeth of an absolute prohibition, in the facts of the
case forbidding him from moving outside his home, the hallmark of
custody described in the case of incarceration is equally present -
The right under Art.21 is undoubtedly available to citizens and noncitizens - While personal liberty is a wide expression capable of
encompassing within its fold, many elements apart from the right to
be protected against the deprivation of liberty in the sense of the
freedom from all kinds of restraints imposed on a person, the
irreducible core of personal liberty, undoubtedly, consist of the
freedom against compelled living in forced custody.
Code of Criminal Procedure, 1973: s.167 - Remedies open
to an accused in the case of remand under s.167 - Held: An order
under s.167 is purely an interlocutory order - No revision is
maintainable - A petition under s.482 cannot be ruled out - When
a person arrested in a non-bailable offence is in custody, subject to
the restrictions, contained therein, a court other than High Court
or Court of Session, before whom he is brought inter alia, can release
him on bail under s.437 - s.439 deals with special powers of High
Court and court of session to grant bail to a person in custody -
The said courts may also set aside or modify any condition in an
order by a Magistrate - Ordinarily, when the court considers a
request for remand there would be an application for bail - It is for
the court to grant bail failing which an order of remand would
follow.
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Code of Criminal Procedure, 1973: ss.437, 439 - While the
remand report is considered by the Magistrate the application for
bail may be moved under s.439 instead of moving under s.437 in
view of the restrictions contained therein - Though an application
under s.397 would not lie against the remand, an application for
bail would lie under s.439 - Therefore, ordinarily the accused would
seek bail and legality and the need for remand would also be
considered by the High Court or court of session in an application
under s.439 - No doubt the additional restrictions under s.43(D)(5)
of UAPA are applicable to citizens of India in cases under the said
law.
Code of Criminal Procedure, 1973: s.167 - Whether a Writ
of Habeas Corpus lies against an order of remand under s.167 of
the Code - A Habeas Corpus petition is one seeking redress in the
case of illegal detention - It is intended to be a most expeditious
remedy as liberty is at stake - If the remand is absolutely illegal or
the remand is afflicted with the vice of lack of jurisdiction, a Habeas
Corpus petition would indeed lie - Equally, if an order of remand is
passed in an absolutely mechanical manner, the person affected
can seek the remedy of Habeas Corpus - Barring such situations, a
Habeas Corpus petition will not lie.
Code of Criminal Procedure, 1973: ss.167, 439 - Whether
superior courts (including High Court) can exercise power under
s.167 of the Code - Can broken periods of custody count for the
purpose of default bail - Though the power is vested with the
Magistrate to order remand by way, of appropriate jurisdiction
exercised by the superior Courts, (it would, in fact, include the Court
of Sessions acting under s.439) the power under s.167 could also
be exercised by Courts which are superior to the Magistrate - While
ordinarily, the Magistrate is the original Court which would exercise
power to remand under s.167, the exercise of power by the superior
Courts which would result in custody being ordered ordinarily (police
or judicial custody) by the superior Courts which includes the High
Court, would indeed be t

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 [2021] 5 S.C.R. 87
87
GAUTAM NAVLAKHA
v.
NATIONAL INVESTIGATION AGENCY
(Criminal Appeal No. 510 of 2021)
MAY 12, 2021
[UDAY UMESH LALIT AND K. M. JOSEPH, JJ.]
Constitution of India: Art.21 - House arrest - When a citizen
is placed on house arrest, which has the effect of depriving him of
any freedom, it will not only be custody but it would involve depriving
him of the fundamental freedoms unless such freedoms are
specifically protected - In the case of a person undergoing a house
arrest and in the teeth of an absolute prohibition, in the facts of the
case forbidding him from moving outside his home, the hallmark of
custody described in the case of incarceration is equally present -
The right under Art.21 is undoubtedly available to citizens and noncitizens - While personal liberty is a wide expression capable of
encompassing within its fold, many elements apart from the right to
be protected against the deprivation of liberty in the sense of the
freedom from all kinds of restraints imposed on a person, the
irreducible core of personal liberty, undoubtedly, consist of the
freedom against compelled living in forced custody.
