While rejecting senior journalist and human rights activist Gautam Navlakha’s default bail application, the Bombay High Court held that the time spent in unlawful custody cannot be included while calculating the 90 days period prescribed for grant of default bail under section 167(2) of the Criminal Procedure Code.
Justices SS Shinde and MS Karnik held that the 34 days Navlakha had spent under house arrest between August 28, 2018 to October 10, 2019, 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 High Court.
The Bench said, “It is not possible for us to fathom a situation where detention of the Appellant 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 Cr.PC.”
Elaborating on how Navlakha was not under detention for police investigation, the court said, “During the period of house arrest, barring the Appellant’s lawyers and ordinary residents of the house, the Appellant was not supposed to meet any one or step out of the premises till further orders. The High Court of Delhi had ordered that the Appellant be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local police that was originally present to arrest the Appellant, outside the house. It is therefore obvious that the Investigating Agency/Investigating Officer did not have any access to him nor had an occasion to interrogate him.”
The Bench also relied on Chaganti Satyanarayan, where the Supreme Court had 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.”
The High Court also relied on State of West Bengal vs Dinesh Dalmiya (2007) 5 SCC 773, where the top court held that the custody of police for investigation purposes cannot be treated judicial custody/ detention in another case. The police custody here means the Police custody in a particular case for investigation and not judicial custody in another case. This notional surrender cannot be treated as Police custody so as to count 90 days from that notional surrender.
Hence, the court emphasised on this issue and held:
“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.”
The Bombay High Court went through the NIA special court order and said that they find no reason to interfere with the same.
The judgment may be read here: