2021 Supreme(SC) 257

SUPREME COURT OF INDIA
UDAY UMESH LALIT, K.M. JOSEPH, JJ.
GAUTAM NAVLAKHA - APPELLANT
VERSUS
NATIONAL INVESTIGATION AGENCY - RESPONDENT
CRIMINAL APPEAL NO. 510 OF 2021 [ARISING OUT OF SLP (CRIMINAL) NO. 1796 OF 20211
Decided on : 12-05-2021

IMPORTANT POINTS
(1) Right to personal liberty is birth right of every human being. Personal liberty is interlinked with right to life itself.
(2) House arrest is also custody and forced detention. Safeguards under Article 22(1) and Article 22(2) are not available under a law providing for preventive detention.
(3) Order under Section 167 of Cr.P.C. is purely an interlocutory order. No revision is maintainable. Petition under Section 482 of Cr.P.C. cannot be ruled out.
(4) If remand is absolutely illegal or remand is afflicted with vice of lack of jurisdiction, Habeas Corpus petition would lie.
(5) Default bail – Broken periods of custody can be counted.
(6) Set-off – Period spent under order of preventive detention being not in connection with investigation into an offence cannot be counted.
(7) Default bail – Custody may be illegal but actual custody undergone will count towards default bail.
(8) Estoppel may not apply to deprive a person from asserting his fundamental right – Right to default bail is fundamental right.

Headnote:

(A) Constitution of India – Article 21 – Right to personal liberty – Personal liberty perhaps is the most important of all values recognized as such under Constitution – It is to be jealously guarded from any encroachment, save where such intrusion has clear sanction of law – Right to personal liberty is birth right of every human being – Right under Article 21 is available to citizens and non-citizens – While personal liberty is a wide expression capable of encompassing within its fold, many elements apart from right to be protected against deprivation of liberty in sense of freedom from all kinds of restraints imposed on a person, irreducible core of personal liberty consists of freedom against compelled living in forced custody – Personal liberty is interlinked with right to life itself. (Paras 43, 45, 51 and 53)

(B) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – House arrest is also custody and forced detention – Safeguards under Article 22(1) and Article 22(2) are not available under a law providing for preventive detention – When a citizen is placed on house arrest which has effect of depriving him of any freedom, it will not only be custody but it would involve depriving citizens under custody of fundamental freedoms unless such freedoms are specifically protected – A person has fundamental right to move in any part of country – In case of a person undergoing a house arrest and in teeth of an absolute prohibition, in facts of the case forbidding appellant from moving outside his home, hallmark of custody described in case of incarceration is equally present. (Paras 43, 45 and 51)

(C) Criminal Procedure Code, 1973 – Sections 167, 397, 437, 439 and 482 – Remand of accused – Order under Section 167 is purely an interlocutory order – No revision is maintainable – Petition under Section 482 cannot be ruled out – When a person arrested in a non-bailable offence is in custody, subject to restrictions, contained therein, a court other than High Court or Court of Session, before whom he is brought, can release him on bail under Section 437 of Cr.P.C. – Ordinarily, when court considers request for remand there would be application for bail – It is for court to grant bail failing which order of remand would follow – Though application under Section 397 would not lie against remand, application for bail would lie under Section 439 – Ordinarily, accused would seek bail and legality and need for remand would also be considered by High Court or court of session in an application under Section 439 – Additional restrictions under Section 43 (D) (5) of UAPA are applicable to citizens of India in cases under said law. (Paras 57, 59 and 60)

(D) Constitution of India – Article 226 – Criminal Procedure Code, 1973 – Section 167 – Whether a Habeas Corpus petition lies when a person is remanded to judicial custody or police custody – If remand is absolutely illegal or remand is afflicted with vice of lack of jurisdiction, Habeas Corpus petition would lie – Equally, if an order of remand is passed in an absolutely mechanical manner, person affected can seek remedy of Habeas Corpus – Barring such situations, Habeas Corpus petition will not lie. (Paras 43, 45, 51 and 53)

(E) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – Computation of broken periods of custody – While ordinarily, Magistrate is original Court which would exercise power to remand under Section 167, exercise of power by superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by superior Courts which includes High Court, would indeed be custody for the purpose of calculating period within which charge-sheet must be filed, failing with accused acquires statutory right to default bail – In such circumstances broken periods of custody can be counted whether custody is suffered by order of Magistrate or superior courts, if investigation remains incomplete after custody, whether continuous or broken periods pieced together reaches requisite period; default bail becomes right of detained person – Equally when an order in bail application is put in issue, orders passed resulting in detaining accused would if passed by a superior court be under Section 167. (Paras 67 and 68)

(F) Criminal Procedure Code, 1973 – Sections 57 and 167 – Effect of transit remand order – Remand order be it a transit remand order is one which is passed under Section 167 of Cr.P.C. and though it may be for production of Appellant, it involved authorising continued detention within meaning of Section 167. (Para 78)

(G) Criminal Procedure Code, 1973 – Section 428 – Period of detention – Set-off – It is not every detention which can be relied upon to get benefit of set-off under Section 428 – Period spent under order of preventive detention being not in connection with investigation into an offence cannot be counted – Detention pursuant to proceedings under Army Act does not count – Detention during investigation under Section 428 is integrally connected with detention as ordered under Section 167 – Scheme under Section 167 is that custody (detention/ custody) as authorized under such provisions, if it exceeds limit as to maximum period without charge-sheet being filed, entitles person in detention to be released on default bail – The person may on account of his inability to offer bail languish in custody but he would be entitled to count entire period he has spent in detention under orders of Magistrate/ Superior Court exercising powers under Section 167 for the purpose of set off under Section 428. (Paras 86, 87, 88 and 89)

