This case, arising from an FIR registered against Imran Pratapgarhi, a Member of the Rajya Sabha, for offenses related to a poem he shared on social media, specifically addressed the application of Section 173 of the BNS, which governs the procedure for handling information in cognisable cases and the subsequent registration of FIR.

Brief Facts and Background

Parliament Member Imran Pratapgarhi posted a video in which a poem was shared, which according to a complainant, promoted enmity between religious communities, and that it constituted imputations that are prejudicial to the national integrity.

The FIR was filed with offences under Section 302 (Uttering words, etc., with deliberate intent to wound religious feelings of any person), Section 299 (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), Section 57 (Abetting commission of offence by public or by more than ten persons).

Mr. Pratapgarhi approached the High Court under Section 528 of the BNSS read with Article 226 of the Constitution to quash the FIR. Section 528 of the BNSS states that nothing in the BNSS limits or affects the inherent powers of the High Court to pass such orders as may be necessary to give effect to any order under BNSS or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Article 226 of the Constitution of India provides High Courts with the power to issue certain writs to any person or authority, including Government in appropriate cases for enforcing fundamental rights provided under Part III of the Constitution, or for any other purpose.

The High Court refused to intervene. Aggrieved, Mr. Pratapgarhi approached the Supreme Court.

The Supreme Court examined the poem in question and opined, first, that there is nothing in the poem which attracted the offences mentioned before. Later, it went on to deal with the question of whether, in this case, it was obligatory under Section 173(1) of the BNSS to register FIR or not.

Provisions and case law

Section 173(1) of the BNSS states that every information relating to the commission of a cognisable offence, irrespective of the area where the offence is committed, may be given (orally or via electronic communication) to an office in-charge of a police station and if given orally, such officer shall reduce it to writing by him or under his direction, read it over to the informant, and have it signed by the informant.

Essentially, when one gives a complaint over a cognisable offence, the police will have to record it in writing and take signature of the complainant. This record is commonly known as a First Information Report (FIR). Section 173(2) states that a copy of the FIR be given to the complainant free of cost.

Section 173(3) states that when an information relating to commission of a cognisable offence which is punishable with three years or more but less than seven years of imprisonment, the officer in charge of the police station may with the prior permission from an officer, not below the rank of the Deputy Superintendent of Police, considering the nature and gravity of the offence,

1. proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
2. proceed with investigation when there exists a prima facie case.

There exists a conflict between Section 173 (1)—which states FIR should be registered when cognizable offence related information comes and Section 173 (3)—which states that a preliminary investigation ought to be done for cognizable offences which are punishable for more than three but less than seven years.

In Lalita Kumari vs Government of Uttar Pradesh, the Supreme Court stated that the condition sine qua non (essential condition) for registering FIR is that there must be information, and the information discloses commission of cognisable offence, the reasonableness or credibility of information is not a condition precedent for the registration of FIR.

Supreme Court resolved this contradiction in Imran Pratapgarhi vs. State of Gujarat (2025 INSC 410).

Judgement and its reasoning

On Section 173

While Section 173 (1) is the general rule, according to the court, Section 173 (3) is an exception to the rule. This means that when information is given to the police, if prima facie, a cognizable offence is made out, an FIR is to be registered unless the offence is covered under Section 173 (3) in which case a preliminary investigation could follow (Para 25).

According to the court, Section 173 (3) of the BNS thus introduces a notable exception, granting the police the discretion to conduct a preliminary assessment even when the information received might disclose a cognisable offense, if it is falling within the specified punishment range.

This pronouncement highlights a significant deviation from the general principle of immediate FIR registration for cognisable offenses, as previously emphasized by the Supreme Court in Lalita Kumari v. Govt. of U.P. under Section 154 of the Code of Criminal Procedure, 1973(CrPC).

On free speech and usage of Section 173(3)

In its judgment, the Supreme Court laid significant emphasis on the fundamental right to freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution of India. The Supreme Court went further to characterize the registration of the FIR against Mr. Pratapgarhi as a “mechanical exercise” and a clear “abuse of the process of law” (Para 36).

