An accused can be placed under house arrest in the name of judicial custody, the Supreme Court said today, citing overcrowding in prisons and the cost of maintaining them with taxpayers' money.
"There is a tremendous amount of overcrowding in jails in India. Secondly, a very large sum (Rs. 6818.1 crore) is the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer," Justices UU Lalit and KM Joesph said in their order.
The decision on sending any accused to house arrest can be based on factors like age, health and antecedents of the accused, the nature of the crime, the need for other forms of custody and whether the terms of house arrest can be enforced, said the judges.
On those convicted of crimes, the Supreme Court said any decision to use house arrest would be left open to the legislature.
"As regards post-conviction cases we would leave it open to the legislature to ponder over its employment. We have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons," said the Supreme Court.
The concept of house arrest is not recognised as part of law by legal experts. There are only two kinds of custody - police or judicial. Judicial custody is when an arrested person is sent to jail by the court and when they are sent to lock-up for interrogation, it is police custody. In house arrest, the accused are confined to their homes, communication is restricted and there is constant surveillance.
In 2018, the Supreme Court's order of house arrest for five activists in the Bhima-Koregaon case -- Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bhardwaj and Gautam Navlakha - had raised questions.
After Gautam Navlakha challenged his arrest, the Bombay High Court was about to give a verdict when the Supreme Court ordered house arrest for the activists. This meant he could not apply for bail.
Mr Navlakha approached the Supreme Court after the Bombay High Court rejected his bail. The Supreme Court also turned down his bail request today.
Mr Navlakha had requested bail stating that the National Investigation Agency failed to file a chargesheet within the 90-day limit after arrest.
He wanted his 34 days of house arrest to be included in that period. But the investigation agency said no order was secured from a magistrate, so it could not be treated as legal custody.
The Supreme Court said the house arrest period could not be included while counting 90 days for default bail.