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TMI Blog2021 (5) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 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 bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor Sushil V. Bobde alongwith ACP Ganesh Gawade and DCP Bachchan Singh Inspector Sanjay Gupta, PS Special Cell, Lodhi Colony, New Delhi. Accused Gautam Pratap Navlakha produced in Police custody. Sh. Om Prakash, Ld. LAC for the accused. This is a handwritten application preferred by the 10 Assistant Police Inspector Sushil V. Bodbe seeking transit remand of two days the above noted accused persons. The identity of 10 as a police officer of P Vishrambagh, Pune, Maharashtra is established upto my satisfaction upon his having shown his identity card. Heard. It is submitted by the IO that above noted accused is required in above noted case FIR registered at PS Vishrambagh, Pune, Maharashtra and has been arrested from his house at Kalkaji, Delhi. It is further submitted by the IO that the accused has been arrested without warrant and he is required to be produced before competent Court i.e. Court of Ld. Special Court, Shivaji Nagar, Pune, Maharashtra and therefore, his transit remand may be granted. Heard. Considered. I have given my thoughtful consideration to the submissions made by the IO and the APP for the State. As per the police papers, FIR No 4/18 has been registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up with two guards of the Special Cell, Delhi Police along with local Police that was originally here to arrest the petitioner, outside the house. Barring his lawyers, and the ordinary residents of the house, the petitioner shall not meet any other persons or step out of the premises till further orders." 4. A Writ Petition was filed in the Supreme Court as Writ Petition (Criminal) Diary No. 32319 of 2018 on the next day. This Writ Petition was filed by five illustrious persons in their own fields, as is observed by this Court in the Judgment, which is reported in Romila Thapar and Others vs. Union of India and other s (2018) 10 SCC 753 . The subject matter of the Writ Petition was the allegedly high-handed action of the Maharashtra Police and the arrest of five Activists which included the appellant on 28.08.2018 from their homes. The relief sought by the Writ Petitioners was to ensure a credible investigation into the arrest of the five Human Rights Activists. Interim orders were passed in the Writ Petition by this Court, under which, the benefit of house arrest of the appellant, inter alia, was also ordered to be extended to others. The order of house arrest of appellant was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. At this stage, Mr. Navare submits that this Court should extend the house arrest of the Petitioner by two more days since the Supreme Court had itself extended his house arrest for four weeks. This submission overlooks the fact that the Supreme Court had extended the Petitioner's house arrest only in order to enable him to avail of the remedies that were permissible to him in accordance with law. As far as the present Petitioner is concerned, the fact that this writ petition filed by him was already pending before this Court, was noticed by the Supreme Court and it was made clear that he is free to pursue this remedy among others in accordance with law. The extension of his house arrest by the Supreme was only for that limited purpose. Consequently, this Court is unable to accede to the request of Mr. Navare." (Emphasis supplied) 6. The appellant filed Writ Petition No. 4425 of 2018 dated 05.10.2018 for quashing the FIR. The High Court protected the appellant from arrest during the pendency of the said Writ Petition. Charge-sheet was filed against the appellant's co-accused on 15.11.2018. Then, this is followed-up by a supplementary chargesheet against the co-accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of custody on 29.06.2020. The NIA Special Court, before which the Application for default bail was moved, rejected the Application on 12.07.2020. The appellant preferred an Appeal before the High Court of Bombay challenging the Order dated 12.07.2020. On 09.10.2020, the NIA filed the charge-sheet against the appellant, inter alia. By the impugned Order dated 08.02.2021, the High Court of Bombay, dismissed the Appeal, which was filed under Section 21 of the NIA Act. 8. We heard Shri Kapil Sibal, learned Senior Counsel as also Smt. Nitya Ramakrishnan, learned Senior Counsel assisted by Shri Shadan Farasat for the appellant and Shri S.V. Raju, learned Additional Solicitor General, on behalf of the respondent. THE FINDINGS IN THE IMPUGNED ORDER 9. During the period of the house arrest, the appellant was not supposed to meet anyone, barring his lawyers and ordinary residents of the house. He could not step out of the premises. There were to be two Guards of the Special Cell of Delhi Police outside the house. The Investigating Agency/Investigating Officer did not have any access to him or occasion to interrogate him. The Transit Remand Order being stayed, it could not be said that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Officers from interrogating the appellant/investigating the matter, if need be, after obtaining the leave of the High Court of Delhi. It the appellant's contention that under Section 167 of the CrPC, what is contemplated is granting of such custody by the Magistrate, as he thinks fit. The provision does not contemplate access to the Police for interrogation as a condition. It is pointed out that it is open to the Magistrate and it is often so done that right from the first day of remand, what is granted is judicial custody, wherein Police have no access to the accused. However, such judicial custody is reckoned for calculating the period for considering an Application for default bail. Still further, it is pointed out that under Section 43D(2)(b), of UAPA Police Custody can be sought at any time. It is further contended that there was no stay