This strong condemnation implies that the police acted without a proper appreciation of the nuances of free speech and potentially misconstrued the intent and message of the poem. The Court also highlighted the societal value of various forms of artistic expression, including poetry, literature, drama, films, and satire, emphasizing their role in enriching human life and the necessity of their protection under the umbrella of free speech (Para 38).

In this case, the Supreme Court specifically ruled that when an allegation concerns an offence that falls under the ambit of the restrictions on free speech outlined in Article 19 (2) of the Constitution, it is invariably appropriate to conduct a preliminary inquiry under Section 173 (3) of the BNS before proceeding to register an FIR (Para 29).

The Court reasoned that when allegations are predicated on spoken or written words, it is incumbent upon the police officer to carefully examine the content to ascertain whether it indeed constitutes a cognizable offense

According to the Court, this initial assessment of the material does not equate to a preliminary inquiry that would be impermissible under Section 173 (1) when the information already discloses a cognizable offense. The Court underscored that the failure to utilize the option of conducting a preliminary inquiry under Section 173 (3) in cases where potential free speech violations are at issue could result in the registration of an FIR against an individual merely for exercising their fundamental right under Article 19 (1) (a), even if the restrictions stipulated under Article 19 (2) are not applicable.

Furthermore, the Court opined that neglecting to invoke Section 173 (3) in such circumstances would undermine the very purpose for which this sub-section was incorporated into the BNSS (Para 29). It would also contravene the constitutional obligation of the police under Article 51-A (a) to uphold the Constitution and respect its ideals, according to the Court.

To this end, the Supreme Court suggested that the higher police officer, whose permission is required under Section 173(3), should ordinarily grant such permission to conduct a preliminary inquiry in cases involving the exercise of free speech where the potential punishment falls within the range of three to seven years (Para 29).

This directive indicates a clear expectation from the apex court that superior officers should facilitate the process of preliminary inquiry in such scenarios to ensure that the fundamental right to freedom of speech is adequately protected from unwarranted criminal prosecution at the very outset.

Conclusion: a paradigm shift in policing free speech

The Supreme Court’s judgment in Imran Pratapgarhi v. State of Gujarat marks a transformative moment in the jurisprudence of free speech and police powers, recalibrating the balance between constitutional rights and procedural obligations. By mandating preliminary inquiries under Section 173 (3) of the BNS for allegations implicating Article 19 (2) restrictions, the Court has introduced a safeguard against precipitate criminalization of speech. This intervention is not merely procedural but foundational, ensuring that the exercise of free expression—particularly in artistic or public discourse—is shielded from arbitrary state action.

The ruling underscores that police discretion under Section 173 (3) is not a license for inaction but a constitutional duty to scrutinise allegations rigorously. By requiring higher police authorities to authorise preliminary inquiries, the judgment institutionalizes accountability, preventing FIRs from becoming tools of harassment. This is especially critical in speech-related cases, where the line between lawful dissent and cognizable offenses is often blurred by subjective interpretations. The Court’s emphasis on the societal value of poetry, satire, and other forms of expression serves as a reminder that democratic robustness thrives on diversity of thought, even when contentious.

Critically, the judgment does not dilute the obligation to act on cognisable offenses but contextualises it. By distinguishing between immediate FIR registration under Section 173 (1) and the need for preliminary assessment under Section 173 (3), the Court harmonises competing imperatives: the necessity of prompt action in grave crimes versus the imperative to protect speech from overzealous policing. This nuanced approach ensures that the police remain guardians of both law and liberty, rather than arbiters of societal consensus.

While the judgment does not absolve individuals of accountability for speech that incites violence or undermines public order, it raises the threshold for criminal prosecution. This is a welcome check on the expanding criminalisation of political and artistic expression, which has historically been weaponised to stifle dissent.

(The author is part of the legal research team of the organisation)

Related:

‘Courts, Police Have Duty to Protect Freedom of Speech’: SC on FIR against Congress MP Over Poem

The post SC: Recent judgment in the Imran Pratapgarhi case, what are police powers under section 173 (3) BNS? appeared first on SabrangIndia.