Code of Criminal Procedure, 1973: s.167 - Remedies open
to an accused in the case of remand under s.167 - Held: An order
under s.167 is purely an interlocutory order - No revision is
maintainable - A petition under s.482 cannot be ruled out - When
a person arrested in a non-bailable offence is in custody, subject to
the restrictions, contained therein, a court other than High Court
or Court of Session, before whom he is brought inter alia, can release
him on bail under s.437 - s.439 deals with special powers of High
Court and court of session to grant bail to a person in custody -
The said courts may also set aside or modify any condition in an
order by a Magistrate - Ordinarily, when the court considers a
request for remand there would be an application for bail - It is for
the court to grant bail failing which an order of remand would
follow.
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Code of Criminal Procedure, 1973: ss.437, 439 - While the
remand report is considered by the Magistrate the application for
bail may be moved under s.439 instead of moving under s.437 in
view of the restrictions contained therein - Though an application
under s.397 would not lie against the remand, an application for
bail would lie under s.439 - Therefore, ordinarily the accused would
seek bail and legality and the need for remand would also be
considered by the High Court or court of session in an application
under s.439 - No doubt the additional restrictions under s.43(D)(5)
of UAPA are applicable to citizens of India in cases under the said
law.
Code of Criminal Procedure, 1973: s.167 - Whether a Writ
of Habeas Corpus lies against an order of remand under s.167 of
the Code - A Habeas Corpus petition is one seeking redress in the
case of illegal detention - It is intended to be a most expeditious
remedy as liberty is at stake - If the remand is absolutely illegal or
the remand is afflicted with the vice of lack of jurisdiction, a Habeas
Corpus petition would indeed lie - Equally, if an order of remand is
passed in an absolutely mechanical manner, the person affected
can seek the remedy of Habeas Corpus - Barring such situations, a
Habeas Corpus petition will not lie.
Code of Criminal Procedure, 1973: ss.167, 439 - Whether
superior courts (including High Court) can exercise power under
s.167 of the Code - Can broken periods of custody count for the
purpose of default bail - Though the power is vested with the
Magistrate to order remand by way, of appropriate jurisdiction
exercised by the superior Courts, (it would, in fact, include the Court
of Sessions acting under s.439) the power under s.167 could also
be exercised by Courts which are superior to the Magistrate - While
ordinarily, the Magistrate is the original Court which would exercise
power to remand under s.167, the exercise of power by the superior
Courts which would result in custody being ordered ordinarily (police
or judicial custody) by the superior Courts which includes the High
Court, would indeed be the custody for the purpose of calculating
the period within which the charge sheet must be filed, failing with
the accused acquires the statutory right to default bail - In such
circumstances, broken periods of custody can be counted whether
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custody is suffered by the order of the Magistrate or superior courts,
if investigation remains incomplete after the custody, whether
continuous or broken periods pieced together reaches the requisite
period; default bail becomes the right of the detained person.
Code of Criminal Procedure, 1973: s.167 - Transit order,
effect of - The remand pursuant to a transit remand cannot be
judicial custody as the police is exclusively entrusted with the man
to produce him before the Magistrate having jurisdiction - It is
therefore, police custody - If it is thought that during the journey, it
is impermissible to interrogate the accused on the basis of transit
order, then such interrogation would equally be impermissible during
the time of journey permitted without obtaining an order under s.167
- If also during such journey, the accused volunteers with a statement
otherwise falling under s.27 of Evidence Act, it would be one when
the accused is in the custody of the police - If it is police custody
then, the order of the Magistrate granting transit remand would set
the clock ticking to complete the period for the purpose of default
bail.
Code of Criminal Procedure, 1973: s.428 - Period of
detention, set off of - Held: s.428 enables a person convicted to
have the period of detention which he has undergone during the
investigation, enquiry or trial set off against the term of
imprisonment.
Code of Criminal Procedure, 1973: s.167 - Detention of an
accused - Police officer can detain accused and question him in
the course of the investigation - However, the officer cannot detain
the accused beyond 24 hours excluding the time taken for the
journey from the place of arrest to the place where the Magistrate
who is competent to try the case sits - If he cannot so produce the
accused and the investigation is incomplete, the officer is duty bound
to produce the arrested person before the nearest Magistrate - The
nearest Magistrate may or may not have jurisdiction - He may order
the continued detention of the arrested person based on the request
for remand - He would largely rely on the entries in the case diary
and on being satisfied of the need for such remand which must be
manifested by reasons - The Magistrate can order police custody
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during the first 15 days (in cases under UAPA, the first 30 days) -
Beyond such period, the Magistrate may direct detention which is
described as judicial custody or such other custody as he may think
fit - It is, no doubt, open to a Magistrate to refuse police custody
completely during the first 15 days - He may give police custody
during the first 15 days not in one go but in instalments - It is also
open to the Magistrate to release the arrested person on bail - The
scheme further under s.167 is that custody (detention/ custody) as
authorized under such provisions, if it exceeds the limit as to
maximum period without the charge sheet being filed, entitles the
person in detention to be released on default bail - In fact, the
person may on account of his inability to offer the bail languish in
custody but he would undoubtedly be entitled to count the entire
period he has spent in detention under orders of the Magistrate/
Superior Court exercising powers under s.167 for the purpose of
set off under s.428.
