A New Pragmatic Effort of Supreme Court: House Arrest

Author:- Sachin Tiwari


Personal liberty has been described as the most important value that is recognized in the constitution and it is protected from any encroachment except when such encroachment is fair, just, and reasonable as held in the Maneka Gandhi case.  The bench in Gautam Navlakha’s case also added that “Right to personal liberty is the birthright of every human being. The right under Article 21 is undoubtedly available to citizens and non-citizens”.  Further, the bench noted the jurisprudence related to arrest. By doing this, the court draws an analogy with the current concept of arrest that provides preventive detention which is a form of forced detention to state that a house arrest is also a form of forced detention.

The court cited the article of Jeffrey N. Hurwitz named “House Arrest” for defining House arrest as, “House arrest is a form of intensive law enforcement supervision characterized by confinement to the offender’s place of residence with permission to leave only for explicit, preauthorized purposes”.  Thus, house arrest is a measure through which a person is confined to his house. During house arrest the access to any means of communication gets limited. However, if any electronic communication is allowed it would be securitized by the authorities. The authorities are also allowed to check the conversations of detainees with some electronic monitoring units.

The criminal procedure code talks about only two custody that is judicial custody and police custody.  While in Police custody is the person remains in the custody of the police, the judicial custody is lodged in the central jail under the custody of the Magistrate, however, during this period the police are not allowed to have the same access as they have in police custody without the permission of the court. Thus, apart from these two types of custody, there is no particular mention of house arrest in criminal law. In this setting, the recent judgment becomes important this allowed court order house arrest. This would allow the court to have alternate ground.


The government has been given the discretion to choose a place for detention as per Section 5 of the National Security Act. It is to be noticed that this concept of ‘house arrest’ only concerns preventive detention laws. This is the only statue that recognized such a concept.  Thus, it is evident that no serious attempt has been made in this regard, and therefore, there is no specific mention of house arrest in criminal procedural law.

This necessitates the need of understanding the provisions that are generally invoked by the court for ordering house arrest in absence of specific mentions of provisions dealing with these aspects.  The constitutional court invokes article 142 of the Indian constitution for ordering house arrest which grants the apex court power to pass any orders “necessary for doing complete justice in any cause or matter pending before it”. The criminal procedure code talks about only two custody that is judicial custody and police custody.

The Code Of Criminal Procedure, 1973 ( hereinafter, CrPC ) contemplate that the accused must be presented before the magistrate within 24 hours as contemplated in section  57  of  The Code Of Criminal Procedure, 1973 ( hereinafter, CrPC ) which states: “Person arrested not to be detained more than twenty- four hours” however, this time “exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court”. 

The person so presented before the magistrate would be sent to judicial custody or police custody as per the discretion of section 167 of CrPC. The mandate of Section 167 deals states the procedure when investigation cannot be completed within the period specified in section 57 of the CrPC that is 24 hours of arrest. Section 167(2) requires the court to pass the order of bail if the investigation is not completed in the stipulated period; 90 days in case of offences punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years or rest case 60 days.

The phrase ‘such custody as he thinks fit’ occurs in section 167 of CrPC has been interpreted by the apex court in Central Bureau of Investigation v. Anupam J. Kulkarni. In the present case. The court held that the phrase talks about two types of custody of which one is judicial custody while the second is police custody. It also stated that after the first 15 days, the magistrate can grant only judicial custody which means the magistrate can alter the nature of custody for the first 15 days but not after that. It is to be noticed that section 167 of CrPC does not talk about the concept of House arrest as an alternative to custody.

It is worth mentioning though the right under Section 167 of the CrPC is a Fundamental Right, the said right is subject to the fulfilment of certain conditions prescribed in the case itself.  The bench held, “While the Right to Default Bail is a Fundamental Right, it is subject to the conditions, obtaining in Section 167 of the CrPC, being satisfied. It must be purported to be passed under Section 167 CrPC… The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under Section 167 is indispensable to count the period”.


The apex court in its judgment, the bench of Justices Uday Umesh Lalit and K.M. Joseph, on activist Gautam Navlakha has given another form of detention under Section 167 of the CrPC by allowing the court to order house arrests in appropriate cases. In this case, the issue before the apex court was whether the period of house arrest constitutes custody for default bail.

The court held that the period of house arrest had to be excluded as the period of 90 days will not commence from any anterior date but only from the date of remand. The court further stated that the courts are permitted to order house arrest under Section 167 of the CrPC after perusing through the issue and noticing its ingredients. However, the court clarified that while ordering such arrest the court should consider factors like health conditions, age, the nature of the crime, the need for other forms of custody, antecedents of the accused, the nature of the crime, and the ability to enforce the terms of house arrest.

The court opined further:

“The concept of house arrest as part of custody under section 167 has not engaged the courts including this court. We have now formed the view that it involves custody which falls under section 167. 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. 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.”

The court, further clarified that the court is sitting to ascertain whether the house arrest can be recognized under Section 167, thus, the bench is not deciding the legality of the house arrest. It noted on this behalf, “In view of the fact that the house arrest of the appellant was not purported to be under Section 167 of the CrPC and cannot be treated as passed thereunder, we dismiss the appeal”.


Gautam Navlakha was arrested at his residence in New Delhi on August 28, 2018.  During his arrest, the plea of Habeas Corpus was presented before the High Court of Delhi on his behalf for his release. At the same time, the National Investigating Agency (NIA) produced him before the Chief Metropolitan Magistrate at Saket, Delhi. Upon receiving the permission, the NIA produced him before the Special Court in Maharashtra on August 30 for the reason or cause of action being arisen in Maharashtra.

In this phase, the interesting was phase was the order of the Delhi High Court which is later becoming a prominent issue for the Supreme Court. The order of the Chief Metropolitan Magistrate was stayed by the Delhi High Court and later ordered for the house arrest until further orders. Later on, through an interim order, the period of House arrest was extended by the Supreme Court.

All the same, his plea was allowed by the Delhi High Court and the order of the Chief Metropolitan Magistrate was set aside which allowed the permission to get Navlakha to produce before the Special Court in Maharashtra on the ground that the constitutional mandates were not followed. Thereafter, Navlakha was released from house arrest, thus, his period of house arrest is ended.

Once his appeal of anticipatory bail got rejected by the Sessions Court, the High Court, and the Supreme Court, on April 14, 2020, he surrendered himself to the NIA. Consequently, he filed the plea of default bail on June 11, 2020, on the fact that the right of default bail has accrued in his favour. To compute the stipulated period of 90 days, the period of house arrest was included. Though the court recognized house arrest as alternative custody, it said that the house arrest of Navlakha could not be recognized for custodial interrogation of him by police has not been allowed.


In the present case stated the court stated that the police is not debarred from custodial interrogation under house arrest and also increases the ambit of ‘custody. Also, the court has been given the power to exercise a new option. However, the court has not provided parameters within which courts can grant an order of house arrest under Section 167 of the CrPC.  The court needs to elucidate in the point whether police can enter such a person’s house in the name of keeping eye on the person and whether there is a need of producing such person physically before the court after interrogating the person.

The court has rightly pointed out that “the advantages which have been perceived in promoting the house arrest, have been an avoidance of overcrowding of the prisons and also cost-saving”. However,  routine orders of house arrests must be checked to avoid the violation of other fundamental rights of the constitution also such orders of arrests may not help society in reducing crimes. All the same, rightfully adopting the concept would help in decongesting prison which is needed for an hour.

Author Sachin Tiwari is a student of Dharmashastra National Law University. He likes to write about issues related to constitutional which that affect the public at large.

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