TaxTMI 
TaxTMI 
2021 (5) TMI 1055
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....h Court of Delhi. The High Court, apart from issuing notice, inter alia, ordered that no further precipitate action of removing the appellant from Delhi be taken till the matter was taken at 04:00 P.M.. The Order was passed at 02:45 P.M.. In the meantime, the CMM at Saket, Delhi disposed of an Application seeking transit remand with the following Order: "FIR No. 4/18 PS: Vishrambagh, Pune, Maharashtra U/s: 153A/505(1)(B)/117/341PC & u/s 13/15/17/18/185/20/39/40 of Unlawful Activities Prevention Act. State Vs. Gautam Pratap Navlakha 28.08.2018 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....
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....ly the application filed for transit remand before the learned CMM is in Hindi. However, it is not possible to make out from these documents what precisely the case against the petitioner is. 4. Since it is already 4.30 pm, the Court considers it appropriate to direct that pursuant to the order dated 28th August, 2018 of the learned CMM, the petitioner will not be taken away from Delhi and this case will be taken up as the first case tomorrow morning. 5.Translations of all the documents produced 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 Ju....
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....r PC, which are mandatory in nature, it is obvious to this Court that the order passed by the learned CMM on 28th August, 2018 granting transit remand to the Petitioner is unsustainable in law. The said order is accordingly hereby set aside. 29.In view of Section 56 read with Section 57 Cr PC, in the absence of the remand order of the learned CMM, the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, the house arrest of the 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, ....
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.... transferred to Mumbai on 26.05.2020 and he was remanded to judicial custody. It is, thereafter, that the appellant moved for default bail on 11.06.2020. In calculating the period of custody for the purpose of filing the Application for default bail, the appellant, included the period of 34 days of house arrest from 28.08.2018 to 01.10.2018. Further, eleven days of custody with the NIA from 15.04.2020 till 25.04.2020 and forty-eight days in Tihar Jail, Delhi and Taloja 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 R....
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.... the appellant had applied for anticipatory bail, which was rejected at all stages and, ultimately, the appellant surrendered only on 14.04.2020. It was based on the said surrender that the Magistrate authorised police custody. SUBMISSIONS OF THE APPELLANT 10. The learned Senior Counsel for the appellant contended that there is no substance in the reasoning of the High Court that the period of 34 days, during which, the appellant was under house arrest, 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 ....
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....t did not have any inherent power to place a person in custody. In this case the power can only, therefore, be what flows from Section 167 of the CrPC. It is the Order of transit remand which occasioned the custody. It was contended that the High Court or any superior Court can modify or change the nature of the Magisterial remand. The modified nature of the remand by the High Court of Delhi and this Court was never set aside. SUBMISSIONS OF THE 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 ....
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....ractical purposes. The surrender by the appellant estopped the appellant from projecting the house arrest as custody within the meaning of Section 167 of the Cr.P.C. The order passed by CMM, Saket was only an order for production and not an order for detention in custody. Reading Section 167 alongwith Sections 56 and 57 of the Cr.P.C., it is pointed out that the order of transit remand is to be understood as an order extending the 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....
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.... 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 the High Court of Delhi dated 1.10.2018 wherein the arrest of the appellant and the 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 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 ....
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....efore the officer in charge of a police station. 57. Person arrested not to be detained more than twenty- four hours. - No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 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 ....
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....and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 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....
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....custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; 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 suc....
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.... the arrest, namely, that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence. In short, the warrant contains a clear accusation against the person to be arrested. Section 80 requires that the police officer or other person executing 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 App....
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....re to be followed after a person has been arrested without warrant. The requirement of Article 22(1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates 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....
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.... A.M. who ordered them to be kept in the Civil Lines Police Station. They were brought back to Lucknow on the 25th July 1960 based on a message from the High Court of Allahabad requiring their production and they were produced before the Deputy Registrar, High Court 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 we....
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.... inapposite in the context of Respondent's case that only a Magistrate can authorize detention under Section 167 Cr.PC. PROCEEDINGS IN THE HIGH COURT OF DELHI 30. The writ petition filed by the appellant was mentioned before the Chief Justice of 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....
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....the transit remand application is filed, the mandatory requirement of Section 167 is that the entries in the case diary should be produced, is applicable. He is required to apply his mind to ensure there exists material in the form of 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 m....
