TMI Blog2021 (5) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 MANUBH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2018 Present: Sh. Jagdamba Pandey, Ld. APP for the State IO Assistant Police Inspector 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the CMM be provided to this Court tomorrow. 6. The petitioner shall, in the meanwhile, be kept at the same place from where the was picked 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner comes to an end as of now . 30. It is clarified that this order will not preclude the State of Maharashtra from proceeding further in accordance with law. 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 penden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jail, Mumbai from 25.04.2020 to 12.06.2020 (judicial custody), were also added. The NIA, it would appear, filed Application for extension of time to file charge-sheet after 110 days 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 outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest, could not be included within the period of 90 days, for the reason that the Investigating Officer did not have access to the appellant, and it is untenable. It was contended that nothing prevented 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RESPONDENT 11. Mr. S.V. Raju, learned Additional Solicitor General would support the order of the High Court:- a. He points out that at the time when the writ petition was filed in the High Court of Delhi 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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of arrest of 24 hours for the purpose of facilitating the production of accused before the competent Magistrate which in this case, was the competent Court located at Pune. Sections 56, 57 and 167 is relied upon to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an order for custody other than police custody and judicial custody under Section 167 Cr.P.C.? Is House arrest custody within the embrace of Section 167 of Cr.P.C.? 5) Is the House arrest of the appellant not custody under Section 167 of the Cr.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 167, exceed twentyfour hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court. 21. Chapter VI deals with Processes to compel Appearance. Part A of Chapter VI deals with Summons. Part B deals with Warrant of arrest. Warrant of arrest 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 Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- [(a) the Magistrate may authorise the detention of the accused person, otherwise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): Provided that before the expiry 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 Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuting a warrant must notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant. It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested. Then comes Section 81 which runs thus: The police officer or other person executing a warrant of arrest 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 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emplates an arrest without a warrant of court, for, as already noted, a person arrested under a court's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds 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 Bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt who directed them to be produced on the next day of the morning. The court which was dealing with the writ of Habeas Corpus by the respondents directed the respondents be produced the next day. On 28th July 1960, the High court focussing on the second period i.e. 25th July 1960 to 2.00 p.m. 27th July, 1960 found that during this period the respondents having not being produced before a 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 Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court on 28.08.2018 at 2:15 p.m. From the judgment, it is further clear that it was taken up at 2:45 p.m. on the same day. The Court initially ordered that no precipitate action be taken of removing the appellant till the matter was taken up again at 4:00 p.m. In the meantime, it would appear that in the transit remand application moved by the Maharashtra police, the CMM, Saket passed the order 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entries to justify the prayer for transit remand. While the Magistrate examining the transit remand application is not required to go into the adequacy of the material, he is obliged to satisfy himself from about the existence of the material. He further found that the Magistrate is bound to ask the arrested person whether in fact, he has been informed about the grounds of arrest and whether he requires to consult 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 Marat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest, it is interesting to note that many of today's house arrest programs expect their clients to pay supervision fees, restitution, and their living expenses. Galileo Galilei, the Florentine philosopher, physicist, and astronomer, also experienced house arrest after a second condemnation trial in Rome in 1633. After the trial, he returned to Florence and house arrest for the rest 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 servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the defendant has been found guilty of a serious offense. The penalty is house arrest. She was allowed to leave her apartment only for medical reasons, employment, religious services or to conduct essential food shopping. House arrest has been employed in the United States essentially as an intermediate level penal sanction. 