LAW FOR ALL

Friday, May 14, 2021

House arrest - Sec.167 of Cr.P.C.

whether the period of 34 days spent in house arrest by the appellant is to be 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 31 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 only custody which is continuous?

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

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.510 OF 2021

[ARISING OUT OF SLP (CRIMINAL) NO. 1796/2021]

GAUTAM NAVLAKHA … APPELLANT(S)

VERSUS

NATIONAL INVESTIGATION AGENCY … RESPONDENT (S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

2. On the basis of FIR No. 4 of 2018 dated

08.01.2018, registered at Vishrambagh Police

Station, Pune, Maharashtra, which was one

registered under Sections 153A, 505(1B) and

Section 34 of IPC to which Section 120(B) was

added on 06.03.2018 and still further into

which, Sections 13, 16, 17, 18, 18B, 20, 38 and

40 of the Unlawful Activities (Prevention) Act,

1967 (hereinafter referred to as ‘the UAPA’,

for short), were added on 17.05.2018, and, in

which FIR, the name of the appellant was added

on 22.08.2018, the appellant came to be

arrested from his residence in Delhi on

28.08.2018. The appellant moved Writ Petition

No. 2559 of 2018 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 a police officer of P

Vishrambagh, Pune, Maharashtra is

established upto my satisfaction upon

his having shown his identity card.

Heard. It is submitted by the IO

that above noted accused is required

in above noted case FIR registered at

PS Vishrambagh, Pune, Maharashtra and

has been arrested from his house at

Kalkaji, Delhi. It is further submitted

by the IO that the accused has been

arrested without warrant and he is

required to be produced before

competent Court i.e. Court of Ld.

Special Court, Shivaji Nagar, Pune,

Maharashtra and therefore, his transit

remand may be granted.

Heard. Considered. I have given my

thoughtful consideration to the

submissions made by the IO and the APP

for the State.

As per the police papers, FIR No

4/18 has been registered under sections

153A/505(1)(B)/117/34 IPC & u/s

13/16/17/18/18B/20/39/40 of Unlawful

Activities Prevention Act at police

station Vishronbagh, Pune, Maharashtra

wherein the accused is required. As per

the arrest memo the accused namely

Gautam Pratap Navlakha was arrested

on 28.08.2018 at. 2.15 pm at Kalkajl,

Delhi. Intimation of arrest of accused

has been given to his partner/friend.

As the accused is required for

further investigation of the case,

therefore, his transit remand Is

granted till 30.08.2018. The accused

be produced before the concerned Ld.

Special Court, Shivaji Nagar, Pune,

Maharashtra on or before 30.08.2018

without fail. Accused be got medically

examined as per rules and the

directions of the Hon'ble Supreme

Court. A copy of this order be given

dasti to the Investigating Officer.

Application of transit remand is

disposed of accordingly. Necessary

record be maintained by the

Ahlmad.

(Manish Khurana)

Commissioner/SE/

District Court, Saket

New.Delh1/28.08.2018”

3. Thereafter, when the Writ Petition, filed

by the appellant before the High Court, came up

at 04.00 P.M., the High Court passed the

following Order on 28.08.2018:

“2. Court is informed at 4 pm by

Mr. Rahul Mehra, learned Standing

Counsel for the State that an order

was passed today by the learned

Chief Metropolitan Magistrate

(CMM), South East District, Saket

in the post lunch session granting

transit remand for producing the

Petitioner before the learned

Special Court, Shivaji Nagar, Pune

on or before 30th August, 2018.

3. 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.

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 Judgment, which is reported in

Romila Thapar and Others vs. Union of India

and others1. The subject matter of the Writ

Petition was the allegedly high-handed action

of the Maharashtra Police and the arrest of

five Activists which included the appellant on

28.08.2018 from their homes. The relief sought

by the Writ Petitioners was to ensure a

credible investigation into the arrest of the

five Human Rights Activists. Interim orders

were passed in the Writ Petition by this Court,

under which, the benefit of house arrest of the

appellant, inter alia, was also ordered to be

extended to others. The order of house arrest

of appellant was extended. The relief sought

for, namely, an independent investigation in

the Writ Petition, filed in this Court, was

1 (2018) 10 SCC 753

rejected by the majority of Judges with Dr.

D.Y. Chandrachud, J., dissenting. We notice

paragraph-40, which reads as follows:

“40. Accordingly, this writ

petition is disposed of with

liberty to the accused concerned

to take recourse to appropriate

remedy as may be permissible in

law. The interim order passed by

this Court on 29-8-2018 (Romila

Thapar v. Union of India, 2018

SCC OnLine SC 1343) shall

continue for a period of four

weeks to enable the accused to

move the court concerned. The

said proceedings shall be decided

on its own merits uninfluenced by

any observation made in this

judgment, which is limited to

the reliefs claimed in the writ

petition to transfer the

investigation to an independent

investigating agency and/or

court-monitored investigation.

The investigating officer is

free to proceed against the

accused concerned as per law.

All the accompanying

applications are also disposed

of in terms of this judgment.”

5. This Judgment was rendered on 28.09.2018 by

this Court. Thereafter, the Writ Petition,

filed by the appellant, before the High Court

of Delhi, was allowed. We may, at once notice,

that the relief sought in the Writ Petition was

initially one seeking a Writ of Habeas Corpus.

Thereafter, the Court came to be concerned with

the legality of the Order of transit remand

passed by the CMM, which we have adverted to.

We may notice only, paragraphs-28 and 29, 30

and 31 of judgment 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

t h a t t h e o r d e r p a s s e d b y t h e

l e a r n e d C M M o n 2 8 t h A u g u s t ,

2 0 1 8 g r a n t i n g t r a n s i t 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 anend 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 t h e r e m e d i e s t h a t

w e r e p e r m i s s i b l e t o h i m i n

a c c o r d a n c e w i t h l a w . A s f a r

a s t h e present Petitioner is

concerned, the fact that this

writ petition filed by him was

already pending before this

Court, was noticed by the

Supreme Court and it was made

clear t ha t he i s fr ee t o

p ur su e t hi s r em ed y a mo ng

o th er s in a cc or da nc e wi th

l aw . T he ex te ns io n o f h is

h ou se ar re st by th e S up re me

w as on ly fo r t ha t l im it ed

p ur po se . Consequently, this

Court is unable to accede to

the request of Mr. Navare.”

(Emphasis supplied)

6. The appellant filed Writ Petition No. 4425

of 2018 dated 05.10.2018 for quashing the FIR.

The High Court protected the appellant from

arrest during the pendency of the said Writ

Petition. Charge-sheet was filed against the

appellant’s co-accused on 15.11.2018. Then,

this is followed-up by a supplementary chargesheet against the co-accused on 21.02.2019. On

13.09.2019, the High Court of Bombay dismissed

the Writ Petition filed by appellant against

the FIR. The interim protection from arrest

was, however, extended by three weeks. The

Special Leave Petition filed by appellant, as

SLP (Criminal) No. 8862 of 2019, came to be

disposed of by acceding to the request of the

appellant that the appellant may apply for

anticipatory bail before the competent Court.

The Court extended the interim protection,

which was given to the appellant for another

period of four weeks, from 15.10.2019 and he

was given liberty to apply for

regular/anticipatory bail. The Application

seeking anticipatory bail came to be dismissed

by the Sessions Court by Order dated

12.11.2019.

7. The Appellant approached the High Court of

Bombay seeking anticipatory bail, which was

declined by Order dated 14.02.2020. However,

the High Court granted protection from arrest

for four weeks. The Special Leave Petition

filed, challenging the Order by the High Court,

came to be disposed of by Order dated

16.03.2020. By the said Order, this Court

dismissed the Special Leave Petition. In its

Order, this Court noticed that since the

appellant had enjoyed protection for

approximately one and a half years, three

weeks’ time was granted to surrender. It is,

thereafter, that on 08.04.2020, this Court

extended the time by a period of one week for

surrendering and, accordingly, on 14.04.2020,

the appellant surrendered before the NIA,

Delhi. On 15.04.2020, seven days 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 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 Ramakrishnan,

learned Senior Counsel assisted by Shri Shadan

Farasat for the appellant and Shri S.V. Raju,

learned Additional Solicitor General, on behalf

of the respondent.

THE FINDINGS IN THE IMPUGNED ORDER

9. During the period of the house arrest, the

appellant was not supposed to meet anyone,

barring his lawyers and ordinary residents of

the house. He could not step out of the

premises. There were to be two Guards of the

Special Cell of Delhi Police outside the house.

The Investigating Agency/Investigating Officer

did not have any access to him or occasion to

interrogate him. The Transit Remand Order being

stayed, it could not be said that the appellant

was under the detention of the Police for

investigation. Under Section 167(2) of the Code

of Criminal Procedure, 1973 (hereinafter

referred to as ‘the CrPC’, for short), the

Magistrate has to authorise the detention.

The High Court having stayed the transit remand

and finally having set aside the transit

remand, thereby holding the detention to be

illegal, there was no authorised detention by

an Order of the Magistrate. Therefore, the

appellant cannot claim the benefit of default

bail. It is an indispensable requirement to

claim the benefit of default bail that the

detention of the accused has to be authorised

by the Magistrate. The authorisation by the

Magistrate having been declared illegal, the

detention itself was illegal. The said period

(house arrest custody) cannot be treated as

authorised custody under Section 167(2) of the

CrPC. The Court drew support from decision of

this Court which is reported in Chaganti

Satyanarayan & Ors. v. State of Andhra

Pradesh2, to hold that the period of 90 days

will commence only from the date of remand and

not from any anterior date in spite of the fact

that the accused may have been taken into

custody earlier. The Court held that it was not

possible for it to hold that every detention,

which may have resulted in deprivation of

liberty of the accused, to be an authorised

detention under Section 167(2) of the Cr.P.C.

Sans any valid authorisation of the Magistrate,

detaining the appellant, he was not entitled 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

2 (1986) 3 SCC 141

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. 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 Police have no access to the accused.

However, such judicial custody is reckoned for

calculating the period for considering an

Application for default bail. Still further, it

is pointed out that under Section 43D(2)(b), of

UAPA Police Custody can be sought at any time.

It is further contended that there was no stay

of investigation. The two conditions required

for attracting Section 167 are pointed out to

be as follows: (a) A person is arrested under

Section 57 of the Cr.P.C. while investigating a

cognisable offence and (b) he is produced

before a Magistrate after his arrest. It is

contended that in the case of the appellant,

both the conditions were fulfilled having

regard to the fact that the appellant stood

arrested on 28.08.2018 and he was produced

before the Magistrate for the remand. It was

next contended that the fact that the High

Court of Delhi finally set aside the said

remand and held that the detention was illegal,

was an untenable ground to hold that there was

no remand under Section 167 of the CrPC.

Appellant lay store by the Order of the High

Court of Delhi, wherein it had concluded that

the house arrest of the appellant ‘comes to an

end as of now’. It is contended that the Court

has not treated the period of house arrest as

either nonest or void. Custody, it is pointed

out, was authorised by the Magistrate under

Section 167. It was extended by a modification

by the High Court and, thereafter, by this

Court. The High Court of Delhi, it is pointed

out, only stayed the transit and not the remand

Order. The Court only modified the nature of

the remand, i.e., from transit in Police

custody to within the confines of the

appellant’s house. The detention, being found

to be illegal, cannot wipe out the period of

detention. The Order of the High Court of

Delhi, providing for house arrest can only be

sourced from Section 167 of the CrPC. What is

required under Section 167 of the CrPC is the

total period of custody which can include

broken periods and the custody need not be one

continuous lot. It is contended that Section

167 does not distinguish between transit or

other remand. The remand, be it a transit

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 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 pointed out that it

was the case of the appellant that this

Court had protected his liberty by granting

house arrest inter alia. The meat of the

matter is that it was understood by the

appellant himself that the house arrest was

a protection from custody and therefore it

could not be understood as custody within

the meaning of Section 167 of the Code of

Criminal Procedure. In short, house arrest

was permitted in exercise of the

extraordinary powers available to this

Court.

12. It is further pointed out that house arrest

according to the appellant itself was unknown

to the code. It is further the case of the

respondent that an accused who is remanded to

custody under Section 167 of the Cr.P.C. cannot

come out of the custody unless he is bailed out

or unless he is acquitted. There is no bail in

favour of the appellant. He was also not

remanded to judicial custody. The so-called

custody during the house arrest, in other

words, was not custody or detention within the

meaning of Section 167 of the Cr.P.C. It also

was not a police custody because the

investigating agency had no access to the

accused during this period. Thus, a period of

34 days in house arrest was neither judicial

custody nor police custody as provided in

Section 167 of the Cr.P.C. The order of the

High Court is relied upon to point out that the

Court contemplated that the house arrest came

to an end with the judgment. The fact that the

High Court did not grant bail when it

pronounced the judgment on 1.10.2018, would go

to show that it was not an order passed under

Section 167 of the Cr.P.C. The contention which

found favour with the High Court is reiterated,

namely, with its judgment on 01.10.2018, the

Court has set the clock back and treated the

arrest of the appellant as non-est. This is for

the reason that the appellant was not bailed

out. He was not placed in judicial custody.

With the house arrest coming to an end, the

appellant became a free person, entitled to

apply for anticipatory bail which he availed

of. The application for anticipatory bail

presupposes that the arrest on 28.08.2018 was

non-est since a person 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 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 where an accused

is presented before a Magistrate not having

such jurisdiction, the Magistrate has no

authority or power to remand an accused to

judicial custody. Therefore, the order of

transit remand is not an order for the purpose

of including the period in computing 90 days

and it is only a production order. At any rate,

it is pointed out that the order of Saket Court

(transit order), even if it is considered to be

an order under Section 167 of Cr.PC, it was

hardly in force for a couple of hours till the

Delhi High Court stayed the same around 4.00

p.m. on the very day. Even if this period of 1

day is included for the purpose of computing

the period of 90 days, the appellant would not

become entitled to default bail. It is further

the case of the respondent that the

interpretation adopted by the appellant would

render police custody under Section 167

illusory.

13. The investigating authorities would be

deprived of the opportunity for custodial

interrogation during the first 15 days or 30

days in case of UAPA offences. The

interpretation which frustrates a fair

investigation under the statute should be

avoided.

14. Act of Court should not negatively impact

the investigating agency- the maxim “Actus

curiae neminem gravabit” would apply in the

present case.

15. The order passed by the High Court of Delhi

in the writ petition seeking habeas corpus was

not an order under Section 167 of the Cr.P.C.

If the submission of the appellant is accepted,

it would mean that the appellant was remanded

to police custody after 30 days i.e., on

15.04.2020 and 21.04.2020. The appellant never

objected to the same. This clearly shows that

the present contention of the appellant is a

mere after thought. The period of arrest has

to be excluded and the period has to be

reckoned from the date of production. The

submission is based on the decision of this

Court in Chaganti Satyanarayana(supra). This is

after treating 15.04.2020 to be the date of

production.

ANALYSIS

16. Though the final question to be answered is

whether the period of 34 days spent in house

arrest by the appellant is to be 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 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 only custody which

is continuous?

8) What is the impact of mandate of

Article 21 and Article 22 of the

Constitution?

17. Before we deal with the various issues, it

is necessary to note certain salient features

of the Constitution, Cr.P.C. and also Unlawful

Activities (Prevention) Act (UAPA).

