12 May 2121

Under section 167 of the Criminal Procedure Code, 1973, in appropriate cases it will be open to courts to order house arrest - Supreme Court of India

Case : Gautam Navlakha v. National Investigation Agency Criminal Appeal No. 510 of 2021 [Arising out of SLP (Criminal) No. 1796/2021]

Court :

Bench : Justice Uday Umesh Lalit and Justice K. M. Joseph

Decided on : 12 May 2121

Relevant Statutes


Article 20,21 & 22 of the Constitution of India

Sections 34,120(B),153A & 505(1B) of Indian Penal Code, 1860.

Sections 13, 16, 17, 18, 18B, 20, 38, 40 & 43D of the Unlawful Activities (Prevention) Act, 1967

Sections 41,43, 48, 56, 57, 76, 77, 81,156,157,167,309,397,428,437,439 & 482 of Code of Criminal Procedure,1973.

Section 5 of National Security Act,1980

Section 21 of the National Investigation Agency Act, 2008

Brief Facts and Procedural History

1. he Appellant was arrested, in connection with an FIR registered against him under the Unlawful Activities (Prevention) Act,1967, in August 2018 and transit remand was granted to the police to take him from Delhi to Pune. But the arrest and remand were challenged in a habeas corpus petition filed on the same day before the Delhi High Court. The High Court did not order the Appellant’s release but directed that he be detained under “house arrest” till the petition could be decided. Later, the High Court ruled that the remand order was illegal. 

2. Later, in separate public interest litigation, the Supreme Court extended this “house arrest” of the Appellant till it could decide that litigation. 

3. The terms of this detention were: the Appellant was not permitted to leave or interact with persons save his lawyers or doctors; his house was guarded by police, and crucially; he was not available for interrogation either. 

4. The Appellant’s quashing of FIR petition and Anticipatory Bail application was rejected by both the High court and the Supreme Court by extending the “house arrest” of the Appellant. 

5. In April 2020, the Appellant was arrested and taken into custody. In June, the Appellant raised a plea of default bail before the trial court in Maharashtra. According to Appellant, the time spent by him in custody had to include the 34 days of “house arrest” he suffered in 2018 as well. Both the trial court and the High Court rejected the default bail plea of the Appellant.

The Issue of the Case

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 of the Criminal Procedure Code,1973?

The Observations of the Court

1. The bench pointed out that under Section 167(2) of the Criminal Procedure Code,1973 the magistrate has to authorise the detention. Since the Delhi high court stayed the transit remand and finally set it aside, thereby holding the detention to be illegal, there was no authorised detention by an order of the magistrate. 

2. The bench found merit in the Respondent’s contention that an accused who is remanded to custody under Section 167 of the Criminal Procedure Code,1973 cannot come out of custody unless he is bailed out or acquitted. There was no bail in favour of Appellant and he was not remanded to judicial custody at the end of the house arrest. The so-called custody during the house arrest was not custody or detention within the meaning of Section 167 of the Criminal Procedure Code,1973 

3. However, the bench conceded that “house arrest” is also custody and forced detention. The very purpose of custody under Section 167 of Criminal Procedure Code,1973 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 of Criminal Procedure Code,1973.

4. The bench pointed out that police custody can be sought and given only during the first 15 days, and thereafter, it cannot be given.  In the case of the Unlawful Activities (Prevention) Act,1967, the period of police custody stands enhanced to 30 days. Therefore, the period of 90 days would begin to run only from the date of Appellant’s remand, that is, April, 2020.

5. The bench recognised that “house arrest” was, undoubtedly, perceived as the softer alternative to actual incarceration. 

6. The bench explained Article 21 creates a fundamental right, which cannot be waived. The setting aside of the order of transit remand will not wipe out the police custody or the “house arrest”. The illegality in the transit remand order will not erase the deprivation of liberty. The “house arrest”, in the facts of this case, was not ordered purporting to be under section 167 of the Criminal Procedure Code,1973.

7. The bench noticed, the concept of “house arrest” as part of custody under Section 167 of the Criminal Procedure Code,1973, has not engaged the courts including this Court. The bench has formed the view that it involves custody which falls under Section 167 of the Criminal Procedure Code,1973.

8. The bench further observed that under Section 167 of the Criminal Procedure Code,1973 in appropriate cases it will be open to courts to order “house arrest”. As to its employment, without being exhaustive, the bench 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. 

9. As regards post-conviction cases, the court leaves it open to the legislature to ponder over its employment. The court have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons.

The Decision Held by the Court

1. In view of the fact that the “house arrest” of the appellant was not purported to be under section 167 of the Criminal Procedure Code,1973 and cannot be treated as passed thereunder, the Honourable Supreme Court dismissed the appeal. There will be no order as to costs.

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