In May 2021, the Calcutta High Court directed that four leaders of the Trinamool Congress accused of bribery and criminal conspiracy as a result of a sting operation conducted in 2014 (commonly referred to as “the Narada scam”) be placed under house arrest instead of judicial custody during the ongoing investigation into these alleged offences (Narada scam judgment). This is a departure from the usually permitted forms of detention under Section 167 of the Code of Criminal Procedure, 1973 (CrPC), which provides that an accused may be detained in either the custody of the police or in judicial custody in a jail during a police investigation. In making this order, the Calcutta High Court relied on the guidance set out in the Supreme Court’s recent judgment in Gautam Navlakha v. National Investigation Agency, passed earlier this year (Gautam Navlakha).
In Gautam Navlakha, the Supreme Court held that house arrest can be ordered instead of judicial or police custody, thereby expanding the concept of custody under Section 167, and paving the way for arguments to be made that accused should be detained under house arrest rather than subjected to traditional imprisonment in certain cases. While this aspect of the Supreme Court’s decision has been widely analysed, the judgment also discussed other important issues surrounding the concept of custody under Section 167, such as “transit remand”, and consequential implications for the grant of default bail. In addition, the judgment left many questions unanswered in relation to its application in future cases.
Section 167 is a key part of the law of criminal procedure, providing that an accused may not be arrested and detained in custody for a period of longer than 24 hours without being produced before a Magistrate. The section empowers a Magistrate to send an accused to either police or judicial custody while a police investigation is ongoing. The section also provides that an accused may only be held in such custody for a set period of time, after which he will be entitled to default bail. These provisions are key to upholding an accused’s fundamental right to personal liberty.
In this article, we analyse the law under Section 167 and the concepts of custody, default bail, house arrest and transit remand in light of the Supreme Court’s judgment in Gautam Navlakha. We also highlight some contradictions in the judgment and endeavour to identify the questions which remain unanswered, in order to examine the practical implications of the Supreme Court’s landmark ruling.
Section 167 CrPC comes into play when an investigation has commenced but before it has been completed. In order to undertake and complete an investigation, the investigating agency often needs to arrest and detain the accused for the purposes of interrogation, collection of evidence, preventing evidence, tampering, etc. Section 167 sets out the framework to be followed by the police and court(s) in order to detain an accused in custody for the purposes of investigation.
Section 167 arises out of the fundamental right of the accused not to be detained for longer than 24 hours without being produced before a Magistrate, as provided by Article 22(2) of the Constitution. This fundamental right is complementary to Section 57 CrPC, which similarly provides that an accused cannot be detained in custody for a period exceeding 24 hours from the time of arrest, unless such detention is authorised by a special order of a Magistrate under Section 167 CrPC.
Accordingly, Section 167 prescribes the procedure to be followed if an investigation cannot be completed within 24 hours of the accused’s arrest. In such a scenario, the accused has to be produced before the nearest Judicial Magistrate within 24 hours of the arrest, excluding the time of travel. The Magistrate may authorise detention of the accused in “such custody” as he “thinks fit” to allow the investigating agency to complete investigation. In case an accused is arrested in a State other than the one in which the FIR or complaint is registered such that transportation of the accused has to be arranged and the detention may go beyond a 24-hour period, courts have started passing orders granting “transit remand” to allow the police to transport an accused from one State to another. The question of whether such transit remand orders are a form of custody under Section 167 was also examined by the Supreme Court in Gautam Navlakha, as discussed further below.
On the one hand, the power granted to Magistrates to prolong the detention of an accused individual can assist the investigating agencies in completing an investigation. On the other hand, Section 167 attempts to safeguard the right of an accused not to be arbitrarily detained for prolonged periods of time. The mechanism by which Section 167 seeks to achieve this balance is to provide that an accused may not be detained for longer than 24 hours without being produced before a Magistrate, such that the Magistrate may evaluate whether further detention is necessary.
Ordinarily, the term “custody” under Section 167 is understood to mean “police custody” or “judicial custody”.
The difference between the two is characterised by the degree of access the investigating agency or the police has to the accused for the purpose of interrogation. In police custody, an accused is in the exclusive custody of the police officers, and the primary aim is to allow the police to conduct “custodial interrogation” in order to unearth the truth in any given case.
