Breaking: Courts Can Order House Arrest U/s 167 CrPC In Appropriate Cases: Supreme Court

 The Supreme Court observed that in appropriate cases, courts can order house arrest under Section 167 of Code of Criminal Procedure.

The court said that, to order house arrest, courts can consider criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest. As regards post-conviction cases, the court said that it is open to the legislature to ponder over employing house arrests.

The bench of Justices UU Lalit and KM Joseph was considering the appeal filed by Gautam Navlakha (Bhima Koregaon Case) in which it considered the question whether the period of 34 days spent in house arrest by the appellant is to be counted towards the period of 90 days under Section 167 Cr.P.C.?

While dismissing the appeal, the bench noted that the house arrest in this case was not ordered purporting to be under Section 167 and thus cannot be treated as having being passed under Section 167. However, the court also, in its judgment considered, whether there be an order for custody other than police custody and judicial custody under Section 167 Cr.P.C.? In other words, the question considered was whether house arrest custody within the embrace of Section 167 of Cr.P.C.?

In concluding part of the judgment, it observed thus:

"137. There is one aspect which stands out. Custody under Section 167 has been understood hitherto as police custody and judicial 204 custody, with judicial custody being conflated to jail custody ordinarily.
138. The concept of house arrest as part of custody under Section 167 has not engaged the courts including this Court. However, when the issue has come into focus, and noticing its ingredients we have formed the view that it involves custody which falls under Section 167.
139. We observe that under Section 167 in appropriate cases it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest. We would also indicate under Section 309 also that judicial custody being custody ordered, subject to following the criteria, the 205 courts will be free to employ it in deserving and suitable cases."

The court in the judgment, refers to various statistics to highlight the problems of overcrowding in prisons and the cost to the state in maintaining prisons

39. Among the advantages which have been perceived in promoting the house arrest, have been avoidance of overcrowding of the prisons and also cost saving. However, concerns have also emerged in regard to the issues arising out of the proper supervision of house arrest [ refers to article "House Arrest", a critical analysis of an intermediate level penal sanction by Jeffrey N. Hurwitz]

"50..There is a tremendous amount of overcrowding in jails in India. Secondly, a very large sum (Rs. 6818.1 crore) was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer", the court noted.

The court, also noted that, in India the concept of house arrest has its roots in laws providing for preventive detention. It observed:

45. 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.

Case: Gautam Navlakha vs. National Investigation Agency [CrA 510 OF 2021]

Coram: Justices UU Lalit and KM Joseph

Citation: LL 2021 SC 254

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