In a formal public communication to Union Home Minister and Law and Justice Ministers, Amit Shah and Arjun Meghwal respectively, the PUCL has urged an amendment to Section 187(3) of the new CrPC-the BNSS–to bring it in conformity with Section 167(2) of the former Code of Criminal Procedure (CrPC).
While welcoming the statement made by the Home Minister made in a Press Conference on July 1, 2024, clarifying that in the changed criminal procedure code, viz., the BNSS, 2023, the maximum period of police custody under the BNSS would remain 15 days, with provision to be spread over a maximum of two months (Indian Express, July 1, 2024), the PUCL stated that this assurance needs a formal amendment.
The Indian Express had quoted Shah saying that, “I want to clarify that in BNS also, the remand period is 15 days. Earlier, if an accused was sent to police remand and he got himself admitted in a hospital for 15 days, there was no interrogation as his remand period would expire. In BNS, there will be remand for a maximum 15 days, but it can be taken in parts within an upper limit of 60 days”.
Stating that this clarification is “very important” as it clarified whether police custody can be extended beyond the previously provided maximum 15 days (under CrPC) to a maximum of 60 to 90 days (under the BNSS), the statement issued by the national president and general secretary of PUVL, Kavita Srivastava and K Suresh respectively, states that “it will be apposite if the clarification is brought about in the provision of sec. 187 (3) BNSS through an amendment to sec. 187 BNSS, so that it is not left to the vagaries of interpretation by courts, the police and Public Prosecutors, in the immediate future.”
Incidentally, the controversy has been generated as the new Section 187 BNSS is literally a verbatim copy of the previous Section 167 CrPC, with the omission of eight words, which gave a totally different interpretation to the new provision on police remand.
Sections 167(2) (a), CrPC, 1973 & Section 187(3), BNSS, 2023
“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….
(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…
The import (danger) that lies behind the deletion of eight words from the CrPC on Police Custody
The effect of dropping the eight words from the CrPC, “otherwise than in the custody of the police’, in the new Section 187 (3) of the BNSS, allows for the interpretation that police custody can be extended from a maximum of 15 days under the CrPC to a maximum of 60/90 days under the BNSS.
Any extension of police custody beyond 15 days is a serious incursion in the rule of law and the criminal justice system. It is well recognised that the period when the accused is kept directly in the custody of the police is the time when maximum pressure from the police is effected – including the reality of the police using extrajudicial measures like physical torture, emotional pressures and other similar measures to break the will of the arrested persons.
It is in recognition of this salutary principle that sec. 167 (2) Proviso of the CrPC provided for a maximum of 15 days of police custody from the time of arrest, after which the arrested person has to mandatorily be kept in judicial custody.
This means that the accused person will have to be lodged in judicial custody in the nearest central prison once the police custody period of 15 days ends. This thereby ensures a measure of protection from the police as the accused person is technically under the oversight of the judiciary, even though they may be in prison. This provision has been recognised by the Supreme Court in several cases to be an elementary part of the rule of law and administration of criminal justice system.
A further feature of the law on the subject is that police remand under u/s 167 of the CrPC cannot be granted at the asking of the police but is a judicial decision taken by the jurisdictional Magistrate who is required to look into the papers including the FIR and the status of investigation and to pass a judicially-reasoned order as to whether the request of the police seeking physical custody of the accused should be granted or not. In any case, the maximum period was limited to 15 days from the time of arrest.
Effect of deletion of words
This very important protection has been totally thrown out through the changes brought about in the law relating to remand, spelt out in sec. 187 of the BNSS. A careful reading of sec. 187 reveals the following:
(i) The bar of maximum of 15 days of police custody within the first 15 days from time of arrest is removed permitting the Magistrate to order police custody for a period of 15 days anytime during the initial 40-60 days of detention (sec. 187(2) BNSS).
We have already expressed our serious apprehensions and opposition to the change highlighted in point
(i) Above through our critique dated 24th June, 2024, as it creates an anomalous situation when an accused person who has been released on bail pursuant to being placed under judicial custody, can be apprehended again under `police custody’. This apart, constant change in nature of police custody and judicial custody can result in violation of fundamental rights of the accused under Art. 19, 21 and 22 of the Constitution.
(ii) The bar of police custody being for a maximum of 15 days has been removed allowing police custody for a period of 60/90 days.
Finally, the PUCL statement concludes by stating that “An oral clarification does not have force of law and hence an amendment is crucial.”
Why the amendment to Section 187 BNSS is crucial
PUCL states that while Shah’s clarification through a statement in the press that the maximum period of `Police Custody’ remains 15 days is very welcome, it is however not sufficient for the following reasons.
–A verbal clarification does not have the force of law.
— Legal interpretation in courts of law will only be based on the actual words and terms used in sec. 187. As pointed out, the courts are bound to consider the fact that the Parliament has consciously omitted the 8 words “…otherwise than in police custody” (which existed in sec. 167(2) Proviso) in new sec. 187(3) BNSS, and therefore interpret that Parliament intended to expand police custody from maximum of 15 days to 60/90 days.
In the light of this recent clarification/statement, that police custody will continue to remain a maximum of 15 days, Shah and Meghwal have been urged, that, “it would be in the fitness of things if an amendment is carried out in sec. 187(3) BNSS, by including the terms which existed in the CrPC, “…otherwise than in police custody” which will make it explicitly clear that the police custody can be only for a maximum of 15 days. Such an amendment will make it abundantly clear that the new Parliament wanted to settle this issue and bring an end to the controversy over maximum length of police custody.
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