The concept of police custody is a crucial aspect of criminal procedure, allowing investigating agencies to detain a “suspect” for questioning and evidence gathering. However, this power must be balanced with the fundamental right to liberty enshrined in Article 21 of the Indian Constitution. The State’s innate tendency to make things easier for itself and thus difficult for citizens can be seen in the changes that have been made (without consultation) to the provisions regarding police custody via the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—the replacement for the Code of Criminal Procedure, 1973 (CrPC). This article discusses the changes in police custody provisions via the BNSS and the implications of such change.
Understanding remand: CrPC section 167
Section 167 of CrPC empowers a Magistrate to remand an accused person to different forms of custody during the investigation process. It is invoked when the investigation cannot be completed within 24 hours of arrest. The provision aims to strike a balance between two competing interests:
- Protecting Individual Liberty: The provision ensures that an individual’s liberty is not unduly curtailed, and that detention is subject to judicial oversight.
- Facilitating Effective Investigation: This empowers the investigating agencies to gather evidence and interrogate the accused, ensuring a thorough investigation.
Sub-section (2) of Section 167 is particularly significant as it lays down the procedure for remand and sets a maximum limit of 15 days for police custody. The proviso to Section 167(2) further elaborates on this limit, allowing for judicial custody beyond 15 days and setting overall time limits for investigation (60 or 90 days, depending on the severity of the offense) after which the accused would or could be released on bail.
Evolution of judicial interpretation
The interpretation of Section 167(2) and its proviso has seen a shift over the years, shaped by significant judicial pronouncements:
- CBI vs. Kulkarni (1992): In this landmark case, the Supreme Court interpreted the proviso to Section 167(2) to mean that police custody was strictly limited to the first 15 days following the arrest.[1] This interpretation was aimed at safeguarding the accused from prolonged police detention, considered detrimental to individual liberty. This view was subsequently followed in Budh Singh v. State of Punjab (2000) — a three-judge bench order, solidifying the understanding that the 15 days of police custody had to be availed within the first 15 days of remand.[2]
- CBI vs Vikas Mishra (2023): The Supreme Court, acknowledging the practical challenges faced by investigating agencies, particularly in complex financial crimes, revisited the interpretation of Section 167(2) in this case. While the case dealt with the calculation of the 15-day period, the Court expressed the view that the earlier interpretation disallowing police custody beyond 15 days required reconsideration.[3]
- V. Senthil Balaji v. The State (2023): This case became pivotal in redefining the understanding of police custody under Section 167(2). The Supreme Court, while upholding the arrest and custody of the accused, interpreted the provision to allow for an aggregate of shorter custody periods spread across the entire investigation period (60 or 90 days). The Court reasoned that this interpretation was consistent with the provision’s language and its objective of balancing individual liberty with the need for effective investigation.[4] Justice Sundresh, authoring the judgment, emphasised:
“The period of 15 days being the maximum period would span from time to time with the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation. We may also hasten to add that the proviso merely reiterates the maximum period of 15 days, qua a custody in favour of the police while there is absolutely no mention of the first 15 days alone for the police custody.”
The Senthil Balaji judgment clarified that the 15 days of police custody need not be a continuous period and can be sought in shorter durations throughout the investigation, as long as the total does not exceed 15 days.
BNSS Section 187: The New Landscape
The Senthil Balaji judgement was delivered on August 7, 2023, and soon after, Union Home Minister Amit Shah introduced the three criminal law bills— Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), Bharatiya Sakhshya Adhiniyam (BSA) as new Penal, Criminal Procedure and Evidence Laws respectively.
The introduction of BNSS to replace the CrPC brought a shift in the legislative approach towards police custody. Section 187 of BNSS, the corresponding provision to Section 167 of CrPC, retains the 15-day limit on police custody. However, it introduces a crucial change in its wording, allowing investigating agencies to seek this period “in the whole or in part over 60 or 40 days”. This phrasing does not explicitly restrict police custody to the initial 15 days, unlike the proviso (as was interpreted in Kulkarni) in Section 167(2) of CrPC. This change in the BNSS aligns with the two-judge bench’s reasoning in the Senthil Balaji Case.