18. Article 21 of the Constitution incorporates

invaluable fundamental rights insofar as it

declares that no person shall be deprived of

his life or personal liberty except according

to procedure established by law. Article 22

(1) and (2) read as follows:

“2. Protection against arrest and

detention in certain cases

(1) No person who is arrested shall

be detained in custody without

being informed, as soon as may be,

of the grounds for such arrest nor

shall he be denied the right to

consult, and to be defended by, a

legal practitioner of his choice

(2) Every person who is arrested

and detained in custody shall be

produced before the nearest

magistrate within a period of

twenty-four hours of such arrest

excluding the time necessary for

the journey from the place of

arrest to the court of the

magistrate and no such person shall

be detained in custody beyond the

said period without the authority

of a magistrate”

19. Chapter V of the Cr.P.C. deals with “Arrest

of Persons”. Section 41 deals with situations

in which any police officer may arrest any

person without an order from a Magistrate or

without a warrant. Section 41 (1)(a) to 41 (1)

(d) provides for safeguards to avoid arbitrary

arrest and also confer certain rights on the

person arrested. They were inserted by Act 5

of 2009 with effect from 1.11.2010. Section

43 Cr.P.C. provides for power to arrest even by

a private person and the procedure to be

followed in such case. Section 48 Cr.P.C.

reads as follows:

“48. Pursuit of offenders into

other jurisdictions. A police

officer may, for the purpose of

arresting without warrant any

person whom he is authorised to

arrest, pursue such person into any

place in India.”

20. Sections 56 and 57 Cr.P.C. 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 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 from the

place of arrest to the Magistrate's

Court.”

22. Under Section 77 Cr.P.C., a warrant of

arrest may be executed at any place in India.

Chapter XII deals with Information to the

Police and their Powers to Investigate. The

mandatory duty of police officer to register

first information report has been elaborately

considered by a Constitution Bench of this

Court in the decision reported in Lalita

Kumari vs . Government of Uttar Pradesh and

others3.

23. Section 156 Cr.P.C. reads as follows:

“156. Police officer' s power to

investigate cognizable case.

(1) Any officer in charge of a

police station may, without the

order of a Magistrate, investigate

any cognizable case which a Court

having jurisdiction over the local

area within the limits of such

station would have power to inquire

into or try under the provisions of

Chapter XIII.

(2) No proceeding of a police

officer in any such case shall at

3 (2014) 2 SCC 1

any stage be called in question on

the ground that the case was one

which such officer was not

empowered under this section to

investigate.

(3) Any Magistrate empowered under

section 190 may order such an

investigation as above- mentioned.”

24. Under Section 156 Cr.P.C., any police

officer in charge of a police station can

without order of a Magistrate investigate any

cognizable case which a court having

jurisdiction over the local area within the

limits of such station have the power to try.

Section 157 deals with Procedure for

investigation. The said provision contemplates

inter alia the power to proceed, to the spot,

to investigate the facts and circumstance of

the case, and if necessary, take measures for

the discovery and arrest of the offender. It

is also pertinent to notice Section 167 Cr.P.C.

It reads as under:

“167. Procedure when

investigation cannot be completed

in twenty-four hours.—(1) Whenever

any person is arrested and detained

in custody, and it appears that the

investigation cannot be completed

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 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 period of ninety days, or

sixty days, as the case may be, the

accused person shall be released on

bail if he is prepared to and does

furnish bail, and every person

released on bail under this subsection shall be deemed to be so

released under the provisions of

Chapter XXXIII for the purposes of

that Chapter;]

[(b) no Magistrate shall authorise

detention of the accused in custody

of the police under this section

unless the accused is produced

before him in person for the first

time and subsequently every time

till the accused remains in the

custody of the police, but the

Magistrate may extend further

detention in judicial custody on

production of the accused either in

person or through the medium of

electronic video linkage;]

class, not specially empowered in

this behalf by the High Court,

shall authorise detention in the

custody of the police.

[Explanation I.—For the

avoidance of doubts, it is hereby

declared that, notwithstanding the

expiry of the period specified in

paragraph (a), the accused shall be

detained in custody so long as he

does not furnish bail.]

[Explanation II. —If any

question arises whether an accused

person was produced before the

Magistrate as required under clause

(b), the production of the accused

person may be proved by his

signature on the order authorising

detention or by the order certified

by the Magistrate as to production

of the accused person through the

medium of electronic video linkage,

as the case may be:]

[Provided further that in case

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.]

[(2-A) Notwithstanding anything

contained in sub-section (1) or

sub-section (2), the officer in

charge of the police station or the

police officer making the

investigation, if he is not below

the rank of a sub-inspector, 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 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

such order shall forward a copy of

his order, with his reasons for

making it to the Chief Judicial

Magistrate.

(5) If in any case triable by

Magistrate as a summons-case, the

investigation is not concluded

within a period of six months from

the date on which the accused was

arrested, the Magistrate shall make

an order stopping further

investigation into the offence

unless the officer making the

investigation satisfies the

Magistrate that for special reasons

and in the interests of justice the

continuation of the investigation

beyond the period of six months is

necessary.

(6) Where any order stopping

further investigation into an

offence has been made under subsection (5), the Sessions Judge

may, if he is satisfied, on an

application made to him or

otherwise, that further

investigation into the offence

ought to be made, vacate the order

made under sub-section (5) and

direct further investigation to be

made into the offence subject to

such directions with regard to bail

and other matters as he may

specify.”

25. Section 43(D) (2) of UAPA provides for the

modified application of Section 167.

26. In State of Punjab v. Ajaib Singh4, the

court had to deal with ambit of Article of

22(1) and also the scope of the expression

“arrest” contained therein.

“16. Broadly speaking, arrests

may be classified into two

categories, namely, arrests under

warrants issued by a court and

arrests otherwise than under such

warrants. As to the first category

of arrest, Sections 75 to 86

collected under sub-heading “BWarrant of Arrest” in Chapter VI of

the Code of Criminal Procedure deal

with arrests in execution of

warrants issued by a court under

4 AIR 1953 SC 10

that Code. Section 75 prescribes

that such a warrant must be in

writing signed by the presiding

officer, or in the case of a Bench

of Magistrates, by any Member of

such Bench and bear the seal of the

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 (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 Appendix F sets out

the terms of such a warrant. It

clearly recites that it has been

proved to the satisfaction of the

court that there is probable cause

for belief that the Defendant 1s

about to do one or other of the

things mentioned in Rule 1. The

court may under Section 55 read

with Order 21 Rule 38, issue a

warrant for the arrest of the

judgment-debtor in execution of the

decree. Form 13 sets out the terms

of such a warrant. The warrant

recites the decree and the failure

of the judgment-debtor to pay the

decretal amount to the decreeholder and directs the bailiff of

the court to arrest the defaulting

judgment-debtor, unless he pays up

the decretal amount with costs and

to bring him before the court with

all convenient speed. The point to

be noted is that, as in the case of

a warrant of arrest issued by a

court under the Code of Criminal

Procedure, a warrant of arrest

issued by a court under the Code of

Civil Procedure quite plainly

discloses the reason for the arrest

in that it sets out an accusation

of default, apprehended or actual,

and that the person to be arrested

is made acquainted with the reasons

for his arrest before he is

actually arrested.”

Also in para 20, this Court laid down as

follows:-

“20. Turning now to Article 22(1)

and (2), we have to ascertain

whether its protection extends to

both categories of arrests

mentioned above, and, if not, then

which one of them comes within its

protection. There can be no manner

of doubt that arrests without

warrants issued by a court call for

greater protection than do arrests

under such warrants. The provision

that the arrested person should

within 24 hours be produced before

the nearest Magistrate is

particularly desirable in the case

of arrest otherwise than under a

warrant issued by the court, for it

ensures the immediate application

of a judicial mind 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 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-criminal nature

or some activity prejudicial to the

public or the State interest. In

other words, there is indication in

the language of Article 22(1) and

(2) that it was designed to give

protection against the act of the

executive or other non-judicial

authority. The Blitz case (Petition

No. 75 of 1952), on which Sri

Dadachanji relies, proceeds on this

very view, for there the arrest was

made on a warrant issued, not by a

court, but, by the Speaker of State

Legislature and the arrest was made

on the distinct accusation of the

arrested person being guilty of

contempt of the legislature. It is

not, however, our purpose, nor do

we consider it desirable, to

attempt a precise and meticulous

enunciation of the scope and ambit

of this fundamental right or to

enumerate exhaustively the cases

that come within its protection.

Whatever else may come within the

purview of Article 22(1) and (2),

suffice it to say for the purposes

of this case, that we are satisfied

that the physical restraint put

upon an abducted person in the

process of recovering and taking

that person into custody without

any allegation or accusation of any

actual or suspected or apprehended

commission by that person of any

offence of a criminal or quasicriminal nature or of any act

prejudicial to the State or the

public interest, and delivery of

that person to the custody of the

officer in charge of the nearest

camp under Section 4 of the

impugned Act cannot be regarded as

arrest and detention within the

meaning of Article 22(1) and (2).

In our view, the learned Judges of

the High Court over-simplified the

matter while construing the

article, possibly because the

considerations hereinbefore

adverted to were not pointedly

brought to their attention.”

[Emphasis supplied]

27. It will be noted that with the proviso in

the Cr.P.C., 1973, in Section 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 Samad5, 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

5 AIR 1962 SC 1506

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 were

these: The respondents had been

brought back to Lucknow on a

message requiring their production

before the High Court. They reached

Lucknow on the 25th at 1 p.m. and

were produced at 3 p.m. the same

day i.e. within two hours of

reaching Lucknow before the Deputy

Registrar. The Deputy Registrar had

directed their production the next

day and they were accordingly so

produced. Even taking it that the

Deputy Registrar was not a judicial

authority such as the learned

Judges had in mind, the respondents

had been produced on 26th morning

at 10.15 a.m. before the learned

Judges when they were at liberty to

make any order regarding the

custody which they considered

proper and the time when they were

produced before the Judges was

admittedly not beyond 24 hours from

the time the respondents reached

Lucknow. On the 26th the learned

Judges who took part in the final

decision passed an order directing

the production of the respondents

on July 27, 1960 at 2 p.m. which

obviously permitted the previous

custody to be continued till

further orders. They were produced

accordingly at 2 p.m. on that day

and by a further order of July 27,

1960 the learned Judges had

directed the release of the

respondents on bail and in

pursuance of this order the

respondents had been released on

July 27, 1960 itself. In these

circumstances we are at a loss to

understand which is the period

during “the second stage” or “on

the 27th”, when the respondents

could be said to have been

illegally detained for more than 24

hours without production before a

judicial authority as required by

Article 22(2). We would add that

even if Article 22(2) were

construed to require that a person

arrested and detained has to be

produced before a Magistrate every

24 hours during his detention, a

meaning which it assuredly cannot

bear, though it is not clear 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

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

th September 2018 of a three judge

bench of the Supreme Court in Crl.

A. 1124 of 2018 (State of

Maharashtra v. Tasneem Rizwan

Siddiquee). He submitted that the

Supreme Court has, in said

decision, reiterated the settled

position in law, as explained in

the decisions in Manubhai Ratilal

Patel v. State of Gujarat, (2013) 1

SCC 314 and Saurabh

Kumar v. Jailor, Koneil

Jail, (2014) 13 SCC 436, that once

a person is in judicial custody

pursuant to a remand order passed

by a magistrate in connection with

an offence under investigation, a

writ of habeas corpus is not

maintainable.”

32. The High Court tides over this objection by

holding as follows: -

“9. On the question of the

maintainability of the present

petition, as already noticed

earlier, this Court had even prior

to the learned CMM passing the

order on the remand application

directed at around 2.45 pm on

28th August 2018 that “no further

precipitate action of removing the

Petitioner from Delhi be taken till

the matter be again taken up at 4

pm.” Mr. Rahul Mehra, learned

Standing Counsel for the State (NCT

of Delhi) informed the Court that

he had conveyed the aforementioned

interim order to the concerned

police officials at 2.54 pm on

28th August 2018. While it is not

clear if the learned CMM was

actually informed of this Court's

interim order, the arrest memo of

the Petitioner shows that he was

arrested at 2.15 pm at his

residence in Nehru Enclave. Given a

reasonable time taken to reach the

Saket Court complex, it is unlikely

that the learned CMM heard the

matter, perused the remand

application and then passed the

order before 2.45 pm, i.e. before

this Court passed the interim

order.

10. Consequently, when the

present habeas corpus petition was

entertained and the above interim

order was passed by this 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 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 mandate

under Article 22(1) of the Constitution. The

appearance of the duty lawyer was found to be

essentially cosmetic and not in the true spirit

of Article 22(1). The materials in the case

diary were found to be written in the Marathi

language. It was found undisputed that the

Magistrate was not conversant with the Marathi

language. This disabled the Magistrate from

appreciating whether the requirements under

Section 41(1)(b)(a) of the Cr.P.C. stood

satisfied. It is thereafter noticed that the

Court disposed of the writ petition with the

findings and the directions as noted in

paragraphs 28, 29, 30 and 31 which we have

already extracted.

34. The SLP against the judgment was disposed

of as follows on 11.08.2020:

“Heard the learned Solicitor

General and the learned counsel

appearing in the matter at length.

The learned Solicitor General has

submitted that the High Court

should not have interfered in the

matter and the order should not

have been passed and it is palpably

illegal. Ms. Nithya Ramakrishnan,

learned counsel, has submitted that

the order is absolutely correct and

there is no ground to make any

interference in the order.

Be that as it may, the exercise is

academic in nature and the accused

have surrendered on 14.04.2020,

pursuant to the order passed by

this Court on 08.04.2020. We do not

propose to go into the rival

submissions, as the petitions have

been rendered infructuous for

practical purposes.

However, we direct that the

impugned order shall not be treated

as a precedent for any other case,

questions of law are kept open.

The Special Leave Petitions and the

pending interlocutory

application(s), if any, is/are

disposed of.”

NATURE OF HOUSE ARREST

35. The High Court in the impugned order has

itself found that 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 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

fairly straightforward form of pretrial detention involving a

provision that employed home

confinement as an alternative for

common offenders. In 1975, Italy

initiated a policy of affidamento

in provo ai servizio sociale (trial

custody), which may be described as

a form of parole following a shock

period of three months

incarceration. Other European

countries have also experimented

with some manner of home

confinement as a means of dealing

with a variety of offenders. The

traditional use of "house arrest"

should not in itself become a

rationale for rejecting it. In the

United States, "home detention" had

been put in practice in St. Louis

as early as 1971.

Home confinement as a policy for

use with adult offenders began to

draw more attention in 1983 with

the delivery of two different

papers on the subject, passage of

the Correctional Reform Act, and

the use of an "electronic bracelet"

to monitor compliance with home

confinement on the part of an

offender in New Mexico. The latter

was inspired by a New Mexico

district court judge, who read a

comic strip where "Spiderman" was

being tracked by a transmitter

fixed to his wrist. The judge

approached an engineer, who

designed a device consisting of an

electronic bracelet approximately

the size of a pack of cigarettes

that emitted an electronic signal

that was picked up by a receiver

placed in a home telephone. This

bracelet could be strapped to the

ankle of an offender in such a way

that if he or she moved more than

approximately 150 feet from the

home telephone, the transmission

signal would be broken, alerting

authorities that the offender had

left the premises. Officials in New

Mexico gave approval for trial use

of the device and a research

project funded by the National

Institute 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 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 offender’s place

of residence with permission to

leave only for explicit, preauthorized purposes. Generally, it

is imposed as a penal sanction in

lieu of incarceration and mandated

by the sentencing judge as a

condition of probation. In

Florida, however, house arrest is

considered a criminal sanction

entirely separate from probation.

