In the case of Navlakha’s appeal, the apex court said that the order of house arrest of the Delhi High Court shall not be treated as having been passed under Section 167 Cr.P.C., and dismissed the activist’s appeal for default bail. The Court further clarified the law relating to default bail, house arrests and personal liberty, writes PRASTUT DALVI.
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A DIVISION bench of the Supreme Court, in a detailed 206-paged judgment authored by Justice K.M. Joseph, dismissed an appeal of activist Gautam Navlakha who was charged under the stringent provisions of the Unlawful Activities Prevention Act, 1967, for his alleged involvement in the Bhima Koregaon violence case.
The Court held that the period of 34 days under house arrest was to be excluded from the period of 90 days under Section 167 of the Code of Criminal Procedure, 1973 (Cr.P.C) for the purpose of deciding the grant or refusal of default bail.
Criminal Law Jurisprudence
The Court, while coming to this conclusion, dwelled into various aspects of criminal law jurisprudence and clarified the procedural law surrounding investigations under Cr.P.C. In Paragraph 16 of the judgment, it framed eight issues for its consideration.
As a prequel to deciding the said issues, the Court found it appropriate to adjudicate the final question, i.e. whether the period of 34 days spent in house arrest by the appellant is to be counted in the period of 90 days under Section 167 Cr.P.C.
The other significant issues which the Court raised, inter-alia, were whether the transit remand order, or the order directing house arrest fell within the ambit of Section 167 Cr.P.C. and whether broken periods of custody can be summed up for the purpose of deciding default bail.
House Arrest
The Court while analysing these issues extensively discussed (from Paragraph 35 onwards) the position of law relating to house arrests in foreign jurisdictions as well as in India.
While discussing the law relating to preventive detention in the Indian context, the Court said that such a detention is also a form of forced detention and house arrest is also “custody” and forced detention.
The Court came to the conclusion that house arrest involves custody which falls under Section 167 Cr.P.C., and for the purposes of this Section, in appropriate cases, it will be open to courts to order house arrest.
The Court while expounding the importance of personal liberty also discussed the concept of negative liberty from the celebrated lecture of famous British philosopher Isaiah Berlin–“Two Concepts of Liberty”. The Court laid down a crucial caveat for itself that it should lean in favour of upholding personal liberty which is a precious, inalienable and immutable value.
Maintainability of Writ of Habeas Corpus
While deciding whether a writ of habeas corpus lies against an order of remand under Section 167 Cr.P.C., the Court held that only in cases where the remand is illegal or the remand order is afflicted by the lack of jurisdiction or has been passed in a mechanical manner, a writ of habeas corpus in maintainable.
The Court held that the magistrate is the original court which would exercise power to remand under Section 167. However, the exercise of the powers by superior courts, including the Court of Sessions and the High Court granting custody, shall be treated as powers exercised under Section 167 of the Cr.P.C.
The Court further clarified that in the exercise of such powers, the broken periods of custody shall be taken into consideration to decide the question of default bail.
The Court also laid down that in case the order of custody under Section 167 Cr.P.C. is hit by the vice of illegality, it would not render the actual custody as ineligible and the period undergone will count towards default bail.
Period of Detention in Present Case
| Period | Days | Nature of Custody |
| 28.08.2018 to 01.10.2018 | 34 days | House Arrest |
| 15.04.2020 to 25.04.2020 | 11 days | Police Custody |
| 26.04.2020 to 12.06.2020 | 48 days | Judicial Custody |
Denial of Relief to Navlakha
The Court found that the Delhi High Court failed to go through the case diary while ordering for the house arrest of Gautam Navlakha, a mandate prescribed under Section 167 of the Cr.P.C. The Court further observed that in the terms imposed by the High Court, an interrogation of Navlakha was not possible and that the order of house arrest, which would fall within the ambit of “custody” under Section 167 Cr.P.C., was not apparently in the minds of the Delhi High Court as well as the Supreme Court (while passing similar order of house arrest in Romila Thapar and Others vs. Union of India and others (2018).
The Supreme Court, therefore, held that the order of house arrest passed by the High Court of Delhi shall not be treated as having been passed under Section 167 Cr.P.C., and dismissed the appeal filed by Navlakha for grant of default bail.
The Supreme Court finally made some important clarifications. It 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.
In the context of prescribing house arrest as a form of punishment in post-conviction cases, which is popular in foreign jurisdictions such as the US, and considering the problems of over-crowding in prisons in India, the Supreme Court deemed it appropriate to leave it to the wisdom of the legislature.
(Prastut Dalvi is an advocate in the Supreme Court. The views expressed are personal.)
