1. Under Section 167 in appropriate cases it will be open to courts to order house arrest.
2. Superior courts including High court can exercise power under section 167 of Cr.P.C.
3. The broken periods of custody can be counted for the purpose of default bail
4. A transit remand is to police custody.
5.The arrested person if detained during the period of investigation can count for the purpose of Section 428 of Cr.P.C.
6. The Magistrate is to be satisfied that the condition precedent for arrest under Section 41 of the CrPC has being satisfied.
*Party Name:* GAUTAM NAVLAKHA vs NATIONAL INVESTIGATION AGENCY
*JC Id:* 2021 JC(SC)2875
*Reported In:* SC
*Judgment Date:* 12-05-2021
*Court:* SC
*Case Law Note:*
*HOUSE ARREST IN INDIA*
Thus house arrests have been resorted to in India, in the context of law relating to ?preventive detention?. What is however relevant is that preventive detention is also a form of forced detention. House arrest is also custody and forced detention.
*THE REMEDIES OPEN TO AN ACCUSED IN THE CASE OF REMAND UNDER SECTION 167 OF THE CR.P.C*
Thus, an order under Section 167 is purely an interlocutory order. No revision is maintainable. A petition under Section 482 cannot be ruled out. Though an application under Section 397 would not lie against the remand, as already noticed, an application for bail would lie under Section 439. Therefore, ordinarily the accused would seek bail and legality and the need for remand would also be considered by the High Court or court of session in an application under Section 439.
*WHETHER A WRIT OF HABEAS CORPUS LIES AGAINST AN ORDER OF REMAND UNDER SECTION (167) OF CR.P.C*
If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie.
*WHETHER SUPERIOR COURTS (INCLUDING A HIGH COURT) CAN EXERCISE POWER UNDER SECTION (167) OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT FOR THE PURPOSE OF DEFAULT BAIL?*
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. 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. Equally when an order in bail application is put in issue, orders passed resulting in detaining the accused would if passed by a superior court be under Section 167.
*THE EFFECT OF TRANSIT ORDER? IS IT A PRODUCTION ORDER THOUGH SOURCED UNDER SECTION 167 CR.P.C.?*
Now, the question may persist as to whether the remand pursuant to a transit remand is to police custody or judicial custody. It 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 in terms of (1986) 3 SCC 141 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.
*THE IMPACT OF SECTION 428 OF CR.P.C*
. 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.
*EFFECT OF ILLEGALITY IN THE ORDER UNDER SECTION 167 CR.PC*
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.
*JUDICIAL CUSTODY AND POLICE CUSTODY*
whether house arrest as ordered by the High Court amounts to custody within the meaning of Section 167 of the Cr.P.C. detention under Section (167) would not embrace preventive detention in the form of house arrest as noticed by us in the discussion relating to impact of Section 428 of Cr.P.C. if (order of house arrest ) is found to be one passed under Section 167, then it would be detention thereunder.
*DOES THE MAGISTRATE/ COURT CONSIDER THE LEGALITY OF ARREST/ DETENTION WHILE ACTING UNDER SECTION (167)*
it is clear that if the arrest does not satisfy the requirements of Section 41, the Magistrate is duty bound not to authorize further detention. The Magistrate is to be satisfied that the condition precedent for arrest under Section 41 of the CrPC has being satisfied. He must also be satisfied that all the constitutional rights of the person arrested are satisfied. Therefore, it is not as if an arrest becomes a fait accompli, however, illegal it may be, and the Magistrate mechanically and routinely orders remand. On the other hand, the Magistrate is to be alive to the need to preserve the liberty of the accused guaranteed under law even in the matter of arrest and detention before he orders remand. This is no doubt apart from being satisfied about the continued need to detain the accused.
*CUSTODY UNDERGONE UNDER ORDERS OF SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS THE CR.P.C APPLICABLE TO WRIT PETITIONS?*
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.
*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.*
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 DECISION IN (2007) 5 SCC 773 State of West Bengal v. Dinesh Dalmia*
– if there is a totally different offence then it will be a separate offence for which the detention in the previous case cannot be counted for the purpose Section 167.*Tag Line:* 1. Under Section 167 in appropriate cases it will be open to courts to order house arrest. 2. Superior courts including High court can exercise power under section 167 of Cr.P.C. 3. The broken periods of custody can be counted for the purpose of default bail 4. A transit remand is to police custody. 5.The arrested person if detained during the period of investigation can count for the purpose of Section 428 of Cr.P.C. 6. The Magistrate is to be satisfied that the condition precedent for arrest under Section 41 of the CrPC has being satisfied.
*Party Name:* GAUTAM NAVLAKHA vs NATIONAL INVESTIGATION AGENCY
*JC Id:* 2021 JC(SC)2875
*Reported In:* SC
*Judgment Date:* 12-05-2021
*Court:* SC
*Case Law Note:*
*HOUSE ARREST IN INDIA*
Thus house arrests have been resorted to in India, in the context of law relating to ?preventive detention?. What is however relevant is that preventive detention is also a form of forced detention. House arrest is also custody and forced detention.
*THE REMEDIES OPEN TO AN ACCUSED IN THE CASE OF REMAND UNDER SECTION 167 OF THE CR.P.C*
Thus, an order under Section 167 is purely an interlocutory order. No revision is maintainable. A petition under Section 482 cannot be ruled out. Though an application under Section 397 would not lie against the remand, as already noticed, an application for bail would lie under Section 439. Therefore, ordinarily the accused would seek bail and legality and the need for remand would also be considered by the High Court or court of session in an application under Section 439.
*WHETHER A WRIT OF HABEAS CORPUS LIES AGAINST AN ORDER OF REMAND UNDER SECTION (167) OF CR.P.C*
If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie.
*WHETHER SUPERIOR COURTS (INCLUDING A HIGH COURT) CAN EXERCISE POWER UNDER SECTION (167) OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT FOR THE PURPOSE OF DEFAULT BAIL?*
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. 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. Equally when an order in bail application is put in issue, orders passed resulting in detaining the accused would if passed by a superior court be under Section 167.
*THE EFFECT OF TRANSIT ORDER? IS IT A PRODUCTION ORDER THOUGH SOURCED UNDER SECTION 167 CR.P.C.?*
Now, the question may persist as to whether the remand pursuant to a transit remand is to police custody or judicial custody. It 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 in terms of (1986) 3 SCC 141 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.
*THE IMPACT OF SECTION 428 OF CR.P.C*
. 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.
*EFFECT OF ILLEGALITY IN THE ORDER UNDER SECTION 167 CR.PC*
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.
*JUDICIAL CUSTODY AND POLICE CUSTODY*
whether house arrest as ordered by the High Court amounts to custody within the meaning of Section 167 of the Cr.P.C. detention under Section (167) would not embrace preventive detention in the form of house arrest as noticed by us in the discussion relating to impact of Section 428 of Cr.P.C. if (order of house arrest ) is found to be one passed under Section 167, then it would be detention thereunder.
*DOES THE MAGISTRATE/ COURT CONSIDER THE LEGALITY OF ARREST/ DETENTION WHILE ACTING UNDER SECTION (167)*
it is clear that if the arrest does not satisfy the requirements of Section 41, the Magistrate is duty bound not to authorize further detention. The Magistrate is to be satisfied that the condition precedent for arrest under Section 41 of the CrPC has being satisfied. He must also be satisfied that all the constitutional rights of the person arrested are satisfied. Therefore, it is not as if an arrest becomes a fait accompli, however, illegal it may be, and the Magistrate mechanically and routinely orders remand. On the other hand, the Magistrate is to be alive to the need to preserve the liberty of the accused guaranteed under law even in the matter of arrest and detention before he orders remand. This is no doubt apart from being satisfied about the continued need to detain the accused.
*CUSTODY UNDERGONE UNDER ORDERS OF SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS THE CR.P.C APPLICABLE TO WRIT PETITIONS?*
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.
*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.*
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 DECISION IN (2007) 5 SCC 773 State of West Bengal v. Dinesh Dalmia*
– if there is a totally different offence then it will be a separate offence for which the detention in the previous case cannot be counted for the purpose Section 167.