Authored By: Devashish Bodhankar
Citation – Criminal appeal No. 510 of 2021
Date of Judgment – 12/05/2021
Bench - Justice Uday Umesh Lalit, Justice K.M. Joseph, Justice Ms. Bannerjee
Court –Honorable Supreme Court of India
Introduction
In this case, the petitioner was arrested from his residence in Delhi. After this he moved to Delhi High Court to file a writ of Haebous Corpus and contends the arrest as illegal. At the same time he was produced before the Chief Metropolitan Magistrate by the NIA (National Investigation Agency), who by its order permitted NIA to produce Mr.Gautam before the special court of NIA in Maharashtra. After this, CMM’s (Chief Metropolitan Magistrate) order was stayed by the Delhi High Court and directed the NIA to keep the petitioner in “house arrest” until further orders. Then a writ petition was filed in the honorable Supreme Court against the Maharashtra Police, through this the order of “house arrest” was extended and then Supreme Court dismissed the writ petition. After this High Court of Delhi by setting aside the order of CMM of transit remand , allowed petitioner’s plea by observing that the constitutional mandates was not followed in this case and it was held that the petitioner “house arrest” finally come to an end (Gaurav Thote, 2021).
Facts of the case
On August 2018, the petitioner was arrested and the authorized police was granted transit remand to take him from New Delhi to PS Vishrambaug, Maharashtra state. On the same day, petitioner challenged this arrest and remand in a Habeas Corpus writ before the High Court of Delhi. The court directed that the petitioner should be put under “House arrest”[1] till the decision on the petition is made. Later it was also extended. During his detention, the petitioner was not permitted to meet or interact with his family members and lawyers and also his house was guarded by the two police guards[2]. On 1st October 2018, the said remand was illegal. But later in April 2020 he was arrested again. In this respect he filed petition of default bail before the trial court of state of Maharashtra. Due to this the concept of (section 167)[3] was raised rapidly and many arguments were made in respect of this section.
The petitioner mentions that he has gone through 34 days of his house arrest, NIA detention of 11 days in April 2020 and mainly the detention period from April 25 to June 18[4]. The petitioner claims the right of the default bail because his imprisonment surpassed 34 days in the custody and also the NIA has failed to file the charge sheet and also did not present him before the magistrate[5] within the statutory period of his detention period but both the courts had denied the fact that the house arrest of the petitioner should be a detention under section 167 of criminal procedure code (Taneja, 2021).
Issue Raised in this case
The main issue raised in this case was whether the period of time spent in detention by the petitioner during his home arrest can be considered as custody for the purpose of default bail.
Arguments of Petitioner
The counsel for the petitioner states that the police should investigate the matter and also can ask questions to him after the High Court grant leave during his house arrest in 2018. Further he argued that there was no stay in the investigation process of the police and they can bring the petitioner any time in the police custody under section 43D(2)(b) [6]. He further argued before the court that the remand was overturned eventually and the said detention of the petitioner was unconstitutional on the basis of the facts mention under section 167 of CrPC.
The counsel for the petitioners argued that when Delhi high court stated the house arrest of the petitioner comes to an end, the main order of the house arrest was not treated as void by the high court and only the transit order was stayed[7]. The counsel argued that the remand order should also be stayed. He further contended that the High Court did not stay the detention but only changed the form of detention due to which petitioner was shifted from police custody to his residence which is also confined .He further argued that even the detention was going to be unconstitutional; this does not mean that the period of detention gets erased. He also argued that the period of detention should include all the intervals either they are continuous or broken interval.
Arguments of Respondent
The counsel for the National Investigation Agency states that it would be wrong to claim that the petitioner satisfied for the house arrest, also the counsel mentions before the court that the petitioner is not fit in the criteria for the house arrest. Further the counsel for the respondents clearly mentions before the court that the petitioner was involved in many activities which are nefarious in the nature and also was charged under several sections –34, 120B, 121, 121A, 115,124A,505(1) of (IPC)[8] and also sections 38,39,20 of the Unlawful Activities Prevention Act(UAPA). The counsel mentions that his arrest was not considered as void because police has not enough evidence against him.
Further the counsel of the respondent states that it was permitted by the Honorable Supreme Court of India that the house arrest of the petitioner has to be done only during the period when decision made against him. Also from this observation, the counsel for the respondents claims that there is Prima Facie[9] evidence against the petitioner and the court should direct the petitioner to surrender before the court (www.main.sci.gov.in). After this, the counsel argued that to not release the petitioner from the custody because there was every possibility that the petitioner can threaten the witnesses of the case and can also tries to tamper the evidence[10].
Judgment
In this case, the petitioner lost his case of default bail at the Honorable Supreme Court. The court in its judgment states that under section 167(2) the home arrest cannot be considered as permitted detention. It further mentioned that despite the fact that the petitioner had been brought into custody earlier, this does not mean that his custody begins. His custody only begins from the day of his remand. The Judgment mentions that the period of his house arrest which was from August 28 to October 1st ,should be removed and should not be considered as the period of detention. Ultimately the bench held that the house arrest custody of the accused in this case cannot be treated as authorized custody by the magistrate under section 167(2)[11].
Analysis
In this case, that the house arrest of the petitioner should not be considered as the detention under section 167. The case analysis will completely depend on the important issue which is present in this case- whether the custody period spent by the accused during his house arrest constitutes custody for default bail purposes. What I understood from this case and by examining several sections relating to this case is that section 167 (2) of Crpc[12] says that the magistrate has to (authorize) the detention to the police[13]. In this case, the High court of Delhi has stayed the order of transit demand and afterwards set it aside and states that the detention was illegal which ultimately states that there was no authorize detention from the side of the magistrate. Therefore under section 167(2) the petitioner cannot claim the benefit of the default bail.
If we further look into the mentioned section, we can conclude that if accused want to claim benefits of the default bail then there is an indispensable requirement that the detention of the petitioner should be authorized by the magistrate. But in this case, authorization itself having been declared illegal so there was no any further doubts that the detention itself should be held illegal. The house arrest involved deprivation of liberty of an individual and shall fall only within the boundaries of section 167 of Crpc. The thing what I understood from this case is that in the decisions of both the courts, the specific boundaries of above mentioned section was not apparent. Also in the present case, the detention was illegal because it was not in terms of the above mentioned section and also it does stop the petitioner to apply for the statutory bail.
Conclusion
In this case, after examining all the relevant facts, the bench allowed respective courts to order House arrest as a form of custody in particular instances under section 167 of criminal procedural code. The whole argument in this case was of section 167 of CrPC (Joshi) which states that if the police did not complete the investigation within 24 hours of arrest of the accused then the accused has a right to default bail and also in some cases if the investigation has not been completed within a specific time given by the court. As the decision of the court was held against the petitioner and he lost the case but this case make an impact on the decision of the honorable Supreme Court and the court ensure that the future prisoners like the accused in this case should not face these disadvantages.[14] The court also ensured that no person shall be deprived of his liberty.[15]
Bibliography
1. Gaurav Thote. (2021, May 30th ). Ba rand Bench. Retrieved December 26th , 2021, from www.barandbench.com .
2. Joshi, M. M. Code of Criminal Procedure.
3. Taneja, S. (2021, June ). lawyers club Inida . Retrieved from www.lawyerscluindia.com.
www.main.sci.gov.in. (n.d.).
[1] (1989) AIR 2292, 1989 SCR Supl.(1) 315, {2} [2] Art 22(1) in the Constitution of India, 1949 [3] Criminal Procedure Code 1973, s167 [4] Shreya Taneja, Gautam Navlakha vs NIA, (2021), www.layerscludinida.com, 25th December [5] Art 22(2) in the Constitution of Inida ,1949 [6] Unlawful Activites (Prevention) Act,1967 [7] Shreya Taneja, Gautam Navlakha vs NIA, (2021), www.lawyersclubinida.com , 25 December 2021 [8] Indian Penal Code, 1860 [9] 1999(82) FLR 509, (2000) ILLJ 565 Cal ,{5} [10] Prachi Bharadwaj ,Here’s why Gautam Navlakha was not able to make a case from Default Bail before supreme court, (2021), www.scconline.com, 25 December 2021 [11] Shreya Taneja, Gautam Navlakha vs NIA, (2021), www.lawyersclubinida.com , 25 December 2021 [12] (1986) AIR 2130, {7} [13] (1992) AIR 1768, {7} [14] (2021) criminal appeal no. 52. (2020) criminal appeal LVDC no. 143 [15] Art 21 in the Constitution of India,1949
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