On the other hand, judicial custody refers to custody of an accused in jail. When a person is in jail custody, he is indirectly deemed to be in the custody of the court. The police officers or investigating agencies do not have the same level of access to an accused as they do in police custody. In fact, police officers and investigating agencies usually cannot question the accused in judicial custody without seeking permission from the court and following such conditions as prescribed by the court.
In order to safeguard the rights of the accused and limit direct and prolonged access of the police to the accused, a Magistrate cannot authorise detention of an accused in police custody for a period exceeding 15 days. The underlying principle behind this time limit of 15 days is that it is not proper for an accused to remain under police influence after the inquiry or trial has begun. However, the Magistrate has the power to order detention beyond this period where such detention is “otherwise than in the custody of the police” (commonly referred to as “judicial custody”), and the total period of custody must not exceed (i) 90 days, where investigation relates to an offence punishable with death, life imprisonment, or imprisonment for over ten years; or (ii) 60 days, where the investigation relates to any other offence.
Once the accused has been in custody for 90 days or 60 days as the case may be, an indefeasible right to be released on bail accrues in favour of the accused. This right to be released on bail is referred to as “default bail” or “statutory bail”. This provision keeps the investigation agencies and police on their toes and ensures that the investigation process is not misused to keep people behind bars indefinitely by prolonging the investigations.
Importantly, the right to seek default bail continues to be enforceable even if a regular bail application by the accused is pending adjudication. Unlike regular bail, where the court has discretion in granting bail depending on various conditions, the right to default bail must be granted as a matter of indefeasible right once the conditions under Section 167(2) are met. The Supreme Court has also held that the right to default bail is not merely a statutory right but a fundamental right under Article 21 of the Constitution, preserving the right to personal liberty of an accused.
The procedural and substantive protections provided by Section 167 CrPC are central to ensuring that the fundamental right of personal liberty of an accused is upheld and there is a continuous check on the powers of the investigative agencies during the process of investigation. The Supreme Court’s judgment in Gautam Navlakha which, as explained in the following section, expanded the traditional concept of “custody” under Section 167, is consequently a landmark judgment that has the potential to significantly affect the rights of accused in criminal cases.
On 28-8-2018, Gautam Navlakha, a human rights activist, was arrested from his residence in Delhi by the Pune Police on the basis of an FIR (first information report) registered in Pune. The FIR accused him of various offences relating to terrorist activities under the Unlawful Activities (Prevention) Act, 1967.
After his arrest, the Pune police took him before the Chief Metropolitan Magistrate (CMM) in Saket, New Delhi, seeking a “transit remand” order for Navlakha. While allowing the transit remand application, the CMM directed that he should be produced before a Magistrate in Pune on or before 30-8-2018 (the “transit remand order”). In the meanwhile, Navlakha had also filed a writ petition before the Delhi High Court, which was heard later that day. The Delhi High Court stayed the transit remand order and ordered that Navlakha be placed under “house arrest” at his Delhi residence. On appeal to the Supreme Court, this house arrest was extended.
The conditions of this house arrest included a complete prohibition on Navlakha leaving his residence, an injunction against interacting with persons other than the ordinary residents of his house and the provision of guards at the residence to enforce the house arrest.
Subsequently, in September 2018, the Delhi High Court set aside the transit remand order on the reasoning that the CMM had not applied his mind to the underlying documents, as they had been in Marathi, a language that a Judge in Delhi may not be entirely familiar with. The High Court further held that consequently, Navlakha’s house arrest, which had lasted for a period of 34 days, should come to an end.
Navlakha subsequently filed a writ petition before the Bombay High Court seeking the quashing of the FIR, which was rejected in September 2019. Thereafter, he filed an order seeking anticipatory bail, which was rejected by the Bombay High Court and subsequently, the Court ordered that Navlakha should surrender to the investigating authorities. Accordingly, on 14-4-2020, Navlakha surrendered to the National Investigation Agency (NIA). After spending a period of 11 days in police custody in New Delhi, he was transferred to Mumbai and remanded to judicial custody for a period of 48 days.
Following this, Navlakha filed an application for default bail under Section 167 CrPC, arguing that the period of 34 days spent under house arrest should be counted towards the period required for default bail. If this period were counted, then Navlakha argued that together with the periods spent in police and judicial custody (11 and 48 respectively), he would be entitled to default bail as he had spent a total of 93 days in custody.
This application for default bail was rejected by the lower courts, and Navlakha consequently appealed to the Supreme Court. The Supreme Court’s judgment in Gautam Navlakha decided on 12-5-2021 is concerned with this appeal made on 11-6-2020.
In deciding this question, the Supreme Court essentially held that what matters in determining whether a period of detention is considered custody under Section 167 is whether there has been actual detention suffered by the accused, irrespective of the illegality of an order that was passed putting him in custody. On this basis, the Supreme Court significantly enlarged the concept of custody, holding that both house arrest and transit remand can be forms of custody under Section 167 CrPC.
The Supreme Court discussed whether transit remand was a form of custody under Section 167 such that it would set the clock ticking to complete the period required for default bail. The NIA had argued that transit remand was not a remand for detention under Section 167 but was instead an order for production of the accused before a Magistrate having jurisdiction to try the case.
The Court held that an order for transit remand would fall under Section 167 as it involves authorising the continued detention of the accused beyond the period of 24 hours within the meaning of this section. If a transit remand order were not granted under Section 167, the detention of the accused beyond the period of 24 hours would be in violation of Section 57 CrPC. As explained above, this section provides that an accused may only be detained beyond 24 hours pursuant to an order passed under Section 167.
The Supreme Court also discussed the nature of custody entailed by a transit remand order and noted that transit remand cannot be judicial custody because the police is exclusively entrusted with the accused in order to allow them to produce him before a Magistrate having jurisdiction to try the case. It was clarified that transit remand must therefore be police custody. This is significant because, as discussed above, Section 167(2) places a time limit of 15 days on the period of police custody. After this 15-day period, further detention of an accused may only be ordered in judicial custody.
Along with expanding the concept of custody by the inclusion of transit remand, the Supreme Court also held that house arrest can be considered as custody under Section 167.
The main motivation behind this decision appears to be the Supreme Court’s concern about the current overcrowding of prisons in India, as much of the judgment in Gautam Navlakha is spent setting out the statistics relating to incarceration in India and the large budget spent on prisons.
The legal reasoning given by the Supreme Court was that since house arrest restricts the accused’s freedom of movement and results in a deprivation of liberty, it could be considered custody under Section 167. The Court noted if house arrest is ordered under Section 167, it would count as custody and would be included in calculating the period for granting default bail.
The Court also considered whether house arrest would be police custody or judicial custody, but fell short of categorising house arrest either way. Rather, the Court appears to have adopted a case-by-case approach. The Court noted the ingredients of the house arrest ordered in this case (as mentioned above), and the limitation placed on the police in accessing the accused detained under house arrest in this case. Considering these circumstances and the nature of both police and judicial custody (as discussed above), the Court held that a house arrest in these circumstances would be judicial custody.
Despite deciding the above, the Supreme Court ultimately held that Navlakha’s house arrest for a period of 34 days did not constitute custody under Section 167 CrPC. The reasoning in the judgment is unclear and contradictory, but the primary reason for this decision appears to be that the High Court had not ordered the house arrest “purporting” it to be under Section 167. The Supreme Court therefore considered that the house arrest could not be treated as custody under Section 167 and would not be counted towards the period of custody for Navlakha’s application for default bail.
The judgment consequently makes a distinction between orders which are “purported” to be passed under Section 167 and orders which are not a key factor in determining whether a period of house arrest will be considered “custody” under Section 167, such that it will count towards an application for default bail. The judgment goes into great detail and discusses several hypothetical examples to emphasise that even if an order is made illegally or without complying with mandatory requirements, if it is “purported” to be passed under Section 167 and actually results in the detention of the accused person, then this period of custody will count towards default bail.
However, the Court has not clearly explained what distinguishes an order which “purports” to be passed under Section 167 from one which does not. Therefore, while this judgment opens up an entirely new avenue of house arrest for the detention of individuals, its lack of guidance raises a whole host of issues and highlights several contradictions in the reasoning of the Supreme Court, such as those outlined below.