(H) Criminal Procedure Code, 1973 – Section 167(2) – Default bail – Period of detention – An order purports to remand a person under Section 167 – It is made without complying with mandatory requirements thereunder – It results in actual custody – 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 non-application of mind or reasons are not recorded, while it may render the exercise illegal and liable to be interfered with, actual detention undergone under the order, will certainly count towards default bail – Cr.P.C. mandates production of accused before Magistrate as provided in clause (b) of proviso to Section 167 (2) – Custody ordered without complying with said provision, may be illegal – But actual custody undergone will again count towards default bail – If Court purports to invoke and act under Section 167, detention will qualify even if there is illegality in passing of order – What matters in such cases is actual custody – However, when Court does not purport to act under Section 167, then detention involved pursuant to order of Court cannot qualify as detention under Section 167. (Paras 90, 92 and 93)

(I) Criminal Procedure Code, 1973 – Section 167 – Judicial custody and Police custody – House arrest – When a person is remanded to police custody, he passes into exclusive custody of police officers – Jail custody and judicial custody are same – Police officer does not have access to a person in judicial custody as he would have in 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 police officers – 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 facts of each case – There may be restrictions put in regard to grant of bail by law which must be observed – But if bail is not granted then a person arrested by police in connection with cognizable offence must be remanded to custody – House arrest in law of preventive detention is one which is permitted under law itself and such orders are made in fact by executive – Detention under Section (167) would not embrace preventive detention in form of house arrest. (Paras 95 and 97)

(J) Constitution of India – Article 22(1) – Criminal Procedure Code, 1973 – Section 167 – House arrest – Article 22(1) creates a fundamental right on a person arrested to be not detained without being informed as soon as may be of grounds for such arrest – It also declares it a fundamental right for detained person to consult and be defended by a legal practitioner of his choice – Detention follows arrest – What Article 22(1) is concerned with is that detention must be supported by fulfilment of rights referred to therein – Article 22(1) does not go to legality of arrest – If arrest does not satisfy requirements of Section 41, Magistrate is duty bound not to authorize further detention – Magistrate is to be satisfied that condition precedent for arrest under Section 41 of Cr.P.C. has being satisfied – He must also be satisfied that all constitutional rights of person arrested are satisfied – It is not as if an arrest becomes a fait accompli, however, illegal it may be, and Magistrate mechanically and routinely orders remand – Magistrate is to be alive to need to preserve liberty of accused guaranteed under law even in matter of arrest and detention before he orders remand – This is apart from being satisfied about continued need to detain accused. (Paras 100 and 103)

(K) Unlawful Activities Prevention Act, 1967 – Section 43(D)(2)(a) – Criminal Procedure Code, 1973 – Section 167 – Default bail – House arrest – Estoppel may not apply to deprive a person from asserting his fundamental right – Right to default bail is fundamental right – But, it must depend upon fulfilment of conditions in Section 167 – On one hand, there is deprivation, in law, of liberty of appellant, by way of house arrest for 34 days – On other hand, it does not fall actually in facts of this case within ambit of Section 167 of Cr.P.C. – Right to statutory bail arises de hors merits of case – Fundamental right arises when conditions are fulfilled – Nature of detention, being one under Section 167 is indispensable to count the period – Setting aside of order of transit remand will not wipe out Police custody or house arrest – Under Section 167 in appropriate cases it will be open to courts to order house arrest – In facts of this case, house arrest was not ordered purporting to be under Section 167 – It cannot be treated as having being passed under Section 167 – Appeal dismissed. (Paras 131, 135, 136, 139 and 141)

Facts of the case:

Petitioner, a suspected Urban Naxal, seeks default bail in cases registered under Sections 153A, 505(1B) and Section 34 of IPC to which Section 120(B) was added on 06.03.2018 and still further into which, Sections 13, 16, 17, 18, 18B, 20, 38 and 40 of the Unlawful Activities (Prevention) Act, 1967, were added on 17.05.2018, and, in which FIR, name of the appellant was added on 22.08.2018, the appellant came to be arrested from his residence in Delhi on 28.08.2018. NIA Special Court, before which Application for default bail was moved, rejected 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, NIA filed charge-sheet against the appellant. By the impugned Order dated 08.02.2021, High Court of Bombay, dismissed the Appeal, which was filed under Section 21 of the NIA Act. Points in issue are:-

1) What is the nature of an order of transit remand? Is it an order passed under Section 167 of the Cr.P.C.?

2) What is the nature of the interim order dated 28.08.2018 passed in the writ petition by the appellant in the High Court of Delhi as extended? Are these orders passed under Section 167 of the Cr.P.C.?

3) What is the effect of the judgment of High Court of Delhi dated 1.10.2018 wherein the arrest of the appellant and transit remand are found illegal?

4) Does the House arrest of the appellant amount to police custody or judicial custody? Can there 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 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 right to default bail arises or whether law giver has envisaged only custody which is continuous?

8) What is the impact of mandate of Article 21 and Article 22 of Constitution?

Findings of Court:

As regards post-conviction cases we would leave it open to the legislature to ponder over its employment. We have indicated problems of overcrowding in prisons and the cost to State in maintaining prisons. In view of the fact that the house arrest of the appellant was not purported to be under Section 167 and cannot be treated as passed thereunder, we dismiss the appeal. There will be no order as to costs.

Result : Appeal dismissed.