of investigation. The two conditions required for attracting Section 167 are pointed out to be as follows: (a) A person is arrested under Section 57 of the Cr.P.C. while investigating a cognisable offence and (b) he is produced before a Magistrate after his arrest. It is contended that in the case of the appellant, both the conditions we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi seeking a writ of habeas corpus, the order of transit remand had not been passed by the CMM, Saket. b. In his application seeking for anticipatory bail, the appellant had sought through his pleadings to project the need to be protected. The protection was granted which was continued in various proceedings as already noticed. c. Reliance is placed on the bar under Section 43(D)(4) of UAPA against the grant of anticipatory bail. d. He referred to paragraph 12 of the order rejecting appellant's plea for anticipatory bail. It is pointed out that it was the case of the appellant that this Court had protected his liberty by granting house arrest inter alia. The meat of the matter is that it was understood by the appellant himself that the house arrest was a protection from custody and therefore it could not be understood as custody within the meaning of Section 167 of the Code of Criminal Procedure. In short, house arrest was permitted in exercise of the extraordinary powers available to this Court. 12. It is further pointed out that house arrest according to the appellant itself was unknown to the code. It is further the case of the respondent that an accused who is reman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that since there is a duty to produce an arrested person within 24 hours, Section 57 provided for a special order under Section 167 for such detention beyond 24 hours for production of the accused before the competent Court. Orders are ordinarily passed under this Section 167 are either orders of police remand or orders remanding an accused to judicial custody. The special order referred to in Section 57 is the order forwarding the accused to a Magistrate having jurisdiction to either try the case or commit the accused. In a case where an accused is presented before a Magistrate not having such jurisdiction, the Magistrate has no authority or power to remand an accused to judicial custody. Therefore, the order of transit remand is not an order for the purpose of including the period in computing 90 days and it is only a production order. At any rate, it is pointed out that the order of Saket Court (transit order), even if it is considered to be an order under Section 167 of Cr.PC, it was hardly in force for a couple of hours till the Delhi High Court stayed the same around 4.00 p.m. on the very day. Even if this period of 1 day is included for the purpose of computing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.P.C. 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 Cr.P.C. 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? 17. Before we deal with the various issues, it is necessary to note certain salient features of the Constitution, Cr.P.C. and also Unlawful Activities (Prevention) Act (UAPA). 18. Article 21 of the Constitution incorporates invaluable fundamental rights insofar as it declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 (1) and (2) read as follows: "2. Protection against arrest and detention in certain cases (1) No person who is arrested shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest contemplated are those issued by a court under Cr.P.C. Section 76 Cr.P.C. reads as follows: "76. Person arrested to be brought before Court without delay. The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person: Provided that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court." 22. Under Section 77 Cr.P.C., a warrant of arrest may be executed at any place in India. Chapter XII deals with Information to the Police and their Powers to Investigate. The mandatory duty of police officer to register first information report has been elaborately considered by a Constitution Bench of this Court in the decision reported in Lalita Kumari v s . Government of Uttar Pradesh and other s (2014) 2 SCC 1. 23. Section 156 Cr.P.C. reads as follows: "156. Police officer' s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it to the Chief Judicial Magistrate. (5) If in any case triable by Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall (subject to the provisions of Section 76 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person." 17. Apart from the Code of Criminal Procedure, there are other statutes which provide for arrest in execution of a warrant of arrest issued by a court. To take one example, Order 38 Rule 1 of the Code of Civil Procedure authorises the court to issue a warrant for the arrest of a defendant before judgment in certain circumstances. Form No. 1 in Appendix F sets out the terms of such a warrant. It clearly recites that it has been proved to the satisfaction of the court that there is probable cause for belief that the Defendant 1s about to do one or other of the things mentioned in Rule 1. The court may under Section 55 read with Order 21 Rule 38, issue a warrant for the arrest of the judgment-debtor in execution of the decree. Form 13 sets out the terms of such a warrant. The warrant recites the decree and the failure of the judgment-debtor to pay the decretal amount to the decreeholder and directs the bailiff of the court to arrest the defaulting judgment-debtor, unless he pays up the decreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended. The language of Article 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In other words, there is indication in the language of Article 22(1) and (2) that it was designed to give protection against the act of the executive or other non-judicial authority. The Blitz case (Petition No. 75 of 1952), on which Sri Dadachanji relies, proceeds on this very view, for there the arrest was made on a warrant issued, not by a court, but, by