1) The decision that only detention pursuant to an order “purported” to be passed under Section 167 will count as custody under this section implies either that:
In practice, it is unclear whether courts are in the habit of always specifying the provision of law under which an order is made. For example, the Narada scam judgment passed by the Calcutta High Court on 19-5-2021 which orders house arrest does not explicitly state that it is being ordered under Section 167 (although the order dated 21-5-2021 which confirms the house arrest of the accused mentions that it is judicial custody). The judgment merely states that it is being ordered in line with the guidance in Gautam Navlakha case. If the meaning of the Supreme Court’s judgment is point (a) above, then presumably such an order would not be made under Section 167.
On the other hand, if the methodology in point (b) above is adopted, which circumstances should higher courts take into account to determine the judicial intent of the lower court? The judgment does not elaborate or provide any guidance on this.
The Supreme Court’s use of the word “purport” in this way appears to be contradictory to its previous judgments and practices. In the past, the Supreme Court has held that it is improper for courts to make assumptions as to what a particular Judge’s views were when making a particular order, where the order does not set it out. The Court emphasised that what may have been said by the Judge may have been in the course of tentative thinking aloud and may reflect only partially what the Judge had in mind.
2) The Supreme Court has also emphasised that it is a fundamental right under Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. There is an inherent contradiction between the emphasis placed on this fundamental right and the Court’s discounting of the 34-day period of Navlakha’s detention for the purposes of default bail. The Supreme Court held that the period of house arrest could not be considered custody under Section 167, but failed to specify how the High Court could have legally ordered this detention if it was not ordered under Section 167. In addition, the Court’s ultimate reasoning (that the High Court did not “purport” to make the order under Section 167) seems to be a weak argument for disregarding a fundamental right and discounting a period of actual detention and deprivation of liberty imposed on Navlakha.
3) In addition, the Supreme Court emphasised in this judgment that superior courts (such as the High Courts and Supreme Court) can pass an order under Section 167. In this context, the Supreme Court has considered several hypothetical examples and noted that when a higher court passes an order rejecting a bail application, such that an accused is put back into custody, the order would be treated as one anchored in Section 167 CrPC. It is implicit in this reasoning and in the examples used that there would be situations where the superior courts have not explicitly stated that the order is being passed under Section 167. However, the Supreme Court held that in this situation, if such orders resulted in the accused being remanded to custody, this would be considered custody under Section 167.
For instance, if the superior court is merely reversing a decision of a lower court granting bail to an accused, as a consequence of which the accused is sent back to custody, the Supreme Court has stated this would be considered custody under Section 167 and would be included in the calculation for default bail, even where the superior court has not specified the legal provision under which the accused is being remanded to custody. Here, again, there appears to be a contradiction between the reasoning behind the Supreme Court’s judgment in relation to the power of superior courts to make orders under Section 167 without explicitly stating that they are relying on this provision, and its decision that courts must “purport” to make an order under Section 167 for it to count as custody under that provision.
While the Supreme Court’s judgment in Gautam Navlakha has significantly expanded the scope of custody under Section 167, it also leaves a large number of questions unanswered in relation to way in which courts should approach transit remand and house arrest going forward.
The concept of transit remand has recently become relevant in a number of other high profile arrests, such as Disha Ravi’s arrest by the Delhi police in Bengaluru in relation to the Greta Thunberg toolkit case. The Delhi police in this case brought Ravi from Bengaluru to Delhi without a transit remand. Although the Delhi police did not violate any provisions of the CrPC, as Ravi was produced before a Magistrate in Delhi within 24 hours of her arrest, her transport to Delhi in the absence of a transit remand order still sparked controversy.
It has been argued that the Delhi police should have at least attempted to obtain a transit remand from a Magistrate in Bangalore before bringing Ravi to Delhi. In 2019, a Delhi High Court judgment issued guidelines that the police should follow when arresting an accused in another State. The judgment had held that an “endeavour” should be made by the police to obtain a transit remand order by producing the accused before the nearest Magistrate to the place of arrest, unless “exigencies of the situation warrant otherwise” and the transport of the accused without a transit remand order would not be in violation of Section 57 CrPC (i.e. if the person can be produced before the Magistrate having jurisdiction in the case within 24 hours of the arrest).
Section 167 therefore does not mandate that a transit remand order be passed in order to move an accused out of the State in which they are arrested. However, the judgment of the Patiala House Court in Disha Ravi case on 23-2-2021 notes that it was argued by Ravi’s counsel that the Delhi police did not follow legal procedures at the time of the arrest by transporting her outside the jurisdiction of her Ilaqa Magistrate without securing any judicial orders. The judgment does not elaborate on this argument or deal with this issue further.
The Supreme Court’s judgment in Gautam Navlakha could help shed some light on this issue. By holding that transit remand is a form of custody under Section 167 CrPC, it could be argued that the Supreme Court held that police are only required to obtain an order for transit remand once the period of detention exceeds 24 hours. This conclusion would be supported by the 2019 Delhi High Court judgment mentioned above, which laid down the guideline that police should apply for a transit remand unless the accused could be produced before the Magistrate having jurisdiction in the case within 24 hours, without infringing the mandate of Section 57 CrPC. Assuming, therefore, that the police are able to transport the accused to the State in which the FIR or criminal complaint has been filed within 24 hours, it is arguable that a transit remand order would not be required.
It remains to be seen whether future orders in other cases will touch on this issue and provide further guidance.
In relation to the use of house arrest instead of traditional jail custody, the judgment notes that in appropriate cases, it would be open to courts to order house arrest under Section 167. However, the Supreme Court did not lay down guidelines on when this discretion should be exercised; it merely indicated that criteria such as age, health condition, the prior convictions 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 would be relevant. This leaves the courts in future cases with a huge amount of discretion on when they may order house arrest, and is likely to encourage its use as a routine alternative to the more traditional forms of detention.
Indeed, the Calcutta High Court in the Narada scam judgment has already exercised this discretion by ordering the house arrest of four Trinamool Congress leaders. The criteria considered by the Calcutta High Court in ordering this house arrest appear to be the age and health issues of the accused; the Court noted that three of the four accused are admitted in hospital.
However, it is unclear whether any other criteria were considered by the Court. For instance, it is unclear whether the Court considered the nature of the crime. The charges in the Narada scam case have been brought in relation to offences of bribery under the Prevention of Corruption Act, 1988, while the charges in Gautam Navlakha relate to the organisation of terrorist activities, which are offences under the Unlawful Activities (Prevention) Act, 1967. Apart from the age of the accused, the main similarity between the two cases appears to be their high profile nature, and the heightened interest in these cases from the press and general public.
In future cases, in addition to the factors prescribed by the Supreme Court in Gautam Navlakha courts may also wish to consider additional factors such as:
In addition, the Supreme Court did not lay down any guidelines on the conditions to be imposed on house arrest. In Navlakha case, the conditions of the house arrest were that he could not leave his residence, or meet anyone barring his lawyers and the ordinary residents of his house. The Narada scam judgment, on the other hand, mentions that the accused should have access to medical facilities.
Furthermore, it is unclear which authority is to be responsible for enforcing the conditions of the house arrest. In Navlakha case, there were also two guards of the Delhi police posted outside his residence to enforce these conditions. The Narada scam judgment, on the other hand, mentions that it would be the duty of the jail authorities to enforce the conditions of the house arrest.
The Supreme Court also noted in Gautam Navlakha that the investigating authorities could have approached the Delhi High Court to request access to Navlakha while he was under house arrest in order to conduct interrogations. However, the Court did not offer any further guidance on the circumstances and conditions under which this access should be granted in future cases. The Court did not specify, for instance, whether the police could only be granted access on proving to the court that interrogation was necessary, or whether the courts would grant access as a matter of course.
Finally, it remains unclear whether detention under “house arrest” may only fall within the category of judicial custody (as was the case in Gautam Navlakha) or whether it may instead be considered police custody. This would be likely to depend upon the specific conditions imposed by the court in each case of house arrest, so it will be interesting to note the kinds of conditions which courts impose in future cases. If house arrest were to be ordered as a form of police custody instead of traditional custody in a police station, this may have the welcome effect of reducing instances of custodial violence by the police.