Code of Criminal Procedure, 1973: s.167 - Effect of illegality
in the order under s.167 - An order purports to remand a person
under s.167 - It is made without complying with mandatory
requirements thereunder - It results in actual custody - The period
of custody will count towards default bail. s.167(3) mandates
reasons be recorded if police custody is ordered - There has to be
application of mind - If there is complete non-application of mind
or reasons are not recorded, while it may render the exercise illegal
and liable to be interfered with, the actual detention undergone
under the order, will certainly count towards default bail - Likewise,
unlike the previous Code (1898), the present Code mandates the
production of the accused before the Magistrate as provided in
clause (b) of the proviso to s.167(2) - Custody ordered without
complying with the said provision, may be illegal - But actual custody
undergone will again count towards default bail.
Code of Criminal Procedure, 1973: s.167 - If the Court
purports to invoke and act under s.167, the detention will qualify
even if there is illegality in the passing of the order - What matter in
such cases is the actual custody - However, when the Court does
not purport to act under s.167, then the detention involved pursuant
to the order of the Court cannot qualify as detention under s.167.
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Code of Criminal Procedure, 1973: s.167 - Judicial custody
and police custody - Difference between - When a person is
remanded to police custody, he passes into the exclusive custody of
the police officers - 'Custodial Interrogation' as is indispensable
to unearth the truth in a given case is the substantial premise for
such custody - The Magistrate must undoubtedly be convinced about
the need for remand to such custody - Reasons must be recorded -
Judicial custody is ordinarily custody in a jail - It is referred to
also as jail custody - The jails come under the Department of Jails
and staffed by the employees of the said department - The person
in jail custody is therefore indirectly, through the jail authorities,
under the custody of the Court - The police officer does not have
access to a person in judicial custody as he would have in the case
of a person in police custody - Unless permission is sought and
obtained which would apparently be subject to such conditions as
a court places the person in judicial custody cannot be questioned
by the police officers - Now in a case, ordinarily, instead of ordering
a remand a person can be released on bail - As to whether a case is
made out is a question to be decided in the facts of each case -
There may be restrictions put in regard to the grant of bail by law
which must be observed - But if bail is not granted then a person
arrested by the police in connection with the cognizable offence
must be remanded to custody - This is inevitable from the reading
of s.167 of the Cr.P.C.
Code of Criminal Procedure, 1973: s.167 - Judicial custody
of accused - The concept of house arrest as ordered in this case
with the complete prohibition on stepping out of the Appellants
premises and the injunction against interacting with persons other
than ordinary residents, and the standing of guard not to protect
him but to enforce the condition would place the Appellant under
judicial custody - s.167 speaks of 'such custody as it thinks fit' - If
it is found ordered under s.167 it will count.
Code of Criminal Procedure, 1973: s.167 - Does the
magistrate/Court consider the legality of arrest/detention while acting
under s.167 - Held: Art.22(1) creates a fundamental right on a
person arrested to be not detained without being informed as soon
as may be of the grounds for such arrest - It also declares it a
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fundamental right for the detained person to consult and be
defended by a legal practitioner of his choice - Now, detention
follows arrest - What Art.22(1) is concerned with is that the
detention must be supported by the fulfilment of the rights referred
to therein - Strictly speaking, therefore, Art.22(1) does not go to
the legality of the arrest - Constitution of India - Art.22(1).
Code of Criminal Procedure, 1973: s.167 - Impact of 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.
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Section 157 dealing with Procedure for investigation contemplates
inter alia the power to proceed, to the spot, to investigate the
facts and circumstance of the case, and if necessary, take
measures for the discovery and arrest of the offender. With the
proviso in the Cr.P.C., 1973, in Section 76, in the case of arrest
under a warrant, the person is to be produced before the Court
within 24 hours with the exclusion of time taken for travelling.
Such a proviso was absent in Section (81) of the Cr.P.C., 1898.