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 sente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inement pro- gram establishes even greater control. In United States v. Wayte3 the defendant was convicted for failure to register with the Selective Service System. The imposition of sentence was suspended and the defendant was placed on probation for six months. The court ordered that the entire probationary period be spent under house 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 condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedoms, 1950. Dealing with the questions, whether the applicant is deprived of liberty and whether the applicant had waived his right to liberty, inter alia, the Court held as follows:- As it does in many other areas, the court insists in its case law on an autonomous interpretation of the notion of deprivation of liberty. A systematic reading 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) (j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent criteria ought to apply to the assessment of the reasons for the impugned restriction on liberty as the applicant had been detained not only in prison but also been held in house arrest and in hospital. The court dismissed the argument, stating that art 5 did not regulate the conditions of detention, referring to the approach previously adopted in Mancini (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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b. to be removed from one place of detention to another place of detention, whether in the same State or another State, by order of the appropriate Government. The objection of the petitioners to these provisions on the ground of their unreasonableness is not wholly without substance. Laws of preventive detention cannot, by the back-door, introduce procedural measures of a punitive kind. Detention without 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamil Nadu (141), Madhya Pradesh (131), Andhra Pradesh (106), Karnataka (104) and Odisha (91). These Six (6) States together cover 53.11 % of total jails in the country as on 31st December, 2019. 4. Delhi has reported the highest number of Central jails (14) in the country. States/UTs like Arunachal Pradesh, Meghalaya, A N Island, D N Haveli, Daman Diu and Lakshadweep have no central Jail as on 31st December, 2019. 5. Uttar Pradesh has reported the highest number of District jails (62). States/UTs like Goa, Chandigarh, D N Haveli, Daman Diu, Delhi, Lakshadweep and Puducherry have no District Jail as on 31st December, 2019. 6. Tamil Nadu has reported highest number of Sub-jails (96). States/UTs like Arunachal Pradesh, Goa, Haryana, Meghalaya, 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) (6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9%) followed by Uttar Pradesh (167.9%) and Uttarakhand (159.0%) as on 31st December, 2019. 16.The capacity in 31 Women Jails was 6,511 with the actual number of women prisoners in these Women Jails was 3,652 (Occupancy Rate: 56.1%). The capacity of Women Inmates in other types of Jail (i.e. except Women Jails) was 21,192 with the actual number of women inmates in these jails was 16,261 (Occupancy Rate: 76.7%) as on 31st December, 2019. 17.Uttarakhand has reported the highest female occupancy rate (170.1%) followed by Chhattisgarh (136.1%) and Uttar Pradesh (127.3%). However, the highest number of female inmates were confined in the Jails of Uttar Pradesh (4,174) followed by Madhya Pradesh (1,758) and Maharashtra (1,569). Prisoners Types Demography Year No. of convicts No. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31st December of each year), having increased by 35.19% during this period. b. Among the 3,223 detenues, the highest number of detenues were lodged in Central Jails (81.4%, 2,622 detenues) followed by District Jails (9.9%, 318 detenues) and Special Jails (6.1%, 196 detenues) as on 31st December,2019. c. Tamil Nadu has reported the maximum number of detenues (38.5%, 1,240) in the country followed by Gujarat (21.7%, 698) and Jammu Kashmir (12.5%, 404) at the end of 2019. 6. Women Prisoners with Children a. There were 1,543 women prisoners with 1,779 children as on 31st December, 2019. b. Among these women prisoners, 1,212 women prisoners were undertrial prisoners who were accompanied by 1,409 children and 325 convicted prisoners who were accompanied by 363 children. 7. Age-group of the Prisoners a. As on 31st December, 2019 the maximum number of inmates (2,07,942 inmates, 43.4%) were belonging to the age group 18- 30 years followed by the age group 30- 50 years (2,07,104 inmates, 43.3%). b. 63,336 inmates (13.2%) were belonging to the age group above 50 years. c. 218 inmates belonged to the age group of 16-18 years. 8. Edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of each year). 3. Among 5,608 prisoners of foreign nationality at the end of 2019, 4,776 were Males and 832 were females. 4. Among these foreign national prisoners, 38.7% (2,171 inmates) were Convicts, 53.1% (2,979 inmates) were Undertrials and 0.7% (40 inmates) were Detenues. 5. Among the foreign convicts, the highest number of foreign convicts were from Bangladesh (67.7%, 1,470 convicts) followed by Nepal (10.5%, 228 convicts) and Myanmar (7.1%,155 convicts) at the end of 2019. Prison Budget Infrastructure 1. The total budget for the financial year 2019-20 for all prisons in the country was ₹ 6818.1 Crore. The actual expenditure was ₹ 5958.3 Crore which is 87.39% of total annual budget for FY 2019-20. 