"Unpacking the Ambiguities in Section 187 BNSS: Legislative Gaps and Their Impact on Police Remand Limits"

 "Unpacking the Ambiguities in Section 187 BNSS: Legislative Gaps and Their Impact on Police Remand Limits"-By Jangam Siddhartha, High Court Advocate

Section 187 - Procedure when investigation cannot be completed in twenty-four hours:

Clause (1)

1. When it Applies:
• When a person is arrested and detained in custody.
• The investigation cannot be completed within 24 hours as fixed by Section 58.
• There are grounds to believe the accusation or information is well-founded.
2. Action to be Taken:
• The officer in charge of the police station or the investigating officer (not below sub-inspector rank) must:
• Transmit a copy of the relevant diary entries to the nearest Judicial Magistrate.
• Forward the accused to the Magistrate at the same time.

Clause (2)

1. Magistrate's Power:
• The Judicial Magistrate, whether having jurisdiction over the case or not, may:
• Authorise the detention of the accused for a maximum of 15 days, either in one or multiple terms.
• This is only during the first 40 or 60 days of detention, depending on the offence.
• If the Magistrate does not have jurisdiction and considers further detention unnecessary, they may forward the accused to the appropriate Magistrate.

Clause (3)

1. Further Detention:
• The Magistrate may authorise further detention if adequate grounds exist, but:
• 90 days maximum for offences punishable by death, life imprisonment, or imprisonment for at least 10 years.
• 60 days maximum for other offences.
2. Bail Rights:
• If the 90 or 60 days expire, the accused must be released on bail, provided they furnish it.

Clause (4)

1. Personal Production of Accused:
• The Magistrate must not authorise police custody unless the accused is produced in person for the first time.
• For subsequent appearances, judicial custody can be extended with personal appearance or via electronic video linkage.

Clause (5)

1. Special Empowerment of Second Class Magistrates:
• A Magistrate of the second class must be specially empowered by the High Court to authorise police custody.

 

Explanation I & II:

1. Clarification on Detention Beyond the Prescribed Period:
• Even if the period of detention (90 or 60 days) expires, the accused can be held in custody until they furnish bail.
2. Proof of Production:
• The production of the accused before the Magistrate can be proved by the accused’s signature or a certified order.

Clause (6)

1. Executive Magistrate's Powers:
• If a Judicial Magistrate is unavailable, the police officer may send the accused and records to an Executive Magistrate, who can:
• Authorise detention for up to 7 days.
• If further detention is required, the case must be forwarded to a Judicial Magistrate before the 7-day period expires.
2. Detention Period Counting:
• The period authorised by the Executive Magistrate is included in the total 60 or 90 days of detention.

Clause (7)

1. Requirement to Record Reasons:
• A Magistrate  authorising  police custody must record reasons for the order.

Clause (8)

1. Reporting to Chief Judicial Magistrate:
• Any Magistrate other than the Chief Judicial Magistrate must send a copy of their order, with reasons, to the Chief Judicial Magistrate.

Clause (9)

1. Six-Month Limit for Summons Cases:
• For summons cases, if the investigation is not completed within 6 months from the date of arrest, the Magistrate must stop the investigation.
• Continuation is allowed only if the officer convinces the Magistrate that further investigation is necessary in the interest of justice.

Clause (10)

1. Sessions Judge’s Power:
• If an investigation is stopped by the Magistrate under sub-section (9), the Sessions Judge may order further investigation if necessary.
• The Judge may also set conditions for bail or other matters during this further investigation.

 

"Ambiguities in Section 187 of BNSS: A Legislative Oversight Impacting Police Remand Procedures”

Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 introduces significant changes to the procedure of police remand, previously governed by Section 167 of the CrPC. One of the key alterations is the provision allowing the maximum 15 days of police custody to be granted not only within the first 15 days of an investigation but at any time during the initial 40 or 60 days, depending on the gravity of the offense.

This change, aimed at resolving the legal debate triggered by conflicting judgments—such as the CBI vs. Anupam J. Kulkarni (1992) case and the CBI vs. Vikas Mishra (2023) ruling—was intended to provide clarity on how long police custody can be extended. However, the drafting of Section 187 has been criticized for its vagueness and potential for misinterpretation. The omission of the phrase “otherwise than in the custody of police,” which previously distinguished between judicial and police custody, could lead to confusion and may inadvertently extend police custody beyond the permissible 15-day limit.

The structure of the provision could have been clearer, particularly by swapping the positions of subsections (2) and (3), to avoid ambiguity. While the legislative intent was to provide flexibility in police remand, the current drafting of Section 187 risks complicating the legal process, potentially necessitating further judicial clarification or legislative amendment to uphold citizens' liberties and reduce the burden on courts. This highlights the importance of precise legal drafting, especially when dealing with provisions that directly impact personal freedom.

The  changes in Section 187 of the BNSS, 2023, have raised concerns regarding the extension of police custody beyond the previously mandated 15-day limit. Under the earlier provision (Section 167 of the CrPC), police custody was limited to 15 days from the time of arrest, with the accused being placed in judicial custody thereafter, ensuring protection from possible police coercion. This system, recognized as part of the rule of law, offered judicial oversight over detention.

However, the new Section 187 allows police custody to be granted at any point during the first 40-60 days of detention, thereby potentially violating the accused’s constitutional rights under Articles 19, 21, and 22. Moreover, the removal of the phrase "otherwise than in police custody" from the new provision could allow for extended police custody up to 60 or 90 days, depending on the investigation’s duration.

This shift has sparked widespread opposition, with demands for an amendment to reinstate the previous safeguards and clarify that police custody remains capped at 15 days. Critics argue that only a formal amendment, rather than a verbal clarification, can provide the necessary legal certainty.

Critics, including the PUCL, have expressed concerns that this extension increases the risk of custodial violence, as it gives law enforcement more opportunities to pressure accused individuals, potentially violating their rights under Articles 19, 21, and 22 of the Indian Constitution. For instance, in a recent case, Raghbir Singh v. State of Haryana, custodial violence led to the accused's death, underscoring the dangers of extending police custody.