[Paras 24, 27][127-F-H; 128-A; 134-C-D]
State of U.P. v. Abdul Samad AIR 1962 SC 1506 : [1962]
Suppl. SCR 915 - held inapplicable.
1.2 In India, the concept of house arrest has its roots in
laws providing for preventive detention. Section 5 of the National
Security Act, 1980, is a law providing for preventive detention.
The safeguards under Article 22(1) and Article 22(2) are not
available under a law providing for preventive detention. 'House
arrests' have been resorted to in India, in the context of law
relating to 'preventive detention'. What is however relevant is
that preventive detention is also a form of forced detention. House
arrest is also custody and forced detention. [Paras 43, 45]
[145-G-H; 147-H; 148-A]
A.K. Roy and Ors. v. Union of India (UOI) and Ors.
AIR (1982) SC 710 : [1982] 2 SCR 272 - followed.
State of Rajasthan and Ors. v. Shamsher Singh AIR
(1985) SC 1082 : [1985] Suppl. SCR 83 - relied on.
A LOOK AT PRISONS IN INDIA
2.1 According to the data published by the National Crime
Records Bureau (NCRB) the conditions relating to jails and
prisoners is fairly alarming. There were a total number of 1350
prisons as of the year 2019. 1350 prisons consists of 617 Sub
Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special
Jails, 31 Women Jails, 19 Borstal School and 2 Other than the
above jails. A perusal of the executive summary would reveal an
alarming state of affairs as far as occupancy rate is concerned. It
has climbed to 118.5 percent in 2019 as on 31st December. The
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occupancy rate is alarming for male prisoners. In fact, during 2019,
a total of 18,86,092 inmates were admitted in the jails. The figure
of 4,78,600 prisoners as on 31st December, 2019 is the figure
obviously after considering the number of prisoners who would
have been inter alia bailed out. The number of under trial
prisoners in 2019 was 3,30,487 which in fact constituted 69.05
per cent of the total no. of prisoners. Delhi had the highest
occupancy rate of 174.9 percent followed by Uttar Pradesh which
came second with 167.9 percent. This means that in Delhi a prison
which was meant to be occupied by 100 persons, was used for
accommodating 174 persons. There is a tremendous amount of
overcrowding in jails in India. Secondly, a very large sum (Rs.
6818.1 crore) was the budget on prisons. Both aspects are
relevant in the context of the possibilities that house arrest offer.
[Paras 48, 49, 50][154-H; 155-A-E]
2.2 In the context of the rights conferred on citizens under
Article 19 which are essentially constitutional freedoms or rather
the enumerated rights as explained by this Court in Maneka
Gandhi vs. Union of India, when a citizen is placed on house arrest,
which has the effect of depriving him of any freedom, it will not
only be custody but it would involve depriving citizens under
custody of the fundamental freedoms unless such freedoms are
specifically protected. A person has a fundamental right to move
in any part of the country. It is obvious that in the case of a person
undergoing a house arrest and in the teeth of an absolute
prohibition, in the facts of the case forbidding the appellant from
moving outside his home, the hallmark of custody described in
the case of incarceration is equally present. Personal liberty
perhaps is the most important of all values recognized as such
under the constitution. It is to be jealously guarded from any
encroachment, save where such intrusion has the clear sanction
of law. The expression "procedure established by law" has
received an expansive and liberal exposition in decisions of this
Court commencing from Maneka Gandhi. Right to personal liberty
is the birth right of every human being. The right under Article
21 is undoubtedly available to citizens and non-citizens. While
personal liberty is a wide expression capable of encompassing
within its fold, many elements apart from the right to be protected
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against the deprivation of liberty in the sense of the freedom
from all kinds of restraints imposed on a person, the irreducible
core of personal liberty, undoubtedly, consist of the freedom
against compelled living in forced custody. [Para 51][155-E-H;
156-A-B]
Maneka Gandhi v. Union of India AIR 1978 SC 597 :