2. A total of ₹ 2060.96 Crore was spent on inmates during FY 2019-20 which is almost 34.59% of total annual expenditure of all prisons for FY 2019-20. 3. Almost 47.9% (₹ 986.18 Crore) of total expenses on inmates were spent on Food followed by 4.3% (₹ 89.48 Crore) on Medical matters, 1.0% (₹ 20.27 Crore) on welfare activities, 1.1 %(₹ 22.56 Crore) on Clothing and 1.2% ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Maneka Gandhi vs. Union of India, AIR 1978 SC 597 when a citizen is placed on house arrest, which has the effect of depriving him of any freedom, it will not only be custody but it would involve depriving citizens under custody of the fundamental freedoms unless such freedoms are specifically protected. A person has a fundamental right to move in any part of the country. It is obvious that in the case of a person undergoing a house arrest and in the teeth of an absolute prohibition, in the facts of the case forbidding the appellant from moving outside his home, the hallmark of custody described in the case of incarceration is equally present. Personal liberty perhaps is the most important of all values recognized as such under the constitution. It is to be jealously guarded from any encroachment, save where such intrusion has the clear sanction of law. The expression procedure established by law has received an expansive and liberal exposition in decisions of this Court commencing from Maneka Gandhi(supra). Right to personal liberty is the birth right of every human being. The right under Article 21 is undoubtedly available to citizens and noncitizens. While personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others are not, prevented from having enough money with which to pay for it, that I think myself a victim of coercion or slavery. In other words, this use of the term depends on a particular social and economic theory about the causes of my poverty or weakness. If my lack of means is due to my lack of mental or physical capacity, then I begin to speak of being deprived of freedom (and not simply of poverty) only if I accept the theory. If, in addition, I believe that I am being kept in want by a definite arrangement which I consider unjust or unfair, I speak of economic slavery or oppression. The nature of things does not madden us, only ill will does , said Rousseau. The criterion of oppression is the part that I believe to be played by other human beings, directly or indirectly, in frustrating my wishes. By being free in this sense I mean not being interfered with by others. The wider the area of non-interference the wider my freedom. 53. In fact, personal liberty is interlinked with the right to life itself. It is an inseparable part without which the right to life itself is deprived of its content and meaning. The right to life and personal liberty is essentially also bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47] it cannot be categorised even as an intermediate order . The order is, therefore, a pure and simple interlocutory order and in view of the bar created by subsection (2) of Section 397 Cr.P.C, a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day. 57. Thus, an order under Section 167 is purely an interlocutory order. No revision is maintainable. A petition under Section 482 cannot be ruled out. Now at this juncture we must notice the following dimension. When a person arrested in a non-bailable offence is in custody, subject to the restrictions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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 UNDER SECTION (167) OF CR.P.C. 61. 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. We may notice only two judgments of this court. In Manubhai Ratilal Patel V. State of Gujarat and others ,(2013) 1 SCC 314. We may notice paragraph 24. (24) The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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? 64. One of the contentions raised is that the order passed by the High Court of Delhi, is not one passed under Section 167 of the Cr.P.C., for the reason that what the Cr.P.C. contemplates is an order passed by a Magistrate. It, therefore, becomes necessary to consider whether a Court other than a Magistrate can order remand under Section 167. In the first place, going by the words used in Section 167, what is contemplated is that Magistrate orders remand under Section 167(2). 65. Let us, however, delve a little more into the issue. Let us take a case where a Magistrate orders a remand under Section 167 and at the same time, he also rejects the application for bail preferred by the accused. The accused approaches the High Court under Section 439 of the Cr.P.C. The court reverses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Sessions acting under Section 439) the power under Section 167 could also be exercised by Courts which are superior to the Magistrate. 67. Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. We have also noticed the observations of this Court in AIR 1962 SC 1506 (supra). 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. 68. Equally when an order in bail application is put in issue, orders passed resulting in detaining the accused would if passed by a superio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other custody? Will the period of remand for statutory bail begin from the date of this special order ? Will it begin only when the competent Magistrate orders remand? 