In general, house arrest may prevent undue disruption in the lives of an accused, as they may be able to continue their employment (depending, of course, on the conditions imposed by the court). This form of custody may therefore be more appropriate in certain cases, such as white collar crimes (which are generally non-violent in nature) or in cases where the accused is a first time offender and has strong roots in society. In such appropriate cases, house arrest should be encouraged with the imposition of adequate conditions.
However, courts will need to avoid the danger of ordering house arrest in cases where bail would be more appropriate. Given that house arrest is, in general, perceived as a lesser restrictive form of custody when compared to custody in a police lock-up or jail, courts will have to consciously ensure that house arrest is not ordered liberally in a manner that undermines the scheme of Sections 57 and 167 CrPC and Article 22 of the Constitution, which aim to minimise the time spent by an accused in custody to only that time absolutely necessary for the police investigation.
As noted above, an individual is eligible to be released on “default bail” if the person has spent the prescribed period of 60 or 90 days (as applicable) in “custody” under Section 167. The provision of default bail is linked to safeguarding the fundamental right of personal liberty of an individual, guaranteed by Article 21 of the Constitution.
Against this backdrop, the Supreme Court’s judgment in Gautam Navlakha is an important exploration and broadening of the meaning and scope of the term “custody”. However, as discussed above, it is not without its complications. The judgment does not clarify in which circumstances house arrest may be ordered or provide guidelines on the conditions which should be imposed on house arrest. Further, the judgment also fails to specify whether house arrest would constitute police or judicial custody, which implies that this will need to be determined on a case-by-case basis. Lack of clarity on any of these issues may cause some confusion in its application, particularly in the short term.
Further judicial consideration of the issues of transit remand and house arrest as forms of custody under Section 167 will therefore be necessary in future cases. Without a doubt, however, the judgment in Gautam Navlakha is a welcome and important step in the right direction, and will hopefully result in the greater use of house arrest as a form of detention instead of the traditional forms of detention in police or judicial custody.
 Navlakha Bail Denied Flawed but SC Backing House Arrest as Alternative to Jail a Blow for Rights, The Wire, 13-5-2021, <https://thewire.in/law/gautam-navlakha-bhima-koregaon-supreme-court-bail-house-arrest>; Analysing the Concept of “House Arrest” in Criminal Matters, Bar and Bench, 30-5-2021, <https://www.barandbench.com/columns/analysing-the-concept-of-house-arrest-in-criminal-matters>; SC Explains Law Relating to Default Bail, House Arrest, The Leaflet, 14-5-2021, <https://www.theleaflet.in/sc-explains-law-relating-to-default-bail-house-arrest/>.
 Other provisions such as Ss. 209(b) and 309(2) CrPC also empower a Magistrate to remand an accused to custody, but are applicable at later stages of a criminal trial. Briefly stated, S. 209(b) is applicable at a stage where an offence is triable exclusively by the Court of Session, the Magistrate may remand the accused while the trial is ongoing; and S. 309(2) deals with powers of remanding an accused to judicial custody after taking cognizance of an offence and not during the period of investigation.
 M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485, para 11.
 Pramod Kumar v. State of U.P., 1990 SCC OnLine All 713 : 1991 Cri LJ 1063.
 S. 167(2) CrPC.
 Proviso to S. 167(2) CrPC.
 For offences under the Unlawful Activities (Prevention) Act, 1967 (such as the offences of which Navlakha is accused), an accused is entitled to default bail after detention for a period of 90 days. Therefore, without counting the period of Navlakha’s house arrest for 34 days, he would not be entitled to default bail.
 Associated Tubewells Ltd. v. R.B. Gujarmal Modi, AIR 1957 SC 742.
 State v. Disha A. Ravi, Bail Application No. 420 of 2021 (District Court).
This article was originally published in SCC Online on 28 September 2021 Co-written by: Anuj Berry, Partner; Anusha Ramesh, Principal Associate; Bhargavi Vadeyar, Associate; Vinayak Chawla, Associate. Click here for original article
Contributed by: Anuj Berry, Partner; Anusha Ramesh, Principal Associate; Bhargavi Vadeyar, Associate; Vinayak Chawla, Associate
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