GAUTAM NAVLAKHA versus NATIONAL INVESTIGATION AGENCY

Citation: [2021] 5 S.C.R. 87 · Decided: 12-05-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Dismissed

Cited by 1 judgment(s) · cites 14 · see the full citation network in Lexace

Judgment (excerpt)

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   [2021] 5 S.C.R. 87
87
GAUTAM NAVLAKHA
v.
NATIONAL INVESTIGATION AGENCY
(Criminal Appeal No. 510 of 2021)
MAY 12, 2021
[UDAY UMESH LALIT AND K. M. JOSEPH, JJ.]
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.
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
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
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custody is suffered by the order of the Magistrate or sup

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