74. Now as far as this case is concerned, we notice findings of the High Court of Delhi as follows: (para 11 and para 15) (11) Mr. Navare next tried to draw a distinction between the scope of the function of a Magistrate before whom an application for transit remand is moved and the jurisdictional Magistrate who should be approached for an order of remand in terms of Section 56 of the Cr.P.C. According to Mr. Navare, at the stage of transit remand the concerned Magistrate would not be required to satisfy himself anything more than whether an offence is made out and whether the Police Officer seeking the remand is in fact the one authorized to do so. (15) Therefore, when a person who after arrest is required to be produced before a jurisdiction Judicial Magistrate is detained in a place which is away from that jurisdiction, and therefore cannot be produced before the jurisdictional Magistrate within 24 hours, as mandated both by Article 22(2) of the Constitution and by Section 57 Cr.P.C., he will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it appears that the investigation cannot be completed withing the period of 24 hours fixed by Section 57. Sub-section (2) on the other hand pertains to the powers of remand available to a Magistrate and the manner in which such powers should be exercised. The terms of sub-section (1) of Section 167 have to be read in conjunction with Section 57. Section 57 interdicts a police officer from keeping in custody a person without warrant for a longer period than 24 hours without production before a Magistrate, subject to the exception that the time taken for performing the journey from the place of arrest to the magistrate s court can be excluded from the prescribed period of 24 hours. Since sub-section (1) provides that if the investigation cannot be completed within the period of 24 hours fixed by Section 57 the accused has to be forwarded to the magistrate along with the entries in the diary, it follows that a police officer is entitled to keep an arrested person in custody for a maximum period of 24 hours for purposes of investigation. The resultant position is that the initial period of custody of an arrested person till he is produced before a Magistrate is neither referable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm of imprisonment. 83. In this context, we may notice the judgment of this court reported in Govt. of Andhra Pradesh and another etc. V. Anne Venkateswara Rao etc. etc . AIR 1977 SC 1096 . In the said case the Appellant in one of the appeals had been detained under the Preventive Detention Act on 18.12.1969. He was produced before the Magistrate sometime in April, 1970 in connection with certain offences after he had been released from preventive detention. He was later convicted. This Court while dealing with the contention that the benefit of provisions of Section 428 must ennure to the Appellant held:- The argument is that the expression period of detention in Section 428 includes detention under the Preventive Detention Act or the Maintenance of Internal Security Act. It is true that the section speaks of the period of detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice custody during the first 15 days (in cases under UAPA, the first 30 days). Beyond such period, the Magistrate may direct detention which is described as judicial custody or such other custody as he may think fit. It is, no doubt, open to a Magistrate to refuse police custody completely during the first 15 days. He may give police custody during the first 15 days not in one go but in instalments. It is also open to the Magistrate to release the arrested person on bail. 86. 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.(See AIR 1977 SC 1096) 87. Detention pursuant to proceedings under the Army Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l render the detention not authorised is inconsistent with our conclusion as aforesaid. 92. 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. 93. 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 94. Now, we must squarely deal with the question as to whether house arrest as ordered by the High Court amounts to custody within the meaning of Section 167 of the Cr.P.C. Undoubtedly custody in the said provision is understood as ordinarily meaning police custody and judicial custody. The period of custody begins not from the time of arrest but from time the accused is first remanded (1986 (3) SCC 141). Police custody can, in a case falling under the Cr.P.C. (not under the UAPA), be given only during the first 15 days ((1992) 3 SCC 141). During the first 15 days no doubt the Court may order judicial custody or police custody. No doubt the last proviso to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after a charge-sheet has been filed, the Magistrate has not the same freedom with regard to the custody to which he commits the accused as he had before a chargesheet was filed. The learned Advocate for the petitioners has referred to the wording of Section 29 of the Prisoners Act, as indicating that the only person who can transfer a prisoner from one Jail to another within the same province is the Inspector-General of Prisons; but by its very wording Section 29 of the Prisoners Act does not apply to an under-trial prisoner; nor are we dealing with a transfer of a prisoner. Whenever an accused is brought before the Court and the Court issues an order of remand, the Magistrate has complete freedom, as far as we can see, to remand the accused to whatever custody he thinks fit. [Emphasis supplied] 97. The concept