Analysing the concept of ‘house arrest’ in criminal matters

The concept of ‘house arrest’ in India has until now been recognized only with regard to preventive detention laws. Section 5 of the National Security Act (a statute providing for preventive detention) contemplates detention of a person in such place as the government deems fit.

As Article 22 of the Constitution (which deals with arrest and remand) does not apply to preventive detention, the concept of ‘house arrest’ has not been identified hitherto by the Supreme Court or High Courts in criminal cases. The essence of remand in criminal law is for the magistrate to apply his mind and determine if custodial interrogation of the arrestee is necessary to unearth the truth in a given case. Could the concept of 'house arrest' fall within the ambit of 'custody'?

The Supreme Court recently answered this question in the affirmative.

Arrest, remand and default bail: Previous interpretation of the term “custody”

Police officers are empowered to arrest a person without warrant in a cognizable case under Section 41 of the Code of Criminal Procedure (CrPC). Thereafter, the mandate of Section 57 of the CrPC, which requires production of the accused before the nearest magistrate within 24 hours of such arrest, has to be followed. The magistrate can then authorize his custody under Section 167 of the CrPC.

Section 167 of the CrPC contemplates detention of accused to custody, empowering a magistrate to authorise such detention of accused in such custody as he thinks fit for a period not exceeding 15 days in total. If the magistrate does not have 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.

A magistrate shall, however, not authorize detention to custody for a total period exceeding:

(a) 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;

(b) sixty days, where the investigation relates to any other offence.

On the expiry of the said period, the accused person shall be released on bail if he is prepared to and does furnish bail.

In offences under the Unlawful Activities Prevention Act, the term ‘15’ days under Section 167 of the CrPC has been modified to ‘30’ days.

The said provision has been elucidated upon by the Supreme Court in Chaganti Satyanarayan v. State of Andhra Pradesh, Uday Mohanlal Acharya v. State of Maharashtra and Bikramjit Singh v. State of Punjab, in which cases it was held that if the investigation in a case is not completed within the prescribed period mentioned in Section 167(2) of the CrPC, an indefeasible right of bail accrues in favour of the arrestee. The release on bail on account of default committed by the investigating agency to complete investigation is widely known as “default” or “statutory” bail.

In Central Bureau of Investigation v. Anupam J. Kulkarni, the Supreme Court has identified the phrase ‘such custody as he thinks fit’ under 167 of CrPC to mean police custody and judicial custody. It was further held that the magistrate acting under Section 167 of the CrPC was authorized to grant police custody only for the first 15 days and thereafter only judicial custody.

The house arrest judgment: A step ahead

On May 12, a Division Bench of Justices UU Lalit and KM Joseph dismissed Gautam Navlakha’s default bail plea in the Bhima Koregaon matter. It held that though house arrest could be ordered for the purpose of custodial interrogation or detention, Navlakha’s house arrest was not purported to be passed for this purpose. In light of these observations, it was held that that the period during which Navlakha was under house arrest could not be computed under Section 167(2) of the CrPC.

While parting with the judgment, the Court observed that the concept of house arrest as custody under Section 167 of the CrPC had not engaged courts including the Supreme Court. However, considering the issue and noticing its ingredients, it would very much be part of ‘custody’ under Section 167 of the CrPC. In this backdrop, it was held that it would be open to courts to order house arrest under Section 167 of the CrPC considering factors like age, health conditions, antecedents of the accused, the nature of crime, the need for other forms of custody and the ability to enforce the terms of house arrest.

Gautam Navlakha’s house arrest

Gautam Navlakha was arrested on August 28, 2018 from his residence in New Delhi. Pursuant to his arrest, Navlakha moved a plea of Habeas Corpus before the Delhi High Court seeking his release contending that his arrest was illegal. At the same time, he was produced by the National Investigating Agency (NIA) before the Chief Metropolitan Magistrate (CMM) at Saket, Delhi who permitted the NIA to produce him before the Special Court in Maharashtra on August 30, as the cause of action had arisen in Maharashtra.

However, the Delhi High Court stayed this order of the CMM and directed that Navlakha would not be taken away and instead would be kept under house arrest until further orders. On the next day, a writ petition was filed in the Supreme Court alleging a high-handed approach by the Maharashtra Police concerning the arrest of co-accused including Navlakha. By way of an interim order, the Supreme Court extended the house arrest of Navlakha and others. On September 28, 2018 the Supreme Court dismissed the writ petition by a majority of 2:1.

However, the Delhi High Court thereafter allowed Mr. Navlakha’s plea and set aside the CMM’s order of transit remand observing that the constitutional mandates were not followed. Consequently, it was held that Navlakha’s house arrest had come to an end.

Interim protection from arrest

On October 5, 2018, Navlakha moved the Bombay High Court for quashing of the First Information Report (FIR). The High Court protected Navlakha from arrest during pendency of the petition. In the meantime, a charge-sheet was filed. The Bombay High Court thereafter dismissed the petition but granted interim protection from arrest to Navlakha for three weeks. He then approached the Supreme Court, which granted interim protection from arrest but relegated him to apply for anticipatory bail. Navlakha’s plea seeking anticipatory bail was rejected in the Sessions Court, the High Court and the Supreme Court as well. The Supreme Court permitted him to surrender on April 8, 2020 which was extended to April 14, 2020. Thereafter, Navlakha surrendered to the NIA on April 14, 2020.

Plea of default bail

Navlakha was produced by the NIA before the Sessions Judge, New Delhi on April 15, 2020, and was initially remanded to 7 days police custody, which was later extended by further 7 days. However, prior to its expiry, Navlakha was remanded to judicial custody on April 25, 2020.

On June 11, 2020, he filed a plea seeking default bail under Section 167(2) of the CrPC contending that an indefeasible right of bail had accrued in his favour as the time prescribed for completing investigation had lapsed. Navlakha in his plea included the period of 34 days of house arrest from August 28 – October 1, 11 days of custody with NIA from April 15 to April 25 and 48 days in judicial custody. As per the Supreme Court, the period of house arrest could not be considered to fall within the ambit of ‘custody’ as the Delhi High Court did not permit custodial interrogation during that time.

Conclusion

This decision widens the scope of ‘custody,’ essentially manifesting that custodial interrogation is now permissible even while under house arrest. Courts are now empowered to exercise a new option (which is practically not police nor judicial custody) in cases of remand.

The Supreme Court may further have to elucidate on-

1. The contemplated parameters for granting house arrest under Section 167 of the CrPC for lower courts to acclimatize to this concept;

2. Whether the police would be entitled to enter such person’s house at any time for the purpose of custodial interrogation;

3. After interrogating the person, whether the person would have to be physically produced before the court for extending his custody; etc.

The reason for elucidation is to avoid its misuse. Routine orders of house arrests may not help the society in reducing crimes. At the same time, the police must not be permitted to take undue advantage of the situation.

Nevertheless, positively adopting the concept may be of significance. The Supreme Court recently ordered the release of certain class of prisoners on interim bail, to avoid congestion and overcrowding in prisons which could help prevent spreading of the coronavirus. If house arrests are ordered in appropriate cases, it would definitely aid in decongesting prisons, which is a dire requirement at this stage.

The author is an advocate practicing at the Bombay High Court.