Notes

This is an analaysis of the Hon’ble Supreme Court’s judgment in Gautam Navlakha v Union of India. In this case, the Supreme Court has clarified a number of points regarding:-

• House Arrest
• Power of Superior Courts to act u/s 167 CrPC
• Transit Remand

Judgment

The following are the relevant paras of the judgment:-

¶ 45 – House Arrest is within the scope of custody

¶ 55 – No court has the inherent power to grant custody. Granting of custody by High Court not exercising powers u/s 167 would amount to an illegal exercise of power.

¶ 57 – Generally, no Revision lies from an order u/s 167. However a petition u/s 428 is permissible. Person arrested in a non-bailable offence may be released u/s 437, or u/s 439(by HC or Sessions Court)

¶ 60 – Application can be moved u/s 439 or u/s 437. u/s 439 the High Court can determine the legality of order u/s 167 and need for remand

¶ 63 – Habeas Corpus petition may be filed against remand order only where:-

• Order is absolutely illegal
• Order has been passed in mechanical manner
• Order suffers from lack of jurisdiction

¶ 66 to 68 – Superior Courts (SC and HC) can issue remand order u/s 167 while granting bail. If period of custody is broken and then reinstated through appeals the period in custody would be counted.

¶ 69 to 76 – Transit Remand is within the scope of Police Custody. Police is free to interrogate the accused. The time elapsed during transit remand would also be included while calculating the time for default bail

¶ 86 – If accused person is detained during period of investigation this time period shall be included in calculating time period u/s 428. What is not included:-

• Custody during inquiry/trial
• Custody under Army Act

¶ 90 – An illegal order for custody is passed u/s 167, the time period of custody would still count.

¶ 91 – Custody in excess of limit, (i) either 90 days, (ii) or exceeding police custody limit AND continues unchallenged, in both cases the period will count.

¶ 92 & 93 – If court purports to act u/s 167, time period in custody will count, whether order was legal or illegal. If court does not act pursuant to 167, then it would not count.

¶ 97 – Preventive Detention is not within the scope of sec. 167. Therefore House Arrest granted by the Executive, pursuant to a Preventive Detention law is not u/s 167.

¶ 98 – House Arrest may be granted u/s 167; Provided the order contains elements of sec. 167. Sec. 167 provides for “such custody as it thinks fit”.

¶ 103 – Magistrate court is bound to look into legality of arrest. If the arrest is illegal, Magistrate cannot authorise the detention. All Constitutional safeguards must be satisfied.