of house arrest though familiar in the law relating to preventive detention, therein the underpinnings are different. House arrest in the law of preventive detention is one which is permitted under the law itself and such orders are made in fact by the executive. Also, detention under Section (167) would not embrace preventive detention in the form of house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 01.10,2018 (period of house arrest) as illegal, then, in our opinion, in the absence of there being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default bail under Sub-Section (2) of Section 167 of Cr.PC It goes on to hold: It is not possible for us to fathom a situation where detention of the Appellant though held to be illegal unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 167 of the Cr.P.C. In our view sans any valid authorisation/ order of the Magistrate detaining the appellant, the incumbent will not be entitled to a default bail Finally, it holds: Resultantly, we hold that the period from 28.08.2018 to 01.10.2018 has to be excluded from computing the period of 90 days as the said custody has been held to be unsustainable in law by the High Court of Delhi. DOES THE MAGISTRATE/ COURT CONSIDER THE LEGALITY OF ARREST/ DETENTION WHILE ACTING UNDER SECTION (167). 100. The High Court of Delhi in its judgment dated 01.10.2018 has found that the order of remand is illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities. This disposes of the third contention of Madhu Limaye. 102. We may further notice that in In Arnesh Kumar Vs. State of Bihar and Another (2014) 8 SCC 273 , this Court taking note of indiscriminate arrests issued certain directions. We may notice: - 8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is dutybound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mechanical manner again it would lie. Now in such cases the person would be in custody pursuant to the remand ordinarily. What would be the position if the writ court were to modify the order of remand passed by the magistrate. Take a case where police custody is ordered by the Magistrate. By an interim order of the High court let us take it the High Court provides for judicial custody. It is done after the accused undergoes police custody for 5 days. Finally, the writ petition is however dismissed. What would happen to the period of judicial custody? Will it be excluded from the period undergone for the purpose of grant of default bail? Another pertinent question which arises is whether Section 167 of the Cr.P.C. is applicable in writ proceedings. If a writ petition is not a criminal proceeding, Will Section 167 apply or does the provision apply only to the proceedings which arise under the Code? In the example, we have given if we hold that irrespective of facts which otherwise justified including the period of jail custody as part of the custody under one Section 167, it will not be reckoned it may produce anomalous and unjust results. We expatiate as follows: In the example ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition complains of the Petitioner and his companion Sehba Husain being restrained in his house by the Maharashtra Police pursuant to FIR No. 4/2018, registered at P.S. Vishrambagh, Pune. 2. Notice. Mr. Rahul Mehra, who appears and accepts notice and informs that he will take some instructions. 3. The Court is informed by Ms. Nitya Ramakrishnan, learned counsel appearing for the Petitioner, that her information is that the Petitioner is just being taken away from his house. No further precipitate action of removing the Petitioner from Delhi be taken till the matter is taken up again at 4 pm. [This is taken from order dated 29.08.2018 extracted in the judgment.] 108. It would appear, in the meantime, the appellant was produced before the Magistrate who passed the transit remand order. Thereafter when the matter was taken up for consideration at 4:00 p.m. and on noticing the transit remand, order, dated 28.08.2018, inter alia, ordering house arrest came to be passed. Therefore, at the time (4PM) when the order was passed, the Court was dealing with the matter when the Appellant stood arrested and also remanded by way of the transit remand order. 109 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e house arrest of the appellant, the court did not consider it appropriate to proceed with the matter. Orders of the Supreme Court were awaited. 114. It was further adjourned. Thereafter, this Court pronounced the judgment on 28.09.2018 and finally, the judgment was pronounced on 01.10.2018 by the High Court. We may also notice: - para 5 5. This writ petition was listed for hearing today at 2:15 pm before this Court. It is noted that the Supreme Court in para 7 of the majority judgment notes that the Petitioner has filed the present petition on 2 8 t h August 2018 challenging the transit remand order passed by the Chief Metropolitan Magistrate (CMM) on 2 8 t h August 2018 . At this stage it is required to be noted that although when the writ petition was originally filed the ground of challenge was that the arrest of the Petitioner was in violation of Section 165 and 166 Cr PC, during the course of arguments on 2 8 t h August 2018 in light of the developments that took place subsequent to the filing of the petition, challenge was laid to the remand order of the learned CMM. It was further contended that there had been a violation of the mandatory provision contained in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndoubtedly, 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. 