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8. We heard Shri Kapil Sibal, learned Senior Counsel as also Smt. Nitya Ramakrishnan, learned Senior Counsel assisted by Shri Shadan Farasat for the appellant and Shri S.V. Raju, learned Additional Solicitor General, on behalf of the respondent.

THE FINDINGS IN THE IMPUGNED ORDER

9. During the period of the house arrest, the appellant was not supposed to meet anyone, barring his lawyers and ordinary residents of the house. He could not step out of the premises. There were to be two Guards of the Special Cell of Delhi Police outside the house. The Investigating Agency/Investigating Officer did not have any access to him or occasion to interrogate him. The Transit Remand Order being stayed, it could not be said that the appellant was under the detention of the Police for investigation. Under Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the CrPC’, for short), the Magistrate has to authorise the detention. The High Court having stayed the transit remand and finally having set aside the transit remand, thereby holding the detention to be illegal, there was no authorised detention by an Order of the Magistrate. Therefore, the appellant cannot claim the benefit of default bail. It is an indispensable requirement to claim the benefit of default bail that the detention of the accused has to be authorised by the Magistrate. The authorisation by the Magistrate having been declared illegal, the detention itself was illegal. The said period (house arrest custody) cannot be treated as authorised custody under Section 167(2) of the CrPC. The Court drew support from decision of this Court which is reported in Chaganti Satyanarayan & Ors. v. State of Andhra Pradesh2, to hold that the period of 90 days will commence only from the date of remand and not from any anterior date in spite of the fact that the accused may have been taken into custody earlier. The Court held that it was not possible for it to hold that every detention, which may have resulted in deprivation of liberty of the accused, to be an authorised detention under Section 167(2) of the Cr.P.C. Sans any valid authorisation of the Magistrate, detaining the appellant, he was not entitled to default bail. Thus, the Court took the view that the period, when the appellant was under

Consequently, this Court rejects the preliminary objection raised by Mr. Navakre as to the maintainability of the present writ petition.”

33. The High Court, thereafter, proceeded to find that even before a Magistrate, before whom the transit remand application is filed, the mandatory requirement of Section 167 is that the entries in the case diary should be produced, is applicable. He is required to apply his mind to ensure there exists material in the form of entries to justify the prayer for transit remand. While the Magistrate examining the transit remand application is not required to go into the adequacy of the material, he is obliged to satisfy himself from about the existence of the material. He further found that the Magistrate is bound to ask the arrested person whether in fact, he has been informed about the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. Though, a duty lawyer empanelled under the Legal Services Authority Act, 1987 was shown representing the appellant, the High Court noticed that the Magistrate did not ask the counsel of the arrested person whether he was informed about the grounds of arrest and whether he asked to consult and be defended by the legal practitioner of his choice. The High Court emphasized that this requirement does not get diluted only because the proceedings are for transit remand. It was found be the mandate under Article 22(1) of the Constitution. The appearance of the duty lawyer was found to be essentially cosmetic and not in the true spirit of Article 22(1). The materials in the case diary were found to be written in the Marathi language. It was found undisputed that the Magistrate was not conversant with the Marathi language. This disabled the Magistrate from appreciating whether the requirements under Section 41(1)(b)(a) of the Cr.P.C. stood satisfied. It is thereafter noticed that the Court disposed of the writ petition with the findings and the directions as noted in paragraphs 28, 29, 30 and 31 which we have already extracted.

It further held:

“The CMM granted transit remand on 28.08.2018. The High Court of Delhi by an interim order having stayed the transit remand and then having finally set aside the order of transit remand thereby holding the detention during the period 28.08.2018 upto 01.10,2018 (period of house arrest) as illegal, then, in our opinion, in the absence of  there being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default bail under Sub-Section (2) of Section 167 of Cr.PC…” It goes on to hold:

No further precipitate action of removing the Petitioner from Delhi be taken till the matter is taken up again at 4 pm.” [This is taken from order dated 29.08.2018 extracted in the judgment.]

108. It would appear, in the meantime, the appellant was produced before the Magistrate who passed the transit remand order. Thereafter when the matter was taken up for consideration at 4:00 p.m. and on noticing the transit remand, order, dated 28.08.2018, inter alia, ordering house arrest came to be passed. Therefore, at the time (4PM) when the order was passed, the Court was dealing with the matter when the Appellant stood arrested and also remanded by way of the transit remand order.