[1978] 2 SCR 621 - relied on
2.3 Personal liberty is interlinked with the right to life itself.
It is an inseparable part without which the right to life itself is
deprived of its content and meaning. The right to life and personal
liberty is essentially also based on the principle that men in regard
to fundamental rights be treated equal and that no man or a group
of men, even organized as a state under which he lives can deprive
him except without infringing the right to be treated equally unless
there is a legitimate sanction of law. Personal liberty of its
members must continue to remain the most cherished goal of
any civilized state and interference with the same must be confined
to those cases where it is sanctioned by the law and genuinely
needed. The court would lean in favour of upholding this precious,
inalienable and immutable value. In the United States ordinarily,
house arrest follows a conviction and is a choice which is available
to the Courts to send a person to house arrest which is in lieu of
a jail sentence. [Paras 53, 54][157-D-G]
Govt. of Andhra Pradesh and another etc. v. Anne
Venkateswara Rao etc. etc. AIR 1977 SC 1096:[1977]
3 SCR 7 - relied on
THE REMEDIES OPEN TO AN ACCUSED IN THE CASE
OF REMAND UNDER SECTION 167 OF THE CR.P.C.
3.1 An order under Section 167 is purely an interlocutory
order. No revision is maintainable. A petition under Section 482
cannot be ruled out. When a person arrested in a non-bailable
offence is in custody, subject to the restrictions, contained therein,
a court other than High Court or Court of Session, before whom
he is brought inter alia, can release him on bail under Section
437 of the Cr.P.C. Section 439 of the Cr.P.C. deals with special
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powers of High Court and court of session to grant bail to a person
in custody. The said courts may also set aside or modify any
condition in an order by a Magistrate. Ordinarily, when the court
considers a request for remand there would be an application for
bail. It is for the court to grant bail failing which an order of remand
would follow. [Paras 57, 59][159-A-C; 159-G]
State rep. by Inspector of Police and others v. N.M.T.
Joy Immaculate (2004) 5 SCC 729 : [2004] 2 Suppl.
SCR 71; Central Bureau of Investigation, Special
Investigation Cell v. Anupam J. Kulkarni (1992) 3 SCC
141 : [1992] 3 SCR 158 - relied on
3.2 No doubt, while the remand report is considered by the
Magistrate the application for bail may be moved under Section
439 instead of moving under Section 437 in view of the
restrictions contained therein. Though an application under
Section 397 would not lie against the remand, an application for
bail would lie under Section 439. Therefore, ordinarily the accused
would seek bail and legality and the need for remand would also
be considered by the High Court or court of session in an
application under Section 439. No doubt the additional restrictions
under section 43 (D) (5) of UAPA are applicable to citizens of
India in cases under the said law. [Para 60][159-H; 160-A-B]
WHETHER A WRIT OF HABEAS CORPUS LIES
AGAINST AN ORDER OF REMAND UNDER SECTION (167)
OF CR.P.C.
4. A Habeas Corpus petition is one seeking redress in the
case of illegal detention. It is intended to be a most expeditious
remedy as liberty is at stake. If the remand is absolutely illegal
or the remand is afflicted with the vice of lack of jurisdiction, a
Habeas Corpus petition would indeed lie. Equally, if an order of
remand is passed in an absolutely mechanical manner, the person
affected can seek the remedy of Habeas Corpus. Barring such
situations, a Habeas Corpus petition will not lie. [Paras 61,
63][160-C-D; 161-F-G]
Manubhai Ratilal Patel v. State of Gujarat and others
(2013) 1 SCC 314 : [2012] 8 SCR 993; Serious Fraud
Investigation Office and Ors. v. Rahul Modi and Ors.
(2019) 5 SCC 266 : [2019] 5 SCR 91 - relied on.
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WHETHER SUPERIOR COURTS (INCLUDING A HIGH
COURT) CAN EXERCISE POWER UNDER SECTION (167)
OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT
FOR THE PURPOSE OF DEFAULT BAIL?
5.1 Though the power is vested with the Magistrate to order
remand by way, of appropriate jurisdiction exercised by the
superior Courts, (it would, in fact, include the Court of Sessions
acting under Section 439) the power under Section 167 could
also be exercised by Courts which are superior to the Magistrate.
While ordinarily, the Magistrate is the original Court which would
exercise power to remand under Section 167, the exercise of
power by the superior Courts which would result in custody being
ordered ordinarily (police or judicial custody) by the superior
Courts which includes the High Court, would indeed be the
custody for the purpose of calculating the period within which
the charge sheet must be filed, failing with the accused acquires
the statutory right to default bail. In such circumstances broken
periods of custody can be counted whether custody is suffered
by the order of the Magistrate or superior courts, if investigation
remains incomplete after the custody, whether continuous or
broken periods pieced together reaches the requisite period;
default bail becomes the right of the detained person.
