House Arrest in India

Source: Bombay High Court

Introduction

A bench of Justice AS Gadkari and Justice Shyam C Chandak observed that the duration of house arrest should be considered when determining the overall period of an accused person's custody.

• The Bombay High Court gave this observation in the case of Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr.

What is the Background of Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr. Case?

• The petitioner was in custody for more than five years and eight months for money laundering as defined under Section 3 which is punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA).
• The trial Court has not yet framed charge in the case.
• The petitioner was in custody/house arrest for last more than five years and eight months for an offence wherein the maximum punishment prescribed is seven years.

What were the Court’s Observations?

• The Bombay HC held that “Learned counsel for the Respondent No. 1 that is Enforcement Directorate” submitted that, the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded.
• The court said it is not in agreement with the learned counsel, as according to the court house arrest is ultimately arrest of person, whereby his liberty to be a free person is ultimately curtailed by operation of law.
  • Hence, it can be counted in overall custody period.

What is House Arrest?

• House arrest in India is a legal measure that allows authorities to confine a person to their residence as an alternative to imprisonment.
• This practice is typically used when a person is awaiting trial or as part of a sentence for certain offenses.
• The legal framework for house arrest in India is not explicitly defined in a standalone law, but rather it is applied under specific circumstances and conditions outlined in various statutes.

What are the Legal Provisions Dealing with House Arrest?

• Code of Criminal Procedure, 1973 (CrPC): Section 167 of the CrPC provides for the process of detention and the conditions under which an individual can be detained during the course of an investigation. It allows a magistrate to authorize the detention of an accused person in custody or house arrest.
• Bail provisions: House arrest may be granted as a condition for bail. Bail is governed by Sections 437 and 439 of the CrPC, and courts may impose house arrest as a measure to ensure that the accused does not flee during the trial.
• National Security Act, 1980: Section 5 of the Act provides the state with an authority to detain a person “in such place and under such conditions as the appropriate government may, by general or special order, specify”.