118. This is unlike the decision in Madhu Limaye(supra) where this court found that there was a violation of Article 22(1) and even during the course of arguments before this court, it could not be explained to the court as to why the arrested persons were not told of the reasons for their arrest or of the offences for which they had been taken into custody. In the said case in fact one of the specific issues was about the legality of the arrest both on the ground that the offences being non cognizable arrest which was illegally effected by the police officer and also there was violation of Article 22(1). 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. 119. This is the most serious contention raised by the respondent to exclude the period of house arrest. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody commencing from 15.04.2020. This is possible only on the basis that the period of 90 days would commence only on 15.04.2020 in terms of the law laid down in Chaganti Satyanarayana(supra). 120. Per contra, the case of the appellant is as follows: - There is no requirement in law that the person should be granted police custody in all cases. Section 167 of Cr.P.C. confers a power with the Magistrate to grant either police or other custody (judicial custody) during the first 15 days in a case not covered by UAPA. After the first period of 15 days, undoubtedly, custody cannot be police custody but there is no requirement that any police custody at all should be given. It is entirely with the Magistrate/ Court to determine as to whether the custody should be police or judicial. Furthermore, it is contended that in this case, the offences under UAPA are the main offences. A period of 30 days is available by way of police custody. It is open to the investigator to seek police custody at any time. It is contended that in any event, a reading of the second proviso under Section 43(D)(2)(b) of the UAPA shows that in cases under the said act for the purpose of investigation, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate 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. It has several uses. It includes questioning the accused with reference to the circumstances, and obtaining if possible, statements which are relevant in the future prosecution. Custodial interrogation in some cases is clearly a dire need to give a prosecution and therefore the courts a complete picture. 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. 122. However, that may not mean applying the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place in the year 2018 then it would be completely inconsistent with the remand to police custody well beyond the first 30 days of the remand in the year 2018. 125. The answer of the Appellant is that apart from the period of 15 days being supplanted by 30 days under UAPA, police custody can be sought and granted at any time in cases involving UAPA. It appears to be the Appellants case in one breath that this is possible under the second proviso contemplated in Section 43(2)(b) of UAPA. It is seen contended, that unlike the cases generally covered by the Cr.P.C., police custody can be sought in cases under UAPA at any time. It is also contended however that, it is only if a person is in judicial custody and the investigator wants to get police custody in place of judicial custody that an affidavit is required. In this case, it is the case of the appellant that there is no such affidavit. This is for the reason that when police custody was sought on 15.04.2020, the appellant was not in judicial custody. He had surrendered on the previous day i.e. on 14.04.2020 before the NIA. It is, therefore, to resolve this controversy necessary to find out whether the case of the Appellant tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial custody. Ordinarily, since the period of 15 days has been increased to 30 days, the effect would be that in cases falling under UAPA applying the principle declared in (1992) 3 SCC 141, the investigating officer in a case under UAPA, can get police custody for a maximum period of 30 days but it must be within the first 30 days of the remand. In this regard, the number of days alone is increased for granting remand to police custody. The principle that it should be the first 30 days has not been altered in cases under UAPA. As far as the second proviso in Section 43(D)(2)(b) is concerned, it does bring about an alteration of the law in Anupam Kulkarni (supra). 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 proviso brings about the change in the law to the extent that if a person is in judicial custody on the basis of the remand, then on reasons given, explaining the delay, it is open to the Court to give police custody even beyond 30 days from the date of the first remand. We may notice t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t police custody of 15 days. The Respondent moved for bail contending that he had surrendered in the Court at Chennai and the period of 15 days had elapsed from the date of surrender. Finally, the matter reached before the Calcutta High Court against the order of the Magistrate rejecting the application for bail and ordering police custody. The Calcutta High Court in the revision filed by the Respondent found that more than 90 days, had expired from the time of the detention which should have been counted from 27.02.2006 when the Respondent had surrendered before the Court at Chennai. Therefore, the question for consideration before this Court