TaxTMI 
TaxTMI 
2021 (5) TMI 1055
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....seeking a Writ of Habeas Corpus in the High 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....
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....t 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. 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 t....
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....ent dated 01.10.2018: "28. With there being several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Section 57 and 41(1)(ba) of the Cr 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 onl....
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.... police custody was granted by the Sessions Court, New Delhi. On 21.04.2020, the further remand of seven days was ordered. Before the expiry of the appellant's policy custody, he was remanded to judicial custody on 25.04.2020. The appellant was 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 ag....
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....ed to default bail. Thus, the Court took the view that the period, when the appellant was under the house arrest, i.e., 28.08.2018 to 01.10.2018, had to be excluded. After the High Court of Delhi set aside the Transit Remand Order, it was noted that 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. ....
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.... remand, has to be sourced to Section 167 of the Cr.P.C. and there is no other provision for the transit remand. The High Court has itself found that appellant was in custody when he was under the house arrest. It is then pointed out that the High Court 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....
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....n could not be arrested for an offence twice. By refusing anticipatory bail, the Courts including this Court permitted the arrest of the appellant for the same offences for which he was arrested earlier. This indicates that the earlier proceedings were treated as non-est for all practical 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 ....
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....counted towards the period of 90 days under Section 167 Cr.P.C., several issues arise which we articulate as follows: 1) What is the nature of an order of transit remand? Is it an order passed under Section 167 of the Cr.PC.? 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 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 ....
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..... are also relevant and we refer to the same. "56. Person arrested to be taken before Magistrate officer in charge of police station. - A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before 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 withou....
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.... within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, 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 t....
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....ector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate, or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such 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 Mag....
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....he court. Form No. II of Schedule V to the Code is a form of warrant for the arrest of an accused person. The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence. Form No. VII of that Schedule is used to bring up a witness. The warrant itself recites that the court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so. The point to be noted is that in either case the warrant ex facie sets out the reason for 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....
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....d to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right. It is also perfectly plain that the language of Article 22(2) has been practically copied from Sections 60 and 61 of the Code of Criminal Procedure which admittedly prescribe the procedure 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 o....
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....ion 76, in the case of arrest under a warrant, the person is to be produced before the Court within 24 hours with the exclusion of time taken for travelling. Such a proviso was absent in Section (81) of the Cr.P.C., 1898 which was considered by the Court. 28. In State of U.P. v. Abdul Samad AIR 1962 SC 1506, the respondents who were husband and wife were arrested for non-compliance with the order of deportation passed against them. They were sent to Amritsar for being deported to Pakistan. They were produced before the Magistrate on 23rd July, 1960 at 10.00 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 be....
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....lear to us whether the learned Judges did not understand the article to require this, even such a requirement was satisfied in this case as the respondents were during "the second stage" produced before the High Court itself "for suitable orders" on the 26th and again on the 27th. We have no desire to comment further on this judgment of the learned Judges except to say that there was no justification whatsoever for the finding on the basis of which the learned Judges directed the release of the respondents." [Emphasis supplied] 29. The aforesaid reasoning is not 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 poli....
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.... Court, there was no order of the learned CMM granting transit remand of the Petitioner. In each of the aforementioned decisions cited by Mr. Navlakha the entertaining of the habeas corpus petition by the High Court was subsequent to the transit remand order passed by the concerned Judicial Magistrate. This one factor distinguishes the present case from the above cases. Consequently, this Court rejects the preliminary objection raised by Mr. Navakre as to the maintainability of the present writ petition." 33. The High Court, thereafter, proceeded to find that even before a Magistrate, before whom 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 abo....
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....hat the period of 34 days spent in house arrest by the appellant amounted to custody. We, however, consider it necessary to articulate our views regarding the nature of house arrest. 36. In an article "A Brief History of House Arrest and Electronic Monitoring" by J. Robert Lilly and Richard A. Ball, we find the following discussion:- "HOME CONFINEMENT "House arrest" has a long history dating at least to St. Paul the Apostle, who is reported to have been placed under "house arrest" (custodia libera) in Rome at about the age of 60. St. Paul's sentence lasted two years during which time he paid rent and earned his keep as a 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 re....