This change has sparked a debate and serious concerns about potential misuse and its impact on individual liberties. The lack of clear guidelines in BNSS regarding the circumstances under which police custody can be sought beyond the initial 15 days has amplified these concerns. The bills were subsequently referred to the Department-related Parliamentary Standing Committee on Home Affairs for its examination and report.
Ignoring the suggestions of the Standing Committee
The Parliamentary Standing Committee on Home Affairs, while reviewing the BNSS Bill, recommended incorporating specific safeguards to address this ambiguity. In the report it had adopted on November 6, 2023, it recommended that a suitable amendment may be brought to provide greater clarity in the interpretation of Section 187. This recommendation was based on the suggestions from stakeholders arguing that as a general rule, custody should be taken in first 15 days of remand and the further window should only be utilised as an exception, when the accused is trying to avoid police custody or due to extraneous circumstances which are not within the control of the investigating officer.
Essentially, the committee sought to strike a balance between the rights-based approach and the approach of giving investigating agencies the necessary time. However, these suggestions did not materialise in the bills that were re-introduced and later passed in the Lok Sabha in December 2023. The BNSS came into force in July 2024.
How does it matter if 15 days of police custody is in part or whole?
Under the old CrPC regime, police could only request custody during the first 15 days of an investigation. After that, the accused was either placed in judicial custody or granted bail.
Under the new BNSS regime, the police can request custody in parts. For instance, they may request a 4-day custody period, after which the accused could be granted bail. However, since the police still have 11 days of custody left, they can later request another 4-day custody, potentially a week after the accused is granted bail. This means the 15-day custody limit could be stretched across the first 40 or 60 days, depending on the severity of the offense.
This matters for three key reasons:
- The accused may face harassment through repeated police custody requests, disrupting their ability to function in daily life while on bail.
- Not merely harassment –police custody is often an axiom for custodial torture– and prolonged availability of remand to an already powerful (and often brutalised police force) is likely to make accused victims to this in greater intensity in future.
- Judicial officers may hesitate to grant bail until the police have exhausted their full 15-day custody allowance. Why? Granting bail early could require a cumbersome process of cancelling bail and approving further custody requests from the police.
- When the CrPC was enacted in 1973, technological resources were far less advanced than they are today. Even then, the custody limit was capped at 15 days during the initial investigation period, as interpreted in the Kulkarni Case. With modern advancements like CCTV, facial recognition, and advanced forensics, allowing police to use the same 15-day period in parts grants them disproportionately higher power.
Implications
Potential for misuse:
The lack of explicit safeguards in BNSS regarding police custody beyond 15 days raises concerns about potential misuse and prolonged detention without adequate justification. For instance, the police could request custody on the 15th day of investigation while the accused is in judicial custody for a few days. Under the old regime, the police were required to seek custody within the first 15 days, after which the accused could apply for bail. However, now the accused is more likely to remain in prolonged detention until the police exhaust their 15 days of custody, effectively delaying the opportunity for bail.
Additionally, the right to claim custody in parts grants the police more power than before. For example, consider a situation where person X is arrested on Day 1 and sent to police custody by the court for 5 days on Day 2. On Day 7, X is released on bail. Until Day 16, X cooperates with the police by attending investigation sessions daily while on bail. However, on Day 17, X, frustrated with the line of questioning, decides to stop going to the questioning sessions. Since the police still have 10 days of custody remaining, they could use it as leverage to harass X. This skewed power dynamic makes it challenging for the accused to exercise their liberty, even when cooperating with the investigation.