the Speaker of State Legislature and the arrest was made on the distinct accusation of the arrested person being guilty of contempt of the legislature. It is not, however, our purpose, nor do we consider it desira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate within 24 hours of the commencement of the custody the detention was found to be violative of Article 22(2). It is on these facts the majority (Justice K. Subba Roa -dissenting)held as follows: "….It is very difficult to appreciate what exactly either of the learned Judges had in mind in making these observations holding that the guarantee under Article 22(2) had been violated. During the "second stage" at which the learned Judges held that the detention has been illegal because of a violation of Article 22(2), the facts were these: The respondents had been brought back to Lucknow on a message requiring their production before the High Court. They reached Lucknow on the 25th at 1 p.m. and were produced at 3 p.m. the same day i.e. within two hours of reaching Lucknow before the Deputy Registrar. The Deputy Registrar had directed their production the next day and they were accordingly so produced. Even taking it that the Deputy Registrar was not a judicial authority such as the learned Judges had in mind, the respondents had been produced on 26th morning at 10.15 a.m. before the learned Judges when they were at liberty to make any order regarding the custody which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the transit remand application which we have extracted. 31. We have also noticed the contents of the order which was passed at 4:00 p.m. on 28.08.2018. The perusal of the judgment further reveals that the counsel for the state of Maharashtra, in fact, raised the preliminary objection to the maintainability of the writ. It reads as follows: - "6. Mr. Vinay Navare, learned counsel appearing for the State of Maharashtra, raised a preliminary objection to the maintainability of the present writ petition relying on the recent judgment dated 5th September 2018 of a three judge bench of the Supreme Court in Crl. A. 1124 of 2018 (State of Maharashtra v. Tasneem Rizwan Siddiquee). He submitted that the Supreme Court has, in said decision, reiterated the settled position in law, as explained in the decisions in Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 and Saurabh Kumar v. Jailor, Koneil Jail, (2014) 13 SCC 436, that once a person is in judicial custody pursuant to a remand order passed by a magistrate in connection with an offence under investigation, a writ of habeas corpus is not maintainable." 32. The High Court tides over this objection by holding as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and be defended by any legal practitioner of his choice. Though, a duty lawyer empanelled under the Legal Services Authority Act, 1987 was shown representing the appellant, the High Court noticed that the Magistrate did not ask the counsel of the arrested person whether he was informed about the grounds of arrest and whether he asked to consult and be defended by the legal practitioner of his choice. The High Court emphasized that this requirement does not get diluted only because the proceedings are for transit remand. It was found be the mandate under Article 22(1) of the Constitution. The appearance of the duty lawyer was found to be essentially cosmetic and not in the true spirit of Article 22(1). The materials in the case diary were found to be written in the Marathi language. It was found undisputed that the Magistrate was not conversant with the Marathi language. This disabled the Magistrate from appreciating whether the requirements under Section 41(1)(b)(a) of the Cr.P.C. stood satisfied. It is thereafter noticed that the Court disposed of the writ petition with the findings and the directions as noted in paragraphs 28, 29, 30 and 31 which we have already extracted. 34. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of his life. More recently, Czar Nicholas II of Russia and his family were kept under house arrest in 1917 until their deaths in 1918. This history is a cause for concern among some because of the traditional use of the practice as a means of silencing political dissent. South Africa, for example, has a long history of control through "banning" and societies found in Poland, South Korea, India, and the Soviet Union are known to employ "house arrest" primarily to deal with troublesome political dissenters. On the other hand, France introduced the concept of control judiciare in 1970 as a fairly straightforward form of pretrial detention involving a provision that employed home confinement as an alternative for common offenders. In 1975, Italy initiated a policy of affidamento in provo ai servizio sociale (trial custody), which may be described as a form of parole following a shock period of three months incarceration. Other European countries have also experimented with some manner of home confinement as a means of dealing with a variety of offenders. The traditional use of "house arrest" should not in itself become a rationale for rejecting it. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. In other words, upon being found guilty instead of sentencing the convict to a term in prison and in lieu of incarceration, as a condition of probation, the convict is compelled to confine himself to his place of residence. Interestingly, consistent with the constitutional protection afforded under United States constitution, the house arrest does not visit the convict with an absolute restriction from leaving his home. In the article "House Arrest", a critical analysis of an intermediate level penal sanction by Jeffrey N. Hurwitz, we notice the following:- "House arrest is a form of intensive law enforcement supervision characterized by confinement to the offender's place of residence with permission to leave only for explicit, preauthorized purposes. Generally, it is imposed as a penal sanction in lieu of incarceration and mandated by the sentencing judge as a condition of probation. In Florida, however, house arrest is considered a criminal sanction entirely separate from probation. In addition, at least one jurisdiction has reported using house arrest for individuals who have been released on their own recognizance while awaiting trial. For example, a number of states a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arrest at the residence of Wayte's grandmother, and that Wayte be allowed to leave his site of confinement only for "emergency purposes with the permission of the probation officer."3" The house arrest regime in Wayte is the most restrictive yet reported. Because Wayte is unable to leave home at all, he is precluded from obtaining outside employment. All travel from his site of confinement must be only in response to a life-threatening crisis; apparently, even movement for religious expression must be approved by the probation officer as an emergency. He is functionally isolated and removed from the outside world, as if he were incarcerated, his wife acts as his intermediary with the community." 38. In the caption "the goals of house arrest", we notice the following discussion: - "Yet house arrest, generally imposed as a special condition of probation, includes a distinctly retributive component.42 The sentencing court in Murphy describes the incorporation of retribution, humiliation, and deterrence into the traditionally palliative scheme of probation: There will be some people who will believe that this sentence is much too lenient. Others will believe it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the Convention shows that mere restrictions on the liberty of movement are not covered by art 5 but fall under art 2(1) of Protocol No 4. However, the distinction between the restriction of movement and the deprivation of liberty is merely one of degree or intensity, and not one of nature or substance. In order to determine whether someone has been 'deprived of his liberty' within the meaning of art 5, the starting point must be the concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v Italy (1980) 3 EHRR 333, [1980] ECHR 7367/76, paras 92-93). According to the court's case law (see, among many others, Mancini v Italy (App no 44955/98) (judgment, 2 August), para 17; Lavents v Latvia (App no 58442/00) (judgment, 28 November 2002), paras 64-66; Nikolova v Bulgaria (No 2) [2004] ECHR 40896/98, para 60; Ninescu v Moldova (App no 47306/07) (judgment, 15 July 2014), para 53; and Delijorgji v Albania [2015] ECHR 6858/11, para 75), house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (cited above) and other cases cited therein. The court went on to specify that the notions of 'degree' and 'intensity' in the case law, as criteria for the applicability of art 5, referred only to the degree of restrictions to the liberty of movement, not to the differences in comfort or in the internal regime in different places of detention. Thus, the court proceeded to apply the same criteria for the entire period of deprivation of liberty, irrespective of the place where the applicant was detained." HOUSE ARREST IN INDIA 43. 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. Section 5 reads as follows:- "5. Power to regulate place and conditions of detention.-Every person in respect of whom a detention order has been made shall be liable- (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and (b) to be removed from one place of detention to another place of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify. The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi, to keep him in detention in a far off place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food. The requirements of administrative convenience, safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides, but that can only be by way of an exception and not as a matter of general rule. Even when a detenu is required to be kept i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... halaya, Mizoram, Nagaland, Sikkim, Chandigarh and Delhi have no sub-jail in their States/UTs, as on 31st December, 2019. 7. Only 15 States/UTs were having Women Jails (31 Women Jails) with a total capacity of 6,511 in India. These States/UTs (number of Jails, Inmates Capacity) are - Rajasthan (7) (1048), Tamil Nadu (5) (2018), Kerala (3) (232), Andhra Pradesh (2) (280), Bihar (2) (152), Gujarat (2) (410), Delhi (2) (648), Karnataka(1) (100), Maharashtra(1) (262), Mizoram (1) (90), Odisha(1) (55), Punjab(1) (320), Telangana(1) (250), Uttar Pradesh(1) (420) and West Bengal(1) (226) and The rest of 21 States/ UTs have no separate Women Jail as on 31st December, 2019. 8. The actual capacity of prisons has increased from 3,96,223 in 2018 to 4,03,739 in 2019 (as on 31st December of each year), having increased by 1.90%. Number of prisoners lodged in various jails has increased from 4,66,084 in 2018 to 4,78,600 in 2019 (as on 31st December of each year), having increased by 2.69% during the period. 9. Out of the total capacity 4,03,739 in 1,350 prisons in 2019, the Central Jails of the country were having the highest capacity of inmates (1,77,618) followed by the District Jails ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of undertrial prisoners No. of Detenues No. of other inmates Total no. of prisoners 2017 1,39,149 3,08,718 2,136 693 4,50,696 2018 1,39,488 3,23,537 2,384 675 4,66,084 2019 1,44,125 3,30,487 3,223 765 4,78,600 1. During the year 2019, a total of 18,86,092 inmates were admitted in various jails of the country. 2. A total of (4,78,600) prisoners as on 31st December, 2019 were confined in various jails across the country. The number of Convicts, Undertrial inmates and Detenues were reported as 1,44,125, 3,30,487 and 3,223 respectively accounting for 30.11%, 69.05% and 0.67% respectively at the end of 2019. Other prisoners accounted for 0.2% (765 prisoners) of total prisoners. 3. Convicted Prisoners a. The number of convicted prisoners has increased from 1,39,488 in 2018 to 1,44,125 in 2019 (as on 31st December of each year), having increased by 3.32% during the period. b. Out of total 1,44,125 convicts, the highest number of convicted prisoners were lodged in Central Jails (66.2%, 95,470 convicts) followed by District Jails (27.0%, 38,846 convicts) and Open Jails (3.0%, 4,288 convicts) as on 31st December,2019. c. Uttar Pradesh has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,03,036 (21.5%) prisoners were Class X & above but below Graduation, 30,201 (6.3%) prisoners were having a Degree, 8,085 (1.7%) prisoners were Post Graduates and 5,677 (1.2%) prisoners were Technical Diploma/Degree holders. b. A total of 1,32,729 (27.7%) prisoners were Illiterate. 9. Domicile of Origin of Prisoners a. Among the 4,78,600 prisoners as on 31st December, 2019, around 90.8% (4,34,564 inmates) of prisoners belonged to the State followed by prisoners belonging to the Other States (8.0%, 38,428 inmates) and prisoners belonging to the Other Country (1.2%, 5,608 inmates). b. Among the 1,44,125 convicts, 92.4% convicts (1,33,228 inmates) belonged to the State while 6.1% (8,726 inmates) and 1.5% (2,171 inmates) belonged to the Other States and Other Country respectively. c. Haryana has reported the most number of other State domicile convicts (15.5%, 1,353 convicts) followed by Delhi (9.8%, 855 convicts) and Maharashtra (9.2%, 800 convicts) as on 31st December, 2019. d. Among the 3,30,487 undertrial prisoners, 90.2% (2,98,208 inmates) belonged to the State while 8.9% (29,300 inmates) and 0.9% (2,979 inmates) belonged to the Other States and Other Country res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference facility as on 31st December 2019. 7. A total of 33,537 quarters were available against the actual staff strength of 60,787 as on 31st December, 2019." 48. 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. 49. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alia:- The notion of 'negative' freedom I am normally said to be free to the degree to which no human being interferes with my activity. Political liberty in this sense is simply the area within which a man can do what he wants. If I am prevented by other persons from doing what I want I am to that degree unfree; and if the area within which I can do what I want is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved. Coercion of not, however, a term that covers every form of inability. If I say that I am unable to jump more than 10 feet in the air, or cannot read because I am blind or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced. Coercion implies the deliberate interference of other human beings within the area in which I wish to act. You lack political liberty or freedom only if you are prevented from attaining your goal by human beings. Mere incapacity to attain your goal is not lack of political freedom. This is brought out by the use of such modern expressions as 'economic freedom' and its counterpart, 'economic slavery'. It is argued, very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould lean in favour of upholding this precious, inalienable and immutable value. 54. We have noticed that 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. 55. We will use this opportunity to echo the argument of Sh. Kapil Sibal, learned senior counsel for the appellant that no Court even if it is the High Court has any inherent power to deprive any person of his personal liberty by placing him under house arrest. 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. Thus, runs the argument. THE REMEDIES OPEN TO AN ACCUSED in the case OF REMAND UNDER SECTION 167 OF THE CR.P.C. 56. In State rep. by Inspector of Police and others Vs. N.M.T. Joy Immaculat e (2004) 5 SCC 729 , a bench of 3learned judges considered the question of maintainabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object and scope of Section 167 it is well-settled that it is supplementary to Section 57. It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate court. Sub-section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest Magistrate should also transmit a copy of the entries in the diary relating to the case. The entries in the diary are meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. It may be noted even at this stage the Magistrate can release him on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to apply his mind and not to pass an order of remand automatically or in a mechanical manner." However, the Court also held as follows: "31. It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated i n B. Ramachandra Ra o [(1972) 3 SCC 256 : 1972 SCC (Cri) 481 : AIR 1971 SC 2197] an d Kanu Sanya l [(1974) 4 SCC 141 : 1974 SCC (Cri) 280] , the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted." 62. One of us (U.U. Lalit, J.) speaking for a Bench of two, followed the aforesaid line of thought in the decision of Serious Fraud Investigation Office and Ors. Vs. Rahul Modi and Ors . (2019) 5 SCC 266 and held as follows: "(21) The act of dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody is revived. Let us assume in the illustration that the accused was in custody only for a period of 10 days and after the order passed by this Court and the accused who spent another 80 days, he completes, in other words, a total period of custody of 90 days adding the period of custody, he suffered consequent upon the remand by the Magistrate. That is by piecing up these broken periods of custody, the statutory period of 90 days entitling the accused to default bail, is reached. Can it be said that the order of this Court granting custody should not be taken into consideration for calculating the period of 90 days, upon completion of which the accused can set up a case for default bail. We would think that the mere fact is that it is the Apex Court which exercised the power to remand, which was wrongly appreciated by the High Court in the illustration, would not detract from the custody being authorized under Section 167. 