Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has been drafted in a manner that is vague and misrepresents legislative intent. For a provision of law that deals with the liberty of citizens, this is an unacceptable error in drafting, writes Sakal Bhushan.
—
A major change has been introduced through Section 187 in Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 which is the new avatar of erstwhile Section 167 of the Code of Criminal Procedure (CrPC), 1973.
This provision pertains to the period of remand which can be granted by a magistrate when an arrestee is produced before him by the police.
This provision has set at rest the legal debate as to whether the maximum permissible 15 days police remand can be granted only in the first 15 days or it can span over the entire period of 60/90 days, as the case may be, provided for investigation for the purpose of default bail.
A two-judge Bench of the Supreme Court in CBI versus Anupam J. Kulkarni (1992) had held that the maximum permissible 15 days of police remand could be granted only in the first 15 days of remand.
In order to understand the context of the said legal debate, the relevant part of the erstwhile Section 167 is being reproduced 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:
Provided that—
- the magistrate may authorise the detention of the accused person, otherwise than in 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
- 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;
Also read: The unconstitutional trinity— Part 1: Examining the unholy ‘ghost’ of BNSS
- 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.”
A later two-judge Bench of the Supreme Court in CBI versus Vikas Mishra (2023) took the contrary view and observed that Anupam J. Kulkarni required reconsideration.
It was always amply clear that the police custody was envisaged only for a maximum of 15 days as the expression used in Proviso (a) was “otherwise than in custody of the police, beyond the period of fifteen days”.
However, questions often cropped up as to “whether the maximum 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation— 60 or 90 days, as the case may be”.
Answering this question, a two-judge Bench of the Supreme Court in CBI versus Anupam J. Kulkarni (1992) had held that the maximum permissible 15 days of police remand could be granted only in the first 15 days of remand.
This judgment was followed by a three-judge Bench verdict of the Supreme Court in Budh Singh versus State of Punjab (2000). However, a later two-judge Bench of the Supreme Court in CBI versus Vikas Mishra (2023) took the contrary view and observed that Anupam J. Kulkarni required reconsideration. The court raised a very pertinent question as under:
“In a given case, it may happen that the learned trial or special court refuses to grant the police custody erroneously which as such was prayed within 15 days and/or immediately on the date of arrest and thereafter the Order passed by the trial or special court is challenged by the investigating agency before the higher court, namely, sessions court or the high court and the higher court reverses the decision of the learned magistrate refusing to grant the police custody and by that time the period of 15 days is over, what would be position? The learned senior counsel is not in a position to answer the court query.”
Later, on August 7, 2023, a two-judge Bench of the Supreme Court in V. Senthil Balaji versus State took note of the difference of opinion amongst various judgments and while agreeing with observations in Vikas Mishra referred the following question to a larger Bench:
“Whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation— 60 or 90 days, as the case may be, as a whole.”
Also read: The three new criminal law Bills: Missed opportunities and misplaced priorities
On August 7, 2023, a two-judge Bench of the Supreme Court in V. Senthil Balaji versus State took note of the difference of opinion amongst various judgments and while agreeing with observations in Vikas Mishra referred the question to a larger Bench.
Now the newly enacted Section 187 of the BNSS (replacing Section 167 of the CrPC) does indicate (though still shrouded in some confusion) that the maximum permissible 15 days of police custody can be granted “in the whole, or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be, as provided in sub-Section (3)”.
With the enactment of Section 187, the reference to a larger Bench of the Supreme Court would become infructuous as now the legislature has itself dealt with this issue as stated above. The relevant part of the new Section 187 is as under:
“(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.
(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—
- 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;
- 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.”
With the enactment of Section 187, the reference to a larger Bench of the Supreme Court would become infructuous as now the legislature has itself dealt with this issue as stated above.
Also read: Bharatiya Nyaya Sanhita: Problematic Drafting of the New Provisions
For ease of understanding, a dissection of the newly enacted Section 187 pointing out its shortcomings, is as under:
- Earlier Proviso (a) to sub-Section (2) of Section 167 has been incorporated as sub-Section (3) in Section 187. But there appears to be an error in drafting. The expression “otherwise than in the custody of police” which means “judicial custody” has been erroneously omitted in sub-Section (3). This omission makes it highly prone to an interpretation that police custody can be authorised by the magistrate beyond 15 days and also for the entire duration of 60 or 90 days, as the case may be.
