While enumerating the scope of Section 167 of the Code of Criminal Procedure the Hon’ble Supreme Court in the case of Gautam Navlakha vs. National Investigation Agency (12.05.2021 – SC) : MANU/SC/0350/2021 propounded the following guidelines for house arrest:
“ On the other hand, Article 21 of the Constitution of India, provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure prescribed by law. This Article, creates a Fundamental Right, which cannot be waived. Moreover, unlike the persons, who apparently underwent house arrest on the basis of the offer made on their behalf, in the case of the Appellant, even prior to the order dated 29.08.2018, the High Court had ordered house arrest, which constituted house arrest. The Appellant was an Accused in a FIR invoking cognizable offences. He stood arrested by a Police Officer. He was produced before a Magistrate. A transit remand, which was a remand, Under Section 167, was passed. Police custody followed. The High Court ordered that the Appellant be kept in house arrest. The setting aside of the Order of transit remand will not wipe out the Police custody or the house arrest. We agree that illegality in order of the CMM, Saket, will not erase the deprivation of liberty. But other aspects already discussed militate against the order being treated as passed purportedly Under Section 167. There can be no quarrel with the proposition that a court cannot remand a person unless the court is authorised to do so by law. However, we are in this case not sitting in appeal over the legality of the house arrest. But we are here to find whether the house arrest fell Under Section 167. We are of the view, that in the facts of this case, the house arrest was not ordered purporting to be Under Section 167. It cannot be treated as having being passed Under Section 167.
- There is one aspect which stands out. Custody Under Section 167 has been understood hitherto as police custody and judicial custody, with judicial custody being conflated to jail custody ordinarily.
- 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.
- 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 courts will be free to employ it in deserving and suitable cases.
- As regards post-conviction cases we would leave it open to the legislature to ponder over its employment. We have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons.”