[Paras 66, 67][163-B-E]
THE EFFECT OF TRANSIT ORDER? IS IT A
PRODUCTION ORDER THOUGH SOURCED UNDER
SECTION 167 CR.P.C.?
6.1 In this case, the transit remand was ordered on
28.08.2018. The Appellant was to be produced under the same
on 30.08.2018 before the Magistrate in Pune. A person may be
arrested by a police officer in any part of India (Section 48 of
Cr.P.C.). Under Section 56, the person arrested without warrant
is to be sent before the Magistrate having jurisdiction or before
the officer in charge of a police station. It is thereafter, that Section
57 forbids the person so arrested: from being detained for a period
more than what is reasonable. from being detained beyond 24
hours from the time of arrest, excluding the time necessary for
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the journey from the place of arrest to the Magistrate Court.
Now, the 'Magistrate Court' referred to in Section 57 is the
Magistrate competent to try the case. Section 57 contains the
peremptory limit of 24 hours exclusive of the period for journey,
in the absence of 'special order' under Section 167.
[Paras 71, 72][164-B-E]
6.2 The remand pursuant to a transit remand cannot be
judicial custody as the police is exclusively entrusted with the
man no doubt to produce him before the Magistrate having
jurisdiction. It is therefore, police custody. Could the police be
engaged in questioning/ investigating the case by interrogating
the accused on the basis of the transit order either before,
embarking on the journey or during the course of the journey
and after the journey before producing him? If it is thought that
during the journey, it is impermissible, then such interrogation
would equally be impermissible during the time of journey
permitted without obtaining an order under Section 167. If also
during such journey, the accused volunteers with a statement
otherwise falling under Section 27 of Evidence Act, it would be
one when the accused is in the custody of the police. If it is police
custody then, the order of the Magistrate granting transit remand
would set the clock ticking to complete the period for the purpose
of default bail. The remand order be it a transit remand order is
one which is passed under Section 167 of the Cr.P.C. and though
it may be for the production of the Appellant, it involved
authorising continued detention within the meaning of Section
167. [Paras 76, 78][165-F-H; 166-A; 167-A]
THE IMPACT OF SECTION 428 OF CR.P.C.
7.1 If house arrest as ordered in this case is to be treated
as custody within the meaning of section 167 of the Cr.P.C. would
it not entail the period of house arrest being treated as part of
the detention within the meaning of Section 428 in case there is
a conviction followed by a sentence? Section 428 enables a person
convicted to have the period of detention which he has undergone
during the investigation, enquiry or trial set off against the term
of imprisonment. [Paras 80, 82][167-E-G]
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7.2 There is a scheme which is unravelled by the Code
regarding detention of an accused. The starting point appears to
be the arrest and detention of the person in connection with the
cognizable offence by a police officer without a warrant. He can
detain him and question him in the course of the investigation.
However, the officer cannot detain the accused beyond 24 hours
excluding the time taken for the journey from the place of arrest
to the place where the Magistrate who is competent to try the
case sits. If he cannot so produce the accused and the investigation
is incomplete, the officer is duty bound to produce the arrested
person before the nearest Magistrate. The nearest Magistrate
may or may not have jurisdiction. He may order the continued
detention of the arrested person based on the request for remand.
He would largely rely on the entries in the case diary and on
being satisfied of the need for such remand which must be
manifested by reasons. The Magistrate can order police custody
during the first 15 days (in cases under UAPA, the first 30 days).
Beyond such period, the Magistrate may direct detention which
is described as judicial custody or such other custody as he may
think fit. It is, no doubt, open to a Magistrate to refuse police
custody completely during the first 15 days. He may give police
custody during the first 15 days not in one go but in instalments.
It is also open to the Magistrate to release the arrested person
on bail. [Para 85][169-B-E]
Ajmer Singh and others v. Union of India and others
AIR 1987 SC 1646 : [1987] 3 SCR 84 - relied on
7.3 The arrested person if detained during the period of
investigation can count this period, if he is ultimately charged,
tried and convicted by virtue of the provisions of Section 428 of
Cr.P.C. It is not every detention which can be relied upon to get
the benefit of set-off under Section 428. A period spent under an
order of preventive detention being not in connection with the
investigation into an offence cannot be counted. Thus, detention
'during investigation' under Section 428 is integrally connected
with detention as ordered under Section 167. The scheme further
under Section 167 is that custody (detention/ custody) as
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authorized under such provisions, if it exceeds the limit as to
maximum period without the charge sheet being filed, entitles
the person in detention to be released on default bail. In fact, the
person may on account of his inability to offer the bail languish in
custody but he would undoubtedly be entitled to count the entire
period he has spent in detention under orders of the Magistrate/
Superior Court exercising powers under Section 167 for the
purpose of set off under Section 428. [Paras 86, 88, 89][169-F-G;
170-A-C]
EFFECT OF ILLEGALITY IN THE ORDER UNDER
SECTION 167 CR.PC.