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....tent maker, thus avoiding becoming a ward of the church or state. While it would go far beyond the historical record to claim that St. Paul was the first person to pay for his keep under conditions of house 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 fa....
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....onsidered by some to be highly objectionable. The difference, however, is that in other countries it is used to repress political dis- sent and before trial. Here it will be used after a full trial where 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....
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.... may also notice the following discussion in the said article: - "While the conditions of house arrest imposed in Murphy are highly restrictive, another federally imposed home confinement 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 in....
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.... Chamber), was dealing with a case against the Republic of Moldova lodged under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 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). Acco....
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....riving the applicant of liberty pending trial for a considerable period of time, the respondent government had unsuccessfully argued that different 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 prov....
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....es of discipline, as the appropriate Government may, by general or special order, specify: and 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 detent....
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....ails (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) (648), Karnataka(1) (100), Maharashtra(1) (262), Mizoram (1) (90), Odisha(1) (55), Punjab(1) (320), Telangana(1) (250), Uttar Pradesh(1) (420) and West Bengal(1) (226) and The rest of 21 States/ UTs have no separate Women Jail as on 31st December, 2019. 8. The act....
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....(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 1,39,488 3,23,537 2,384 675 4,66,084 2019 1,44,125 3,30,487 3,223 765 4,78,600 1. During the year 2019, a total of 18,86,092 inmates were admitted in various jails of the country. 2. A total of (4,78,600) prisoners as on 31st December, 2019 were confined in various jails across the country. The number of Convicts, Undertrial inmates and Detenues were reported as 1,44,125, 3,30,487 and 3,223 respectively accounting for 30.11%, 69.05% and 0.67% respectively at the end of 2019. Other prisoners accounted for 0.2% (76....
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....panied 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. Education a. Among the 4,78,600 prisoners, literacy profile of 1,98,872 (41.6%) prisoners was Below Class X, 1,03,036 (21.5%) prisoners were Class X & above but below Graduation, 30,201 (6.3%) prisoners were having a Degree, 8,085 (1.7%) prisoners were Post Graduates and 5,677 (1.2%) prisoners were Technical Diploma/Degree holders. b. A total of 1,32,729 (27.7%) prisoners were Illiterate. 9. Domicile of Origin of Prisoners a. Among the 4,78,600 prisoners as on 31st December, 2019, around 90.8% (4,34,564 inmates) of prisoners belonged to the State followed by prisoners belonging to the Other States (8.0%, 38,428 inmates) and prisoners belonging to the Other Country (1.2%, 5,608 inmates). b. Among the 1,44,125 convicts, 92.4% convicts (1,33,228 inmates) belonged to the State wh....
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.... spent on Food followed by 4.3% (Rs. 89.48 Crore) on Medical matters, 1.0% (Rs. 20.27 Crore) on welfare activities, 1.1 %(Rs. 22.56 Crore) on Clothing and 1.2% (Rs. 24.20 Crore) on Vocational/ Educational trainings. 4. Among all the States/UTs, out of total expenditure, Haryana has spent the highest share of expenditure on inmates (100.0%, Rs. 272.62 Crore) followed by Andhra Pradesh (88.1%, Rs. 152.24 Crore) and Delhi (66.2%, Rs. 310.02 Crore) during the Financial Year 2019-20. 5. Among the 1,350 prisons, 269 prisons were renovated/expanded during 2019. 6. Among the 1,350 prisons, 808 prisons were having Video Conference facility as on 31st December 2019. 7. A total of 33,537 quarters were available against the actual staff strength of 60,787 as on 31st December, 2019." 48. According to the data published by the National Crime Records Bureau (NCRB) the conditions relating to jails and prisoners is fairly alarming. There were a total number of 1350 prisons as of the year 2019. 1350 prisons consists of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails. 49. A p....
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....th right of every human being. The right under Article 21 is undoubtedly available to citizens and noncitizens. While personal liberty is a wide expression capable of encompassing within its fold, many elements apart from the right to be protected against the deprivation of liberty in the sense of the freedom from all kinds of restraints imposed on a person, the irreducible core of personal liberty, undoubtedly, consist of the freedom against compelled living in forced custody. 52. Here we bear in mind the concept of negative liberty. In the celebrated lecture, "Two Concepts of Liberty" by Isaiah Berlin, he states as follows, inter alia:- The notion of 'negative' freedom I am normally said to be free to the degree to which no human being interferes with my activity. Political liberty in this sense is simply the area within which a man can do what he wants. If I am prevented by other persons from doing what I want I am to that degree unfree; and if the area within which I can do what I want is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved. Coercion of not, however, a term that covers every form of inability. If I sa....
