| Headnote |
Constitution of India: Art.21 – House arrest – 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 him of the fundamental freedoms unless such freedoms are specifically protected – In the case of a person undergoing a house arrest and in the teeth of an absolute prohibition, in the facts of the case forbidding him from moving outside his home, the hallmark of custody described in the case of incarceration is equally present – The right under Art.21 is undoubtedly available to citizens and non- citizens – 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. Code of Criminal Procedure, 1973: s.167 – Remedies open to an accused in the case of remand under s.167 – Held: An order under s.167 is purely an interlocutory order – No revision is maintainable – A petition under s.482 cannot be ruled out – When a person arrested in a non-bailable offence is in 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 s.437 – s.439 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 – 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.Code of Criminal Procedure, 1973: ss.437, 439 – While the remand report is considered by the Magistrate the application for bail may be moved under s.439 instead of moving under s.437 in view of the restrictions contained therein – Though an application under s.397 would not lie against the remand, an application for bail would lie under s.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 s.439 – No doubt the additional restrictions under s.43(D)(5) of UAPA are applicable to citizens of India in cases under the said law. Code of Criminal Procedure, 1973: s.167 – Whether a Writ of Habeas Corpus lies against an order of remand under s.167 of the Code – A Habeas Corpus petition is one seeking redress in the case of illegal detention – It is intended to be a most expeditious remedy as liberty is at stake – 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. Code of Criminal Procedure, 1973: ss.167, 439 – Whether superior courts (including High Court) can exercise power under s.167 of the Code – Can broken periods of custody count for the purpose of default bail – 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 s.439) the power under s.167 could also be exercised by Courts which are superior to the Magistrate – While ordinarily, the Magistrate is the original Court which would exercise power to remand under s.167, the exercise of power by the superior Courts which would result in custody being ordered ordinarily (police or judicial custody) by the superior Courts which includes the High Court, would indeed be the custody for the purpose of calculating the period within which the charge sheet must be filed, failing with the accused acquires the statutory right to default bail – 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. Code of Criminal Procedure, 1973: s.167 – Transit order, effect of – The remand pursuant to a transit remand cannot be judicial custody as the police is exclusively entrusted with the man to produce him before the Magistrate having jurisdiction – It is therefore, police custody – If it is thought that during the journey, it is impermissible to interrogate the accused on the basis of transit order, then such interrogation would equally be impermissible during the time of journey permitted without obtaining an order under s.167 – If also during such journey, the accused volunteers with a statement otherwise falling under s.27 of Evidence Act, it would be one when the accused is in the custody of the police – If it is police custody then, the order of the Magistrate granting transit remand would set the clock ticking to complete the period for the purpose of default bail. Code of Criminal Procedure, 1973: s.428 – Period of detention, set off of – Held: s.428 enables a person convicted to have the period of detention which he has undergone during the investigation, enquiry or trial set off against the term of imprisonment. Code of Criminal Procedure, 1973: s.167 – Detention of an accused – Police officer can detain accused 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 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 – The scheme further under s.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 undoubtedly be entitled to count the entire period he has spent in detention under orders of the Magistrate/ Superior Court exercising powers under s.167 for the purpose of set off under s.428. Code of Criminal Procedure, 1973: s.167 – Effect of illegality in the order under s.167 – An order purports to remand a person under s.167 – It is made without complying with mandatory requirements thereunder – It results in actual custody – The period of custody will count towards default bail. s.167(3) mandates reasons be recorded if police custody is ordered – There has to be application of mind – If there is complete non-application 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, 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 s.167(2) – Custody ordered without complying with the said provision, may be illegal – But actual custody undergone will again count towards default bail. Code of Criminal Procedure, 1973: s.167 – If the Court purports to invoke and act under s.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 – However, when the Court does not purport to act under s.167, then the detention involved pursuant to the order of the Court cannot qualify as detention under s.167.Code of Criminal Procedure, 1973: s.167 – Judicial custody and police custody – Difference between – When a person is remanded to police custody, he passes into the 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 – 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 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 s.167 of the Cr.P.C. Code of Criminal Procedure, 1973: s.167 – Judicial custody of accused – The concept of house arrest as ordered in this case with the complete prohibition on stepping out of the Appellants 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 – s.167 speaks of ‘such custody as it thinks fit’ – If it is found ordered under s.167 it will count. Code of Criminal Procedure, 1973: s.167 – Does the magistrate/Court consider the legality of arrest/detention while acting under s.167 – Held: Art.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 Art.22(1) is concerned with is that the detention must be supported by the fulfillment of the rights referred to therein – Strictly speaking, therefore, Art.22(1) does not go to the legality of the arrest – Constitution of India – Art.22(1). Code of Criminal Procedure, 1973: s.167 – Impact of 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 – The very purpose of custody under s.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 s.167 – In other words, the argument appears to be that the object and scheme of s.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 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. Prisons: Conditions relating to jails and prisoners – Alarming state of affairs as far as occupancy rate is concerned – Overcrowding in jails, discussed. |