In D.K. Basu vs. State of West Bengal (1996), the Supreme Court emphasised that in custodial crimes, the real concern is not only the infliction of physical pain but also the mental agony endured within the four walls of a police station or lock-up.[5] The new provision in the BNSS, by enabling the police to claim custody repeatedly within the 40/60-day period—depending on the severity of the offence—contradicts the judicial philosophy outlined in D.K. Basu.
Judicial Oversight:
The role of the judiciary becomes even more critical in ensuring that this power is exercised judiciously and that the rights of the accused are protected. Magistrates must rigorously scrutinise the grounds for seeking police custody at each stage, ensuring it is genuinely necessary for the investigation and not used as a tool for harassment or coercion. However, whether judicial officers will exercise such prudence or remain reluctant due to the challenges mentioned above remains to be seen.
Higher judiciary’s role – past and future
Both CBI v. Vikas Mishra and Senthil Balaji v. State demonstrate a judicial inclination towards prioritising the needs of investigation over a strict interpretation of the 15-day custody limit enshrined in Section 167(2) CrPC. However, these judgments fall short of providing a nuanced approach that balances both perspectives. The intent behind the Kulkarni case’s limitation of police custody to the first 15 days was to ensure there was no room for police excess. Since then, police powers have grown stronger, yet rather than achieving a balance between police authority and individual liberty, the Supreme Court judgments in Vishal Misra and Senthil Balaji have adopted a unidimensional approach.
The judgments could have explored the possibility of resetting the 15-day clock in situations beyond the investigating officer’s control rather than calling for a re-examination of the general rule established in the Kulkarni case.
For instance, if an accused falls seriously ill during custody, necessitating hospitalization and thereby preventing effective interrogation, the court could have considered pausing the 15-day countdown and resuming it upon the accused’s recovery. This approach would balance the need for a thorough investigation with the accused’s right to health and a fair opportunity to respond to allegations.
Similarly, in situations like CBI v. Vikas Mishra, where the accused obtained interim bail, other legal challenges or procedural delays could hinder the investigating agency’s access to the accused within the initial 15-day period. The judgments could have acknowledged such scenarios and allowed for a recalibration of the 15-day limit to ensure the investigation is not unfairly prejudiced.
To address this lack of balance, the higher judiciary could develop jurisprudence that empowers and enables lower courts to scrutinize police custody petitions seeking custody in parts, while carefully considering the rights of the accused. Although this will take time, it will provide the necessary balance that the BNSS currently lacks in Section 187.
Conclusion
While the current BNSS makes the questions posed by the court in Senthil Balaji and Vishal Misra almost infructuous, it is a constant expectation from the Supreme Court to exercise caution in calling established judgments and rules into question, which, unfortunately, was not met in these orders.
In a recent case, Prem Prakash vs. Union of India (2024), a two-judge bench of the Supreme Court stated as follows[6]:
“The principle that ‘bail is the rule, and jail is the exception’ is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a rule, and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure.”
While this judgment relates to a different factual matrix, its emphasis on deprivation being an exception underscores the need to balance the rights of investigating agencies and the liberty of the individual under Article 21.
On the other hand, the Criminal Procedure Code should not serve as a machinery for the state’s exercise of unbridled power. The government, too, could issue Standard Operating Procedures (SOPs) or even undertake an amendment to the BNSS to provide the necessary clarification and balance the power of the police. The amendments could range from specifying offences for which police custody in parts could be sought to defining situations in which police custody could be justified.
(The author is part of the organisations legal research team)
[1] (1992) 3 SCC 141 CBI vs. Kulkarni (1992)
[2] (2000) 9 SCC 266 Budh Singh v. State of Punjab (2000)
[3] 2023 SCC OnLine SC 377
[4] 2023 INSC 677
[5] (1997) 1 SCC 416, D.K. Basu vs. State of West Bengal (1996)
[6] 2024 INSC 637, Prem Prakash vs. Union of India (2024)
Related:
Under trial Prisoners: MHA directs States/UTs to implement section 479 of BNSS
Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister