New Delhi,  The Supreme Court on Wednesday said legislatures can ponder over utility of house arrest in post-conviction cases as a measure for problem of overcrowding in prisons.

In a 206-page judgement, a bench comprising Justices U.U. Lalit and K.M. Joseph said: "We observe that under Section 167 (of the CrPC) in appropriate cases, it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest."

The bench held that a period of transit remand, wherein an accused is produced before a jurisdictional court, has to be taken into account for computing the period of custody for the purpose of filing the charge sheet.

The bench added as regards post-conviction cases, it 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," it said.

The bench noted that house arrests have been resorted to in India, in the context of law relating to preventive detention. "What is however relevant is that preventive detention is also a form of forced detention. House arrest is also custody and forced detention," it said.

The top court added that whatever be the nature of the custody, as long as it falls within four walls of Section 167, if the requisite number of days are spent in police/ judicial custody/police and judicial custody is that suffices. It also held that number of days spent by a person under house arrest can be counted as period of custody for the purpose of filing charge sheet, as required under the law.

Dealing with a plea for default bail filed by activist Gautam Navlakha, in the Elgar Parishad-Maoist link case of Maharashtra's Bhima Koregaon, the top court said: "A person undergoing a house arrest and in the teeth of an absolute prohibition, in the facts of the case forbidding the appellant from moving outside his home, the hallmark of custody described in the case of incarceration is equally present."

However, the top court pointed that personal liberty perhaps is the most important of all values recognised as such under the constitution and it is to be jealously guarded from any encroachment, save where such intrusion has the clear sanction of law. "Right to personal liberty is the birth right of every human being. The right under Article 21 is undoubtedly available to citizens and non-citizens," added the bench.

The top court, however, declined to entertain Navlakha's argument to compute 34 days of his house arrest for the NIA to file charge sheet under the maximum period of 90 days as mandated under Section 167 of the Criminal Procedure Code.

The bench noted that it is confronted with a clash between the two values. On the one hand, there is the deprivation, in law, of the liberty of the appellant, by way of house arrest for 34 days. On the other hand, it does not fall actually in the facts of this case within the ambit of Section 167 of the CrPC.

"While, the Right to Default Bail is a Fundamental Right, it is subject to the conditions, obtaining in Section 167 of the CrPC, being satisfied. It must be purported to be passed under Section 167 CrPC... The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under Section 167 is indispensable to count the period," it held.

The bench said that in this case, it is not sitting in appeal over the legality of the house arrest, but instead the court has to find whether the house arrest fell under Section 167.

"In view of the fact that the house arrest of the appellant was not purported to be under Section 167 and cannot be treated as passed thereunder, we dismiss the appeal," it said, noting that Navlakha along with co-accused Sudha Bharadwaj underwent house arrest on the basis of the offer made on their behalf.