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....ht to life itself is deprived of its content and meaning. The right to life and personal liberty is essentially also based on the principle that men in regard to fundamental rights be treated equal and that no man or a group of men, even organized as a state under which he lives can deprive him except without infringing the right to be treated equally unless there is a legitimate sanction of law. Personal liberty of its members must continue to remain the most cherished goal of any civilized state and its interference with the same must be confined to those cases where it is sanctioned by the law and genuinely needed. The court would lean in favour of upholding this precious, inalienable and immutable value. 54. We have noticed that in the United States ordinarily, house arrest follows a conviction and is a choice which is available to the Courts to send a person to house arrest which is in lieu of a jail sentence. 55. We will use this opportunity to echo the argument of Sh. Kapil Sibal, learned senior counsel for the appellant that no Court even if it is the High Court has any inherent power to deprive any person of his personal liberty by placing him under house arrest. Placing....
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....t this juncture we must notice the following dimension. When a person arrested in a non-bailable offence is in custody, subject to the restrictions, contained therein, a court other than High Court or Court of Session, before whom he is brought inter alia, can release him on bail under Section 437 of the Cr.P.C. Section 439 of the Cr.P.C. deals with special powers of High Court and court of session to grant bail to a person in custody. The said courts may also set aside or modify any condition in an order by a Magistrate. 58. In Central Bureau of Investigation, Special Investigation Cell V. Anupam J. Kulkarn i (1992) 3 SCC 141, we may notice the following statement: - "Now coming to the object and scope of Section 167 it is well-settled that it is supplementary to Section 57. It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to....
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.... 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 accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner." However, the Court also held as follows: "31. It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illeg....
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....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 the order and grants him bail. The accused who was sent to custody means police custody or judicial custody is brought out of his custody and is released on bail pursuing to the order of the High Court. This order is challenged before the Apex Court. The Apex Court reverses the order granting bail. The original order passed by the Magistrate is revived. It is apparent that the accused goes back to custody. Since assuming that the period of 15 days is over and police custody is not permissible, he is sent back to judicial custody. Equally if he was already in judicial custody, the order granting judicial custody is revived. Let us assume in the illustration that the accused was in custody only for a period of 10 days and after the order passed by this Court and the accused who spent another 80 days, he completes, in other words, a total period of custody of 90 days adding the period of custody, he suffered consequent upon the remand by the Magistrate. That is by piecing up these b....
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....isite 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 superior court be under Section 167. THE EFFECT OF TRANSIT ORDER? IS IT A PRODUCTION ORDER THOUGH SOURCED UNDER SECTION 167 CR.P.C.? 69. The Respondent contends that the transit remand order is not a remand for detention under Section 167 of the Cr.P.C. but only one for production. Reliance is placed on Section 57. It is in other words, pointed out that Section 57 contemplates that in the absence of 'special order' under Section 167, a person arrested without warrant must be produced withing 24 hours excluding the time taken for journey from the place of arrest to the place where the Magistrate is located. Therefore, if a 'special order' under Section 167 is obtained, it is for the purpose of extending the time in Section 57 for production of the arrestee. 70. Per contra, Appellant contends that Section 167 specially covers cases where a judicial Magistrate who has no jurisdiction to try a case, can order a remand. There is no other provision for ordering transit remand. 71. In ....
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....on, 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 be produced before the 'nearest Judicial Magistrate' together with 'a copy of the entries in the diary'. Therefore, even before a Magistrate before whom a transit remand application is filed, the mandatory requirement of Section 167 (1) Cr.P.C. is that a copy of the entries in the case diary should also be produced. It is on that basis that under Section 167 (2) such 'nearest Judicial Magistrate' will pass an order authorising the detention of the person arrested for a term not exceeding 15 days in the whole. Where he has no jurisdiction to try the case and he finds further detention unnecessary, he may order the accused to be forwarded to the jurisdictional Magistrate." 75. In fact, as already noticed the submission of the State of Maharashtra was also that once a person was in judicial custody a writ of habeas corpus would not lie which also was rejected. 76. Now, the question may persist as to whether the remand pursuant to a transit remand is to police custody or judicial custody. It canno....
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....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 to nor in pursuance of an order of remand passed by a magistrate. In fact the powers of remand given to a magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) of Section 167." "(13) Keeping proviso (a) out of mind for some time let us look at the wording of sub-section (2) of Section 167. This sub-section empowers the magistrate before whom an accused is produced for purpose of remand, whether he has jurisdiction or not to try the case, to order the detention of the accused, either in police custody or in judicial custody, for a term not exceeding 15 days in the whole." 78. We would hold that the remand order be it a transit remand order is one which is passed under Section 167 of the Cr.P.C. and though it may be for the production of the Appellant, it involved authorising continued detention within the meaning of Section 167. THE IMPACT OF SECTION 428 OF CR.P.C. 79. Section 428 of the Code of Criminal Procedure reads as follows:- "(428) Peri....
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....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 accused on conviction must be during the investigation, enquiry or trial in connection with the 'same case' in which he has been convicted. We therefore agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under Section 428 against the term of imprisonment imposed on them." 84. We may also notice that in Ajmer Singh and others V. Union of India and others AIR 1987 SC 1646 dealing with the question as to whether the benefit of Section 428 of the Cr.PC. was available to a person convicted and sentenced by court martial under the Army Act inter alia, this court took the view that the benefit is not available. The Court held: - "(12) The section provides for setoff of the period of detention undergone by an accused person during the 'investigation, inquiry or trial' of the same case before the date of conviction. The expression 'investigation' has been defined in Section 2 (h) of the Code as follows:- '2(h) 'investig....
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....der 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 inter alia does not count. (See AIR 1987 SC 1646) 88. Thus, detention 'during investigation' under Section 428 is integrally connected with detention as ordered under Section 167. 89. 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 to be released on default bail. In fact, the person may on account of his inability to offer the bail languish in custody but he would undoubtedly be entitled to count the entire period he has spent in detention under orders of the Magistrate/ Superior Court exercising powers under Section 167 for the purpose of set off under Section 428. EFFECT OF ILLEGALITY IN THE ORDER UNDER SECTION 167 CR.PC. 90. Now, it is necessary to make one aspect clear. An order purports to remand a person under Section 167. It is made without complying with mandatory requirements th....
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....ot 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 Section 167 (2) provides that detention of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. 95. What is the distinction between police custody and judicial custody? When a person is remanded to police custody, he passes into the exclusive custody of the police officers. 'Custodial Interrogation' as is indispensable to unearth the truth in a given case is the substantial premise for such custody. The Magistrate must undoubtedly be convinced about the need for remand to such custody. Reasons must be recorded. Judicial custody is ordinarily custody in a jail. It is referred to also as jail custody. Thus, jail custody and judicial custody are the same. The jails come under the Department of Jails and staffed by the employees of the said department. The person in jail custody is therefore indirectly, through the jail authorities, under the custody of the Court. The police officer does not ....
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....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 arrest as noticed by us in the discussion relating to impact of Section 428 of Cr.P.C. 98. However, taking the ingredients of house arrest as are present in the order passed by the High Court of Delhi in its order dated 28.08.2018, if it is found to be one passed under Section 167, then it would be detention thereunder. The concept of house arrest as ordered in this case with the complete prohibition on stepping out of the Appellants premises and the injunction against interacting with persons other than ordinary residents, and the standing of guard not to protect him but to enforce the condition would place the Appellant under judicial custody. Section 167 speaks of 'such custody as it thinks fit'. If it is found ordered under Section 167 it will count. 99. In the impugned judgment the High Court reasons as follows to deny default bail: (1) The transit remand order came to be stayed by the Delhi High Court on 28/10/2018. (2) The appellant was placed under h....
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....R 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 illegal as there was violation of Article 22(1). Article 22(1) creates a fundamental right on a person arrested to be not detained without being informed as soon as may be of the grounds for such arrest. It also declares it a fundamental right for the detained person to consult and be defended by a legal practitioner of his choice. Now, detention follows arrest. What Article 22(1) is concerned with is that the detention must be supported by the fulfilment of the rights referred to therein. Strictly speaking, therefore, Article 22(1) does not go to the legality of the arrest. 101. Now, as far as the non-fulfilment of the conditions under Article 22(1) and the duty of a Magistrate exercising power to remand, we notice the judgment of this Court rendered by a Bench of three learned Judges in the matter of: Madhu Limaye and Others; (1969)1 SCC 292. Therein, the petitioners were arrested apparently for offence under Section 188 of the IPC which was non-cognizable. The officer did not give the arres....