was whether the period of detention started from 27.02.2006 when the Respondent had surrendered before the Court at Chennai in connection with the CBI case or whether it should be counted from 13.03.2006 when the Respondent was actually taken into custody by the police and produced before the Magistrate at Calcutta. This Court held that the respondent having voluntarily surrendered before the Court at Chennai could not be treated as being in detention under the cases registered at Calcutta. The accused, in fact, it was found continued to be u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he remand from police custody to house arrest. Subject to what follows we proceed on the basis that the High Court modified the order of remand. The transit remand order of the CMM Saket provided for police custody which was to last for two days. But on the basis of the house arrest ordered by the High Court by interim order the appellant underwent house arrest for 34 days. By the judgment dated 01.10.2018 the High Court of Delhi set aside the transit remand, as the transit remand ordered by the magistrate was found illegal. On the said basis the High Court of Delhi finds that detention beyond 24 hours was clearly impermissible. Now it is relevant to notice that the CMM Saket had not ordered detention for the period after 30.08.2018. Detention was ordered by him only for two days and the appellant was to be produced on 30.08.2018. By the order of the High Court of Delhi, the transit could not take effect. Therefore, the entire period after 30.08.2018 till 01.10.2018 cannot be said to be based on the order of the magistrate. The said period in fact is covered by the order of house arrest. The period of house arrest covered the period from 28.08.2018 based on the order of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tody, having surrendered to the NIA on 14.04.2020, which is on the eve of the first order directing police custody. 6. One of the contentions raised by the respondent is that if the order of house arrest was passed under Section 167 Cr.PC then the High Court of Delhi would have after setting aside the transit remand, either released the appellant on bail or remanded him to custody. Instead, the High Court released the appellant on the basis that as the remand order was illegal and set aside, in view of Section 56 and Section 57 the detention beyond 24 hours, cannot be sustained. Now in a proceeding under Section 167 where a remand order is put in issue before a superior court it presupposes an arrest in connection with a cognizable offence. Now if the remand is set aside by the superior court, we are of the view that in a proceeding which originated from a remand under Section 167, then the order that would follow on setting aside the remand, would be to grant him bail or to modify the remand. This is for the reason that there is an arrest which in the first place sets the ball rolling. Therefore, he has either to be released on bail, if not, he would have to be remanded. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted by Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the petitioners that in pursuance of the order of the High Court, Mr. Gautam Navalakha and Ms. Sudha Bharadwaj have been kept under house arrest. It is suggested by him that as an interim measure, he has no objection if this Court orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if arrested, they are kept under house arrest at their own homes. We order accordingly. The house arrest of Mr. Gautam Navalakha and Ms. Sudha Bharadwaj may be extended in terms of our orders. Needless to say, an interim order is an interim order and all contentions are kept open. Let the matter be listed on 6.9.2018. 134. We would think that the reality of the situation is explained by the said Order. Upon being informed that the appellant and another were kept under house arrest, on the suggestion of the Counsel for the petitioners in the Public Interest Litigation before this Court, that he had no objection in three others, if arrested, they be kept under house arrest, at their own homes, it was so ordered. It is not a case where this Court even had in its mind the duty to go through the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced before a Magistrate. A transit remand, which was a remand, under Section 167, was passed. Police custody followed. The High Court ordered that the appellant be kept in house arrest. The setting aside of the Order of transit remand will not wipe out the Police custody or the house arrest. We agree that illegality in order of the CMM, Saket, will not erase the deprivation of liberty. But other aspects already discussed militate against the order being treated as passed purportedly under Section 167. There can be no quarrel with the proposition that a court cannot remand a person unless the court is authorised to do so by law. However, we are in this case not sitting in appeal over the legality of the house arrest. But we are here to find whether the house arrest fell under Section 167. We are of the view, that in the facts of this case, the house arrest was not ordered purporting to be under Section 167. It cannot be treated as having being passed under Section 167. 137. There is one aspect which stands out. Custody under Section 167 has been understood hitherto as police custody and judicial custody, with judicial custody being conflated to jail custody ordinarily. 138. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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