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....nstitute of Justice eventually reported successful results with this "electronic monitoring." 37. In the United States, in December 1985, one Ms. Murphy stood convicted in a case of insurance fraud. She could have been packed off to a jail for a maximum period of 50 years. Instead, the Federal Judge placed her under house arrest (See 108 F.R.D. 437, 439 (E.D.N.Y. 1985). This is what the Federal Judge inter alia ordered: - "The sentencing of Maureen Murphy requires, in the court's opinion, a sentence not heretofore used in this District and almost never used in the country in the federal court. It is used elsewhere in the world and is considered 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 oth....
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....law has classified three tiers of permissible travel, ranked according to the purposes for spending time away from the site of confinement. "Essential travel" includes travel for work, religious expression, vocational or educational training, selfimprovement programming, public service, and scheduled appointments with the supervising officer. Movement from the home oriented toward "the fulfilment of the basic needs of the community controllee" is considered "acceptable travel. All three types of travel must be approved in advance, although movements for family emergencies may occur without pre-authorization provided that they are reported no later than the following day." We 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 sp....
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....ot alienable to the state. If a regime of home confinement does not include access to a house of worship, the state will have coerced from the offender a waiver or transfer of the inalienable right to freedom of worship guaranteed by the free exercise clause of the first amendment. [Refer to decision by EC. Also refer to Russian.]" 41. It will be noticed that ordinarily in the United States, house arrest is ordered after the trial is conducted and an accused is found guilty. No doubt, it has also been resorted in respect of juveniles even during the pendency of the proceedings against him. 42. In Buzadji v. Moldova; 398 Butterworths Human Rights Cases 42, the European Court of Human Rights (Grand 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 depriva....
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....ected to supervision of varying degrees by the authorities twenty-four hours a day. For example, detainees cannot freely choose when to go to sleep, when to take their meals, when to attend to their personal hygiene needs or when to perform outdoor exercise or other activities. Therefore, when faced with a choice between imprisonment in a detention facility and house arrest, as in the present case, most individuals would normally opt for the latter. However, the court notes that no distinction of regime between different types of detention was made in the Letellier principles (see para 92, above). It further reiterates that in Lavents (cited above), where the court was called upon to examine the relevance and sufficiency of reasons for depriving 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 det....
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....t House with members of his family consisting of his wife and children. The authorities were to permit interview with other relatives also if the detenu was kept outside the house. This Court allowed the appeal of the state finding that the requirements of law in relation to detention had been complied with and the detention was wrongly quashed. In A.K. Roy and Ors. vs. Union of India (UOI) and Ors. AIR (1982) SC 710 a Constitution Bench also dealt with the issue relating to preventive detention and house arrest in the said context. We may notice only paragraph 74. "74. By Section 5, every person in respect of whom a detention order has been made is liable- a.to be detained in such place and under such conditions, including conditions as to maintainance, discipline and punishment for breaches 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 w....
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....he end of the year Occupancy rate at the end of the year 2017 1,361 3,91,574 4,50,696 115.1% 2018 1,339 3,96,223 4,66,084 117.6% 2019 1,350 4,03,739 4,78,600 118.5% 1. The total number of prisons at national level has increased from 1,339 in 2018 to 1,350 in 2019, having increased by 0.82%. 2. The 1,350 prisons in the country consist 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. 3. The highest number of jails was reported in Rajasthan (144) followed by Tamil Nadu (141), Madhya Pradesh (131), Andhra Pradesh (106), Karnataka (104) and Odisha (91). These Six (6) States together cover 53.11 % of total jails in the country as on 31st December, 2019. 4. Delhi has reported the highest number of Central jails (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....
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....ased from 117.6% in 2018 to 118.5% in 2019 (as on 31st December of each year). 13.The highest occupancy rate was in District Jails (129.7%) followed by Central Jails (123.9%) and Sub Jails (84.4%). The occupancy rate in Women Jails was 56.1% as on 31st December, 2019. 14.Uttar Pradesh has reported the highest number of prisoners (1,01,297) in its jails contributing 21.2% followed by Madhya Pradesh (44,603), Bihar (39,814), Maharashtra (36,798), Punjab (24,174) and West Bengal (23,092) as on 31st December, 2019. These States together are contributing around 56.4% of total prisoners in the country. 15.Delhi has reported the highest occupancy rate (174.9%) followed by Uttar Pradesh (167.9%) and Uttarakhand (159.0%) as on 31st December, 2019. 16.The capacity in 31 Women Jails was 6,511 with the actual number of women prisoners in these Women Jails was 3,652 (Occupancy Rate: 56.1%). The capacity of Women Inmates in other types of Jail (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 ....
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....3,418 undertrials) in the country followed by Bihar (9.5%, 31,275 undertrials) and Maharashtra (8.3%, 27,557 undertrials) at the end of 2019. d. Among the 3,30,487 undertrial prisoners, only 91 were civil inmates. 5. Detenues a. The number of detenues has increased from 2,384 in 2018 to 3,223 in 2019 (as on 31st December of each year), having increased by 35.19% during this period. b. Among the 3,223 detenues, the highest number of detenues were lodged in Central Jails (81.4%, 2,622 detenues) followed by District Jails (9.9%, 318 detenues) and Special Jails (6.1%, 196 detenues) as on 31st December,2019. c. Tamil Nadu has reported the maximum number of detenues (38.5%, 1,240) in the country followed by Gujarat (21.7%, 698) and Jammu & Kashmir (12.5%, 404) at the end of 2019. 6. Women Prisoners with Children a. There were 1,543 women prisoners with 1,779 children as on 31st December, 2019. b. Among these women prisoners, 1,212 women prisoners were undertrial prisoners who were accompanied by 1,409 children and 325 convicted prisoners who were accompanied by 363 children. 7. Age-group of the Prisoners ....
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.... 2. The percentage share of foreign prisoners out of total prisoners has increased from 1.1% in 2018 to 1.2% in 2019 (as on 31st December of each year). 3. Among 5,608 prisoners of foreign nationality at the end of 2019, 4,776 were Males and 832 were females. 4. Among these foreign national prisoners, 38.7% (2,171 inmates) were Convicts, 53.1% (2,979 inmates) were Undertrials and 0.7% (40 inmates) were Detenues. 5. Among the foreign convicts, the highest number of foreign convicts were from Bangladesh (67.7%, 1,470 convicts) followed by Nepal (10.5%, 228 convicts) and Myanmar (7.1%,155 convicts) at the end of 2019. Prison - Budget & Infrastructure 1. The total budget for the financial year 2019-20 for all prisons in the country was Rs. 6818.1 Crore. The actual expenditure was Rs. 5958.3 Crore which is 87.39% of total annual budget for FY 2019-20. 2. A total of Rs. 2060.96 Crore was spent on inmates during FY 2019-20 which is almost 34.59% of total annual expenditure of all prisons for FY 20....
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....cts are relevant in the context of the possibilities that house arrest offer. 51. In the context of the rights conferred on citizens under Article 19 which are essentially constitutional freedoms or rather the enumerated rights as explained by this Court in Maneka Gandhi vs. Union of India, AIR 1978 SC 597 when a citizen is placed on house arrest, which has the effect of depriving him of any freedom, it will not only be custody but it would involve depriving citizens under custody of the fundamental freedoms unless such freedoms are specifically protected. A person has a fundamental right to move in any part of the country. It is obvious that in the case of a person undergoing a house arrest and in the teeth of an absolute prohibition, in the facts of the case forbidding the appellant from moving outside his home, the hallmark of custody described in the case of incarceration is equally present. Personal liberty perhaps is the most important of all values recognized as such under the constitution. It is to be jealously guarded from any encroachment, save where such intrusion has the clear sanction of law. The expression "procedure established by law" has received an expansive an....
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....ility would not naturally be described as a lack of freedom at all, least of all political freedom. It is only because I believe that my inability to get what I want is due to the fact that other human beings have made arrangements whereby I am, whereas others are not, prevented from having enough money with which to pay for it, that I think myself a victim of coercion or slavery. In other words, this use of the term depends on a particular social and economic theory about the causes of my poverty or weakness. If my lack of means is due to my lack of mental or physical capacity, then I begin to speak of being deprived of freedom (and not simply of poverty) only if I accept the theory. If, in addition, I believe that I am being kept in want by a definite arrangement which I consider unjust or unfair, I speak of economic slavery or oppression. 'The nature of things does not madden us, only ill will does', said Rousseau. The criterion of oppression is the part that I believe to be played by other human beings, directly or indirectly, in frustrating my wishes. By being free in this sense I mean not being interfered with by others. The wider the area of non-interference the wider my fre....
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.... and also until the conclusion of the trial. Section 309 Cr.PC. confers power upon a court to remand an accused to custody after taking cognisance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47] it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by subsection (2) of Section 397 Cr.P.C, a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day." 57. T....
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....ction 439 instead of moving under Section 437 in view of the restrictions contained therein. Though an application under Section 397 would not lie against the remand, as already noticed, an application for bail would lie under Section 439. Therefore, ordinarily the accused would seek bail and legality and the need for remand would also be considered by the High Court or court of session in an application under Section 439. No doubt the additional restrictions under section 43 (D) (5) of UAPA are applicable to citizens of India in cases under the said law. WHETHER A WRIT OF HABEAS CORPUS LIES AGAINST AN ORDER OF REMAND UNDER SECTION (167) OF CR.P.C. 61. A Habeas Corpus petition is one seeking redress in the case of illegal detention. It is intended to be a most expeditious remedy as liberty is at stake. Whether a Habeas Corpus petition lies when a person is remanded to judicial custody or police custody is not res integra. We may notice only two judgments of this court. In Manubhai Ratilal Patel V. State of Gujarat and others ,(2013) 1 SCC 314. We may notice paragraph 24. "(24) The act of directing remand of an accused is fundamentally a ....
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....e paragraph 19 from the same judgment. "(19) The law is thus clear that "in habeas corpus proceedings a court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". 63. Thus, we would hold as follows: 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. WHETHER SUPERIOR COURTS (INCLUDING A HIGH COURT) CAN EXERCISE POWER UNDER SECTION (167) OF CR.P.C.? CAN BROKEN PERIODS OF CUSTODY COUNT FOR THE PURPOSE OF DEFAULT BAIL? 64. One of the contentions raised is that the order passed by the High Court of Delhi, is not one passed under Section 167 of the Cr.P.C., for the reason that what the Cr.P.C. contemplates is an order passed by a Magistrate. It, therefore, becomes necessary to consider whether a Court other than a Magistrate can order remand under Section 167. In the first place, goin....
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....tody, is put back into the judicial custody or jail custody. The order is one passed by the High Court. The order granting custody by the High Court cannot be treated as one which is not anchored in Section 167 of the Cr.P.C. Therefore, we would think that though the power is vested with the Magistrate to order remand by way, of appropriate jurisdiction exercised by the superior Courts, (it would, in fact, include the Court of Sessions acting under Section 439) the power under Section 167 could also be exercised by Courts which are superior to the Magistrate. 67. Therefore, while ordinarily, the Magistrate is the original Court which would exercise power to remand under Section 167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail. We have also noticed the observations of this Court in AIR 1962 SC 1506 (supra). In such circumstances broken periods of custo....
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....he words 'special order' is not found in Section 167 of the Cr.P.C. Therefore, could it not be said that but for Section 57 permitting the Magistrate to allowing time by passing an order under Section 167, detention in violation of Section 57 would be rendered illegal? What is the nature of the custody on the basis of the special order under Section 167 referred to in Section 57? Is it police custody or is it judicial custody? Is it any other custody? Will the period of remand for statutory bail begin from the date of this 'special order'? Will it begin only when the competent Magistrate orders remand? 74. Now as far as this case is concerned, we notice findings of the High Court of Delhi as follows: (para 11 and para 15) "(11) Mr. Navare next tried to draw a distinction between the scope of the function of a Magistrate before whom an application for transit remand is moved and the jurisdictional Magistrate who should be approached for an order of remand in terms of Section 56 of the Cr.P.C. According to Mr. Navare, at the stage of transit remand the concerned Magistrate would not be required to satisfy himself anything more than whether an offence is made out and wheth....
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.... (1986) 3 SCC 141 to complete the period for the purpose of default bail. 77. We may also notice that the interplay of Section 57 and 167 was considered in the judgment of this Court in Chaganti Satyanarayana (supra). It was held as follows: "(12) On a reading of the subsections (1) and (2) it may be seen that sub-section (1) is a mandatory provision governing what a police officer should do when a person is arrested and detained in custody and it appears that the investigation cannot be completed withing the period of 24 hours fixed by Section 57. Sub-section (2) on the other hand pertains to the powers of remand available to a Magistrate and the manner in which such powers should be exercised. The terms of sub-section (1) of Section 167 have to be read in conjunction with Section 57. Section 57 interdicts a police officer from keeping in custody a person without warrant for a longer period than 24 hours without production before a Magistrate, subject to the exception that the time taken for performing the journey from the place of arrest to the magistrate's court can be excluded from the prescribed period of 24 hours. Since sub-section (1) provides that if t....
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....g of section 167 of the Cr.P.C. would it not entail the period of house arrest being treated as part of the detention within the meaning of Section 428 in case there is a conviction followed by a sentence? 81. Do the provisions of Section 428 throw light on the issues which we are called upon to decide? 82. Section 428 enables a person convicted to have the period of detention which he has undergone during the investigation, enquiry or trial set off against the term of imprisonment. 83. In this context, we may notice the judgment of this court reported in Govt. of Andhra Pradesh and another etc. V. Anne Venkateswara Rao etc. etc . AIR 1977 SC 1096 . In the said case the Appellant in one of the appeals had been detained under the Preventive Detention Act on 18.12.1969. He was produced before the Magistrate sometime in April, 1970 in connection with certain offences after he had been released from preventive detention. He was later convicted. This Court while dealing with the contention that the benefit of provisions of Section 428 must ennure to the Appellant held:- "The argument is that the expression period of detention in Section 428 includes....
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.... Magistrate who is competent to try the case sits. If he cannot so produce the accused and the investigation is incomplete, the officer is duty bound to produce the arrested person before the nearest Magistrate. The nearest Magistrate may or may not have jurisdiction. He may order the continued detention of the arrested person based on the request for remand. He would largely rely on the entries in the case diary and on being satisfied of the need for such remand which must be manifested by reasons. The Magistrate can order police custody during the first 15 days (in cases under UAPA, the first 30 days). Beyond such period, the Magistrate may direct detention which is described as judicial custody or such other custody as he may think fit. It is, no doubt, open to a Magistrate to refuse police custody completely during the first 15 days. He may give police custody during the first 15 days not in one go but in instalments. It is also open to the Magistrate to release the arrested person on bail. 86. The arrested person if detained during the period of investigation can count this period, if he is ultimately charged, tried and convicted by virtue of the provisions of Sec....
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.... after the first 15 days, (Not in a case covered by UAPA). It is not challenged. Actual custody is undergone. Will it not count? Undoubtedly, it will. The power was illegally exercised but is nonetheless purportedly under Section 167. What matters is 'detention' suffered. The view taken in the impugned judgment that sans any valid authorisation/ order of the Magistrate detaining the Appellant there cannot be custody for the purpose of Section 167 does not appear to us to be correct. The finding that if any illegality afflicts the authorisation, it will render the 'detention' not authorised is inconsistent with our conclusion as aforesaid. 92. Therefore, if the Court purports to invoke and act under Section 167, the detention will qualify even if there is illegality in the passing of the order. What matter in such cases is the actual custody. 93. However, when the Court does not purport to act under Section 167, then the detention involved pursuant to the order of the Court cannot qualify as detention under Section 167. JUDICIAL CUSTODY AND POLICE CUSTODY 94. Now, we must squarely deal with the question as to whether house arrest as ordered by the High Court amounts to c....
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.... 100, a petition was filed seeking a writ of Habeas Corpus inter alia on the ground that the petitioners were remanded to a central jail of a district which was other than the one in which there were being tried. The court inter alia held as follows:- "On the first point, it seems to us that no illegality or irregularity was committed. Section (167) empowers a Magistrate having jurisdiction to remand a prisoner to such custody as he thinks fit. Section 344 does not use the words "as he thinks fit" with regard to the order of remand; but there is nothing in the section which suggests that after a charge-sheet has been filed, the Magistrate has not the same freedom with regard to the custody to which he commits the accused as he had before a chargesheet was filed. The learned Advocate for the petitioners has referred to the wording of Section 29 of the Prisoners' Act, as indicating that the only person who can transfer a prisoner from one Jail to another within the same province is the Inspector-General of Prisons; but by its very wording Section 29 of the Prisoners' Act does not apply to an under-trial prisoner; nor are we dealing with a transfer of a prisoner. Whenever an ....
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..../protection before the Sessions Court. The Hon'ble Supreme Court granted the appellant time to surrender after the appellant failed to serve pre arrest bail. The appellant ultimately surrendered to NIA Delhi on 14/04/2020. Only after the appellant surrendered, the Magistrate authorised the police custody whereupon the appellant was interrogated. It further held: "The CMM granted transit remand on 28.08.2018. The High Court of Delhi by an interim order having stayed the transit remand and then having finally set aside the order of transit remand thereby holding the detention during the period 28.08.2018 upto 01.10,2018 (period of house arrest) as illegal, then, in our opinion, in the absence of there being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default bail under Sub-Section (2) of Section 167 of Cr.PC..." It goes on to hold: "It is not possible for us to fathom a situation where detention of the Appellant though held to be illegal & unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 1....
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....12 . Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been made mechanically. All that Mr Chagla has said is that if the arrested persons wanted to challenge their legality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered that Madhu Limaye and others have, by moving this Court under Article 32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities. This disposes of the third contention of Madhu Limaye." 102. We may further notice that in In Arnesh Kumar Vs. State of Bihar and Another (....
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.... need to preserve the liberty of the accused guaranteed under law even in the matter of arrest and detention before he orders remand. This is no doubt apart from being satisfied about the continued need to detain the accused. CUSTODY UNDERGONE UNDER ORDERS OF SUPERIOR COURTS IN HABEAS CORPUS PETITIONS. IS THE CR.P.C APPLICABLE TO WRIT PETITIONS? 104. We have noticed that there is no absolute taboo against an order of remand being challenged in a habeas corpus petition. Should the remand be absolutely illegal or be afflicted with vice of lack of jurisdiction such a writ would lie? If it is established in a case that the order of remand is passed in an absolutely mechanical manner again it would lie. Now in such cases the person would be in custody pursuant to the remand ordinarily. What would be the position if the writ court were to modify the order of remand passed by the magistrate. Take a case where police custody is ordered by the Magistrate. By an interim order of the High court let us take it the High Court provides for judicial custody. It is done after the accused undergoes police custody for 5 days. Finally, the writ petition is however dismissed. What woul....
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....7 of the Cr.P.C. This is for the reason that the power under Section 167 is invoked only after there has been an arrest and what is sought is the extension of the detention of the person arrested. 107. Though, this was the position when the writ petition was filed, by the time, the writ petition came up for consideration at 2:45 p.m. on 28.08.2018, the Appellant stood arrested at 2:15 p.m. The Court initially at 2:45 p.m. passed the following order: - "4. When the matter was taken up at 2:25 pm yesterday, Mr. Rahul Mehra, learned Standing Counsel (Criminal) for the State of NCT of Delhi appeared. The Court then passed the following order at around 2:45 pm: "1. The petition complains of the Petitioner and his companion Sehba Husain being restrained in his house by the Maharashtra Police pursuant to FIR No. 4/2018, registered at P.S. Vishrambagh, Pune. 2. Notice. Mr. Rahul Mehra, who appears and accepts notice and informs that he will take some instructions. 3. The Court is informed by Ms. Nitya Ramakrishnan, learned counsel appearing for the Petitioner, that her information is that the Petitioner is just being taken away from his house. No furt....
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.... would be available. List on 30th August 2018 at 2:15pm." 113. On the next day i.e., on 30.08.2018, the Court passed a further order. Therein, in fact the order recites that the Court was in the process of pronouncement an order on the validity of the transit remand and consequently on the validity of the arrest of the appellant. It is further stated that the court was informed by the counsel for the State of Maharashtra that an interim order continuing the house arrest of the appellant and some other similarly situated had been passed. It is specifically recorded that the dictation of the order was then halted in order to peruse the order passed by the Supreme Court. Thereafter, it is stated that as the Supreme Court as per the interim order extended the house arrest of the appellant, the court did not consider it appropriate to proceed with the matter. Orders of the Supreme Court were awaited. 114. It was further adjourned. Thereafter, this Court pronounced the judgment on 28.09.2018 and finally, the judgment was pronounced on 01.10.2018 by the High Court. We may also notice: - para 5 "5. This writ petition was listed for hearing today at 2:15 pm before this Court.....
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....y of the remand order and detention of the appellant. A writ of habeas corpus does lie in certain exceptional cases even by way of challenging the orders of remand. If there is non-compliance with Article 22(1) and the person is detained it is an aspect which has to be borne in mind by the Magistrate when ordering remand. Detention is the result of an arrest. Article 22(1) applies at this stage after arrest. If fundamental rights are violated in the matter of continued detention, the Magistrate is not expected to be oblivious to it. It is in this sense that the High Court has found violation of Article 22(1) inter alia and the Magistrate over-looking it as rendering the transit remand illegal. As far as the arrest being made in violation of Section 41(1)(ba), undoubtedly, it is a matter which related to the legality of the arrest itself which is the stage prior to detention. The High Court finds that the Magistrate had not applied his mind to the question as to whether the arrest was in compliance with Section 41 (1) (ba) of Cr.P.C. 118. This is unlike the decision in Madhu Limaye(supra) where this court found that there was a violation of Article 22(1) and even during....