8.1 An order purports to remand a person under Section
167. It is made without complying with mandatory requirements
thereunder. It results in actual custody. The period of custody
will count towards default bail. Section 167(3) mandates reasons
be recorded if police custody is ordered. There has to be
application of mind. If there is complete non-application of mind
or reasons are not recorded, while it may render the exercise
illegal and liable to be interfered with, the actual detention
undergone under the order, will certainly count towards default
bail. Likewise, unlike the previous Code (1898), the present Code
mandates the production of the accused before the Magistrate
as provided in clause (b) of the proviso to Section 167 (2). Custody
ordered without complying with the said provision, may be illegal.
But actual custody undergone will again count towards default
bail. [Para 90][170-C-F]
8.2 The view taken in the impugned judgment that sans
any valid authorisation/ order of the Magistrate detaining the
Appellant there cannot be custody for the purpose of Section
167 is not correct. Therefore, if the Court purports to invoke
and act under Section 167, the detention will qualify even if there
is illegality in the passing of the order. What matter in such cases
is the actual custody. However, when the Court does not purport
to act under Section 167, then the detention involved pursuant
to the order of the Court cannot qualify as detention under Section
167. [Paras 91, 92, 93][170-G-H; 171-A-B]
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JUDICIAL CUSTODY AND POLICE CUSTODY
9.1 Whether house arrest as ordered by the High Court
amounts to custody within the meaning of Section 167 of the
Cr.P.C. Undoubtedly custody in Section 167 of the Cr.P.C. is
understood as ordinarily meaning police custody and judicial
custody. The period of custody begins not from the time of arrest
but from time the accused is first remanded. Police custody can,
in a case falling under the Cr.P.C. (not under the UAPA), be given
only during the first 15 days. During the first 15 days no doubt
the Court may order judicial custody or police custody. No doubt
the last proviso to Section 167 (2) provides that detention of a
woman under eighteen years of age, the detention shall be
authorised to be in the custody of a remand home or recognised
social institution. [Para 94][171-B-E]
9.2 Distinction between police custody and judicial custody
When a person is remanded to police custody, he passes
into the exclusive custody of the police officers. 'Custodial
Interrogation' as is indispensable to unearth the truth in a given
case is the substantial premise for such custody. The Magistrate
must undoubtedly be convinced about the need for remand to
such custody. Reasons must be recorded. Judicial custody is
ordinarily custody in a jail. It is referred to also as jail custody.
Thus, jail custody and judicial custody are the same. The jails
come under the Department of Jails and staffed by the employees
of the said department. The person in jail custody is therefore
indirectly, through the jail authorities, under the custody of the
Court. The police officer does not have access to a person in
judicial custody as he would have in the case of a person in police
custody. Unless permission is sought and obtained which would
apparently be subject to such conditions as a court places the
person in judicial custody cannot be questioned by the police
officers. Now in a case, ordinarily, instead of ordering a remand a
person can be released on bail. As to whether a case is made out
is a question to be decided in the facts of each case. There may
be restrictions put in regard to the grant of bail by law which
must be observed. But if bail is not granted then a person arrested
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by the police in connection with the cognizable offence must be
remanded to custody. This is inevitable from the reading of Section
167 of the Cr.P.C. [Para 95][171-E-H; 172-A-B]
9.3 The concept of house arrest though familiar in the law
relating to preventive detention, therein the underpinnings are
different. House arrest in the law of preventive detention is one
which is permitted under the law itself and such orders are made
in fact by the executive. Taking the ingredients of house arrest
as are present in the order passed by the High Court of Delhi, if
it is found to be one passed under Section 167, then it would be
detention thereunder. The concept of house arrest as ordered in
this case with the complete prohibition on stepping out of the
Appellants premises and the injunction against interacting with
persons other than ordinary residents, and the standing of guard
not to protect him but to enforce the condition would place the
Appellant under judicial custody. Section 167 speaks of 'such
custody as it thinks fit'. If it is found ordered under Section 167 it
will count. [Paras 97, 98][172-G; 173-A-B]
DOES THE MAGISTRATE/ COURT CONSIDER THE
LEGALITY OF ARREST/ DETENTION WHILE ACTING
UNDER SECTION 167
10. Article 22(1) creates a fundamental right on a person
arrested to be not detained without being informed as soon as
may be of the grounds for such arrest. It also declares it a
fundamental right for the detained person to consult and be
defended by a legal practitioner of his choice. Now, detention
follows arrest. What Article 22(1) is concerned with is that the
detention must be supported by the fulfilment of the rights
referred to therein. Strictly speaking, therefore, Article 22(1) does
not go to the legality of the arrest. [Para 100][174-F-G]
CUSTODY UNDERGONE UNDER ORDERS OF
SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS
THE CR.P.C APPLICABLE TO WRIT PETITIONS?