In addition, at least one

jurisdiction has reported using

house arrest for individuals who

have been released on their own

recognizance while awaiting trial.

For example, a number of states and

counties have recently added

intensive supervision to probation

programs in order to provide an

intermediate punishment in lieu of

incarceration for selected

offenders. Many of the reported

conditions of intensive supervision

strategies are similar or even

identical to those imposed as part

of the house arrest sanction. For

example, multiple weekly contacts

between offenders and probation

officers, as well as mandatory

employment, may be common to both

control techniques.

The unique restriction on the

offender’s freedom to leave home is

the distinguishing feature of the

house arrest sanction. Although

other heightened surveillance

sanctions generally include strict

curfews, house arrest allows the

offender to leave her residence

only for specific purposes, unless

time spent away from home is used

for pre-authorized ends, the

offender risks detention and

incarceration.

The Florida Community Control

statute mandates that the court

impose “intensive supervision and

surveillance for an offender placed

into community control, which may

include … confinement to an agreedupon residence during hours away

from employment and public service

activities. The Florida 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 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 intermediary with the

community.”

38. In the caption “the goals of house arrest”,

we notice the following discussion: -

“Yet house arrest, generally

imposed as a special condition of

probation, includes a distinctly

retributive component.42 The

sentencing court in Murphy describes the incorporation of

retribution, humiliation, and

deterrence into the traditionally

palliative scheme of probation:

There will be some people who

will believe that this sentence

is much too lenient. Others will

believe it too humiliating.

Public humiliation is a part of

the punishment .... In many

respects the colonial use of

stocks and the equivalent

punishment in other societies

served a useful goal in providing

swift social disapproval as a

deterrent. It is obvious that

some form of this disapproval is

required under modern

conditions.”

39. Among the advantages which have been

perceived in promoting the house arrest, have

been avoidance of overcrowding of the prisons

and also cost saving. However, concerns have

also emerged in regard to the issues arising

out of the proper supervision of house arrest.

40. The said article goes on to describe house

arrest as a community based probationary

sanction. We may also notice the following

discussion under the heading of waiver and

probation being an act of grace: -

“Moreover, because of the

particularly restrictive nature

of home confinement, the

implicated constitutional right

might not be waivable. For

example, if a confinee’s housing

is substandard, home confinement

imposed by the state may violate

the eighth amendment ban on cruel

and unusual punishment.

Similarly, it is likely that the

offender might sacrifice a right

that is not 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 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).

According to the court’s case law

(see, among many others, Mancini v

Italy (App no 44955/98) (judgment,

2 August), para 17; Lavents v

Latvia (App no 58442/00) (judgment,

28 November 2002), paras 64–66;

Nikolova v Bulgaria (No 2) [2004]

ECHR 40896/98, para 60; Ninescu v

Moldova (App no 47306/07)

(judgment, 15 July 2014), para 53;

and Delijorgji v Albania [2015]

ECHR 6858/11, para 75), house

arrest is considered, in view of

its degree and intensity, to amount

to deprivation of liberty within

the meaning of art 5 of the

Convention.

In Storck v Germany (2005) 43 EHRR

96, [2005] ECHR 61603/00, para 75

the court held that the right to

liberty is too important in a

‘democratic society’ within the

meaning of the Convention for a

person to lose the benefit of the

protection of the Convention for

the sole reason that he gives

himself up to be taken into

detention. Detention might violate

art 5 even though the person

concerned might have agreed to it

(see De Wilde v Belgium (1971) 1

EHRR 373, [1971] ECHR 2832/66, para

65).”

We may also notice:-

“The government submitted that

lesser reasons were required in

order to justify house arrest than

detention in an ordinary remand

facility because the former measure

was more lenient than the latter.

It is true that in most cases house

arrest implies fewer restrictions

and a lesser degree of suffering or

inconvenience for the detainee than

ordinary detention in prison. That

is the case because detention in

custody requires integrating the

individual into a new and sometimes

hostile environment, sharing of

activities and resources with other

inmates, observing discipline and

being subjected 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 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 providing for preventive

detention. Section 5 reads as follows:-

“5. Power to regulate place and

conditions of detention.—Every

person in respect of whom a

detention order has been made shall

be liable—

(a) to be detained in such place

and under such conditions,

including conditions as to

maintenance, 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 within the same

State or in another State, by order

of the appropriate Government:

Provided that no order shall be

made by a State Government under

clause (b) for the removal of a

person from one State to another

State except with the consent of

the Government of that other

State.”

Article 22(3) reads as follows: -

“22(3).Nothing in clauses (1) and

(2) shall apply

(a) to any person who for the time

being is an enemy alien; or

(b) to any person who is arrested

or detained under any law providing

for preventive detention.”

Thus, the safeguards under Article 22(1) and

Article 22(2) are not available under a law

providing for preventive detention.

44. We notice that State of Rajasthan and Ors.

vs. Shamsher Singh6 was a case under the said

act. It was a case where the High Court had

after quashing the order of detention on

certain grounds gave certain directions. The

detenu was to be released from the central jail

but thereafter it was directed that the detenu

be placed under house arrest or in place like

Dak Bungalow or Circuit 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

6 AIR (1985) SC 1082

had been complied with and the detention was

wrongly quashed. In A.K. Roy and Ors. vs.

Union of India (UOI) and Ors.

7 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 liablea. 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 without substance. Laws of

preventive detention cannot, by the

back-door, introduce procedural

measures of a punitive kind.

7 AIR (1982) SC 710

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 detention in a place

other than the one where he

habitually resides makes it

impossible for his friends and

relatives to meet him or for the

detenu to claim the advantage of

facilities like having his own

food. The requirements of

administrative convenience, safety

and security may justify in a given

case the transfer of a detenu to a

place other than that where he

ordinarily resides, but that can

only be by way of an exception and

not as a matter of general rule.

Even when a detenu is required to

be kept in or transferred to a

place which is other than his usual

place of residence, he ought not to

be sent to any far-off place which,

by the very reason of its distance,

is likely to deprive him of the

facilities to which he is entitled.

Whatever smacks of punishment must

be scrupulous avoided in matters of

preventive detention.”

45. Thus ‘house arrests’ have been resorted to

in India, in the context of law relating to

‘preventive detention’. What is however

relevant is that preventive detention is also a

form of forced detention. House arrest is also

custody and forced detention.

46. As to whether such detention would qualify

as custody under Section 167 will be considered

when we discuss the provision relating to set

off under Section 428 of Cr.P.C.

A LOOK AT PRISONS IN INDIA

47. The executive summary published by the

National Crime Records Bureau for 2019 is as

follows: -

“Prison Statistics India – 2019

Executive Summary

Prisons – Types & Occupancy

Year No. of prisons Actual Capacity

of Priosns

No. of

Prisoners at

the 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 & 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 actual capacity of prisons

has increased from 3,96,223 in 2018

to 4,03,739 in 2019 (as on 31st

December of each year), having

increased by 1.90%. Number of

prisoners lodged in various jails

has increased from 4,66,084 in 2018

to 4,78,600 in 2019 (as on 31st

December of each year), having

increased by 2.69% during the

period.

9. Out of the total capacity

4,03,739 in 1,350 prisons in 2019,

the Central Jails of the country

were having the highest capacity of

inmates (1,77,618) followed by the

District Jails (capacity of

1,58,986 inmates) and the Sub Jails

(capacity of 45,071 inmates). Among

the other types of jails, Special

Jails, Open Jails and Women Jails

were having a capacity of 7,262,

6,113 and 6,511 inmates

respectively as on 31st December,

2019. The highest number of inmates

were lodged in Central Jails

(2,20,021) followed by District

Jails (2,06,217) and Sub Jails

(38,030) as on 31st December, 2019.

The number of inmates in Women

Jails were 3,652.

10.Uttar Pradesh has reported the

highest capacity in their jails

(capacity of 60,340 inmates in 72

jails contributing 14.95% of total

capacity) followed by Bihar

(capacity of 42,222 inmates in 59

Jails contributing 10.46% of total

capacity) and Madhya Pradesh

(capacity of 28,718 inmates in 131

jails contributing 7.1% of total

capacity).

11.Out of the 4,78,600 prisoners,

4,58,687 were male prisoners and

19,913 were female prisoners.

12.The occupancy rate has increased

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 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% (765 prisoners) of total

prisoners.

3. Convicted Prisoners

a. The number of convicted

prisoners has increased from

1,39,488 in 2018 to 1,44,125 in

2019 (as on 31st December of each

year), having increased by 3.32%

during the period.

b. Out of total 1,44,125 convicts,

the highest number of convicted

prisoners were lodged in Central

Jails (66.2%, 95,470 convicts)

followed by District Jails (27.0%,

38,846 convicts) and Open Jails

(3.0%, 4,288 convicts) as on 31st

December,2019.

c. Uttar Pradesh has reported the

maximum number of convicts (19.2%,

27,612 convicts) in the country

followed by Madhya Pradesh (14.1%,

20,253 convicts) and Maharashtra

(6.3%, 9,096 convicts) at the end

of 2019.

d. Among the 1,44,125 convicts, 325

were civil convicts.

4. Undertrial Prisoners

a. The number of undertrial

prisoners has increased from

3,23,537 in 2018 to 3,30,487 in

2019 (as on 31st December of each

year), having increased by 2.15%

during this period.

b. Among the 3,30,487 undertrial

prisoners, the highest number of

undertrial prisoners was lodged in

District Jails(50.5%, 1,66,917

undertrials) followed by Central

Jails(36.7%, 1,21,342 undertrials)

and Sub Jails(10.6%, 35,059

undertrials) as on 31st December,

2019.

c. Uttar Pradesh has reported the

maximum number of undertrials

(22.2%, 73,418 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

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 while 6.1%

(8,726 inmates) and 1.5% (2,171

inmates) belonged to the Other

States and Other Country

respectively.

c. Haryana has reported the most

number of other State domicile

convicts (15.5%, 1,353 convicts)

followed by Delhi (9.8%, 855

convicts) and Maharashtra (9.2%,

800 convicts) as on 31st December,

2019.

d. Among the 3,30,487 undertrial

prisoners, 90.2% (2,98,208 inmates)

belonged to the State while 8.9%

(29,300 inmates) and 0.9% (2,979

inmates) belonged to the Other

States and Other Country

respectively.

e. Maharashtra has reported the

highest number of undertrial

prisoners of other states (16.0%,

4,675 inmates) followed by Uttar

Pradesh (11.8%, 3,470 inmates) and

Delhi (11.8%, 3,453 inmates) at the

end of 2019.

Foreign Prisoners

Year No. of prisons at

the end of the year

No. of foreign

prisoners

Share of foreign

prisoners

2017 4,50,696 4,917 1.1%

2018 4,66,084 5,168 1.1%

2019 4,78,600 5,608 1.2%

1. The number of prisoners of

foreign nationality (as on 31st

December of each year) has

increased from 5,168 in 2018 to

5,608 in 2019, having increased by

8.51% during this period.

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 ` 6818.1

Crore. The actual expenditure was `

5958.3 Crore which is 87.39% of

total annual budget for FY 2019-20.

2. A total of ` 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 2019-20.

3. Almost 47.9% (` 986.18 Crore) of

total expenses on inmates were

spent on Food followed by 4.3% (`

89.48 Crore) on Medical matters,

1.0% (` 20.27 Crore) on welfare

activities, 1.1 %(` 22.56 Crore) on

Clothing and 1.2% (` 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%, `

272.62 Crore) followed by Andhra

Pradesh (88.1%, ` 152.24 Crore) and

Delhi (66.2%, ` 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 perusal of the executive summary would

reveal an alarming state of affairs as far as

occupancy rate is concerned. It has climbed to

118.5 percent in 2019 as on 31st December. The

occupancy rate is alarming for male prisoners.

In fact, during 2019, a total of 18,86,092

inmates were admitted in the jails. The figure

of 4,78,600 prisoners as on 31st December, 2019

is the figure obviously after considering the

number of prisoners who would have been inter

alia bailed out. The number of under trial

prisoners in 2019 was 3,30,487 which in fact

constituted 69.05 per cent of the total no. of

prisoners. Delhi had the highest occupancy rate

of 174.9 percent followed by Uttar Pradesh

which came second with 167.9 percent. This

means that in Delhi a prison which was meant to

be occupied by 100 persons, was used for

accommodating 174 persons. We cannot also be

oblivious to the fact that the figures

represent the official version.

50. There is a tremendous amount of

overcrowding in jails in India. Secondly, a

very large sum (Rs. 6818.1 crore) was the

budget on prisons. Both aspects 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,

8 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

8 AIR 1978 SC 597

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 and liberal

exposition in decisions of this Court

commencing from Maneka Gandhi(supra). Right to

personal liberty is the birth 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 say that I

am unable to jump more than 10 feet

in the air, or cannot read because

I am blind or cannot understand the

darker pages of Hegel, it would be

eccentric to say that I am to that

degree enslaved or coerced.

Coercion implies the deliberate

interference of other human beings

within the area in which I wish to

act. You lack political liberty or

freedom only if you are prevented

from attaining your goal by human

beings. Mere incapacity to attain

your goal is not lack of political

freedom. This is brought out by

the use of such modern expressions

as ‘economic freedom’ and its

counterpart, ‘economic slavery’.

It is argued, very plausibly, that

if a man is too poor to afford

something on which there is no

legal ban- a loaf of bread, a

journey round the world, recourse

to the law courts- he is as little

free to have it as he would be if

it were forbidden him by law. If

my poverty were a kind of disease,

which prevented me from buying

bread or paying for the journey

round the world, or getting my case

heard, as lameness prevents me from

running, this inability 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

100

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

freedom.”

53. In fact, personal liberty is interlinked

with the right to life itself. It is an

101

inseparable part without which the right 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

102

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 a

person in custody depriving him of his rights

which would include his fundamental rights as

he would stand deprived of on giving effect to

the term of house arrest, would amount to a

completely illegal exercise, were it not for

the fact that the High Court must be treated as

having exercised powers available to a Judge

under Section 167 of the Cr.P.C. Thus, runs the

argument.

103

THE REMEDIES OPEN TO AN ACCUSED IN THE

CASE OF REMAND UNDER SECTION 167 OF THE

CR.P.C.

56. In State rep. by Inspector of Police and

others vs. N.M.T. Joy Immaculate9, a bench of 3

learned judges considered the question of

maintainability of a revision under Section 397

of the Cr.P.C. against an order of remand. We

notice para 13 which reads as follows:

“(13) Section 167 Cr.PC. empowers a

Judicial Magistrate to authorise

the detention of an accused in the

custody of police. Section 209

Cr.P.C. confers power upon a

Magistrate to remand an accused to

custody until the case has been

committed to the Court of Session

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

9 (2004) 5 SCC 729

104

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. Thus, an order under Section 167 is purely

an interlocutory order. No revision is

maintainable. A petition under Section 482

cannot be ruled out. Now at this juncture we

must notice the following dimension. When a

person arrested in a non-bailable offence is in

105

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. Kulkarni10 , 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

10 (1992) 3 SCC 141

106

the journey from the place of

arrest to the Magistrate court.

