Default Bail- Period Of 90/60 Days Will Commence From Date Of Remand Only, Not From Any "Unlawful Custody" Prior To It: Bombay High Court

Navlakha was arrested in the Elgar Parishad- Maoist Links case, twice. The first time on August 28, 2018 and the second time after he surrendered on April 14, 2020. He was placed under house arrest the first time, following an order of the Delhi High Court and released after his arrest was declared illegal, in October.

A division bench of Justices SS Shinde and MS Karnik held that the 34 days Navlakha had spent under house arrest between August 28, 2018 - October 10, 2018, cannot be used to calculate his total detention period, especially since his arrest, as well as the magistrate's transit remand, was found to be illegal by the Delhi HC.

"It is not possible for us to fathom a situation where detention of the Appellant(Navlakha) though held to be illegal & unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 167 of the CrPC," the court observed.

The court held that there was no doubt Navlakha was under house arrest, during which time he could interact only with his family and lawyers. However, the investigating agency did not have any access to him or an occasion to interrogate him, as the High Court had ordered the police to keep Navlakha at the same place from where he was picked up.

"As the transit remand order was stayed, it cannot be said that the appellant was under detention of police for investigation, "the bench observed.

The court held that section 167 (2) of the CrPC, assumes the detention is authorised by a magistrate, and 90 days upward from that day can be used to calculate the period of custody for default bail. "However, once the authorisation by the Magistrate is declared illegal consequently rendering the detention itself illegal, the said period (house arrest custody) cannot be construed to be an authorised custody within the meaning of Section 167(2) of CrPC.," the court said.

The bench added that since Chief Metropolitan Magistrate (CMM) granted transit remand on August 28, 2018, which was finally set aside by the Delhi HC, thereby holding the detention/ house arrest between August 28- October 10, 2020 "illegal," in the absence of there being an authorised detention by an order of Magistrate, Navlakha could not claim entitlement to statutory default bail under SubSection (2) of Section 167 of the CrPC."

"The mandate of SubSection (2) of Section 167 of the CrPC. makes it clear that for claiming availment of default bail under Section 167(2) of the CrPC. the basic requirement is that the detention of the accused in the custody has to be authorised by the Magistrate," the court held.

Navlakha, is accused under several sections of the Unlawful Activities Prevention Act, being investigated by the NIA, along with over 15 other civil liberties activists and academics. He approached the Bombay HC after his plea for default bail was rejected by the Special NIA Court in June, 2020.

In its detailed order-

The bench relied on the decision of Chaganti Satyanarayan and others v State of Andhra Pradesh where the Supreme Court in Paragraph 24 held that the period of 90 days or 60 days, as the case may be, will commence running only from the date of remand and not from any anterior date in spite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty.

"Thus in the light of our discussion and conclusions reached we do not find merit or force in the contention of the appellants' counsel that the words 'for a term not exceeding 15 days in the whole" occurring in sub-section (2) of Section 167 should be so construed as to include also the period of custody of the accused from the time of arrest till the time of production before the Magistrate. A Magistrate can, therefore, authorise the detention of the accused for a maximum period of 15 days from the date of remand and place the accused either in police custody or in judicial custody during the period of 15 days' remand. It has, however, to be borne in mind that if an accused is remanded to police custody the maximum period during which he can be placed in police custody is only 15 days. Beyond that period no Magistrate can authorise the detention of the accused in police custody."