The decision of a Division Bench of the Supreme Court in Gautam Navlakha v. National Investigation Agency [Crl. Appeal No. 510 of 2021 (Decided on 12.05.2021) ("Navlakha")] continues the rich tradition of poorly authored judgments which frequently emerge from the Supreme Court of India and other High Courts on matters of criminal procedure and personal liberty. The judgment is unclear, to say the least, and peppered with needless extracts throughout. The result is a laborious 206 page exercise which judges, lawyers, and law students will struggle with for some time to come (and, curious laypersons would be well-advised to avoid reading it altogether).
The Facts
The Appellant was arrested in August 2018 and transit remand was granted to the police to take him from Delhi to PS Vishrambaug. But the arrest and remand were challenged in a habeas corpus petition filed on the same day before the Delhi High Court. Since it was unable to decide the petition on the same date, the High Court did not order the Appellant's release but directed that he be detained under "house arrest" till the petition could be decided. Later, in a separate public interest litigation, the Supreme Court extended this "house arrest" of the Appellant till it could decide that litigation.
What we have then is a clear chain of events: the Appellant was arrested and remanded to custody by the trial court, and the terms of this custody were modified by the High Court till it decided a habeas corpus petition. The terms of this detention were clearly spelt out: the Appellant was not permitted to leave or interact with persons save his lawyers or doctors; his house was guarded by police, and crucially; he was not available for interrogation either. This detention was then extended by the Supreme Court. Ultimately, on 01.10.2018, the High Court ruled that the remand order was illegal.
This did not spell the end of the litigation, of course, and as is well known the Appellant was arrested later and taken into custody in April 2020. In June, the Appellant raised a plea of statutory bail (or default bail) before the trial court in Maharashtra. This is a concept critical to criminal procedure and personal liberty in India. Once custodial detention during investigation crosses certain time-periods and the investigation is yet to be concluded, it triggers a right to bail for an accused under Section 167 of the Code. This "statutory bail" under Section 167 is distinct from the liberty that accused persons have to file bail applications and plead for release, because while judges retain vast discretion to grant or refuse ordinary bail applications, there is no such discretion when it comes to statutory bail.
The Appellant claimed this right to bail because, according to him, the time spent by him in custody had to include the 34 days of custody he suffered in 2018 as well. Both the trial court and the Bombay High Court disagreed because the "house arrest" suffered by the Appellant could not been as custodial detention of the kinds envisioned under Section 167 of the Code. Even if that kind of detention could be seen as the kind of detention contemplated by Section 167, in this case the Delhi High Court had anyway held that the remand order and subsequent custody was illegal and thus stood wiped out.
In essence, then, these were the two issues presented before the Supreme Court.
The Supreme Court's Verdict: A Dishonesty of Convenience
Navlakha holds that the period of custody undergone by an accused during investigation into commission of non-bailable offences must be counted towards computing the total time spent in such custody as under Section 167 of the Criminal Procedure Code 1973, even if a superior court later rules that the accused had been illegally remanded. Furthermore, it holds that confinement in "house arrest" after being apprehended by the police can be a form of custodial detention that is sanctioned in law under Section 167. In doing so, the Court expands the notion of custody beyond the usual dichotomy between "police custody" and "judicial custody", which was traditionally seen as detention in police lock-up and being sent to jail. This custodial detention at one's home would, by extension, also be included towards computing time spent in custody by an accused. Not only this, the judgment in Navlakha goes on the offensive and pushes for looking at house arrest more seriously at all stages of the process as an alternative to traditional judicial custody so as to reduce the prison population [Paras 137-140].
In the facts of the case before it, though, the Supreme Court was compelled to conclude that this particular house arrest suffered by the Appellant for 34 days could not have been ordered under Section 167 of the Code. As a result, it could not be said that his custodial detention during investigation had crossed the time-limit which entitled his release on bail.
Why does the Court conclude that the house arrest suffered by the Appellant, though certainly a kind of custodial detention, was not of the kind contemplated under Section 167 of the Code? The best chance at understanding this comes from closely reading the judgment from Para 131 onwards where reasons are offered — which are neither compelling nor consistent. It would be unhelpful to go through each of these individually and instead I'll highlight the underlying point, which is that the terms of this house arrest were such that it would not fit within the framework of Section 167 of the Code. No case diaries were inspected before directed house arrest and, furthermore, there was no possibility of interrogating the accused given the directions of the High Court. Thus, as the judgment puts it at Para 134.
That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court.
With due respect, this is bogus. It does not matter what was "apparently in the minds" of judges when they passed certain orders. In fact, because it is impossible to fathom with any degree of certainty what might have been in the mind of an authority when it took a decision, judicial review always implores judges to refrain from engaging in such an inquiry. Instead, judges must locate the decision within the framework of law, and consider whether the exercise of discretion which lay behind the decision was not arbitrary. Thus, once the Court in Navlakha concluded that house arrest is custodial detention within the meaning of Section 167 of the Code, it cannot conveniently revisit this conclusion in the facts of a particular case and locate a specific instance of house arrest outside of Section 167, because of what it thinks was "apparently in the minds" of judges. If the detention was not in terms of Section 167, then it was illegal, but that would not stop the clock for statutory bail under Section 167 as the Court concludes.
Conclusion
As convenient as it may have seemed, it was still wholly impermissible for the Court to locate the 34 days of custody suffered by the Appellant in a no-man's land which is both within the law and beyond it. This kind of judicial exceptionalism in the face of hard cases not only unmoors the concept of judicial review from its very foundations, but flips it entirely to permit a pick-and-choose of the worst sort imaginable.
At this point, one would be forgiven to think this is too harsh a criticism of the judgment in Navlakha. After all, and this is a point that the judgment itself puts forth, even the Appellant and other accused persons did not imagine house arrest as a liberty-depriving measure at the time when the orders were passed. I agree; and if the Court was still unconvinced of its conclusion on this front, it could very well conclude that house arrest was not custodial detention within the framework of law. It could do this while also airing its concerns about prison overcrowding to suggest that perhaps the legislature should start to look at house arrest more seriously as an alternative to existing judicial custody detention.
But the Court chose to not adopt this restrained course of action, which is why its conclusions are a perfect exercise in adopting what I label a dishonesty of convenience. Or, to put it more plainly, an effort to have its cake and eat it too.
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