66. Let us take another example. After ordering remand, initially for a period of 15 days of which 10 days is by way of police custody and 5 days by way of judicial custody, the Magistrate enlarges an accused on bail. The High Court interferes with the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, if a 'special order' under Section 167 is obtained, it is for the purpose of extending the time in Section 57 for production of the arrestee. 70. Per contra, Appellant contends that Section 167 specially covers cases where a judicial Magistrate who has no jurisdiction to try a case, can order a remand. There is no other provision for ordering transit remand. 71. 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: i. from being detained for a period more than what is reasonable. ii. from being detained beyond 24 hours from the time of arrest, excluding the time necessary for the journey from the place of arrest to the Magistrate Court. 72. Now, the 'Magistrate Court' referred to in Section 57 is the Magistrate competent to try the case. Section 57 contains the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdictional Magistrate." 75. In fact, as already noticed the submission of the State of Maharashtra was also that once a person was in judicial custody a writ of habeas corpus would not lie which also was rejected. 76. 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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. 79. Section 428 of the Code of Criminal Procedure reads as follows:- "(428) Period of detention undergone by the accused to be setoff against the sentence of imprisonment.-Where an accused person has, on conviction, been sentenced to imprisonment for a term [, not being imprisonment in default of payment of fine,] the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him: [Provided that in cases referred to in Section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that section.]" 80. If house arrest as ordered in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held: - "(12) The section provides for setoff of the period of detention undergone by an accused person during the 'investigation, inquiry or trial' of the same case before the date of conviction. The expression 'investigation' has been defined in Section 2 (h) of the Code as follows:- '2(h) 'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf'. in the case of persons tried by Courts- Martial there is no investigation conducted by any police officer under the Code or by any person authorised by Magistrate in that behalf." 85. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of set off under Section 428. EFFECT OF ILLEGALITY IN THE ORDER UNDER SECTION 167 CR.PC. 90. Now, it is necessary to make one aspect clear. 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 nonapplication 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. 91. Take another example. The Magistrate gives police custody for 15 days but after the first 15 days, (Not in a case covered by UAPA). It is not challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 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. 96. In re. M.R. Venkataraman and Others AIR 1948 Mad 100, a petition was filed seeking a writ of Habeas Corpus inter alia on the ground that the petitioners were remanded to a central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 167 it will count. 99. In the impugned judgment the High Court reasons as follows to deny default bail: (1) The transit remand order came to be stayed by the Delhi High Court on 28/10/2018. (2) The appellant was placed under house arrest pursuant to the directions of the Delhi High court during which period the investigating officer did not get the opportunity of interrogating him. (3) The High court of Delhi quashed the appellant's arrest holding that the appellant's detention is illegal. (4) Pursuant to the declaration of the detention as illegal, the appellant was set at liberty. It is not as if the appellant was released on bail but after being set at liberty, the appellant is protected by an order of this Court restraining the investigating agency from taking coercive steps during the pendency of appellant's challenge to the FIR. (5) The Hon'ble Supreme Court having dismissed the challenge of the appellant to quash FIR granted 4 weeks protection with liberty to seek pre arrest bail/protection before the Sessions Court. The Hon'ble Supreme Court granted the appellant time to surrender after the appellant failed to serve pre arrest bail. The appellant ultimately sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Judges in the matter of: Madhu Limaye and Others; (1969)1 SCC 292. Therein, the petitioners were arrested apparently for offence under Section 188 of the IPC which was non-cognizable. The officer did not give the arrested persons the reasons for their arrest or information about the offences for which they had been taken into custody. this was a case where the Magistrate offered to release the petitioners on bail but on the petitioners refusing to furnish bail, the Magistrate remanded them to custody. The proceeding before this Court was under Article 32. It was in fact, initiated on a letter complaining that the arrest and detention were illegal. It was contended that the arrests were illegal as they were arrested for offences which were noncognizable. In fact, it was found that the arrest were effected without specific order of Magistrate. It was also contended that Article 22(1) was violated. What is relevant is the following discussion:- "12 . Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused." 103. In terms of paragraph 8.2, 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 COUR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is also not stayed, ought to be counted. 105. Now though the Cr.P.C. will not apply to a writ petition, what is required to include custody under Section 167 is that the detention brought about by the court ordering it during the investigation into an offence. It is a matter which will turn on the facts. 