TRANSIT REMAND & HOUSE ARREST
Shubham Budhiraja[1]
In present case, the HC confirmed
the House arrest which came due to transit remand. The Supreme Court held that
transit remand period will be calculated for purpose of period under Section
167 CRPC within which charge-sheet is too filed and it will certainly
calculated for purpose of default bail. The Supreme Court further held that order allowing
transit remand is a judicial but interlocutory order and the remedy cannot be
Section 397 Revision but Bail application under Section 437/ Section 439 CRPC
Bail. It was further held that the Writ of Habeas Corpus will be maintainable
if it can be shown that order of transit remand was illegal or without
application of mind.
CONCLUSION
(I)
There are 2 ways to arrest – with and without
warrant. CPC & CRPC both provides for arrest with warrant
(II)
The arrest without warrant requires greater
caution as it impacts the liberty.
(III)
There are safeguards when a person is arrested
(a)
Produced before jurisdictional magistrate
(b)
Magistrate will look into entries of case diary
and see if prayer of remand / transit remand can be allowed
(c)
Magistrate will also ask the accused if he was
informed of ground of arrest
(d)
Magistrate will also ask accused whether he need
legal service through duty lawyer of Legal service authority
(IV)
These all safeguards become more important when
arrest is made without warrant and in failure of fulfilling them, arrest become
illegal and Habeas Corpus can be moved
(V)
The remedy also lies in nature of Bail
Application under Section 437/ Section 439 CRPC
(VI)
In present case, transit remand was allowed by
Magistrate court without fulfilling safeguards of Section 167 CRPC and
thereafter accused was sent to House arrest. The HC confirmed the transit
remand on reason that for transit remand, no need to fulfill Section 167
safeguards which is wrong reasoning because HC itself concluded that period
spent in house arrest in custody. When its custody then there is no reason why
requirement of Section 167 cannot be fulfilled. The question is what is the
nature of House arrest? Whether its judicial custody or police custody
(VII)
Power under Section 167 can be exercise by
superior courts also and mere fact that HC/ SC interfere with order passed
under Section 167 will not derail the calculation of period of custody for
purpose of filling charge sheet on failure of which default bail can be granted
(VIII)
Transit remand is not a judicial custody but
police custody and remand order of whatever nature is order under Section 167
and the moment this order is passed, the period will start to run.
(IX)
Detention during Investigation and Preventive
detention are two different things for purpose of Section 428 CRPC because in
later case, the set-off not available. However, they both are same for purpose
of Section 167 CRPC. i.e. period within which charge-sheet to filed
(X)
If the remand order passed under Section 167 was
illegal because of failure to comply with safeguards then the order will become
illegal however the actual custody incurred by accused will be counted for
purpose of default bail.
(XI)
House arrest is expressily permissible in form
of preventive detention law however it can also be trace under Section 167
because of term “any other custody as it deem fit” by magistrate
(XII)
Due to overcrowding of prions in India, House
arrest under Section 167 can be a thoughtful idea in appropriate cases
depending on
-
Nature of crime
-
Health condition of accused
-
Criminal history of accused
However
in present case, house arrest was passed not under Section 167 but under
preventive detention. Hence, SLP dismissed
ARREST PROVISIONS – CRPC & CPC
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
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 57 provides that Person
arrested not to be detained more than twenty- four hours and such period shall
not, in the
absence of a special order of a
Magistrate under section 167, exceed twenty four hours exclusive
of the time necessary for the journey from the place of arrest to the
Magistrate' s Court.
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.
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
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 and Section 167 deals with situation when Investigation
could not be completed within 24 hours
Section 43(D) (2) of UAPA
provides for the modified application of Section 167
|
Case
Name |
Relevant
Remarks |
|
State of Punjab v. Ajaib Singh,
AIR 1953 SC 10 |
The ambit of Article of 22(1) and also the scope of the
expression “arrest” 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 “Warrant of Arrest” in
Chapter VI of the Code of Criminal Procedure deal with arrests in execution
of warrants issued by a court under the 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 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 Section 81 states that 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 CPC also provides for Arrest To take one example, Order 38 Rule 1
of the Code of Civil Procedure authorizes 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 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
decree-holder 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
Important thing is that in both CRPC & CPC, the arrest warrant discloses
the reasons of accusation for arrest Article 22 v. Arrest without warrant 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 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. |
MANDATORY REQUIREMENT OF SECTION 167 – CASE DIARY JUSTIFIED REMAND
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 consulting and be defended by any legal
practitioner of his choice.
In present case,
-
Entry in diaries were made in Maratha language
which made magistrate disable to apply its mind as to whether these entries
satisfy the requirement of Section 41
-
The Magistrate did not asked the accused whether
he was informed of grounds of arrest and HC justifying it that no need to
inform it because it was transit remand is not correct position
NATURE OF HOUSE ARREST & REMEDY AVAILABLE
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
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.
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
(I)
An order under Section 167 is purely an
interlocutory order. No revision under Section 397 is maintainable.
A petition under Section 482 cannot be ruled out
(II)
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
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
(III)
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
(IV)
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.
BREAK IN PERIOD OF CUSTODY
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 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
One more case where 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
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
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 granting custody by the High Court
cannot be treated as one which is not anchored in Section 167 of the Cr.P.C.
Therefore, 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.
Hence, 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.
EFFECT OF TRANSIT ORDER
Section 57 contains the
peremptory limit of 24 hours exclusive of the period for journey, in the
absence of ‘special order’ under Section 167. 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?
Transit remand cannot 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
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
Hence, 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, it involved authorizing continued detention within the meaning of
Section 167.
EFFECT OF SECTION 428 CRPC- SET OFF OF PERIOD OF DETENTION WITH
CONVICTION
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?
Section 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
The starting point appears to be the arrest and
detention of the person in connection with the 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 installments.
It is also open to the Magistrate to release the arrested person on bail. 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.
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. (AIR 1977 SC 1096) 87. Detention pursuant to proceedings under the
Army Act inter alia does not count. ( AIR 1987 SC 1646)
Thus, detention ‘during
investigation’ under Section 428 is integrally connected with detention
as ordered under Section 167
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 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 ILLEGAL REMAND ORDER UNDER SECTION 167
Section 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
Take 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.
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
JUDICIAL CUSTODY V.
POLICE CUSTODY
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. 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 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
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 but
Section 167 speaks of ‘such custody as it thinks fit’. If it
is found ordered under Section 167 it will count
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