Sub-section (1) of Section 167

covers all this procedure and also

lays down that the police officer

while forwarding the accused to the

nearest Magistrate should also

transmit a copy of the entries in

the diary relating to the case. The

entries in the diary are meant to

afford to the Magistrate the

necessary information upon which he

can take the decision whether the

accused should be detained in the

custody further or not. It may be

noted even at this stage the

Magistrate can release him on bail

if an application is made and if he

is satisfied that there are no

grounds to remand him to custody

but if he is satisfied that further

remand is necessary then he should

act as provided under Section 167.”

59. Thus, ordinarily, when the court considers

a request for remand there would be an

application for bail. It is for the court to

grant bail failing which an order of remand

would follow.

60. No doubt, while the remand report is

considered by the Magistrate the application

107

for bail may be moved under Section 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

108

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,11. We may notice

paragraph 24.

“(24) The act of directing remand

of an accused is fundamentally a

judicial function. The Magistrate

does not act in executive capacity

while ordering the detention of an

accused. While exercising this

judicial act, it is obligatory on

the 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

11 (2013) 1 SCC 314

109

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 illegal. As has been stated

in B. Ramachandra Rao [(1972) 3 SCC

256 : 1972 SCC (Cri) 481 : AIR 1971

SC 2197] and Kanu Sanyal [(1974) 4

SCC 141 : 1974 SCC (Cri) 280] , the

court is required to scrutinise the

legality or otherwise of the order

of detention which has been passed.

Unless the court is satisfied that

a person has been committed to jail

custody by virtue of an order that

suffers from the vice of lack of

jurisdiction or absolute

110

illegality, a writ of habeas corpus

cannot be granted.”

62. One of us (U.U. Lalit, J.) speaking for a

Bench of two, followed the aforesaid line of

thought in the decision of Serious Fraud

Investigation Office and Ors. vs. Rahul Modi

and Ors.12 and held as follows:

“(21) The act of directing remand

of an accused is thus held to be a

judicial function and the challenge

to the order of remand is not to be

entertained in a habeas corpus

petition.”

We may also notice 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:

12 (2019) 5 SCC 266

111

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

112

Magistrate can order remand under Section 167.

In the first place, going by the words used in

Section 167, what is contemplated is that

Magistrate orders remand under Section 167(2).

65. Let us, however, delve a little more into

the issue. Let us take a case where a

Magistrate orders 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

113

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

broken periods of custody, the statutory period

of 90 days entitling the accused to default

bail, is reached. Can it be said that the

order of this Court granting custody should not

be taken into consideration for calculating the

114

period of 90 days, upon completion of which the

accused can set up a case for default bail. We

would think that the mere fact is that it is

the Apex Court which exercised the power to

remand, which was wrongly appreciated by the

High Court in the illustration, would not

detract from the custody being authorized under

Section 167.

66. Let us take another example. After

ordering remand, initially for a period of 15

days of which 10 days is by way of police

custody and 5 days by way of judicial custody,

the Magistrate enlarges an accused on bail. The

High Court interferes with the order granting

bail on the basis that the bail ought not to

have been granted. Resultantly, the person who

on the basis of the order of bail, has come out

of jail custody, is put back into the judicial

custody or jail custody. The order is one

115

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

116

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 custody can be

counted whether custody is suffered by the

order of the Magistrate or superior courts, if

investigation remains incomplete after the

custody, whether continuous or broken periods

pieced together reaches the requisite 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.?

117

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

118

case, can order a remand. There is no other

provision for ordering transit remand.

71. In this case the transit remand was ordered

on 28.08.2018. The Appellant was to be produced

under the same on 30.08.2018 before the

Magistrate in Pune. A person may be arrested by

a police officer in any part of India (Section

48 of Cr.P.C.). Under Section 56 the person

arrested without warrant is to be sent before

the Magistrate having jurisdiction or before

the officer in charge of a police station. It

is thereafter, that Section 57 forbids the

person so arrested:

i. from being detained for a period more

than what is reasonable.

ii. from being detained beyond 24 hours

from the time of arrest, excluding the

time necessary for the journey from the

place of arrest to the Magistrate

Court.

119

72. Now, the ‘Magistrate Court’ referred to in

Section 57 is the Magistrate competent to try

the case. Section 57 contains the peremptory

limit of 24 hours exclusive of the period for

journey, in the absence of ‘special order’

under Section 167.

73. The 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

120

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 whether

the Police Officer seeking the

remand is in fact the one

authorized to do so.”

“(15) Therefore, when a person who

after arrest is required to be

produced before a jurisdiction

Judicial Magistrate is detained in

a place which is away from that

jurisdiction, and therefore cannot

be produced before the

jurisdictional Magistrate within 24

hours, as mandated both by Article

22(2) of the Constitution and by

121

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 cannot

122

be judicial custody as the police is

exclusively entrusted with the man no doubt to

produce him before the Magistrate having

jurisdiction. It is therefore, police custody.

Could the police be engaged in questioning/

investigating the case by interrogating the

accused on the basis of the transit order

either before, embarking on the journey or

during the course of the journey and after the

journey before producing him? If it is thought

that during the journey it is impermissible,

then such interrogation would equally be

impermissible during the time of journey

permitted without obtaining an order under

Section 167. If also during such journey the

accused volunteers with a statement otherwise

falling under Section 27 of Evidence Act, it

would be one when the accused is in the custody

of the police. If it is police custody then,

123

the order of the Magistrate granting transit

remand would set the clock ticking in terms of

(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

124

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 the investigation

cannot be completed within the

period of 24 hours fixed by Section

57 the accused has to be forwarded

to the magistrate along with the

entries in the diary, it follows

that a police officer is entitled

to keep an arrested person in

custody for a maximum period 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

125

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) Period of detention

undergone by the accused to be setoff against the sentence of

imprisonment.—Where an accused

person has, on conviction, been

sentenced to imprisonment for a

term [, not being imprisonment in

default of payment of fine,] the

period of detention, if any,

undergone by him during the

investigation, inquiry or trial of

the same case and before the date

of such conviction, shall be set

126

off against the term of

imprisonment imposed on him on such

conviction, and the liability of

such person to undergo imprisonment

on such conviction shall be

restricted to the remainder, if

any, of the term of imprisonment

imposed on him:

[Provided that in cases referred to

in Section 433-A, such period of

detention shall be set off against

the period of fourteen years

referred to in that section.]”

80. If house arrest as ordered in this case is

to be treated as custody within the meaning 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

127

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.13 . 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 detention

under the Preventive Detention Act

13AIR 1977 SC 1096

128

or the Maintenance of Internal

Security Act. It is true that the

section speaks of the ‘period of

detention’ undergone by an accused

person, but it expressly says that

the detention mentioned refers to

the detention during the

investigation, enquiry or trial of

the case in 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 others14 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

14AIR 1987 SC 1646

129

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) ‘investigation’ includes all

the proceedings under this Code for

the collection of evidence

conducted by a police officer or by

any person (other than a

Magistrate) who is authorised by a

Magistrate in this behalf’. In the

case of persons tried by CourtsMartial there is no investigation

conducted by any police officer

under the Code or by any person

authorised by Magistrate in that

behalf.”

85. There is a scheme which is unravelled by

the Code regarding detention of an accused. The

starting point appears to be the arrest and

detention of the person in connection with the

130

cognizable offence by a police officer without

a warrant. He can detain him and question him

in the course of the investigation. However,

the officer cannot detain the accused beyond 24

hours excluding the time taken for the journey

from the place of arrest to the place where the

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

131

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

Section 428 of Cr.P.C. We are not concerned

with custody of the accused during the period

of an inquiry or trial which is a matter

governed essentially by Section 309 of the

Cr.P.C. In this context, it must be remembered

132

that it is not every detention which can be

relied upon to get the benefit of set-off under

Section 428. A period spent under 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

133

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 thereunder. It

results in actual custody. The period of

custody will count towards default bail.

Section 167(3) mandates reasons be recorded if

police custody is ordered. There has to be

application of mind. If there is complete nonapplication of mind or reasons are not

recorded, while it may render the exercise

illegal and liable to be interfered with, the

actual detention undergone under the order,

134

will certainly count towards default bail.

Likewise, unlike the previous Code (1898), the

present Code mandates the production of the

accused before the Magistrate as provided in

clause (b) of the proviso to Section 167 (2).

Custody ordered without complying with the said

provision, may be illegal. But actual custody

undergone will again count towards default

bail.

91. Take another example. The Magistrate gives

police custody for 15 days but 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

135

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 custody within the

136

meaning of Section 167 of the Cr.P.C.

Undoubtedly custody in the said provision is

understood as ordinarily meaning police custody

and judicial custody. The period of custody

begins not from the time of arrest but from

time the accused is first remanded (1986 (3)

SCC 141). Police custody can, in a case falling

under the Cr.P.C. (not 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

137

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 have

access to a person in judicial custody as he

would have in the case of a person in police

custody. Unless permission is sought and

obtained which would apparently be subject to

138

such conditions as a court places the person in

judicial custody cannot be questioned by the

police officers. Now in a case, ordinarily,

instead of ordering a remand a person can be

released on bail. As to whether a case is made

out is a question to be decided in the facts of

each case. There may be restrictions put in

regard to the grant of bail by law which must

be observed. But if bail is not granted then a

person arrested by the police in connection

with the cognizable offence must be remanded to

custody. This is inevitable from the reading of

Section 167 of the Cr.P.C.

96. In re. M.R. Venkataraman and Others15 , 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

15 AIR 1948 Mad 100

139

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

accused is brought before the Court

and the Court issues an order of

remand, the Magistrate has complete

freedom, as far as we can see, to

remand the accused to whatever

custody he thinks fit.”

140

[Emphasis

supplied]

97. The concept of house arrest though familiar

in the law relating to preventive detention,

therein the underpinnings are different. House

arrest in the 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

141

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

house arrest pursuant to the

directions of the Delhi High

court during which period the

investigating officer did not

get the opportunity of

interrogating him.

(3) The High court of Delhi quashed

the appellant’s arrest holding

that the appellant’s detention

is illegal.

(4) Pursuant to the declaration of

the detention as illegal, the

appellant was set at liberty.

It is not as if the appellant

was released on bail but after

being set at liberty, the

142

appellant is protected by an

order of this Court restraining

the investigating agency from

taking coercive steps during

the pendency of appellant’s

challenge to the FIR.

(5) The Hon’ble Supreme Court

having dismissed the challenge

of the appellant to quash FIR

granted 4 weeks protection with

liberty to seek pre arrest

bail/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

143

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 167 of the Cr.P.C. In our

view sans any valid authorisation/

order of the Magistrate detaining

the appellant, the incumbent will

not be entitled to a default bail…”

Finally, it holds:

“Resultantly, we hold that the

period from 28.08.2018 to

01.10.2018 has to be excluded from

computing the period of 90 days as

the said custody has been held to

be unsustainable in law by the High

Court of Delhi.”

144

DOES THE MAGISTRATE/ COURT CONSIDER 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.

145

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;

16. Therein, the

petitioners were arrested apparently for

offence under Section 188 of the IPC which was

non-cognizable. The officer did not give the

arrested persons the reasons for their arrest

or information about the offences for which

they had been taken into custody. this was a

case where the Magistrate offered to release

the petitioners on bail but on the petitioners

refusing to furnish bail, the Magistrate

remanded them to custody. The proceeding before

this Court was under Article 32. It was in

fact, initiated on a letter complaining that

the arrest and detention were illegal. It was

16(1969)1 SCC 292

146

contended that the arrests were illegal as they

were arrested for offences which were noncognizable. In fact, it was found that the

arrest were effected without specific order of

Magistrate. It was also contended that Article

22(1) was violated. What is relevant is the

following discussion:-

“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

147

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;

17, this

Court taking note of indiscriminate arrests

issued certain directions. We may notice: -

“8.2. Before a Magistrate

authorises detention under Section

167 CrPC, he has to be first

satisfied that the arrest made is

legal and in accordance with law

and all the constitutional rights

of the person arrested are

satisfied. If the arrest effected

by the police officer does not

satisfy the requirements of Section

41 of the Code, Magistrate is dutybound not to authorise his further

detention and release the accused.

In other words, when an accused is

17 (2014) 8 SCC 273

148

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 only after recording

his satisfaction in writing that

the Magistrate will authorise the

detention of the accused.”

149

103. In terms of paragraph 8.2, it is clear

that if the arrest does not satisfy the

requirements of Section 41, the Magistrate is

duty bound not to authorize further detention.

The Magistrate is to be satisfied that the

condition precedent for arrest under Section 41

of the CrPC has being satisfied. He must also

be satisfied that all the constitutional rights

of the person arrested are satisfied.

Therefore, it is not as if an arrest becomes a

fait accompli, however, illegal it may be, and

the Magistrate mechanically and routinely

orders remand. On the other hand, the

Magistrate is to be alive to the 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.

150

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

151

days. Finally, the writ petition is however

dismissed. What would happen to the period of

judicial custody? Will it be excluded from the

period undergone for the purpose of grant of

default bail? Another pertinent question which

arises is whether Section 167 of the Cr.P.C. is

applicable in writ proceedings. If a writ

petition is not a criminal proceeding, Will

Section 167 apply or does the provision apply

only to the proceedings which arise under the

Code? In the example, we have given if we hold

that irrespective of facts which otherwise

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

152

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.

153

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 about by the court ordering it during

the investigation into an offence. It is a

matter which will turn on the facts.

106. The crucial question to be answered is

whether the High Court of Delhi was exercising

power under Section 167 when it ordered house

arrest. The proceeding in the High Court was a

writ petition. At the time when the writ

petition was filed, the relief sought was that

a writ of Habeas Corpus be issued to set him at

liberty. The further relief sought was that the

Appellant may not be arrested without prior

notice to enable him to seek appropriate

remedies. As far as the prayer that the

Appellant may not be arrested is concerned, it

is a relief which does not go hand in hand with

154

Section 167 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.

155

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 further precipitate action of

removing the Petitioner from

Delhi be taken till the matter is

taken up again at 4 pm.”

[This is taken from order dated 29.08.2018

extracted in the judgment.]

108. It would appear, in the meantime, the

appellant was produced before the Magistrate

who passed the transit remand order. Thereafter

when the matter was taken up for consideration

at 4:00 p.m. and on noticing the transit

remand, order, dated 28.08.2018, inter alia,

ordering house arrest came to be passed.

Therefore, at the time (4PM) when the order was

passed, the Court was dealing with the matter

156

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).

157

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 order dated 29.08.2018 reproduced

in the judgment:-

“He is informed that the Supreme

Court has in the said petition

passed an interim order today

staying the transit remand

orders, including the one passed

by the CMM in respect of the

Petitioner, and has ordered that

all those who have been arrested

including the Petitioner shall

continue under house arrest.

In view of the above development,

it would not be appropriate for

this Court to continue

considering the validity of the

transit remand order passed by

the learned CMM. The Court

considers it appropriate to list

this matter tomorrow at 2:15 pm

by which time the order of

Supreme Court would be available.

158

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

159

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. It is noted

that the Supreme Court in para 7

of the majority judgment notes

that the Petitioner has filed the

present petition on 28th August

2018 “challenging the transit

remand order passed by the Chief

Metropolitan Magistrate (CMM) on

28th August 2018”. At this stage

it is required to be noted that

although when the writ petition

was originally filed the ground

of challenge was that the arrest

of the Petitioner was in

violation of Section 165 and 166

Cr PC, during the course of

arguments on 28th August 2018 in

light of the developments that

took place subsequent to the

filing of the petition, challenge

was laid to the remand order of

160

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

161

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 detained on the basis

of an arrest carried out by the police officer

from the State of Maharashtra in connection

with FIR No. 84 of 2018 disclosing the

commission of cognizable offences. The arrest

is apparently effected in view of the powers

available under Section 48 of the Cr.P.C.