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....istrate 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 furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused. 8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and....
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....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 we have given the High Court does not stay the investigation. The petitioner who has been in police custody is made over to judicial custody by the interim order of the High Court. The High Court also applies its mind and finds that no case is made out at any rate for continuing the writ petitioner in police custody and then passes the order to continue the petitioner in judicial custody. Finally, the writ petition is dismissed. In such a case where there is no stay of investigation and in fact even the police custody was obtained and thereafter the High Court after looking into the records also find that the petitioner should only be continued in the modified form of remand, the custody, which is undergone under an order of the court being also 'during the investigation' which the investigation is also not stayed, ought to be counted. 105. Now though the Cr.P.C. will not apply to a writ petition, what is required to include custody under Section 167 is that the detention brought a....
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...., 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. One way to look at the matter is to remind ourselves of the contents of the order dated 28.08.2018. In the said order, we notice the following portion which we recapture at this juncture: - "The Court is also shown the documents produced before the learned CMM most of which (including FIR No. 4 of 2018 registered at Police Station, Vishrambagh, Pune) are in Marathi language and only the application filed for transit remand before the learned CMM is in Hindi. However, it is not possible to make out from these documents what precisely the case against the Petitioner is." 110. The Court further proceeded to direct that the translations of all the documents be provided to the Court on the next date (29.8.2018). 111. Now, the direction to supply the translation could not be complied with as is the evident from the order dated 29.08.2018 (See para 6 of the said order) as reproduced in the judgment. 112. Finally, we may notice paragraphs 18 and 19 of the or....
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.... 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 Section 41(1)(ba) Cr PC." 115. The Court went on to find that the writ petition was maintainable as the writ petition was entertained at a time when the transit remand order had not been passed. The Court finally proceeds to find violations of Articles 22(1) and 22(2)of the Constitution and Section 167 read with Section 57 and also Section 41(1) (ba) of the Cr.P.C. The remand order is set aside. The continued detention beyond 24 hours of the arrest of the appellant, in the absence of the remand order which stood set aside, was found untenable. Consequently, the house arrest of the appellant was pronounced as having "come to an end as of now". 116. We have already found 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 correct. 117. Undoubtedly, as pointed out by the appellant, he came to be de....
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....RREST 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 contention is that having regard to the nature of the proceedings in the High Court of Delhi during the period of house arrest, no investigation could be carried out. The very purpose of custody under Section 167 is to enable the police to interrogate the accused and if that opportunity is not present then such period of custody as alleged would not qualify for the purpose of Section 167. In other words, the argument appears to be that the object and scheme of Section 167 is that an investigation is carried out with opportunity to question the accused and still it is not completed within the period of 90 days whereupon right to default bail arises. By the proceedings on 28.08.2018 when the petition was filed, the High Court stayed the transit remand and the appellant could not be taken to Maharashtra. By the very same order, the High Court placed the Appellant under house arrest. No access was provided to the investigating agencies to question the Appellant. In such circumstances, the....
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....e 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, police custody can be sought any time and is not limited by 30 days/ 15 days period. It is submitted that the principle in Central Bureau of Investigation,Special Investigation Cell(supra) that police custody is limited to the first 15 days of remand, does not apply. It is further contended that there was no stay of investigation and police could have sought access to the appellant during the 30 days period of interrogation or investigation but this was not done. It is also seen contended in the written submissions that the second proviso to Section 43(2)(D) of UAPA nullifies the judgment in Anupam Kulkarni (supra) in UAPA cases and custody can, therefore, be sought at any time even from judicial custody without the limit of first 15 days or even 30 days. The requirement of an affidavit in terms of the proviso arises only when custody is taken by the police from judicial custody. It was open to the investigating agency to file such an affidavit and seek such custody or even the perm....
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.... 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 functional test or bearing in mind the object of the law that the purpose of obtaining police custody is lost sight of. According to the appellant, the period of house arrest is to be treated as judicial custody on the terms of the order dated 28.08.2018 as subsequently extended. Investigating officers, undoubtedly, could go to the house of the appellant and question him. It is, however, true that if the High Court had been approached, it may have directed the appellant to cooperate with the officers in the investigation. It however remains in the region of conjecture. The impact of this aspect, will be further considered later. 123. We must, in this regard, also consider the impact of the police custody, admittedly, obtained on 15.04.2020. The order which is produced before us would show that police custody was sought for 10 days. Custodial interrogation was necessary, it is seen pleaded, for analysing the retrieved electronic data/ documents from the electronic devices recove....
