House Arrest: A Relief or A New Concern?

20 May 2021  Read 4724 Views

Human rights are the most basic rights available to any human being right from birth. Today, with the changing dynamics of the society, the mould of human rights is becoming more and more symmetrical. Human rights is a subject, the content of which keeps adding more chapters in human lives. Recently, a new pragmatic effort has been laid down by Supreme Court in Gautam Navlakha’s case.

Gautam Navlakha, a well-known human rights activist was recently denied default bail by Supreme Court. However, while Gautam Navlakha faced defeat in his case, the Apex Court in its judgment added a new dimension in the arrest provisions, giving a victorious leap of relief towards protection of human rights. A judgment which not only would mitigate the hardships faced in police and judicial custody, but would also suppress the States’ burden in many aspects.

The Gautam Navlakha Case

On 12th May 2021, the Supreme Court bench comprising Justices U.U. Lalit and K.M. Joseph in the case of Gautam Navlakha Vs. National Investigation Agency gave liberty to all sub-ordinate and higher courts to order house arrests in appropriate cases as an alternate form of detention under Section 167 of the CrPC.

The Supreme Court was considering an appeal filed by Gautam Navlakha [Bhima Koregaon Case] in which a question was posed to the bench whether the period of 34 days spent in house arrest shall be counted towards the period of 90 days under Section 167 CrPC.?

The Supreme Court while dismissing the appeal observed that since the order for house arrest was not specifically passed by Magistrate in the instant case, it cannot be said that the mandatory period of 90 days would include 34 days of house arrest. While deciding this issue, the Supreme Court also considered the question whether an order for custody other than police and judicial custody as provided under Section 167 could be passed by Magistrate? Or, to put it simply whether house arrest shall form the part of custody under Section 167 Cr.P.C.?

Answering the above question, the Supreme Court observed that in appropriate cases, it will be open to courts to order house arrest under Section 167. However, criteria like age, health condition, antecedents of accused, nature of crime shall be necessary terms to enforce the order of house arrest.

Provision of House Arrest and Default Bail under Criminal Procedure Code

The provision of House Arrest is not distinctively provided under Criminal Procedure Code, 1973 (CrPC.). But, to understand the default bail concept, let’s first know some of the basic rules and procedures related to arrest and custody- 

  • Firstly, we must know what Police Custody is- it is a custody in which the physical custody of the accused is with the Police and he is lodged in a lock-up of a police station.

  • Secondly, Judicial Custody is when the accused is lodged in the central jail and is under the custody of the Magistrate.

Now that we know the types of custody, let’s understand basics of arrest and the procedure underlying such arrest and their custody. The provisions related to arrest is given under Chapter 5 and procedures relating to FIR and police investigation has been provided under Chapter 12 of the Code. 

  • First and foremost, under Section 57 (Chapter 5), a person cannot be detained in police custody for more than twenty-four hours. It means, that the police officers have only 24 hours with accused in their lock-up to enquire and investigate the case.

  • Now, what if the investigation could not be completed within 24 hours? Here, Section 167 (Chapter 12) comes for rescue. It provides some procedures when an investigation by the police is not complete within 24 hours of lawful arrest.

  • Under Section 167(2), the Magistrate is empowered to extend the detention of accused for a period not extending 15 days so that the investigating officers could avail more time to inquire and investigate on the case. Here, it is important to remember that for such 15 day period detention, the Magistrate can authorize to detain accused either in police custody or judicial custody.

  • Now let’s assume that the investigation couldn’t be completed even in 15 days. In such cases, the Magistrate is also empowered to authorize the detention for a period of two following sets-

    1. A period of 90 days, if the offence committed is such that it is punishable with death, imprisonment for life or imprisonment for more than 10 years(Basically serious crimes).
    2. A period of 60 days, if any other offence (apart from above clause) is committed. (Basically, not so serious crimes).
  • Now, if the investigation is complete within above mentioned period, then the police will file the charge sheet, trial will be initiated and is a different procedure altogether but let’s say that the investigation could not be completed even within the abovementioned period of 90/60 days (as per the seriousness of the case).

  • In that case, the accused person shall be entitled for default bail.

So basically, default bail can be granted when the charge sheet related to the case is not submitted within the period of 90/60 days.

Gautam Navlakha was at this stage when he filed for default bail as the National Investigation Agency (NIA) had not filed charge sheet within a period of 90 days.

House Arrest: Is it a way ahead?

The Court in its judgment has noted the jurisprudential aspect of arrest. In India, the concept of arrest is rooted on laws providing preventive detention and since preventive detention is a form of forced detention, house arrest is also a custody and forced detention.

Though, a detention in police or judicial custody is easy and convenient to monitor, the same is not with house arrest. Additional forces of police and constant monitoring systems will be required for proper supervision of accused under house arrest. Similar concerns have also been observed by Supreme Court.

The Court however, in its judgment, has citied few advantages of promoting house arrest. It has also cited various statistics to highlight problems related to overcrowding and maintenance costs of prisons and how house arrest can overcome them. As per Supreme Court’s observation, in India, there is a tremendous amount of overcrowding in jails and by promoting house arrest, overcrowding can be avoided. The Court also mentioned that a budget of Rs. 6,818 Crores is allocated towards the maintenance of such prisons thus house arrest could help in reducing the expenditures of the State. 


Gautam Navlakha’s case has persuaded the Court to look into the aspect of house arrest. The house arrest would surely mitigate the absence of freedom under police or judicial custody for many and especially for the people who are not hardcore criminals. Though there could be some complications with respect to house arrest such as improper monitoring or non-obedience of terms of arrest, there are also advantages that the State must look forward to.

The mitigation of maintenance costs will unload the heavy burden of expenditure. The problems of overcrowding which is even more dangerous during this time of pandemic will also contribute a lot to well-being of prisoners and their health. Medical help would be quick in case of house arrest. The terms of house arrest are flexible and have the room for any changes that Courts may deem fit on case to case basis.

About the Author: Purnesh Upadhyay | 1 Post(s)

Purnesh is a 2017 Law Graduate from Damodaram Sanjivayya National Law University, Visakhapatnam and has a deep interest in learning and teaching law. Also, a practising advocate having assisted Corporates and Individual clients at all levels of the advisory and adjudicatory process before multiple forums. His primary areas of interest include civil and consumer disputes.

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