- Earlier the question was whether the maximum permissible 15 days police custody could be granted only in the first 15 days or could it span over the entire period of 60/90 days, but the omission of the expression “otherwise than in the custody of police” in sub-Section (3) can be unintentionally taken to mean that the magistrate can authorise police custody even beyond 15 days also for the entire duration of 60 or 90 days, as the case may be. This may give birth to an altogether new debate.
- The newly added expression “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” in sub-Section (2) is preceded by the expression “such custody” which means both police and judicial custody. The true intention of the legislature was that the maximum permissible 15 days of police custody could be authorised not only in the first 15 days but at any time during the initial 40 days or 60 days out of the detention period of 60 days or 90 days, as the case may be, but this legislative intention gets defeated when it may be mistakenly extended to both police and judicial custody unintentionally.
- Placement of the newly added expression “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” in sub-Section (2) is also not very appropriate from the readers’ angle. It should have been better placed in sub-Section (3), which contains the outer limits of 60 or 90 days, as the case may be.
- Moreover, it would have been more appropriate to swap positions of sub-Sections (2) & (3). Sub-section (3), dealing with the outer limits of 60 days or 90 days should have been made sub-Section (2), and sub-Section (2), dealing with the sub-limits of 40 days or 60 days should have been made sub-Section (3) for better understanding of the readers.
Also read: What does ‘Indianisation’ and ‘reform’ mean in the context of the three new criminal law Bills?
These shortcomings are bound to cause unnecessary confusion, though resort can be taken to the context in which the amendments have been made to clarify the issue that now it is not the first 15 days when the police custody can be granted but it is the maximum 15 days of police custody within the initial 40/60 days out of 60/90 days as the case may be.
The expression “otherwise than in the custody of police” which means “judicial custody” has been erroneously omitted in sub-Section (3) of Section 187 of BNSS.
So, for better understanding after taking into consideration the context (including judgments) in which the amendments have been made, sub-Sections (2) and (3) may be read as under:
“(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 or commit 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.
If the magistrate decides to grant police custody, it can be granted 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 the detention period of sixty days or ninety days, as the case may be, as provided in sub-Section (3),
and if the magistrate decides to grant judicial custody, it can be granted for a term not exceeding fifteen days in the whole, or in parts,
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.
(3) The magistrate may authorise the detention of the accused person, in judicial custody, beyond the period of fifteen days as aforesaid 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—
- 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;
- 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.”
Also read: Explained: The revised criminal law Bills
Note: The underlined expressions have been supplied by me with minimum modifications for a contextual understanding of the provision. It represents the true intention of the legislature in enacting Section 187. But it would still be a rush job.
The true intention of the legislature was that the maximum permissible 15 days of police custody could be authorised not only in the first 15 days but at any time during the initial 40 days or 60 days out of the detention period of 60 days or 90 days, as the case may be.
Ideally, to remove all confusion and truly represent the legislative intent, sub-Sections (2) and (3) should have been recast as under:
“(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 or commit 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 total period not exceeding
- 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; the maximum term of police custody shall be fifteen days which can be granted in one go, or in parts, at any time during the initial sixty days out of detention period of ninety days;
- sixty days, where the investigation relates to any other offence; the maximum term of police custody shall be fifteen days which can be granted in one go, or in parts, at any time during the initial forty days out of detention period of sixty days,
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.
(3) If the magistrate to whom an accused person is forwarded under this Section has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary at any stage, he may order the accused to be forwarded to a magistrate having such jurisdiction, who may either release him on bail or extend remand in the aforesaid manner.”
Recast in such manner, sub-Sections (2) and (3) would not leave any doubt that now it is not the first 15 days when the police custody can be granted but it is the maximum 15 days of police custody within the initial 40/60 days out of 60/90 days as the case may be, and that would truly represent the legislative intent.
The drafting of laws should be structured and worded in the simplest manner so that all consumers of justice can consume it at first sight leaving no scope for long debates on the meaning of the provisions of law.
The drafting of laws should be structured and worded in the simplest manner so that all consumers of justice can consume it at first sight leaving no scope for long debates on the meaning of the provisions of law.
Our courts are already overburdened and one major reason for slowing the process of dispensation of justice is the presence of ambiguous and multiple overlapping legislations.
The Parliament has thus once more missed a golden opportunity to simplify law on this important aspect frequently engaging the courts. The working of this Section in its present form is likely to create more confusion than it seeks to resolve, necessitating further amendments.
But by the time that will be done, much water would have flown and a lot of precious judicial time would have been wasted.
