2021 (5) TMI 1055 - SC - Indian Laws

Availing of constitutional Remedy - seeking a Writ of Habeas Corpus in the High Court of Delhi - house arrest - 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.? - HELD THAT - It will be noted that 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 which was considered by the Court. 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 - Placing a person in custody depriving him of his rights which would include his fundamental rights as he would stand deprived of on giving effect to the term of house arrest would amount to a completely illegal exercise were it not for the fact that the High Court must be treated as having exercised powers available to a Judge under Section 167 of the Cr.P.C. 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 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. No doubt the additional restrictions under section 43 (D) (5) of UAPA are applicable to citizens of India in cases under the said law. Whether a writ of habeas corpus lies against an order of remand u/s 167 of Cr.P.C. - HELD THAT - 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. Whether a Habeas Corpus petition lies when a person is remanded to judicial custody or police custody is not res integra - In MANUBHAI RATILAL PATEL TR. USHABEN VERSUS STATE OF GUJARAT ORS. 2012 (9) TMI 1080 - SUPREME COURT it is noticed that It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law. 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? - HELD THAT - 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 - 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. Effect of Transit order - Is it a production order though sourced u/s 167 of Cr.P.C.? - HELD THAT - 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. Impact of Section 428 of Cr.P.C - HELD THAT - 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 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. We are not concerned with custody of the accused during the period of an inquiry or trial which is a matter governed essentially by Section 309 of the Cr.P.C. In this context it must be remembered that 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. 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. Effect of illegality in the order u/s 167 Cr.P.C - HELD THAT - The power was illegally exercised but is nonetheless purportedly under Section 167. What matters is detention suffered. 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 does not appear to us to be correct. The finding that if any illegality afflicts the authorisation it will render the detention not authorised is inconsistent with our conclusion as aforesaid - 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 - HELD THAT - 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 - 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. Does the magistrate/court consider the legality of arrest/detention while acting u/s 167? - HELD 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 - Is the Cr.P.C. applicable to writ petitions? - HELD 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. 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 we have found to be 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. The impact of 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 - HELD THAT - 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 - 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. 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. 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. We would also indicate 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 the appeal is dismissed.

Summary

Issues Involved:
1. Nature of an order of transit remand.
2. Nature of the interim order dated 28.08.2018 passed in the writ petition by the appellant in the High Court of Delhi.
3. Effect of the judgment of the High Court of Delhi dated 01.10.2018.
4. Whether the house arrest of the appellant amounts to police custody or judicial custody.
5. Whether house arrest falls within the embrace of Section 167 of the CrPC.
6. Effect of the appellant being in police custody from 15.04.2020 to 25.04.2020.
7. Whether broken periods of custody suffice to piece together the total maximum period of custody permitted.
8. Impact of the mandate of Article 21 and Article 22 of the Constitution.

Analysis:

1. Nature of an Order of Transit Remand:
The court held that a transit remand order is one passed under Section 167 of the Cr.P.C., and though it may be for the production of the appellant, it involves authorizing continued detention within the meaning of Section 167. The court considered the interplay of Section 57 and Section 167 and concluded that the period of remand for statutory bail begins from the date of this 'special order.'

2. Nature of the Interim Order Dated 28.08.2018:
The interim order dated 28.08.2018 by the High Court of Delhi, which placed the appellant under house arrest, was not passed under Section 167 of the CrPC. The court found that the High Court did not purport to act under Section 167, as it was unable to go through the entries in the case diary and did not make out what precisely the case against the petitioner was. The house arrest was ordered until further orders, and the court did not contemplate it as custody under Section 167.

3. Effect of the Judgment of the High Court of Delhi Dated 01.10.2018:
The High Court of Delhi set aside the transit remand order, finding it illegal due to non-compliance with Article 22(1) and Section 41(1)(ba) of the CrPC. The court pronounced that the house arrest of the appellant came to an end as of 01.10.2018, but did not treat the period of house arrest as either non-est or void. The court observed that the High Court did not contemplate the house arrest as custody under Section 167.

4. Whether the House Arrest of the Appellant Amounts to Police Custody or Judicial Custody:
The court concluded that house arrest, as ordered, with complete prohibition on stepping out and the injunction against interacting with persons other than ordinary residents, would place the appellant under judicial custody. The court noted that the concept of house arrest as ordered in this case falls within the embrace of Section 167 of the CrPC.

5. Whether House Arrest Falls Within the Embrace of Section 167 of the CrPC:
The court observed that house arrest can be considered custody under Section 167 in appropriate cases. The court noted that the period of house arrest in this case should be treated as custody under Section 167, but found that the High Court did not purport to act under Section 167 when ordering house arrest.

6. Effect of the Appellant Being in Police Custody from 15.04.2020 to 25.04.2020:
The court found that the appellant being in police custody from 15.04.2020 to 25.04.2020 was inconsistent with the appellant's case and the law. The court noted that police custody can be sought under UAPA beyond the first 30 days only if the person is in judicial custody, which was not the case here as the appellant had surrendered to the NIA on 14.04.2020.

7. Whether Broken Periods of Custody Suffice to Piece Together the Total Maximum Period of Custody Permitted:
The court held that broken periods of custody can be counted for the purpose of calculating the period within which the charge sheet must be filed, failing which the accused acquires the statutory right to default bail. The court noted that custody ordered by superior courts can be counted towards the period of custody under Section 167.

8. Impact of the Mandate of Article 21 and Article 22 of the Constitution:
The court emphasized that personal liberty is a fundamental right and must be jealously guarded. The court noted that the deprivation of liberty must be in accordance with the procedure prescribed by law, and any order of house arrest must be authorized by law. The court observed that the house arrest in this case was not purported to be under Section 167 and cannot be treated as passed thereunder.

Conclusion:
The court dismissed the appeal, holding that the house arrest of the appellant was not purported to be under Section 167 of the CrPC and cannot be treated as passed thereunder. The court observed that while the house arrest involved deprivation of liberty, it did not fall within the ambit of Section 167 in the facts of this case. The court noted that in appropriate cases, house arrest can be ordered under Section 167, and criteria such as age, health condition, and the nature of the crime should be considered.