Finding that an order under Section 167 was

required to produce the appellant before the

competent Court in Maharashtra, he produced the

appellant-in-person before the nearest

Magistrate in Delhi and the Magistrate passed

an order which we have found to be an order of

remand under Section 167. The High Court came

162

to be concerned with the validity 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

163

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 the course of arguments before this

court, it could not be explained to the court

as to why the arrested persons were not told of

the reasons for their arrest or of the offences

for which they had been taken into custody. In

the said case in fact one of the specific

issues was about the legality of the arrest

both on the ground that the offences being non

cognizable arrest which was illegally effected

by the police officer and also there was

violation of Article 22(1).

164

THE IMPACT OF THE NON-ACCESSIBILITY TO THE

APPELLANT FOR THE INVESTIGATING AGENCY

DURING HOUSE ARREST 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

165

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 period undergone as house

arrest should be excluded. It is appropriate

that the allied argument, namely, the effect of

the Appellant surrendering on 14.04.2020, being

produced on 15.04.2020 and being remanded to

police custody in which he remained till

25.04.2020, is considered. The argument is that

under the general law, namely, the Cr.P.C.

without the modification effected under Section

43(D) of UAPA, police custody can be sought and

given only during the first 15 days,

166

thereafter, police custody cannot be given. In

the case of UAPA, in view of the modified

application of the Cr.P.C. under Section 43(D)

(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

167

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

Magistrate to grant either police or other

custody (judicial custody) during the first 15

days in a case not covered by UAPA. After the

first period of 15 days, undoubtedly, custody

cannot be police custody but there is no

requirement that any police custody at all

should be given. It is entirely with the

168

Magistrate/ Court to determine as to whether

the custody should be police or judicial.

Furthermore, it is contended that in this case,

the offences under UAPA are the main offences.

A period of 30 days is available by way of

police custody. It is open to the investigator

to seek police 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

169

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 permission to

interrogate during the period of house arrest

which was not done. It is seen further

contended that on 14.04.2020, the appellant

surrendered before the NIA i.e. police custody.

170

Therefore, when the police custody was sought

on 15.04.2020 and extended again on 21.04.2020,

there is no transfer from judicial custody to

police custody. Therefore, it is contended that

the police custody was not under the second

proviso to Section 43(D)(2)(b). This explains

why no affidavit as required thereunder was

filed by the police. The conduct of the

appellant in not objecting to the application

seeking police 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.

171

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 effective

172

investigation. It has several uses. It

includes questioning the accused with reference

to the circumstances, and obtaining if

possible, statements which are relevant in the

future prosecution. Custodial interrogation in

some cases is clearly a dire need to give a

prosecution and therefore the courts a complete

picture. The contention of the appellant that

it is always open to Magistrate to order only

judicial custody and even exclusively with 90

days of judicial custody alone, an application

for default bail would lie cannot be disputed.

Whatever be the nature of the custody as long

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

173

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

174

pleaded, for analysing the retrieved electronic

data/ documents from the electronic devices

recovered during the investigation.

124. The special Judge ordered remand for 7

days. Thereafter, a period of 7 days further

remand to police custody was granted by the

order dated 21.04.2020. Still further, it

appears on 25.04.2020, the Appellant was

remanded in judicial custody in which he

continued. The question would arise that all

else being answered in favour of the Appellant

whether his case is inconsistent with the

police remand initially granted for 7 days on

15.04.2020 and further extended on 21.04.2020

which was, no doubt, cut short on 25.04.2020.

The point to be noted is police custody 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

175

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.

176

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

Appellants case in one breath that this is

possible under the second proviso contemplated

in Section 43(2)(b) of UAPA. It is seen

contended, that unlike the cases generally

covered by the Cr.P.C., police custody can be

sought in cases under UAPA at any time. It is

also contended however that, it is only if a

person is in judicial custody and the

investigator wants to get police custody in

place of judicial custody that an affidavit is

required. In this case, it is the case of the

appellant that there is no such affidavit. This

is for the reason that when police custody was

sought on 15.04.2020, the appellant was not in

177

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:—

178

“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 that if the police

officer making the investigation

under this Act, requests, for the

purposes of investigation, for

police custody from judicial

custody of any person in judicial

custody, he shall file an affidavit

stating the reasons for doing so

and shall also explain the delay,

if any, for requesting such police

custody”.

127. Under Section 43(D)(2)(a), it is clear

that the maximum period of police custody which

is permissible has been increased from 15 days

to 30 days. The further modification is that

which is relevant which is incorporated in the

179

second 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

180

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 remand. In this regard, the

number of days alone is increased for

granting remand to police custody. The

principle that it should be the first 30 days

has not been altered in cases under UAPA.

As far as the second proviso in Section

43(D)(2)(b) is concerned, it does bring about

an alteration of the law in Anupam Kulkarni

(supra). It is contemplated that a person who

is remanded to judicial custody and NIA has not

181

been given police custody during the first 30

days, on reasons being given and also on

explaining the delay, Court may grant police

custody. The proviso brings about the change in

the law to the extent that if a person is in

judicial 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

182

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 after 30 days be remanded to police

custody. This is untenable. The case of the

appellant that the police custody granted on

15.04.2020 was permissible and consistent with

his case does not appear to be correct.

THE DECISION IN (2007) 5 SCC 773

183

129. The High Court placed considerable

reliance on the judgment reported in State of

West Bengal v. Dinesh Dalmia18. So also the

Additional Solicitor General, Shri Raju. In the

said case, the Respondent was arrested in New

Delhi. He was produced before the Magistrate 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

18(2007) 5 SC 773

184

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 ordering

police custody. The Calcutta High Court in the

revision filed by the Respondent found that

more than 90 days, had expired from the time of

the detention which should have been counted

from 27.02.2006 when the Respondent had

surrendered before the Court at Chennai.

185

Therefore, the question for consideration

before this Court was whether the period of

detention started from 27.02.2006 when the

Respondent had surrendered before the Court at

Chennai in connection with the CBI case or

whether it should be counted from 13.03.2006

when the Respondent was actually taken into

custody by the police and produced before the

Magistrate at Calcutta. This Court 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.19 and

reiterated that if there is a totally different

19(1980) 2 SCC 559

186

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. The High Court was unable to go through

the entries in the case diary as the

187

entries were in the Marathi language. In

fact, the court expresses inability to

make out from the documents what

precisely the case against the appellant

was. Translation of the documents were to

be made available on the next day. The

translations were not made available. Yet

the house arrest was ordered until

further orders on 28.08.2018. What is

pertinent is that by the standards in law

applicable to a Magistrate acting under

Section 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.

188

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

189

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 arrest ordered by

the High Court by interim order the

appellant underwent house arrest for 34

days. By the judgment dated 01.10.2018

the High Court of Delhi set aside the

transit remand, as the transit remand

ordered by the magistrate was found

illegal. On the said basis the High Court

of Delhi finds that detention beyond 24

hours was clearly impermissible. Now it

is relevant to notice that the CMM Saket

had not ordered detention for the period

after 30.08.2018. Detention was ordered

by him only for two days and the

appellant was to be produced on

30.08.2018. By the order of the High

190

Court of Delhi, the transit could not

take effect. Therefore, the entire period

after 30.08.2018 till 01.10.2018 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

191

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

hours of the arrest which could be

illegal. The illegality of the detention

is based on the transit order being found

illegal. If the transit order has been

modified as claimed by the appellant,

192

then the detention would be lawful as the

order of house arrest is passed well

within 24 hours of the arrest. We are

highlighting this aspect to emphasize

this as a circumstance to show that the

High Court of Delhi also did not

contemplate that the order of house

arrest was passed by way of custody under

Section 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

193

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

194

arrest was passed under Section 167 Cr.PC

then the High Court of Delhi would have

after setting aside the transit remand,

either released the appellant on bail or

remanded him to custody. Instead, the

High Court released the appellant on the

basis that as the remand order was

illegal and set aside, in view of Section

56 and Section 57 the detention beyond 24

hours, cannot be sustained. Now in a

proceeding under Section 167 where a

remand order is put in issue before a

superior court it presupposes an arrest

in connection with a cognizable offence.

Now if the remand is set aside by the

superior court, we are of the view that

in a proceeding which originated from a

remand under Section 167, then the order

that would follow on setting aside the

195

remand, would be to grant 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.

196

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 is fundamental right [See

Bikramjit Singh vs. The State of

Punjab20]. But hereagain, it must depends

upon fulfilment of conditions in Section

167.

20(2020) 10 SCC 616

197

THE KNOT TIGHTENED

132. Now, the argument, which survives is as

follows:

What mattered was that the appellant

actually underwent the actual custody of

34 days by way of house arrest. The fact

that there may have been illegality in

the Order of the Magistrate, will not

take away, the factum of 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.

198

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 suggested by him that as an

interim measure, he has no objection

if this Court orders that Mr.

Varavara Rao, Mr. Arun Ferreira and

Mr. Vernon Gonsalves, if arrested,

they are kept under house arrest at

their own homes. We order

accordingly. The house arrest of Mr.

Gautam Navalakha and Ms. Sudha

Bharadwaj may be extended in terms of

our orders.

199

Needless to say, an interim order

is an interim order and all

contentions are kept open.

Let the matter be listed on

6.9.2018.”

134. We would think that the reality of the

situation is explained by the said Order. Upon

being informed that the appellant and another

were kept under house arrest, on the suggestion

of the Counsel for the petitioners in the

Public Interest Litigation before this Court,

that 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

200

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, we are confronted with a

clash between the two values. On the one hand,

201

there is the deprivation, in law, of the

liberty of the appellant, by way of house

arrest for 34 days. On the other hand, it does

not fall actually in the facts of this case

within the ambit of Section 167 of the CrPC,

for the reasons, which have been discussed

earlier. While, the Right to Default Bail is a

Fundamental Right, it is subject to the

conditions, obtaining 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

202

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 Order of transit remand

will not wipe out the Police custody or the

house arrest. We agree that illegality in order

203

of the CMM, Saket, will not erase the

deprivation of liberty. But other aspects

already discussed militate against the order

being treated as passed purportedly under

Section 167. There can be no quarrel with the

proposition that a court cannot remand a person

unless the court is authorised to do so by law.

However, we are in this case not sitting in

appeal over the legality of the house arrest.

But we are here to find whether the house

arrest fell under Section 167. We are of the

view, that in the facts of this case, the house

arrest was not ordered purporting to be under

Section 167. It cannot be treated as having

being passed under Section 167.

137. There is one aspect which stands out.

Custody under Section 167 has been understood

hitherto as police custody and judicial

204

custody, with judicial custody being conflated

to jail custody ordinarily.

138. The concept of house arrest as part of

custody under Section 167 has not engaged the

courts including this Court. However, when the

issue has come into focus, and noticing its

ingredients we have formed the view that it

involves custody which falls under Section 167.

139. We observe that under Section 167 in

appropriate cases it will be open to courts to

order house arrest. As to its employment,

without being exhaustive, we may indicate

criteria like age, health condition and the

antecedents of the accused, the nature of the

crime, the need for other forms of custody and

the ability to enforce the terms of the house

arrest. We would also indicate under Section

309 also that judicial custody being custody

ordered, subject to following the criteria, the

205

courts will be free to employ it in deserving

and suitable cases.

140. As regards post-conviction cases we

would leave it open to the legislature to

ponder over its employment. We have indicated

the problems of overcrowding in prisons and the

cost to the state in maintaining prisons.

141. In view of the fact that the house

arrest of the appellant was not purported to be

under Section 167 and cannot be treated as

passed thereunder, we dismiss the appeal.

There will be no order as to costs.

................J.

[UDAY UMESH LALIT]

................J.

[K.M. JOSEPH]

NEW DELHI;

Dated: MAY 12, 2021.

206

Monday, May 10, 2021

This Court in a Five Judge Bench decision in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, clearly held that in case the deceased is selfemployed and below the age of 40, 40% addition would be made to their income as future prospects. In the present case, the deceased was selfemployed and was 37 years old, therefore, warranting the addition of 40% towards future prospects. Moreover, Pranay Sethi (supra), affirming the ratio in Sarla Verma (supra), held that the deduction towards personal and living expenses for a person such as the deceased who was married with two dependents, to be onethird (1/3rd). Since the High Court in the impugned judgment deducted 50% the same merits interference by this Court. 11. Therefore, in light of the above, the compensation as awarded to the Appellants by the High Court is modified to the extent of deduction towards personal and living expenses (determined to be onethird (1/3rd)) and 40% addition towards future prospects. The annual income of the deceased (Mrs. Manisha Sharma) was Rs. 2,55,349. After deducting personal and living expenses and adding future prospects, the annual 5 income is determined at Rs. 2,38,326/. The multiplier of 15 is appropriate, considering the age of the deceased. Accordingly, the total loss of dependency, is calculated to be Rs. 35,74,890/. We do not find any reason to interfere with any other heads as determined by the High Court. 12. Hence, the total compensation is determined to be, Rs. 38,24,890/ payable with interest of 9% per annum from the date of filing of the claim petition till realisation, set off against the part compensation already received, if any.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1769 OF 2021

(ARISING OUT OF SLP (C) NO. 719 OF 2018)

RAHUL SHARMA & ANR. …APPELLANT(S)

VERSUS

NATIONAL INSURANCE COMPANY …RESPONDENT(S)

LTD. & ORS.

J U D G M E N T

N.V. RAMANA, CJI.,

1. Leave granted.

2. The appellants before us seek to impugn the judgment

dated 4th September, 2017, passed by the Delhi High Court in

MAC. App. No. 740/2016.

3. The brief facts, necessary for the adjudication of this

appeal are as follows: on the intervening night of the 18th/19th

May, 2010, the vehicle in which parents of the Appellants were

NonReportable

travelling rammed into a truck, near Phagwara, Punjab.

Resultantly, they succumbed to the injuries sustained in the

accident. The car was plying other relatives of the Appellants

and the deceased. Thereafter, F.I.R. no. 76/10, was registered

in PS Sadar Phagwara, Punjab under Sections 249, 304A,

427 of the Indian Penal Code, 1860 in this regard. It may be

relevant to note that the vehicle was, during the relevant

period, insured by the National Insurance Co. Ltd.

(hereinafter, referred to as NIC), the Respondent No. 1 herein.

4. The Appellants instituted a claim petition before the

Motor Accidents Claims Tribunal (hereinafter, “the MACT”),

under Sections 166 and 140 of the Motor Vehicles Act, 1988,

for grant of compensation for the death of their parents, which

were registered as cases numbered, MACT No. 349/2010 (with

respect to Mrs. Manisha Sharma) and MACT No. 350/2010

(with respect to Mr. Sunil Sharma), and were adjudicated vide

a common award dated 7th June, 2016.

5. The present appeal pertains to the claim petition

preferred on the account of the death of the appellants mother.

The appellants’ mother, Mrs. Manisha Sharma, was aged

about 37 years and was a selfemployed individual.

6. The Tribunal, while adjudicating the claim, determined

the compensation to be Rs. 41,55,235. The Tribunal relied

upon the Income Tax Return of the deceased and concluded

that her annual income was Rs. 2,55,349. Based on the

dictum of this Court in Sarla Verma v. Delhi Transport

Corporation, (2009) 6 SCC 121, 50% addition was included

towards future prospects and the multiplier was taken to be

15. Since, the deceased had two dependents, 1/3rd of the

deceased’s income was deducted on account of personal and

living expenses. The nonpecuniary compensation was

calculated at Rs. 3,25,000. The NIC, being the insurer of the

vehicle, was held liable to pay the compensation of Rs.