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....(2), the period of 15 days stands enhanced to 30 days. Thus, police custody by the Magistrate can be given on production for a period of 30 days. The argument further runs that if it is on the basis of the Appellant having surrendered on 14.04.2020 and upon being produced before the Court, he stood remanded to police custody, the period of 90 days would begin to run only from the date of the remand i.e. 15.04.2020. If the contention of the appellant is that the period of remand commenced with the house arrest i.e., 28.08.2018, is accepted, it would result in the police custody given on 15.04.2020 as impermissible. In this regard, the fact that the appellant did not object to the police custody being given on 15.04.2020 is emphasized. The appellant acquiesced in the police custody commencing from 15.04.2020. This is possible only on the basis that the period of 90 days would commence only on 15.04.2020 in terms of the law laid down in Chaganti Satyanarayana(supra). 120. Per contra, the case of the appellant is as follows: - There is no requirement in law that the person should be granted police custody in all cases. Section 167 of Cr.P.C. confers a power with the Magistr....
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....e custody cannot defeat the case for counting the period of 34 days of house arrest. The appellant was indeed in police custody on 28.08.2018 for the purpose of investigation. All his devices were seized by the investigating agency who had spent several hours at his house and restrained him from morning till 2:15 P.M. when they proceeded with him to the Magistrate. 121. The scheme of the law (Cr.P.C.) is that when a person is arrested without warrant in connection with a cognizable offence, investigation is expected to be completed within 24 hours from his arrest. If the investigation is not completed, as is ordinarily the case, the accused must be produced before the Magistrate who is nearest from the place of arrest irrespective of whether he is having jurisdiction or not. The Magistrate on the basis of the entries in the case diary maintained by the officer is expected to apply his mind and decide whether the accused is to be remanded or not. If the police makes a request for police custody which is accepted then an order is to be passed and reasons are to be recorded under Section 167(3). Police custody is an important tool in appropriate cases to carry on an effec....
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....can be given only for 15 days and that too, the first 15 days, ordinarily. in the case of persons accused of offences, under UAPA, the maximum period of police custody is 30 days. If the case of the appellant is to be accepted then it must be consistent with the subsequent proceedings, namely, police custody vide orders dated 15.04.2020 and 21.04.2020. In other words, Section 167 of the Cr.P.C. as modified by Section 43(D)(2) of UAPA, contemplates that remand to police custody on production of the accused can be given only during the first 30 days from the date of production and it advances the case of the respondent that remand on production of the accused before the Special Judge took place only with the production of the accused on 15.04.2020. If the remand in the case of the appellant took place in the year 2018 then it would be completely inconsistent with the remand to police custody well beyond the first 30 days of the remand in the year 2018. 125. The answer of the Appellant is that apart from the period of 15 days being supplanted by 30 days under UAPA, police custody can be sought and granted at any time in cases involving UAPA. It appears to be the....
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....d proviso. It contemplates that the investigating officer can seek with reasons and explaining the delay obtain the police custody of a person who is in judicial custody. 128. We would think that the position under Section 167 as applicable in cases under UAPA is as follows:- Undoubtedly, the period of 30 days is permissible by way of police custody. This Court will proceed on the basis that the legislature is aware of the existing law when it brings the changes in the law. In other words, this Court had laid down in Anupam Kulkarni (supra), inter alia, that under Section 167 which provides for 15 days as the maximum period of police custody, the custody of an accused with the police can be given only during the first 15 days from the date of the remand by the Magistrate. Beyond 15 days, the remand can only be given to judicial custody. Ordinarily, since the period of 15 days has been increased to 30 days, the effect would be that in cases falling under UAPA applying the principle declared in (1992) 3 SCC 141, the investigating officer in a case under UAPA, can get police custody for a maximum period of 30 days but it must be within the first 30 days of the re....
