The Supreme Court has observed that under section 167 Criminal Procedure Code in appropriate cases it will be open to courts to order “house arrest” while dismissing the statutory bail plea filed by social activist Gautam Navlakha in Bhima Koregaon violence Case.
The Supreme Court bench of Justice UU Lalit and KM Joseph held, that the order of ‘house arrest’ passed by the High Court of Delhi shall not be treated as ‘custody’ as having been passed under Section 167 Cr.P.C., and dismissed the appeal filed by Navlakha for grant of default bail.
The bench while pronouncing the verdict made the observation that,
“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 had formed the view that it involves custody which falls under Section 167. But in the light of the facts of the this case the bench reached to the conclusion that the house arrest was not ordered purporting to be under Section 167.”
The Top Court said that “house arrest” as a form of “custody” falls within the ambit of “Section 167 Cr.P.C.” and in appropriate cases, it would be open to courts to order it.
The Top Court said, “We observe that under Section 167 in appropriate cases it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest. We would also indicate under Section 309 also that judicial custody being custody ordered, subject to following the criteria, the courts will be free to employ it in deserving and suitable cases.
As regards post-conviction cases we would leave it open to the legislature to ponder over its employment. We have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons.”
The case relates to alleged inflammatory speeches and provocative statements made by activists at the Elgar Parishad meet in Pune on December 31, 2017. The prosecution claimed that these speeches led to violence at Koregaon Bhima in the district the next day.
The Social Activist was booked under Sections 153A, 505(1B), 34 and Section 120(B) of IPC and further into which, Sections 13, 16, 17, 18, 18B, 20, 38 and 40 of the Unlawful Activities (Prevention) Act were added later.
According to Section 167 of Criminal Procedure Code,1973, if the chargesheet is not filed by the police then the accused cannot be detained in custody for more than 90 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.
Therefore, Mr. Navlakha challenged the dismissal of his bail plea by the Bombay High Court on February 8. The High Court had upheld the NIA court verdict denying him bail despite the fact that he had spend more than 90 days in custody.
The main issue that arose for the determination of Supreme Court was whether a period of 34 days when Navlakha was in custody by way of house arrest pursuant to orders of the Delhi High Court and the Supreme Court modifying transit remand order dated August 28, 2018 of the Chief Metropolitan Magistrate would count as custody for the purpose of default bail.
It was submitted by the counsel of Social Activist that, “Mr. Navlakha was under house arrest for 34 days between August 28, 2018, and October 1, 2018 (excluding the last day). He was subsequently in police custody for 11 days and judicial custody for 46 days. At this point, he had completed 90 days in custody and was entitled to the indefeasible right to default bail,”
The counsel also argued that, “It is admitted the charge-sheet was not filed by the investigating agency nor was any extension for filing charge-sheet sought by the Public Prosecutor. If you take all three into account, it is 93 days. We say chargesheet was filed after 90th day and thus Navlakha ought to be released on default bail.”
Whereas the Counsel for the Respondent State, ASG SV Raju, referred to paragraph 12 of the order rejecting appellant’s plea for anticipatory bail. He 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,” he said.
The Supreme Court answers in the affirmative, Whether a writ of Habeas Corpus lies against an order of remand under Section 167 of CRPC. “If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie,” it said.
Read the judgment here;4836-2021-33-1502-28011-Judgement-12-May-2021