The Supreme Court recently observed that in appropriate cases under Section 167 Criminal Procedure Code (CrPC), courts could order “house arrest”. The Court said this while dismissing the statutory bail plea filed by social activist Gautam Navlakha in the Bhima Koregaon violence case.
The Supreme Court bench of Justices 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 CrPC and dismissed the appeal of Navlakha for grant of default bail.
While pronouncing the verdict, the bench said: “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 this case the bench reached to the conclusion that the house arrest was not ordered purporting to be under Section 167.”
The Court said that “house arrest” as a form of “custody” falls within the ambit of Section 167 CrPC and in appropriate cases, it would be open to courts to order it. “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 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 the next day. Navlakha was booked under Sections 153A, 505(1B) and 34 and Section 120(B) of the IPC. Sections 13, 16, 17, 18, 18B, 20, 38 and 40 of the Unlawful Activities (Prevention) Act were added later.
According to Section 167 of the CrPC, 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, 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 spent more than 90 days in custody.
The main issue that the Supreme Court had to decide was whether the period of 34 days when Navlakha was in custody by way of house arrest pursuant to the orders of the Delhi High Court and the Supreme Court modifying the transit remand order of August 28, 2018, would count as custody for the purpose of default bail.
It was submitted by his counsel: “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: “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 charge-sheet was filed after 90th day and thus Navlakha ought to be released on default bail.”
But the counsel for Maharashtra, Additional Solicitor General SV Raju referred to paragraph 12 of the order rejecting Navlakha’s plea for anticipatory bail. He said that it was the case of the appellant that this Court had protected his liberty by granting house arrest. “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.
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The Supreme Court said: “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.
—By Abhinav Verma and India Legal News Service