An analysis of police custody under Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), examining how the removal of the words “otherwise than in the custody of police” has altered the statutory framework and may permit police remand beyond 15 days.
“In all custodial crimes, that is of real concern is not only infliction of body pain but also the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.”1
The right to life and liberty of every person in India is guaranteed under Article 21 of our own Constitution, and the same can be violated through a procedure established by law only. In Maneka Gandhi v. Union of India2, while explaining the term “Procedure established by Law”, our Supreme Court held that the law must be just, fair and reasonable, and not arbitrary.
With such note it can be said that an accused can be deprived of his fundamental right like, right to liberty, but such deprivation may take place only through a law which is just, fair and reasonable, and not arbitrary.
Police custody versus judicial custody
Both the custodies, namely, police custody and judicial custody of an accused have been approved by the Criminal Procedure Code, 1973 (CrPC) as well as by the Nagarik Suraksha Sanhita, 2023 (BNSS). Generally, police custody is granted empowering the investigating agency to interrogate the accused/suspect to unearth the actual truth behind the commission of the crime, or to find out the involvement of the suspect with the crime, etc. while keeping the accused in the lock-up of police station. Real object to have a remand in police custody is nothing but “interrogation”. On the other hand, the legislative motive behind the legal approval of remanding an accused in judicial custody is to keep away the accused from the crime allegedly committed by him preventing him from influencing or tempering with any witness or evidence of the crime as well as to save the accused from the anticipated violence of the society. During the judicial remand the accused is generally being kept in prison or a place declared as prison by the Central or State Government.
Comparative chart of relevant parts of the provision of CrPC and BNSS dealing with police custody
Section 167(2) CrPC and Section 187(2) and (3) BNSS specifically deal with the matter of police remand of an accused. Comparative chart of the relevant parts of those provisions are mentioned below:
|
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: |
(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. |
|
Provided that— (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,— |
|
|
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; |
(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding— |
|
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter. |
The comparative chart of the old law and new law shows that both the laws deal with remand of an accused during investigation period when an accused is arrested and investigation could not be completed within a period of twenty-four hours. Section 167(2) CrPC remained unchanged as far as the nature of remand mentioned in the 187(2) BNSS which a Magistrate can authorise on production of an accused before him on arrest.
Such custody as such Magistrate thinks fit
Both the provisions3 empowered a Magistrate to remand an accused in “such custody” as he thinks fit and proper. The term “Such custody as such Magistrate thinks fit” was explained in the landmark case between V. Senthil Balaji v. State4 in following words:
58. The words “such custody as such Magistrate thinks fit” would reiterate the extent of discretion available to him. It is for the Magistrate concerned to decide the question of custody, either be it judicial or to an investigating agency or to any other entity in a given case.
So, the term “such custody” used in CrPC and BNSS means either judicial custody or police custody or custody under any other investigating agency.
Restriction on remand in police custody
Section 167(2) CrPC provides the law that the period of police custody must not exceed 15 days as a whole. In CBI v. Anupam J. Kulkarni5 it was held that 15 days period of police custody mentioned in Section 167(2) CrPC must be read as first 15 days following the arrest and thereafter no remand in police custody is permissible. Such view has been reiterated by three-Judge Bench in Budh Singh v. State of Punjab6. However, V. Senthil Balaji case (referred earlier) took a move from the decisions of Kulkarni case and Budh Singh case and held that remand in police custody may be given in part or whole for an aggregate period of 15 days within the period of 60 days or 90 days as the case may be7 and it is not restricted to first 15 days.
Just after such exceptional view laid down in V. Senthil case, BNSS came into play with the restriction of 15 days remand of an accused in custody in whole or in part within initial 40 days and 60 days out of detention period of 60 days or 90 days as the case may be as provided in sub-section (3).8
But question arises how we reached to the conclusion that the figure 15 days mention in Section 167(2) CrPC and Section 187(2) BNSS only to indicate the remand in police custody and not for any other custody.
Proviso to Section 167(2) CrPC created an exception empowering a Judicial Magistrate to authorise detention of an accused beyond 15 days, otherwise than in custody of police, which shall not exceed the bar of 60 days or 90 days as the case may be reflected in Proviso (a)(i) and (ii) of said provision.
Thus, it is clear that due to the magic words “otherwise than in the custody of police” used in the proviso to Section 167(2) CrPC we easily segregated the term of 15 days as the period of police custody out of the total period as expressed above.
But while reframing the proviso to Section 167(2) CrPC as sub-section (3) of BNSS, those magic words “otherwise than in the custody of police” have been removed making the exception to remand the accused beyond the period of 15 days, within the period of 60 days or 90 days as the case may be, applicable to both the custodies, i.e. police as well as judicial. So, the term “such custody” used in sub- section (2) of Section 187 BNSS continued up to sub-section (3) to Section 187 BNSS without putting any restriction to remanding the accused in any kind of custody. In other words, there remained no restriction in BNSS in remanding an accused in police custody beyond the period of 15 days. Moreover, it was needless to keep restriction of initial 40 days or 60 days in remanding the accused in any custody for 15 days, keeping the door open as an exception for authorising the remand of an accused in any custody beyond 15 days.
Conclusion
The discussion above indicates that there is no explicit mention in Section 187(2) BNSS that the period of police remand must be limited to 15 days only. Rather the same has been generalised with the period of judicial remand. However, it is hoped that whether it is a legislative oversight or otherwise may only perhaps be resolved by judicial intervention.
*Special Judge (CBI), State of Tripura. Author can be reached at: tjs.dkar@gmail.com.
1. D.K. Basu v. State of W.B., (1997) 1 SCC 416 : 1997 SCC (Cri) 92.
3. Ss. 167(2), CrPC and 187(2) BNSS.
4. (2024) 3 SCC 51, 93 : (2024) 2 SCC (Cri) 1.
5. (1992) 3 SCC 141 : 1992 SCC (Cri) 554.