41,55,235 with an interest of 9% per annum from the date of

filing of the claim petition.

7. Aggrieved, the insurance company preferred an appeal

against the award of the MACT before the Delhi High Court,

which disposed of the appeal vide the impugned judgment

dated 4th September, 2017. The High Court, in its common

judgement, calculated the pecuniary compensation as Rs.

19,16,000 and the nonpecuniary damages was calculated as

Rs.2,50,000, for a total compensation of Rs. 21,66,000/, in

MAC. APP. 740/2016. While passing the aforesaid impugned

order, the High Court deducted 50% of income towards

personal and living expenses. The High Court however, held

the deceased ineligible for the grant of future prospects as she

was selfemployed.

8. Aggrieved by the impugned judgement, the Appellants

have preferred the present appeal, by way of Special Leave,

impugning only the compensation as modified in MAC. App.

No. 740/2016.

9. We have heard the counsel for the Appellants and the

counsel for the NIC, Respondent No. 1. The Respondents No. 2

and 3 have not tendered their appearances, despite service.

The insurance company has also placed on record their

written submissions, which have been perused.

10. This Court in a Five Judge Bench decision in National

Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680,

clearly held that in case the deceased is selfemployed and

below the age of 40, 40% addition would be made to their

income as future prospects. In the present case, the deceased

was selfemployed and was 37 years old, therefore, warranting

the addition of 40% towards future prospects. Moreover,

Pranay Sethi (supra), affirming the ratio in Sarla Verma

(supra), held that the deduction towards personal and living

expenses for a person such as the deceased who was married

with two dependents, to be onethird (1/3rd). Since the High

Court in the impugned judgment deducted 50% the same

merits interference by this Court.

11. Therefore, in light of the above, the compensation as

awarded to the Appellants by the High Court is modified to the

extent of deduction towards personal and living expenses

(determined to be onethird (1/3rd)) and 40% addition towards

future prospects. The annual income of the deceased (Mrs.

Manisha Sharma) was Rs. 2,55,349. After deducting personal

and living expenses and adding future prospects, the annual

income is determined at Rs. 2,38,326/. The multiplier of 15 is

appropriate, considering the age of the deceased. Accordingly,

the total loss of dependency, is calculated to be

Rs. 35,74,890/. We do not find any reason to interfere with

any other heads as determined by the High Court.

12. Hence, the total compensation is determined to be,

Rs. 38,24,890/ payable with interest of 9% per annum from

the date of filing of the claim petition till realisation, set off

against the part compensation already received, if any.

13. This Civil Appeal is disposed of in the aforesaid terms.

..…..…….................CJI.

(N.V. RAMANA)

…...…….................J.

(SURYA KANT)

…..………............J.

(ANIRUDDHA BOSE)

NEW DELHI;

MAY 07, 2021

Friday, May 7, 2021

Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case. All that needs to be clarified is that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record. The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy. We hope the matter can rest with a sense of balance which we have attempted to bring. 43 These oral remarks are not a part of the official judicial record, and therefore, the question of expunging them does not arise. It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing. Hence, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings. This Court stands as a staunch PART D 31 proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 1767 of 2021

(Arising out of SLP (C) No. 6731 of 2021)

The Chief Election Commissioner of India ....Appellant

Versus

M.R Vijayabhaskar & Ors. ....Respondents

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

This judgment has been divided into the following sections to facilitate analysis:

A Factual Background

B Proceedings before the Supreme Court

C Legal Position & Analysis

C.1 Open Courts and the Indian Judiciary

C.2 Freedom of Expression of the Media

C.3 Public Discourse, Media Reporting and Judicial Accountability

C.4 Freedom and constraints of judicial conduct

D Conclusion

PART A

1 Leave granted.

A Factual Background

2 A delicate question of balancing the powers of two constitutional authorities

in this appeal has raised larger issues of the freedom of speech and expression of

the media, the right to information of citizens and the accountability of the

judiciary to the nation. The authority of a judge to conduct judicial proceedings

and to engage in a dialogue during the course of a hearing and the freedom of the

media to report not just judgments but judicial proceedings have come up for

discussion. What are the contours which outline judicial conduct? What are the

concerns courts must be alive to in an age defined by the seamless flow of

information? What purpose does the media serve in a courtroom? Above all, in a

constitutional framework founded on a classical scheme of checks and balances,

can a constitutional body – in this case the Election Commission of India1

– set up

a plea that constitutional status is an immunity from judicial oversight? Each of

these components will be addressed in this judgment.

3 This Special Leave Petition2

arises from an order dated 30 April 2021 of a

Division Bench of the High Court of Judicature at Madras. The High Court

entertained a writ petition3

under Article 226 of the Constitution to ensure that

COVID-related protocols are followed in the polling booths at the 135- Karur

Legislative Assembly Constituency in Tamil Nadu. During the hearings, the

Division Bench is alleged to have made certain remarks, attributing responsibility

to the EC for the present surge in the number of cases of COVID-19, due to their

―EC‖

―SLP‖

3 WP No. 10441 of 2021

PART A

failure to implement appropriate COVID-19 safety measures and protocol during

the elections. At issue are these oral remarks made by the High Court, which the

EC alleges are baseless, and tarnished the image of the EC, which is an

independent constitutional authority.

4 On 26 February 2021, the EC announced general elections to the

Legislative Assemblies of Tamil Nadu, Kerala, West Bengal, Assam and

Puducherry4

. The schedule of elections in the State of Tamil Nadu involved

polling on 6 April 2021 and counting of votes on 2 May 2021. While preparing for

the elections, the EC issued a letter dated 12 March 20215

to the presidents and

general secretaries of all national and State political parties emphasizing on the

observance of instructions related to COVID-19 protocol during the elections.

During the polling phase, the EC issued another letter dated 9 April 20216

political parties stating that norms of social distancing, wearing of masks and

other COVID-19 related restrictions, were not being followed by candidates set up

by political parties. It also noted that in case the breach of norms continued, the

EC would consider banning public meetings and rallies. Eventually, the EC by an

order dated 16 April 20217

banned rallies, public meetings and street plays during

the days of the campaign between 7 pm and 10 am. Another letter8 was issued on

the same day re-emphasizing strict adherence to COVID-19 related safety

protocols.

Press Note No. ECI/PN/16/2021

Letter No. 4/21/2021/SDR/VOL-I

Letter No. 4/2021/SDR/Vol.I

7 Order No. 464/WB-LA/2021

Letter No. 464/WB-LA/2021

PART A

5 A writ petition was filed before the Madras High Court by the respondent,

who is the District Secretary and was a candidate of the AIADMK for the 135-

Karur Legislative Assembly Constituency. Given the surge in the number of

COVID-19 cases, the respondent had sent a representation on 16 April 2021 to

the EC to take adequate precautions and measures to ensure the safety and

health of officers in the counting booths. Since no response was received, the

respondent approached the High Court and sought a direction to ensure fair

counting of votes on 2 May 2021 at the 135- Karur Legislative Assembly

Constituency by taking effective steps and arrangements in accordance with

COVID-19 protocols.

6 The petition was heard by a Division Bench of the High Court, comprising

of Justice Sanjib Banerjee, Chief Justice of the Madras High Court, and Justice

Senthilkumar Ramamoorthy, on 26 April 2021 and an order was passed in the

following terms:

―4. […] Even though the polling was by and large peaceful in

this State on April 6, 2021, it must be observed that the

Election Commission could not ensure that political parties

adhered to the Covid protocol at the time of election

campaigns and rallies. Despite repeated orders of this Court,

going on like a broken record at the foot of almost every

order on an election petition, that Covid protocol ought to be

maintained during the campaign time, the significance of

adhering to such protocol may have been lost on the

Election Commission, going by the silence on the part of the

Election Commission as campaigning and rallies were

conducted without distancing norms being maintained and in

wanton disregard of the other requirements of the protocol.

5. In view of the rapid surge in the number of cases on a

daily basis, albeit this State not yet being as badly affected

as some other States, the measures to be adopted at the

time of the counting of votes on May 2, 2021, which is about

a week away, should already have been planned in the light

PART A

of the grim situation now prevailing. At no cost should the

counting result in being a catalyst for a further surge, politics

or no politics, and whether the counting takes place in a

staggered manner or is deferred. Public health is of

paramount importance and it is distressing that

Constitutional authorities have to be reminded in such

regard. It is only when the citizen survives that he enjoys the

other rights that this democratic republic guarantees unto

him. The situation is now one of survival and protection and,

everything else comes thereafter.

6. As far as the Karur constituency is concerned, it is

submitted on behalf of the Election Commission that two

halls, one measuring about 3500 sq.ft and the other

measuring in excess of 4000 sq.ft, have been arranged.

Upon the Court‘s query whether such spaces would be

adequate if most of the 77 candidates were to engage

agents at the time of counting, the Election Commission

claims that all but two of the independent candidates have

indicated that they would not engage any agents at the time

of counting and only seven out of nine major political parties

have confirmed in writing that they would be appointing

agents.

7. In such a scenario, the Election Commission does not

expect that Covid protocol and appropriate measures cannot

be taken if counting is conducted at the two designated halls.

The Election Commission says that six additional counting

tables have been organized so that distancing norms can be

maintained.

8. Similar appropriate measures have to be adopted at every

counting centre and it is only upon maintaining regular

sanitization, proper hygienic conditions, mandatory wearing

of mask and adherence to the distance norms, should any

counting begin or be continued. The State Health Secretary

and the Director of Public Health should be consulted by the

Election Commission and the Chief Electoral Officer

responsible in the State, to put appropriate measures in

place immediately.

9. The matter will appear on April 30, 2021 to review the

situation when a complete picture as to adequate steps

having been taken at all counting centres should be

indicated by the Election Commission. […]‖

7 During the course of the hearing, it is alleged that the High Court orally

observed that the EC is “the institution that is singularly responsible for the

PART A

second wave of COVID-19” and that the EC “should be put up for murder

charges”. These remarks, though not part of the order of the High Court, were

reported in the print, electronic and tele media.

8 On 27 April 2021, an individual filed a complaint, against Mr Sudip Jain,

Deputy Election Commissioner and other officials of the EC under Sections 269,

270 and 304 read with Section 120-B of the Indian Penal Code, 1860 in Khardah

Police Station, Kolkata. The complaint makes no reference to the order dated 26

April 2021 of the Madras High Court.

9 Before the Madras High Court, the EC filed a counter-affidavit detailing the

orders issued and the steps taken for management of poll processes in view of

the pandemic. The EC also filed a miscellaneous application9

for the following

reliefs:

―[…]

29. …this Hon‘ble Court may be pleased to pass an order of

interim direction directing that only what forms part of the

record in the present proceedings W.P. No. 10441/2021

is to be reported by the press and electronic media and

further directions may be issued to the media houses to

issue necessary clarification in this regard and thus

render Justice.

30. In the circumstances, it is prayed that this Hon’ble

Court may be pleased to pass on order of interim

direction directing that the police authorities shall not

basis of the media reports of the oral observations

attributed to this Hon’ble Court in relation to W.P. No.

10441/2021 and thus render Justice.‖

(emphasis supplied)

9 WMP No. 12062 & 12065 of 2020

PART B

10 The matter was heard again by the Madras High Court on 30 April 2021

when the High Court disposed of the petition, in view of the measures taken by

the EC for observance of COVID-19 protocols at the time of the counting of votes

on 2 May 2021, particularly in the 135- Karur Constituency. The miscellaneous

application was also closed in light of this order.

11 Aggrieved by the order of 30 April 2021, the EC has approached this Court.

The grievance is that its miscellaneous application has not been evaluated on

merits and its grievance in regard to the oral observations made during the

previous hearing have not been addressed.

B Proceedings before the Supreme Court

12 Before this Court, the EC has challenged the order dated 30 April 2021. An

IA for amendment has been filed to challenge the earlier order, which has now

merged in the final order. By way of interim relief, a stay has been sought on the

order dated 30 April 2021, besides which the following relief has been sought in

terms of an interlocutory direction :

―b) direct that no coercive action be taken against the

officials of the Election Commission of India in

connection with the Complaint dated 27.04.2021 filed by

Smt. Nandita Sinha before the Officer- in-Charge,

Khardah Police Station, Kolkata (Annexure-P/19 herein)‖

(emphasis supplied)

13 Mr Rakesh Dwivedi, learned Senior Counsel who appeared with Mr Amit

Sharma, on behalf of the EC urged the following submissions:

PART B

(i) The High Court ought not to have made disparaging oral observations that

the EC is the “the institution that is singularly responsible for the second

wave of COVID-19” and that the EC “should be put up for murder charges”:

(a) These observations bear no relevance to the nature of the controversy

before the High Court, which related to the need to make arrangements

for safe counting of votes consistent with COVID-19 protocols at the

135- Karur Legislative Assembly Constituency;

(b) The polling had already been completed and only the counting of votes

remained on 2 May 2021;

explain the steps it had taken for maintenance of COVID-19 protocols

and it had no notice that its conduct of the elections during the

campaign would engage attention during the hearing;

(d) The High Court has made disparaging oral observations without proof

or material; and

(e) The High Court disposed of the writ petition without addressing the

miscellaneous application filed by the EC;

(ii) The remarks made by the High Court were widely reported in the media

and have tarnished the image of the EC as an independent constitutional

authority. These remarks have reduced the faith of the people in the EC

and undermined the sanctity of its constitutional authority;

(iii) The scope of judicial review over the EC in matters pertaining to the

conduct of elections is limited and courts should exercise restraint while

PART B

making observations about the EC or the electoral process, as it falls within

the domain of another expert constitutional authority;

(iv) The EC had conducted various State elections during the pandemic and

had taken adequate measures to enforce protocols relating to COVID-19.

The actual enforcement of protocols and safety measures on the ground is

in the hands of the State machinery. The EC does not take over

governance by the States even during elections and has a limited number

of personnel at its disposal;

(v) When the decision to conduct elections in Tamil Nadu was taken in

February 2021 and during campaigning (which ended on 4 April 2021), the

number of cases of COVID-19 was under control and an analysis of the

data would indicate that the elections were not a significant factor in the

surge of cases. States where no elections were held such as Maharashtra,

Delhi and Karnataka have witnessed a severe surge in cases;

(vi) The EC had formulated adequate guidelines for campaigning during the

pandemic and had restricted the scope of electioneering;

(vii) The observations of the High Court during the oral hearings, which are not

part of the written judicial record, have caused undue prejudice to the EC;

(viii) The media must ensure there is accurate reporting of court proceedings

and proceedings must not be sensationalized, leading to a loss of public

confidence. Directions and guidelines must be framed on the manner of

reporting court proceedings;

PART C

(ix) A balance must be maintained between the conduct of court proceedings

and the freedom of the media. Media reporting which suggests that a court

has cast aspersions on any person or functionary is incorrect; and

(x) Though the views of a court are reflected through its judgments, oral

comments of judges are quoted in the mainstream media which may give

an impression of an institutional opinion. This exceeds the boundaries of

judicial propriety.

14 Opposing the submissions, Mr Pradeep Kumar Yadav, appearing on behalf

of respondent on caveat, stressed on the fact that the EC enjoys wide ranging

powers in a State during the time of an election, including powers to deploy para

military forces, suspend or replace officers such as District magistrates, police

officers and even the Director General of Police, to ensure that their directives are

followed. Thus, the EC was responsible for the implementation of safety

measures and protocols related to COVID-19 during the elections.

15 We shall now consider the submissions of the counsel from the perspective

of the issues this case has raised.

C Legal Position & Analysis

16 Before this Court, the EC is aggrieved by the oral observations of the High

Court during the course of the hearing and by it not having addressed the merits

of its miscellaneous application. In its miscellaneous application, the EC sought (i)

media reporting of only what forms a part of the judicial record before the Madras

High Court and not the oral observations of the judges; and (ii) a direction that no

PART C

coercive action be taken against the officials of the EC on the complaint filed

before the Khardah Police Station, Kolkata.

17 At the outset, it must be noted that the second prayer noted above was

thoroughly misconceived. If an FIR has been registered in Kolkata, the person

aggrieved has recourse to remedies under the Code of Criminal Procedure, 1973.

There are remedies under the law, including but not limited to quashing under

Section 482 of the Code of Criminal Procedure, 1973. The EC cannot have a

grievance if it opted for a misconceived course of action, which the High Court

could not possibly have entertained.

18 We must now deal with the heart of the matter, which is the first prayer that

the EC has raised - that of seeking a restraint on the media on reporting court

proceedings. The basis of its application was that nothing apart from what forms a

part of the official judicial record should be reported. This prayer of the EC strikes

at two fundamental principles guaranteed under the Constitution – open court

proceedings; and the fundamental right to the freedom of speech and expression.

C.1 Open Courts and the Indian Judiciary

19 Courts must be open both in the physical and metaphorical sense. Save

and except for in-camera proceedings in an exceptional category of cases, such

as cases involving child sexual abuse or matrimonial proceedings bearing on

matters of marital privacy, our legal system is founded on the principle that open

access to courts is essential to safeguard valuable constitutional freedoms. The

concept of an open court requires that information relating to a court proceeding

must be available in the public domain. Citizens have a right to know about what

PART C

transpires in the course of judicial proceedings. The dialogue in a court indicates

the manner in which a judicial proceeding is structured. Oral arguments are

postulated on an open exchange of ideas. It is through such an exchange that

legal arguments are tested and analyzed. Arguments addressed before the court,

the response of opposing counsel and issues raised by the court are matters on

which citizens have a legitimate right to be informed. An open court proceeding

ensures that the judicial process is subject to public scrutiny. Public scrutiny is

crucial to maintaining transparency and accountability. Transparency in the

functioning of democratic institutions is crucial to establish the public‘s faith in

them. In Mohammed Shahabuddin vs State of Bihar10

, the concurring opinion

noted:

―… even if the press is present, if individual members of the

public are refused admission, the proceedings cannot be

considered to go on in open courts…an ―open court‖ is a

court to which general public has a right to be admitted and

access to the court is granted to all the persons desirous of

entering the court to observe the conduct of the judicial

proceedings.‖

20 There are multiple ways in which an open court system contributes to the

working of democracy. An open court system ensures that judges act in

accordance with law and with probity. Lord Widgery‘s remarks in R vs Socialist

Workers Printers, ex p Attorney General11 sum up the role public hearings play

on the conduct of the judge in the following terms:

―The great virtue of having the public in court courts is that

discipline which the presence of the public imposes upon the

court itself. When the court is full of interested members of

10 (2010) 4 SCC 653

11 [1974] 3 WLR 801

PART C

the public…it is bound to have the effect that everybody is

more careful about what they do, everyone tries just that little

bit harder and there is disciplinary effect on the court which

would be totally lacking if there were no critical members of

the public or press present. When one has an order for trial

in camera, all the public and press are evicted at one fell

swoop and the entire supervision by the public is gone.‖

21 Public scrutiny fosters confidence in the process. Public discussion and

criticism may work as a restraint on the conduct of a judge. In his dissenting

opinion in Naresh Shridhar Mirajkar vs State of Maharashtra12

, Justice M

Hidayatullah (as the learned Chief Justice was then), observed how an open court

paves the way for public evaluation of judicial conduct:

―129. […] Hearing in open court of causes is of the utmost

importance for maintaining confidence of the public in the

impartial administration of justice: it operates as a

wholesome check upon judicial behaviour as well as upon

the conduct of the contending parties and their witnesses.‖

22 Cases before the courts are vital sources of public information about the

activities of the legislature and the executive13

. An open court serves an

educational purpose as well. The court becomes a platform for citizens to know

how the practical application of the law impacts upon their rights. In Swapnil

Tripathi vs Supreme Court of India14

, a three Judge Bench stressed upon the

importance of live streaming judicial proceedings. One of us (DY Chandrachud J)

analyzed the precedent from a comparative perspective :

―82. […] Through these judicial decisions, this Court has

recognised the importance of open courtrooms as a means

of allowing the public to view the process of rendering of

justice. First-hand access to court hearings enables the

12 (1966) 3 SCR 744, hereinafter referred to as ―Mirajkar‖

13 Cunliffe Emma, "Open Justice: Concepts and Judicial Approaches" (2012) 40 Fed L Rev 385.

14 (2018) 10 SCC 639, hereinafter referred to as ―Swapnil Tripathi‖

PART C

public and litigants to witness the dialogue between the

Judges and the advocates and to form an informed opinion

about the judicial process.

83. The impact of open courts in our country is diminished by

the fact that a large segment of the society rarely has an

opportunity to attend court proceedings. This is due to

constraints like poverty, illiteracy, distance, cost and lack of

awareness about court proceedings. Litigants depend on

information provided by lawyers about what has transpired

during the course of hearings. Others, who may not be

personally involved in a litigation, depend on the

information provided about judicial decisions in

newspapers and in the electronic media. When the

description of cases is accurate and comprehensive, it

serves the cause of open justice. However, if a report on

a judicial hearing is inaccurate, it impedes the public's

right to know. Courts, though open in law and in fact,

become far removed from the lives of individual citizens.

This is anomalous because courts exist primarily to provide

justice to them."

(emphasis supplied)

23 However, there are certain exceptions to the rule of open courts in India. In

Mirajkar (supra), Chief Justice PB Gajendragadkar observed:

―21. … While emphasising the importance of public trial, we

cannot overlook the fact that the primary function of the

judiciary is to do justice between the parties who bring their

causes before it. If a Judge trying a cause is satisfied that

the very purpose of finding truth in the case would be

retarded, or even defeated if witnesses are required to give

evidence subject to public gaze, is it or is it not open to him

in exercise of his inherent power to hold the trial in camera

either partly or fully? If the primary function of the court is to

do justice in causes brought before it, then on principle, it is

difficult to accede to the proposition that there can be no

exception to the rule that all causes must be tried in open

court. If the principle that all trials before courts must be held

in public was treated as inflexible and universal and it is held

that it admits of no exceptions whatever, cases may arise

where by following the principle, justice itself may be

defeated. That is why we feel no hesitation in holding that

the High Court has inherent jurisdiction to hold a trial in

camera if the ends of justice clearly and necessarily require

the adoption of such a course. It is hardly necessary to

emphasise that this inherent power must be exercised with

great caution and it is only if the court is satisfied beyond a

PART C

doubt that the ends of justice themselves would be defeated

if a case is tried in open court that it can pass an order to

hold the trial in camera.‖

Hence, while in camera proceedings may be necessary in certain exceptional

circumstances to preserve countervailing interests such as the rights to privacy

and fair trial, for instance, in a sexual assault case, public scrutiny of the court

process remains a vital principle for the functioning of democracy.

C.2 Freedom of Expression of the Media

24 Article 19(1)(a) of the Constitution guarantees every citizen the right to

freedom of speech and expression. Over six decades ago, in 1958, a Constitution

Bench of this Court, in Express Newspaper (P) Limited vs Union of India15

explained that Article 19(1)(a) would carry within it, implicitly, the right to freedom

of the press. The Court held:

―As with all freedoms, press freedom means freedom

from and freedom for. A free press is free from

compulsions from whatever source, governmental or

social, external or internal. From compulsions, not from

pressures; for no press can be free from pressures

except in a moribund society empty of contending

forces and beliefs. These pressures, however, if they are

persistent and distorting — as financial, clerical, popular,

institutional pressures may become — approach

compulsion; and something is then lost from effective

freedom which the press and its public must unite to restore.

A free press is free for the expression of opinion in all its

phases. It is free for the achievement of those goals of press

service on which its own ideals and the requirements of the

community combine and which existing techniques make

possible. For these ends, it must have full command of

technical resources, financial strength, reasonable access to

sources of information at home and abroad, and the

necessary facilities for bringing information to the national

15 1959 SCR 12

PART C

market. The press must grow to the measure of this

market.‖‖

(emphasis supplied)

25 The Constitution guarantees the media the freedom to inform, to distill and

convey information and to express ideas and opinions on all matters of interest.

Free speech and expression is subject to the regulatory provisions of Article

19(2). The decision in LIC vs Manubhai D. Shah (Prof.)16 develops these ideas :

―…The print media, the radio and the tiny screen play the

role of public educators, so vital to the growth of a healthy

democracy. Freedom to air one's views is the lifeline of any

democratic institution and any attempt to stifle, suffocate or

gag this right would sound a death-knell to democracy and

would help usher in autocracy or dictatorship. It cannot be

gainsaid that modern communication mediums advance

public interest by informing the public of the events and

developments that have taken place and thereby educating

the voters, a role considered significant for the vibrant

functioning of a democracy. Therefore, in any set-up, more

so in a democratic set-up like ours, dissemination of

news and views for popular consumption is a must and

any attempt to deny the same must be frowned upon

unless it falls within the mischief of Article 19(2) of the

Constitution. It follows that a citizen for propagation of

his or her ideas has a right to publish for circulation his

views in periodicals, magazines and journals or through

the electronic media since it is well known that these

communication channels are great purveyors of news

and views and make considerable impact on the minds

of the readers and viewers and are known to mould

public opinion on vital issues of national importance…‖

(emphasis supplied)

26 Freedom of speech and expression extends to reporting the proceedings of

judicial institutions as well. Courts are entrusted to perform crucial functions under

the law. Their work has a direct impact, not only on the rights of citizens, but also

the extent to which the citizens can exact accountability from the executive whose

16 (1992) 3 SCC 637

PART C

duty it is to enforce the law. Citizens are entitled to ensure that courts remain true

to their remit to be a check on arbitrary exercises of power. The ability of citizens

to do so bears a direct correlation to the seamless availability of information about

what happens in a court during the course of proceedings. Therein lies the

importance of freedom of the media to comment on and write about proceedings.

This principle was recognized in the Madrid Principles on the Relationship

between the Media and Judicial Independence17. The first principle is formulated

thus:

―1. Freedom of expression (including freedom of the media)

constitutes one of the essential foundations of every society

which claims to be democratic. It is the function and right of

the media to gather and convey information to the public and

to comment on the administration of justice, including cases

before, during and after trial, without violating the

presumption of innocence.‖

This principle is recognized within Indian jurisprudence, where the media has full

freedom to report on ongoing litigation before the Courts, within certain limitations,

bearing on the need to ensure that justice between parties is not derailed.

27 The media has over the years, transitioned from the predominance of

newspapers in the printed form, to radio broadcasts, television channels and now,

to the internet for disseminating news, views and ideas to wide audiences

extending beyond national boundaries. The internet, including social media, have

refashioned and, in significant ways, revolutionized the means through which

information is relayed. At every stage of this transition, new questions have been

17 These principles were issued by a group of 40 distinguished legal experts and media

representatives, who met in a meeting convened by the International Commission of Jurist‘s Centre

for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, available at

<https://www.icj.org/wp-content/uploads/1994/01/madrid-principles-on-media-and-judicialindependence-publication-1994-eng.pdf>

PART C

raised about how court processes will adapt to the change, so that the rights of

the parties before the courts and processes of justice are not affected18. However,

while these are valid concerns, they should never be a good enough reason for

Courts to not engage with evolving technology. Technology has shaped social,

economic and political structures beyond description. The world is adapting to

technology at a pace which is often difficult to catalogue, and many of our citizens

are becoming digital natives from a young age. It is understandable that they will

look towards modern forms of media, such as social media websites and

applications, while consuming the news. This, understandably, would also include

information reported about the functioning of courts. Hence, it would do us no

good to prevent the new forms of media from reporting on our work. It was

keeping this principle in mind that the Lord Chief Justice of England and Wales, in

the context of the use of live text-based forms of communication (including

Twitter) to report on court proceedings, noted thus19:

―It is presumed that a representative of the media or a legal

commentator using live, text-based communications from

court does not pose a danger of interference to the proper

administration of justice in the individual case. This is

because the most obvious purpose of permitting the use

of live, text-based communications would be to enable

the media to produce fair and accurate reports of the

proceedings. As such, a representative of the media or a

legal commentator who wishes to use live, text-based

communications from court may do so without making an

application to the court.‖

(emphasis supplied)

18 Daniel Stepniak, ‗Technology and Public Access to Audio-Visual Coverage and Recordings of

Court Proceedings: Implications for Common Law Jurisdictions‘ 12 William & Mary Bill of Rights

Journal 791 (2004)

19 ‗Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) from

Court for the Purposes of Fair and Accurate Reporting‘ available at <https://www.judiciary.uk/wpcontent/uploads/JCO/Documents/Guidance/ltbc-guidance-dec-2011.pdf >

PART C

28 Our Court has performed its modest part to acknowledge the rapid pace of

the development of technology, and our need to keep up. In Swapnil Tripathi

(supra), it noted:

―C. Technology and Open Court

84. In the present age of technology, it is no longer sufficient

to rely solely on the media to deliver information about the

hearings of cases and their outcomes. Technology has

become an inevitable facet of all aspects of life. Internet

penetration and increase in the use of smart phones has

revolutionized how we communicate. As on 31-3-2018, India

had a total of 1,206.22 million telecom subscribers and

493.96 million internet users. [Telecom Regulatory Authority

of India, the Indian Telecom Services Performance

Indicators January-March, 2018. Available at:

<https://trai.gov.in/sites/default/files/PIReport27062018_0.pd

f>.] Technology can enhance public access, ensure

transparency and pave the way for active citizen involvement

in the functioning of State institutions. Courts must also take

the aid of technology to enhance the principle of open courts

by moving beyond physical accessibility to virtual

accessibility.‖

Acceptance of a new reality is the surest way of adapting to it. Our public

constitutional institutions must find better responses than to complain.

C.3 Public Discourse, Media Reporting and Judicial Accountability

29 As we understand the rights of the media to report and disseminate issues

and events, including court proceedings that are a part of the public domain, it is

important to contextualize that this is not merely an aspect of protecting the rights

of individuals and entities on reporting, but also a part of the process of

augmenting the integrity of the judiciary and the cause of justice as a whole.