106. The crucial question to be answered is whether the High Court of Delhi was exercising power under Section 167 when it ordered house arrest. The proceeding in the High Court was a writ petition. At the time when the writ petition was filed, the relief sought was 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. 107. Though, this was the position when the writ petition was filed, by the time, the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.08.2018 (See para 6 of the said order) as reproduced in the judgment. 112. Finally, we may notice paragraphs 18 and 19 of the order dated 29.08.2018 reproduced in the judgment:- "He is informed that the Supreme Court has in the said petition passed an interim order today staying the transit remand orders, including the one passed by the CMM in respect of the Petitioner, and has ordered that all those who have been arrested including the Petitioner shall continue under house arrest. In view of the above development, it would not be appropriate for this Court to continue considering the validity of the transit remand order passed by the learned CMM. The Court considers it appropriate to list this matter tomorrow at 2:15 pm by which time the order of Supreme Court would be available. List on 30th August 2018 at 2:15pm." 113. On the next day i.e., on 30.08.2018, the Court passed a further order. Therein, in fact the order recites that the Court was in the process of pronouncement an order on the validity of the transit remand and consequently on the validity of the arrest of the appellant. It is further stated that the court was informed by the counsel for the State of Mahara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly a Magistrate can order remand, does not appear to be correct. 117. 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 No. 84 of 2018 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. It is appropriate that the allied argument, namely, the effect of the Appellant surrendering on 14.04.2020, being produced on 15.04.2020 and being remanded to police custody in which he remained till 25.04.2020, is considered. The argument is that under the general law, namely, the Cr.P.C. without the modification effected under Section 43(D) of UAPA, police custody can be sought and given only during the first 15 days, thereafter, police custody cannot be given. in the case of UAPA, in view of the modified application of the Cr.P.C. under Section 43(D) (2), the period of 15 days stands enhanced to 30 days. Thus, police custody by the Magistrate can be given on production for a period of 30 days. The argument further runs that if it is on the basis of the Appellant having surrendered on 14.04.2020 and upon being produced before the Court, he stood remanded to police custody, the period of 90 days would begin to run only from the date of the remand i.e. 15.04.2020. If the contention of the appellant is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody. It was open to the investigating agency to file such an affidavit and seek such custody or even the permission to interrogate during the period of house arrest which was not done. It is seen further contended that on 14.04.2020, the appellant surrendered before the NIA i.e. police custody. Therefore, when the police custody was sought on 15.04.2020 and extended again on 21.04.2020, there is no transfer from judicial custody to police custody. Therefore, it is contended that the police custody was not under the second proviso to Section 43(D)(2)(b). This explains why no affidavit as required thereunder was filed by the police. The conduct of the appellant in not objecting to the application seeking police custody cannot defeat the case for counting the period of 34 days of house arrest. The appellant was indeed in police custody on 28.08.2018 for the purpose of investigation. All his devices were seized by the investigating agency who had spent several hours at his house and restrained him from morning till 2:15 P.M. when they proceeded with him to the Magistrate. 121. The scheme of the law (Cr.P.C.) is that when a person is arrested without warrant in connection with a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen pleaded, for analysing the retrieved electronic data/ documents from the electronic devices recovered during the investigation. 124. The special Judge ordered remand for 7 days. Thereafter, a period of 7 days further remand to police custody was granted by the order dated 21.04.2020. Still further, it appears on 25.04.2020, the Appellant was remanded in judicial custody in which he continued. The question would arise that all else being answered in favour of the Appellant whether his case is inconsistent with the police remand initially granted for 7 days on 15.04.2020 and further extended on 21.04.2020 which was, no doubt, cut short on 25.04.2020. The point to be noted is police custody can be given only for 15 days and that too, the first 15 days, ordinarily. in the case of persons accused of offences, under UAPA, the maximum period of police custody is 30 days. If the case of the appellant is to be accepted then it must be consistent with the subsequent proceedings, namely, police custody vide orders dated 15.04.2020 and 21.04.2020. In other words, Section 167 of the Cr.P.C. as modified by Section 43(D)(2) of UAPA, contemplates that remand to police custody on production o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody". 127. 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. 