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....gistrate on transit remand in Chennai. The Investigating Officer, in cases in Calcutta, prayed for production warrant before the Court at Calcutta as the Respondent was arrested and detained in the CBI case before the Magistrate at Chennai. The said prayer was allowed and the order was sent to the Court at Chennai. There was a further order by the Calcutta Court issued that the Respondent should not be released in the CBI cases in Chennai. The Respondent also came to know that he was wanted in two more cases pending in Calcutta. He voluntarily surrendered before the Magistrate in Chennai. It was on the basis of the cases at Calcutta. The Respondent stood remanded to judicial custody till 13.03.2006. Finally, after the procedures were under gone the Respondent was produced before the Magistrate at Calcutta. The Investigating Officer in the case at Calcutta sought police custody of 15 days. The Respondent moved for bail contending that he had surrendered in the Court at Chennai and the period of 15 days had elapsed from the date of surrender. Finally, the matter reached before the Calcutta High Court against the order of the Magistrate rejecting the application for bail and....
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....tion 167, the High Court did not purport to act under Section 167. This is different from saying that it acted in violation of the mandate of law. 3. It is true that there was no stay of investigation as such. However, what was challenged was the transit remand. The FIR was lodged in another state. Interrogation of the appellant would be integral to the investigation. On the terms imposed by the High Court in regard to house arrest it was not possible for such interrogation to take place. It appears that the parties did not contemplate as it is presently projected. It is no doubt true that the respondent could have moved the High Court. 4. The house arrest according to the appellant is by way of modification of the order of remand. In other words, the contention is that the High Court stayed the transit. But the High Court when it passed the order of house arrest on 28.08.2018, it modified the remand from police custody to house arrest. Subject to what follows we proceed on the basis that the High Court modified the order of remand. The transit remand order of the CMM Saket provided for police custody which was to last for two days. But on the basis of the house a....
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....167. No doubt, the foundational order, the transit remand, being set aside it could be said that the interim order will not survive. But then the order should have been so understood by the High Court. 5. Undoubtedly, the appellant was placed in police custody from 15.04.2020 to 25.04.2020. Even the enhanced period of 30 days of police custody, permissible under Section 43 (D) (2) of UAPA, must be acquired within the first 30 days of the remand. Proceeding on the basis of the case of the appellant that the first remand took place on 28.08.2018, the appellant being in police custody for a period of 11 days in 2020 is inconsistent with appellants case and the law. Though police custody can be had under UAPA beyond the first 30 days under the Second Proviso to Section 43(D)(2), it is permissible only in a situation, where the accused is in judicial custody. The appellant was, admittedly, not in judicial custody, having surrendered to the NIA on 14.04.2020, which is on the eve of the first order directing police custody. 6. One of the contentions raised by the respondent is that if the order of house arrest was passed under Section 167 Cr.PC then the High Court of Del....
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....actual custody. The fact that the appellant was given in Police custody and he did not object, cannot defeat appellant's right. What is relevant is that a period of 90 days had run out. It is emphasised before us that be it the High Court, it could not have ordered the detention of the appellant without authority of the law. The only law, which supports the house arrest, is Section 167 of the CrPC. 133. We have already noticed the circumstances surrounding the Order passed by the High Court. We would also, at this juncture, again capture the Order dated 29.08.2018, passed by this Court: "Taken on Board. Issue notice. Mr. Tushar Mehta and Mr. Maninder Singh, learned Additional Solicitor Generals being assisted by Mr. R. Balasubramanian, learned counsel shall file the counter affidavit by 5.9.2018. Rejoinder thereto, if any, be filed within three days therefrom. We have considered the prayer for interim relief. It is submitted by Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the petitioners that in pursuance of the order of the High Court, Mr. Gautam Navalakha and Ms. Sudha Bharadwaj have been kept under house arrest. It is sug....
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....ning in Section 167 of the CrPC, being satisfied. It must be purported to be passed under Section 167 CrPC. The right to statutory bail arises dehors the merits of the case. The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under Section 167 is indispensable to count the period. 136. On the other hand, Article 21 of the Constitution of India, provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure prescribed by law. This Article, creates a Fundamental Right, which cannot be waived. Moreover, unlike the persons, who apparently underwent house arrest on the basis of the offer made on their behalf, in the case of the appellant, even prior to the order dated 29.08.2018, the High Court had ordered house arrest, which constituted house arrest. The appellant was an accused in a FIR invoking cognizable offences. He stood arrested by a Police Officer. He was produced before a Magistrate. A transit remand, which was a remand, under Section 167, was passed. Police custody followed. The High Court ordered that the appellant be kept in house arrest. The setting aside of the Or....