PART C

30 With the exception of in camera proceedings, a courtroom is a public

space. In Attorney General vs Leveller Magazine20, Lord Diplock, held that ―The

principle of open justice requires that the court should do nothing to discourage

fair and accurate reports of proceedings.‖ An open court and transparent

dispensation of justice in all its modalities, is an end in itself. As we have

discussed above, technology is an accelerant in this endeavor, but not the

harbinger of this thought. Media reporting has operated alongside formalized

court processes for close to a century. Court proceedings in colonial India,

especially sedition trials, were also sites of political contestation where colonial

brutality and indignity were laid bare. The widespread reportage on Lokmanya

Balgangadhar Tilak‘s first trial for sedition was seminal in highlighting the variance

in procedural laws and rights denied to Indian undertrials, as he struggled to

access legal aid and was convicted in spite of a non-unanimous verdict of the

jury. The Lokmanya‘s poignant words, while recorded by the order as a

formalized process of sentencing, were circulated far and wide by anti-colonial

publications which fueled India‘s struggle for freedom. These words incidentally

also adorn the plaque outside that very courtroom in the Bombay High Court to

this day21:

―In spite of the verdict of the Jury I maintain that I am

innocent. There are higher Powers that rule the destiny of

men and nations and it may be the will of Providence that

the cause which I represent may prosper more by my

suffering than by my remaining free.‖

20 [1979] A.C. 440

21 Emperor vs Balgangadhar Tilak, (1908) 10 BOMLR 848 (Bombay High Court)

PART C

31 Post-independence, matters of seminal constitutional importance have

witnessed widespread reportage in newspapers and magazines - which did not

merely report on the pronouncement of verdicts, but also the quirks of the counsel

and judges. These tales have now passed down as the legacy of our profession

and also provide useful context for our study of the law.

32 Albeit in the context of the value of open courts, Justice Bachawat,

speaking for this Court in Mirajkar (supra), had placed emphasis on the publicity

of court proceedings in the following terms:

―A court of justice is a public forum. It is through publicity that

the citizens are convinced that the court renders even

handed justice, and it is, therefore, necessary that the trial

should be open to the public and there should be no restraint

on the publication of the report of the court proceedings. The

publicity generates public confidence in the administration of

justice…….Hegel in his Philosophy of Right maintained that

judicial proceedings must be public, since the aim of the

Court is justice, which is universal belonging to all.‖

33 With the advent of technology, we are seeing reporting proliferate through

social media forums which provide real-time updates to a much wider audience.

As we have discussed in the previous section, this is an extension of the freedom

of speech and expression that the media possesses. This constitutes a ‗virtual‘

extension of the open court. This phenomenon is a not a cause of apprehension,

but a celebration of our constitutional ethos which bolsters the integrity of the

judiciary by focusing attention on its functions. Several courts across the world,

including the US Supreme Court, the UK Supreme Court, the Court of Appeal of

the UK and the International Criminal Court enable public viewership of

proceedings through livestreaming or other suitable open access methodology.

PART C

The Gujarat High Court also recently introduced livestreaming of its proceedings,

in a bid to enhance public participation in the dispensation of justice. In this

backdrop, it would be retrograde for this Court to promote the rule of law and

access to justice on one hand, and shield the daily operations of the High Courts

and this Court from the media in all its forms, by gagging the reporting of

proceedings, on the other.

C.4 Freedom and constraints of judicial conduct

34 The grievance of the EC does not arise as much from the impugned order

of the Madras High Court, as it does from the oral remarks made by the judges of

the High Court during the hearing on 26 April 2021. The High Court has not been

impleaded before us and has not had an opportunity to respond. Thus, we have

been unable to discover what truly transpired in the proceedings and the exact

remarks that were made. Unless live-streaming and archival of court proceedings

sees the light of the day (three years have elapsed since the decision in Swapnil

Tripathi (supra)) the absence of records of oral proceedings would continue to

bedevil the system. However, a constitutional authority such as the EC, has

adverted to the oral remarks on oath in its affidavit. These have not been disputed

by the respondent. The oral remarks have received widespread publicity in

electronic and print media. We have, in deference to the independent

constitutional status of the High Court, not required a confirmatory report from the

Registrar General of the High Court.

35 The independence of the judiciary from the executive and the legislature is

the cornerstone of our republic. Independence translates to being impartial, free

PART C

from bias and uninfluenced by the actions of those in power, but also recognizes

the freedom to judges to conduct court proceedings within the contours of the

well-established principles of natural justice. Judges in the performance of their

duty must remain faithful to the oath of the office they hold, which requires them

to bear allegiance to the Constitution. An independent judiciary must also be one

which is accountable to the public in its actions (and omissions).

36 The manner in which judicial proceedings are conducted, especially in our

superior courts, is unique to each judge and holds great weight in the

dispensation of justice. The issues raised or comments made by the Bench during

an oral hearing provide clarity not just to the judges who adjudicate upon the

matter, but also allow the lawyers to develop their arguments with a sense of

creativity founded on a spontaneity of thought. Many a times, judges play the role

of a devil‘s advocate with the counsel to solicit responses which aid in a holistic

understanding of the case and test the strength of the arguments advanced

before them. That is where the real art of advocacy comes to play. The order or

judgment of the court must indicate a process of reflection and of the application

of mind of the judge to the submissions of opposing parties.

37 The diversity of judicial backgrounds brings polyvocality in judgments and

has enriched our jurisprudence for over seven decades since Independence. The

humanity intrinsic to each judge allows them to transcend the language of the law

to do complete justice. In the pursuit of doing justice and in the course of an open

deliberation in court, propositions may be put forth and observations are made in

order to facilitate the process of arriving at an acceptable outcome based on the

law but which is in accord with justice. Observations during the course of a

PART C

hearing do not constitute a judgment or binding decision. They are at best

tentative points of view, on which rival perspectives of parties in conflict enable

the judge to decide on an ultimate outcome. This exchange of views, perspectives

and formulations is but a part of evolving towards a solution which accords with

justice according to law. An exchange of views from the Bench is intrinsic to a

process of open and transparent judging. The revealing of a judges‘ mind enables

opposing parties to persuade her to their points of view. If this expression were to

be discouraged the process of judging would be closed. As Lord Denning MR

observed in Sirros vs Moore22:

―Every Judge of the courts of this land — from the highest to the

lowest — should be protected to the same degree, and liable to

the same degree. If the reason underlying this immunity is to

ensure ‗that they may be free in thought and independent in

judgment‘, it applies to every Judge, whatever his rank. Each

should be protected from liability to damages when he is acting

judicially. Each should be able to do his work in complete

independence and free from fear. He should not have to turn the

pages of his books with trembling fingers, asking himself: ‗If I do

this, shall I be liable in damages?‘ So long as he does his work in

the honest belief that it is within his jurisdiction, then he is not

liable to an action. He may be mistaken in fact. He may be

ignorant in law. What he does may be outside his jurisdiction —

in fact or in law — but so long as he honestly believes it to be

within his jurisdiction, he should not be liable. Once he honestly

entertains this belief nothing else will make him liable. He is not

to be plagued with allegations of malice or ill will or bias or

anything of the kind. Actions based on such allegations have

been struck out and will continue to be struck out. Nothing will

make him liable except it to be shown that he was not acting

judicially, knowing that he had no jurisdiction to do it.‖

22 [1975] QB 118

PART C

This Court has also had the opportunity to deal with a matter concerning the

expunging of adverse remarks from judicial records in Kashi Nath Roy vs State

of Bihar23

. The judgment of the two Judge bench noted:

―7. It cannot be forgotten that in our system, like elsewhere,

appellate and revisional courts have been set up on the

presupposition that lower courts would in some measure of

cases go wrong in decision-making, both on facts as also on law,

and they have been knit-up to correct those orders. The human

element in justicing being an important element, computerlike functioning cannot be expected of the courts; however

hard they may try and keep themselves precedent-trodden

in the scope of discretions and in the manner of judging.

Whenever any such intolerable error is detected by or

pointed out to a superior court, it is functionally required to

correct that error and may, here and there, in an appropriate

case, and in a manner befitting, maintaining the dignity of

the court and independence of judiciary, convey its

message in its judgment to the officer concerned through a

process of reasoning, essentially persuasive, reasonable,

mellow but clear, and result-orienting, but rarely as a

rebuke. Sharp reaction of the kind exhibited in the aforeextraction is not in keeping with institutional functioning.

The premise that a Judge committed a mistake or an error

beyond the limits of tolerance, is no ground to inflict

condemnation on the Judge-Subordinate, unless there existed

something else and for exceptional grounds.‖

(emphasis supplied)

In Dr Raghubir Saran vs State of Bihar and Another24

, this Court particularly

advised higher Courts to enable judges of the lower Courts to freely express their

opinion. Chief Justice K Subba Rao, speaking for a three Judge bench observed:

―6. […]

I entirely agree with the remarks. I reiterate that every judicial

officer must be free to express his mind in the matter of the

appreciation of evidence before him. The phraseology used by

a particular Judge depends upon his inherent reaction to

falsehood, his comparative command of the English

language and his felicity of expression. There is nothing

more deleterious to the discharge of judicial functions than

23 (1996) 4 SCC 539

24 (1964) 2 SCR 336

PART C

to create in the mind of a Judge that he should conform to a

particular pattern which may, or may not be, to the liking of

the appellate court. Sometimes he may overstep the mark.

When public interests conflict, the lesser should yield to the

larger one. An unmerited and undeserved insult to a witness

may have to be tolerated in the general interests of

preserving the independence of the judiciary. Even so, a duty

is cast upon the judicial officer not to deflect himself from the

even course of justice by making disparaging and undeserving

remarks on persons that appear before him as witnesses or

otherwise. Moderation in expression lends dignity to his office

and imparts greater respect for judiciary. But occasions do arise

when a particular Judge, without any justification, may cast

aspersions on a witness or any other person not before him

affecting the character of such witness or person. Such remarks

may affect the reputation or even the career of such person. In

my experience I find such cases are very rare. But if it happens, I

agree with the Full Bench of the Bombay High Court that the

appellate court in a suitable case may judicially correct the

observations of the lower court by pointing out that the

observations made by that court were not justified or were

without any foundation or were wholly wrong or improper.‖

(emphasis supplied)

38 The duty to preserve the independence of the judiciary and to allow

freedom of expression of the judges in court is one end of the spectrum. The

other end of the spectrum, which is equally important, is that the power of judges

must not be unbridled and judicial restraint must be exercised, before using strong

and scathing language to criticize any individual or institution. In A.M Mathur vs

Pramod Kumar Gupta25

, a two Judge bench of this Court, speaking through

Justice K Jagannatha Shetty held:

―13. Judicial restraint and discipline are as necessary to the

orderly administration of justice as they are to the

effectiveness of the army. The duty of restraint, this humility

of function should be a constant theme of our judges. This

quality in decision making is as much necessary for judges

to command respect as to protect the independence of the

judiciary. Judicial restraint in this regard might better be called

judicial respect, that is, respect by the judiciary. Respect to those

25 (1990) 2 SCC 533

PART C

who come before the court as well to other co-ordinate branches

of the State, the executive and the legislature. There must be

mutual respect. When these qualities fail or when litigants and

public believe that the judge has failed in these qualities, it will be

neither good for the judge nor for the judicial process.

14. The Judge's Bench is a seat of power. Not only do judges

have power to make binding decisions, their decisions legitimate

the use of power by other officials. The judges have the absolute

and unchallengeable control of the court domain. But they

cannot misuse their authority by intemperate comments,

undignified banter or scathing criticism of counsel, parties

or witnesses. We concede that the court has the inherent power

to act freely upon its own conviction on any matter coming before

it for adjudication, but it is a general principle of the highest

importance to the proper administration of justice that derogatory

remarks ought not to be made against persons or authorities

whose conduct comes into consideration unless it is absolutely

necessary for the decision of the case to animadvert on their

conduct.‖

(emphasis supplied)

39 In balancing these two ends, the role of superior courts is especially

relevant. This Court must strike a balance between reproaching the High Courts

or lower courts unnecessarily, so as to not hamper their independent functioning.

This court must also intervene where judges have overstepped the mark and

breached the norms of judicial propriety.

40 We are tasked with balancing the rights of two independent constitutional

authorities. On one hand is the Madras High Court, which is a constitutional court

and enjoys a high degree of deference in the judicial structure of this country. The

High Courts perform an intrinsic role as appellate courts and as courts of first

instance in entertaining writ petitions under Article 226 (and as courts of original

civil and criminal jurisdiction in certain cases). They are often the first point of

contact for citizens whose fundamental rights have been violated. High Courts are

constantly in touch with ground realities in their jurisdictions. During the COVID-19

PART C

pandemic, the High Courts across the country have shown commendable

foresight in managing the public health crisis which threatens to submerge

humanity. Their anguish when they come face to face with reality must be

understood in that sense. On the other hand is the EC, a constitutional authority

tasked with the critical task of undertaking superintendence and control of

elections under Article 324 of the Constitution. The EC has facilitated the

operation of our constitutional democracy by conducting free and fair elections

and regulating conduct around them for over seven decades. Its independence

and integrity are essential for democracy to thrive. This responsibility covers

powers, duties and myriad functions26 which are essential for conducting the

periodic exercise of breathing life into our democratic political spaces.

41 Today, the Court has not been called upon to determine the

constitutionality or legality of the actions of the EC in its conduct of the Assembly

elections in the five states. In restricting ourselves to the specific grievances that

have been urged by the EC, regarding the remarks made by the judges of the

Madras High Court, we find that the High Court was faced with a situation of rising

cases of COVID-19 and, as a constitutional Court, was entrusted with protecting

the life and liberty of citizens. The remarks of the High Court were harsh. The

metaphor inappropriate. The High Court - if indeed it did make the oral

observations which have been alluded to - did not seek to attribute culpability for

the COVID-19 pandemic in the country to the EC. What instead it would have

intended to do was to urge the EC to ensure stricter compliance of COVID-19

related protocols during elections.

26 Mohinder Singh Gill vs Chief Election Commr., (1978) 1 SCC 405

PART C

42 Having said that, we must emphasize the need for judges to exercise

caution in off-the-cuff remarks in open court, which may be susceptible to

misinterpretation. Language, both on the Bench and in judgments, must comport

with judicial propriety. Language is an important instrument of a judicial process

which is sensitive to constitutional values. Judicial language is a window to a

conscience sensitive to constitutional ethos. Bereft of its understated balance,

language risks losing its symbolism as a protector of human dignity. The power of

judicial review is entrusted to the High Courts under the Constitution. So high is its

pedestal that it constitutes a part of the basic features of the Constitution. Yet

responsibility bears a direct co-relationship with the nature and dimensions of the

entrustment of power. A degree of caution and circumspection by the High Court

would have allayed a grievance of the nature that has been urged in the present

case. All that needs to be clarified is that the oral observations during the course

of the hearing have passed with the moment and do not constitute a part of the

record. The EC has a track record of being an independent constitutional body

which shoulders a significant burden in ensuring the sanctity of electoral

democracy. We hope the matter can rest with a sense of balance which we have

attempted to bring.

43 These oral remarks are not a part of the official judicial record, and

therefore, the question of expunging them does not arise. It is trite to say that a

formal opinion of a judicial institution is reflected through its judgments and

orders, and not its oral observations during the hearing. Hence, in view of the

above discussion, we find no substance in the prayer of the EC for restraining the

media from reporting on court proceedings. This Court stands as a staunch

PART D

proponent of the freedom of the media to report court proceedings. This we

believe is integral to the freedom of speech and expression of those who speak,

of those who wish to hear and to be heard and above all, in holding the judiciary

accountable to the values which justify its existence as a constitutional institution.

D Conclusion

44 For the reasons which we have indicated, we dispose of the appeal in the

above terms.

45 Pending applications, if any, shall stand disposed.

………….….....................................................J.

[Dr Dhananjaya Y Chandrachud]

……..….….....................................................J.

[M R Shah]

New Delhi;

May 6, 2021.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, May 14, 2021

House arrest - Sec.167 of Cr.P.C.

Monday, May 10, 2021

Friday, May 7, 2021