128. We would think that the position under Section 167 as applicable in cases under UAPA is as follows:- Undoubtedly, the period of 30 days is permissible by way of police custody. This Court will proceed on the basis that the legislature is aware of the existing law when it brings the changes in the law. In other words, this Court had laid down in Anupam Kulkarni (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the proviso and even a person who is bailed out can after 30 days be remanded to police custody. This is untenable. The case of the appellant that the police custody granted on 15.04.2020 was permissible and consistent with his case does not appear to be correct. THE DECISION IN (2007) 5 SCC 773 129. The High Court placed considerable reliance on the judgment reported in State of West Bengal V. Dinesh Dalmi a (2007) 5 SC 773 . So also the Additional Solicitor General, Shri Raju. In the said case, the Respondent was arrested in New Delhi. He was produced before the Magistrate on transit remand in Chennai. The Investigating Officer, in cases in Calcutta, prayed for production warrant before the Court at Calcutta as the Respondent was arrested and detained in the CBI case before the Magistrate at Chennai. The said prayer was allowed and the order was sent to the Court at Chennai. There was a further order by the Calcutta Court issued that the Respondent should not be released in the CBI cases in Chennai. The Respondent also came to know that he was wanted in two more cases pending in Calcutta. He voluntarily surrendered before the Magistrate in Chennai. It was on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days. 2. The High Court was unable to go through the entries in the case diary as the entries were in the Marathi language. In fact, the court expresses inability to make out from the documents what precisely the case against the appellant was. Translation of the documents were to be made available on the next day. The translations were not made available. Yet the house arrest was ordered until further orders on 28.08.2018. What is pertinent is that by the standards in law applicable to a Magistrate acting under Section 167, the High Court did not purport to act under Section 167. This is different from saying that it acted in violation of the mandate of law. 3. It is true that there was no stay of investigation as such. However, what was challenged was the transit remand. The FIR was lodged in another state. Interrogation of the appellant would be integral to the investigation. On the terms imposed by the High Court in regard to house arrest it was not possible for such interrogation to take place. It appears that the parties did not contemplate as it is presently projected. It is no doubt true that the respondent could have moved the High Court. 4. The house arrest accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hours of the arrest which could be illegal. The illegality of the detention is based on the transit order being found illegal. If the transit order has been modified as claimed by the appellant, then the detention would be lawful as the order of house arrest is passed well within 24 hours of the arrest. We are highlighting this aspect to emphasize this as a circumstance to show that the High Court of Delhi also did not contemplate that the order of house arrest was passed by way of custody under Section 167. No doubt, the foundational order, the transit remand, being set aside it could be said that the interim order will not survive. But then the order should have been so understood by the High Court. 5. Undoubtedly, the appellant was placed in police custody from 15.04.2020 to 25.04.2020. Even the enhanced period of 30 days of police custody, permissible under Section 43 (D) (2) of UAPA, must be acquired within the first 30 days of the remand. Proceeding on the basis of the case of the appellant that the first remand took place on 28.08.2018, the appellant being in police custody for a period of 11 days in 2020 is inconsistent with appellants case and the law. Though police cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental right [See Bikramjit Singh Vs. The State of Punjab (2020) 10 SCC 616 ]. But hereagain, it must depends upon fulfilment of conditions in Section 167. THE KNOT TIGHTENED 132. Now, the argument, which survives is as follows: What mattered was that the appellant actually underwent the actual custody of 34 days by way of house arrest. The fact that there may have been illegality in the Order of the Magistrate, will not take away, the factum of actual custody. The fact that the appellant was given in Police custody and he did not object, cannot defeat appellant's right. What is relevant is that a period of 90 days had run out. It is emphasised before us that be it the High Court, it could not have ordered the detention of the appellant without authority of the law. The only law, which supports the house arrest, is Section 167 of the CrPC. 133. We have already noticed the circumstances surrounding the Order passed by the High Court. We would also, at this juncture, again capture the Order dated 29.08.2018, passed by this Court: "Taken on Board. Issue notice. Mr. Tushar Mehta and Mr. Maninder Singh, learned Additional Solicitor Generals being assisted by Mr. R. Balasubrama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the two values. On the one hand, there is the deprivation, in law, of the liberty of the appellant, by way of house arrest for 34 days. On the other hand, it does not fall actually in the facts of this case within the ambit of Section 167 of the CrPC, for the reasons, which have been discussed earlier. While, the Right to Default Bail is a Fundamental Right, it is subject to the conditions, obtaining in Section 167 of the CrPC, being satisfied. It must be purported to be passed under Section 167 CrPC. The right to statutory bail arises dehors the merits of the case. The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under Section 167 is indispensable to count the period. 136. On the other hand, Article 21 of the Constitution of India, provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure prescribed by law. This Article, creates a Fundamental Right, which cannot be waived. Moreover, unlike the persons, who apparently underwent house arrest on the basis of the offer made on their behalf, in the case of the appellant, even prior to the order dated 29.08.2018, the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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