11.1 The proceeding in the High Court was a writ petition.
At the time when the writ petition was filed, the relief sought was
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that a writ of Habeas Corpus be issued to set him at liberty. The
further relief sought was that the Appellant may not be arrested
without prior notice to enable him to seek appropriate remedies.
As far as the prayer that the Appellant may not be arrested is
concerned, it is a relief which does not go hand in hand with Section
167 of the Cr.P.C. This is for the reason that the power under
Section 167 is invoked only after there has been an arrest and
what is sought is the extension of the detention of the person
arrested. Though, this was the position when the writ petition
was filed, by the time, the writ petition came up for consideration
at 2:45 p.m. on 28.08.2018, the Appellant stood arrested at 2:15
p.m. It would appear, in the meantime, the appellant was produced
before the Magistrate who passed the transit remand order.
Thereafter when the matter was taken up for consideration at
4:00 p.m. and on noticing the transit remand, order, dated
28.08.2018, inter alia, ordering house arrest came to be passed.
Therefore, at the time (4PM) when the order was passed, the
Court was dealing with the matter when the Appellant stood
arrested and also remanded by way of the transit remand order.
As already found that the superior Courts including the High
Court can exercise power under Section 167. The finding of the
High Court in the impugned judgment appears to proceed on the
basis that only a Magistrate can order remand, does not appear
to be correct.[Paras 104, 106, 108, 116][178-B-D; 179-A-B;
181-A]
11.2 Undoubtedly, as pointed out by the appellant, he came
to be detained on the basis of an arrest carried out by the police
officer from the State of Maharashtra in connection with FIR
disclosing the commission of cognizable offences. The arrest is
apparently effected in view of the powers available under Section
48 of the Cr.P.C. Finding that an order under Section 167 was
required to produce the appellant before the competent Court in
Maharashtra, he produced the appellant-in-person before the
nearest Magistrate in Delhi and the Magistrate passed an order
which is an order of remand under Section 167. The High Court
came to be concerned with the validity of the remand order and
detention of the appellant. A writ of habeas corpus does lie in
certain exceptional cases even by way of challenging the orders
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of remand. If there is non-compliance with Article 22(1) and the
person is detained it is an aspect which has to be borne in mind
by the Magistrate when ordering remand. Detention is the result
of an arrest. Article 22(1) applies at this stage after arrest. If
fundamental rights are violated in the matter of continued
detention, the Magistrate is not expected to be oblivious to it. It
is in this sense that the High Court has found violation of Article
22(1) inter alia and the Magistrate over-looking it as rendering
the transit remand illegal. As far as the arrest being made in
violation of Section 41(1)(ba), undoubtedly, it is a matter which
related to the legality of the arrest itself which is the stage prior
to detention. The High Court finds that the Magistrate had
not applied his mind to the question as to whether the arrest was
in compliance with Section 41 (1) (ba) of Cr.P.C. [Para 117]
[181-B-F]
THE IMPACT OF THE NON-ACCESSIBILITY TO THE
APPELLANT FOR THE INVESTIGATING AGENCY DURING
HOUSE ARREST AND THE EFFECT OF THE APPELLANT
BEING IN POLICE CUSTODY FROM 14.4.2020 TO 25.4.2020.
12. The very purpose of custody under Section 167 is to
enable the police to interrogate the accused and if that opportunity
is not present then such period of custody as alleged would not
qualify for the purpose of Section 167. In other words, the
argument appears to be that the object and scheme of Section
167 is that an investigation is carried out with opportunity to
question the accused and still it is not completed within the period
of 90 days whereupon right to default bail arises.