House arrest amounts to â€œcustodyâ€ within meaning of Code of Criminal Procedure

If remand is illegal or afflicted with a lack of jurisdiction, the affected person can seek the remedy of Habeas Corpus. Broken periods of custody if reaches the requisite period, can be counted for default bail whether custody is suffered by order of Magistrate or superior courts.

Remand according to a transit remand is not judicial custody as police are exclusively entrusted with man to produce him before Magistrate having jurisdiction. It is therefore police custody.

The concept of house arrest though familiar in the law relating to preventive detention, therein the underpinnings are different. House arrest in the law of preventive detention is permitted under the law itself and such orders are made in fact by the executive. Also, detention under Section 167 of the Code of Criminal Procedure would not embrace preventive detention in the form of house arrest. However, taking the ingredients of house arrest as are present in the order passed by the High Court of Delhi in its order dated 28.08.2018, if it is found to be one passed under Section 167 of Code of Criminal, then it would be detention thereunder.

The concept of house arrest as ordered in this case with the complete prohibition on stepping out of the Appellants premises and the injunction against interacting with persons other than ordinary residents, and the standing of the guard not to protect him but to enforce the condition would place the Appellant under judicial custody. Section 167 of the Code of Criminal Procedure speaks of 'such custody as it thinks fit. If it is found ordered under Section 167 of the Code of Criminal it will count.

Appearing counsel/s : Shri Kapil Sibal, Smt. Nitya Ramakrishnan, Shri Shadan Farasat, Shri S.V. Raju

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