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.... 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 that the police custody can be sought at any time in cases falling under UAPA is tenable. 126. Section 43 D(2) of UAPA reads as follows:- " (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), - (a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and (b) after the proviso, the following provisos shall be inserted, namely:- "Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also....
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....udicial 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 that Section 49 (2) of Prevention of Terrorism Act is pari materia which has been interpreted by this Court in AIR 2004 SC 3946 and the decision does not advance the case of Appellant though that was a case where the police custody was sought of a person in judicial custody but beyond 30 days. In this regard, it would appear that the appellant had surrendered on 14.04.2020. He was not in judicial custody. He was produced with a remand report seeking police custody on 15.04.2020. Treating this as a remand sought within the first 30 days, a remand is ordered for a period of 7 days initially. There is no dispute that the period was police custody. We may notice that an accused under UAPA may be sent to judicial custody, police custody or granted bail. If the argument that the police custody can be sought at any time and it is not limited to cases where there is judicial custody, it will go against the clear terms of the proviso and even a person who is bailed out can afte....
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....rt 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 under the judicial custody in relation with the CBI case in Chennai. The Court referred to the decision of this Court in Niranjan Singh & Anr. Vs. Prabhakar Rajaram Kharote & Ors. (1980) 2 SCC 559 and reiterated that if there is a totally different offence then it will be a separate offence for which the detention in the previous case cannot be counted for the purpose Section 167. 130. The present is a case where there is only one FIR, one case. This is a case where following arrest and production before the Magistrate a remand is made which is then questioned. The High Court orders house arrest. 131. THE CIRCUMSTANCES THAT MILITATE AGAINST THE ORDER OF HOUSE ARREST BEING ONE UNDER SECTION 167. 1. The High Court entertains the writ petition on 28.08.2018. It intended to dispose of the matter on the very next day. The order of house arrest was passed in such circumstances. But there was custody and what is more, it went on for 34 days. 2. T....
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....1.10.2018 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 Court. The arrest was effected at 2.15PM on 28.08.2018. The order of the CMM was passed within the next hour or so. The order of the High Court was passed at about 4.30PM. No doubt, it is the order of the magistrate which originated the remand under Section 167 to police custody. The High Court of Delhi proceeded to find that without the support of a valid remand order by the magistrate, the detention exceeded 24 hours rendering it untenable in law and the further finding however is that consequently the house arrest came to an end as of then (01.10.2018). Therefore, the High Court did not proceed to pronounce the house arrest as non est or illegal. On the other hand, when it is pronounced, it as having come to an end on 01.10.2018 and no part of it is found to be illegal, it meant that it was valid from the point of time it was passed till 01.10.2018. If this is perceived as an order passed under Section 167 then there would not be any detention beyond 24 ho....
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....nt 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 is here that we may remember the decision of this Court in (1969) 1 SCC 292 (supra). There was a remand. Violation of Article 22(1) was found in a Writ Petition under Article 32. It was, in fact, a non-cognizable offence, which was involved. The Court released the petitioners. The remand orders were found patently routine and were not such as would cure the constitutional infirmities. In the said case, arrest was put in issue and found bad in law. 7. No doubt there is the filing of application for anticipatory bail wherein the appellant has clearly projected the period of house arrest as protection of this liberty. It was also sought to be rested under the extraordinary power of this Court. [We would observe that while his conduct is not irrelevant in appreciating the matter, the contours of personal liberty would better rest on surer foundation. Estoppel, may not apply to deprive a person from asserting his fundamental right. A right to default bail i....
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....t 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 entries in the case diaries relating to them, leave alone actually going through them. Quite clearly, in respect of those persons, house arrest even was the result of the choice exercised by the Senior Counsel for the Writ Petitioners, who were not the persons to undergo the house arrest. No doubt, the Public Interest Litigation was launched to have an impartial enquiry regarding their arrests. It is thereafter that it was ordered that the house arrest of appellant and other (Sudha Bharadwaj), may be extended in terms of the order. House arrest was, undoubtedly, perceived as the softer alternative to actual incarceration. It was in that light that the Court proceeded in the matter. That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court. 135. Now, here,....