Q. Will Habeas Corpus Petition Lie Against Remand Order ?

A. ORDINARILY NO, BUT ON CERTAIN CONDITION YES

RELEVANT CASE LAW:

• GAUTAM NAVLAKHA VS. NATIONAL INVESTIGATION AGENCY LL 2021 SC 254

or BHIMA KOREGAON case

HELD THAT:

A Habeas Corpus petition challenging a remand order can be entertained ONLY IF

1.  The Remand Is Absolutely Illegal Or
2. The Remand Is Afflicted With The Vice Of Lack Of Jurisdiction, Or
3. If It Is Passed In An Absolutely Mechanical Manner.

• MANUBHAI RATILAL PATEL V. STATE OF GUJARAT (2013) 1 SCC 314

 HELD THAT:

A writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal.   

• SERIOUS FRAUD INVESTIGATION OFFICE & ORS. VS RAHUL MODI (2019) 5 SCC 266

HELD THAT

That the act of directing remand of an accused is judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition.

Q. Can You Suggest Any Judicial Measure Which Can  Reduce Overcrowding In Jails And The Cost Incurred By The State In Maintaining Prisons ?

A. Yes, Accused Can Be Kept Under House Arrest.

Q. Whether Courts Were Open To Order House Arrest Of An Accused Under Section 167 Of The Criminal Procedure Code ?

A. GAUTAM NAVALAKAHA CASE held that courts were open to order house arrest of an accused under section 167 of the criminal procedure code. The relevant section deals with a court's power to send an accused to police or judicial custody.

Q. In The Given Case,

1. Accused/Applicant Navlakha Has Submitted That A 34-Day Period Between August 29 And October 1, 2018, When He Was Kept Under House Arrest Should Be Considered As Part Of The Stipulated Period Of 90 Days, During Which The National Investigation Agency Had To File A Chargesheet Against Him.
2. Navlakha Contended That Since The Nia Had Failed To Do So, He Was Eligible For A Default Bail. Decide.

A. The application is liable to be rejected as 34 day house arrest house arrest was not established to be under S.167 CrPC and thus, cannot be included in the 90-day period.

Q. Whether An Order For Custody, Other Than Judicial Or Police Custody, Can Be Ordered Under Section 167 Of The CrPC ?

A. 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.

SC was of the view that HOUSE ARREST INVOLVES CUSTODY WHICH FALLS UNDER SECTION 167.

Q. What Criteria Is To Be Into Account Where House Arrest Can Be Employed ?

A. The court said that house arrest can be employed taking into account criteria like

• AGE,
• HEALTH CONDITION AND
•  THE ANTECEDENTS OF THE ACCUSED,
•  NATURE OF THE CRIME,
• THE NEED FOR OTHER FORMS OF CUSTODY AND
• THE ABILITY TO ENFORCE THE TERMS OF THE HOUSE ARREST.

Q. Whether House Arrests Can Be Employed In Post-Conviction Cases?

A. On This Point, The SC Said It Would Leave It Up To The Legislature To Take A Decision.