By:- Sweety Kumari

In the Supreme Court of India

NAME OF THE CASEGautam Navlakha vs. National Investigation Agency
CITATIONCriminal Appeal No. 510 of 2021 [Arising Out of SLP(Criminal) No. 1796/2021]
APPELLANTGautam Navlakha
RESPONDENTNational Investigation Agency
BENCH/JUDGEUday Umesh Lalit & K.M. Joseph
STATUTES/PROVISIONS INVOLVEDThe Code of Criminal Procedure, 1973
IMPORTANT SECTIONS/ARTICLESThe Code of Criminal Procedure —— Section 167


In the present case, Gautam Navlakha who is a famous human rights activist who was in house arrest for the period of 34 days in 2018. His application for default bail was rejected by the NIA Special Court and when he challenged the NIA Special Court’s decision it was denied by the Bombay High Court under section 21, NIA Act. So, he appealed in the Hon’ble Supreme Court seeking default bail on the basis that the 34 days period of house arrest should be included in the 90 days period in CrPc section 167.


In the present case Gautam Navlakha filed an appeal in the Hon’ble Supreme Court. He pleaded that the time period of 34 days in the house arrest should be regarded as custody for seeking default bail.

The concept of default bail mentioned in section 167 CrPc give the accused the right of bail. This section states that a person when arrested, detained in custody and he is prepared to furnish bail if in the Court the charge sheet has not be filed then in case of offence punishable with death, imprisonment for life and imprisonment for a term not less than 10 years, the detention cannot be extended beyond 15 days but if the Magistrate is satisfied that there are sufficient reasons to extend this period then this period can be extended up to 90 days maximum.

 The appellant was in house arrest for 34 days and wanted to include that period for grant of default bail for the purpose of calculating the time for the submission of charge sheet under Unlawful Prevention Act.


Gautam Navlakha, the appellant was detained in 28th August,2018 under section 167, CrPc and was made to appear in a Delhi Court for the purpose of remand to bring him to Pune as a FIR was filed against him there under the provisions of the Unlawful Prevention Act (UAPA). The Delhi Court prevented his transfer by staying the transit remand and he was ordered to be kept in house arrest which continued for the period of 34 days.

Before the High Court order, a transit remand was ordered by the CMM which directed to put him in 2 days custody which was later set aside by the court because it was illegal and impermissible to detain after 24 hours. His detention was declared unconstitutional by the Delhi High Court on 1st October,2018. During the same period FIR filed against him was declined to be dismissed by the Bombay High Court. On February 14, 2020 his application for anticipatory bail was rejected by the High Court and he was to surrender under the order of the Supreme Court till 8th April,2020. He surrendered to NIA on 14th April.

His request for the grant of default bail before the NIA Special Court as NIA had failed to file a charge sheet or seek an extension of time within the 90-day statutory period of his custody on July 12 was rejected. He appealed against this decision of the NIA Special Court before the Bombay High Court. On October 9, 2020 a charge sheet was filed against him by NIA. His appeal was rejected by the Bombay High Court according to the provisions of section 21 of the NIA Act.

The period of 90 days for release on default bail was surpassed which included 34 days in house arrest, 11 days of detention under NIA in April, 2020 and period of judicial detention from 25th April to 28th June, 2020. The NIA approached to the NIA Special Court with its application to extend the time of filling the chargesheet. So, he approached the Supreme Court for issuance of default bail and inclusion of 34 days of house arrest in calculating the time period for submitting chargesheet under Unlawful Activities Prevention Act.


Can the time period of detention in house arrest should be regarded as custody and be included for seeking default bail?


  • Learned Counsel for the appellant argued that the officers were free to question and do their investigation after obtaining Delhi High Court leave in his house arrest in 2018
  • Under the section 43D(2)(b) of UAPA police custody can be desired at any time.
  • The High Court changed only the form of detention from police custodial transit to house arrest. If the period of detention is proved unconstitutional, then also it couldn’t be strike out. According to section 167 the total time period of custody need not to be continuous and can include broken intervals too.


  • Learned Counsel for the respondent argued that Section 167 of the CrPc gives the police the authority to do the interrogation of the accused and if this authority is not provided with then that custodial period doesn’t come under the purview of section 167.
  • Detention of accused under house arrest is not regarded as custody under the Section 167.


The Code of Criminal Procedure

Section 167 – Procedure when investigation cannot be completed in twenty-four hours.

1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate[1] .

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

       Provided that-

[2](a)Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, –

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;][3]

[4](b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;[5]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.[6]

[7] Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;].

[8]Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.]


The Supreme Court held that the Courts are free to issue the order of house arrest under section 167 in circumstances which are ought to be appropriate. However, for issuance of house arrest criteria like age, health, the nature of crime committed by the accused, his antecedents should be taken into consideration.

The bench agreed with NIA that under section 167, CrPc if an accused is in remand, then until his acquittal or bail, he cannot be released. The Court stated that the police custodial remand beyond the initial period of 30 days will be incongruous.

The Magistrate has the authority to approve the custody of the accused and in this case only the accused can demand default bail. The Apex court stated that the detention of the accused was illegal as the approval of the magistrate for the detention was only for two days and on 30th August, 2018 he was ordered to be produced. But his transit couldn’t take place by the order of the Delhi High Court. The period after 30th August to 1st October cannot be then to be covered by the magistrate’s order. In fact, the period is then said to be covered under the order of the house arrest.

The Court stated that if the period of house arrest is considered as an order to be passed under the provisions of section 167 CrPc the detention after 24 hours can be said to be illegal.

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[9]

The Court said that under CrPc section 167(2) house arrest does not come under the provisions of permitted detention. The bench held that the accused was brought in the custody earlier but then also the 90 days period will be counted from the day of remand. The time period from 28th August, 2018 and 1st October,2018 when the appellant was under house arrest had to be removed.


Through this case the court ruled out that now the courts are given the permission to issue the order of house arrest which will be in certain specific circumstances will constitute a form of custody under the provisions of section 167 of the CrPc.

Section 167(2) of the CrPc is applicable in the cases where it takes more than 24 hours’ time to complete the investigation by the police. In specific circumstances the default bail can be granted to the accused depending on the nature of case. This judgement limits the freedom of the human rights activist under any police or judicial custody.

[1] The Code of Criminal Procedure,1973,Section 167(1)

[2] Subs. By Act 45 of 1978, s 13, for paragraph (a) (w, e, f, 18-12-1978).

[3] The Code of Criminal Procedure,1973,Section 167(2)(a)

[4] Subs. By Act 5 of 2009, s. 14. for cl. (b) (w.e.f. 31-12-2009)

[5] The Code of Criminal Procedure,1973,Section 167(2)(b)

[6] The Code of Criminal Procedure,1973,Section 167(2)(c)

[7] Ins. By Act 45 0f 1978, s. 13 ( w.e.f. 18-12-1978).

[8] Subs. By Act 5 of 2009, s. 14, for Explanation II (w.e.f. 31-12-2009)

[9] Indian Kanoon, [ Last visited on March 30, 2022 ]

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