While previous sections in the Indian Penal Code (IPC) –Section 153a, 153b, 153c and 505 of the Indian Penal Code (IPC) were found wholly inadequate in identifying and prosecuting the growing corrosive phenomenon, the newly implemented Bharatiya Nyaya Sanhita (BNS) 2023 breaks no new ground.

In fact, the new criminal laws, that were hurriedly rushed through Parliament while 146 Members of Parliament were suspended, with no amendments being discussed not entertained –and no referrals to a Joint Select Committee as is the norm—had been evolved in a secretive fashion by a “Committee” consisting of former Vice Chancellor, National Law University, Delhi (NLUD), Professor Srikrishna Deva Rao, present VC, NLUD, GS Bajpeyi and advocate Mahesh Jethmalani, Rajsya Sabha member, Bharatiya Janata Party (BJP). That such a committee did ignore Supreme Court judgements with clear cut directions on laws for prosecuting hate speech as also the Law Commission’s 267th Report.

The new criminal laws dealing with the subject-matter are simply not sufficient to cope with the menace of ‘Hate Speeches’. Hate/derogatory/inflammatory speech has not been defined in the new Bharatiya Nyaya Sanhita 2023 and neither in any other penal law.

The Black’s Law Dictionary, 9th Edn. defines the expression “hate speech” as under:

“hate speech. —Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”

Hate speech commonly relies on stereotypes about insular groups in order to influence hostile behaviour towards them. Supremacist and outright menacing statements deny that targeted groups have a legitimate right to equal civil treatment and advocate against their equal participation in a democracy. Destructive messages are particularly dangerous when they rely on historically established symbolism, such as burning crosses or swastikas, in order to kindle widely shared prejudices. Messages that are meant to hurt individuals –and incite violence against them –because of their race, ethnicity, national origin, or sexual orientation have a greater social impact than those that attempt to draw out individuals into pugilistic conflicts. Establishing a broad consensus for large-scale harmful actions, such as those carried out by supremacist movements, relies on a form of self-expression that seeks the diminished deliberative participation of groups of the population. Hate speech extols injustices, devalues human worth, glamorises crimes, and seeks out recruits for anti-democratic organisations.

Comparison between BNS 2023 and IPC 1860:

In the absence of specific provisions against the offence of Hate Speech, the prosecution was initiated only through the following provisions referred. Here is the comparison between BNS 2023 and IPC 1860:

Within the BNS, 2023 sections 196(1), and 197 (1) (Ss. 153A and 153B of IPC, 1860) – the sections that deal with hate speech – inserted with provision of “Electronic Communication”.  However the entire newly enacted law –the Sanhita – does not, anywhere, define the tern, Electronic Communication.

Section 196(1) states that “if anyone Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony by words, either spoken or written, or by signs or by visible representations or through electronic communication”, he/she will be punished. Under section 197(1) imputations, assertions prejudicial to national integration by words either spoken or written or by signs or by visible representations or through electronic communication, is/are subject to prosecution under this provision.

A misuse of this provision has already been evident in a case from Shamli, Uttar Pradesh, when someone posting news on an alleged incident of “lynching” was booked under this section. Read here.

Armed Possession not criminalised under BNS:

Critically, Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms finds no place in the BNS 2023. This section was enacted in 2005 by Parliament but was never notified! The Section (amendment of 153AA) however still signifies a crucial change that could have been brought in through BNS but not reflected. The BNS does not seems to be a new approach to the law that addresses present day societal upheavals especially the corrosive crimes of hate speech.

As crucial is the deliberate bypassing by the BNS 2023 of the Law Commission’s 267th Report on Hate Speech:

The Supreme Court of India in Pravasi Bhalai Sangathan vs. Union of India, (2014) 11 SCC 477, directed the Law Commission of India to look into issue of hate speeches being made by politicians and to consider framing guidelines to prevent provocative statements and requested the Commission to examine the issue Hate Speech thoroughly also to define the expression “Hate Speech” and make Recommendations to Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made.

The Judgment Can be read here:

On March 23, 2017, the Law Commission of India (Chairman, Former Judge SC, Dr. Justice B.S. Chauhan) was submitted its 267th Report titled “Hate Speech” suggested to then Union Law Minister Ravi Shakar Prasad, amendments to the Indian Penal Code, 1860 and the Code of Procedure Code, 1973 by adding new provisions on ‘Prohibiting incitement to hatred’ following section 153B IPC and ‘Causing fear, alarm, or provocation of violence in certain cases’ following section 505 IPC and accordingly amending the First Schedule of the CrPC.

Despite the recommendation made by the Law Commission, the Union Government ignored the gravity and sensitiveness of the issue of Hate Speech, which is on the rise across country. The ‘Hateful’ and ‘Inflammatory Speech’ leading to violence, riots, promote enmity on grounds of religion and disturbing the long-standing harmony among the citizens.

Proposed new provisions to curb Hate Speech:

With its 267th Report, the Law Commission suggested not just that new provisions in IPC are required to be incorporated but keeping the necessity of amending the penal law, a draft amendment bill, namely, The Criminal Law (Amendment) Bill, 2017 suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases), needs to be added.

Proposed Sections in IPC:

Chapter II – Insertion of new section after section153B.- 

In the Indian Penal Code, (45 of 1860) (hereinafter referred to as the Penal Code), after section 153B, the following section shall be inserted, namely: –

Prohibiting incitement to hatred- “153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

Insertion of new section after section 505.-

In the Penal Code, after section 505, the following section shall be inserted, namely: – Causing fear, alarm, or provocation of violence in certain cases.

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe –

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The Law Commission’s 267th Report can be Read here:

Supreme Court’s concern over Hate speech:

Pertinently, the Supreme Court on various occasions, especially since 2022, has asked government to curb and prevent the incidents of hate speech in public discourse including the electronic and other media. As the existing legal framework is not sufficient to prevent this phenomenon, the Supreme Court has, time and again, issued directions about the absence of offence of Hate Speech in Indian Criminal Law. However, although, the word Hate Speech has not been squarely defined in Indian penal law, India’s Constitutional Courts have discussed this phenomenon, the ingredients of Hate Speech, the nuances and distinctions..

In October 2022, while hearing a petition by journalist Shaheen Abdullah, Justice KM Joseph had slammed the Government that “why is the government remaining a mute spectator” and asked them to bring a law regulating media and hate speech. In Shaheen Abdulla v. Union of India & Ors. [Writ Petition (C) No. 940 of 2022], the division bench of Justice Km Joseph and Justice Hrishikesh Roy, directed the directs Uttar Pradesh, Uttarakhand and Delhi Governments to take suo motu action against hate speech crimes without waiting for formal complaints irrespective of the religion of the offender.

The order can be read here:

The directions issued by the Supreme Court in Shaheen Abdulla (Supra) had been limited to Uttar Pradesh, Delhi and Uttarakhand.

On April 28, 2023, the division bench of Justice KM Joseph and BV Nagarathna in Ashwini Kumar Upadhyay v. Union of India [W.P. (C) No. 943 of 2021], extended its 2022 order and directed all States/UTs to register Suo moto FIR against Hate Speech irrespective of religion. The court added that when any speech or any action takes place which attracts offences such as Section 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law.

The judgement can be read here:

On January, 2023, while hearing a batch of petitions involving hate speech incident and expressing the concerns about the manner in which TV Channels are functioning, the Supreme Court was observed that “offending anchors must be taken off Air, Media should not create division”.

Further, in Amish Devgan v. Union of India (2021) 1 SCC 1, the Supreme Court embarked on a comprehensive review of Indian and foreign decisions on hate speech, and a few academic articles on the subject. Devgan, a television journalist, faced criminal charges under various provisions of the IPC on the basis of his statements referring to a saint in Islam as an “invader, terrorist and robber who had come to India to convert its population to Islam” during a television programme hosted by him. The Court refused to quash the criminal cases against him, which affirmed the adequacy of existing criminal law to recognise hate speech, even if made accidentally or in error, as was claimed by Devgan. The Court observed that hate speech constituted three elements – content, intent, and harm or impact – and that the content of a speech must be coupled with the intent of the speaker to incite or cause harm.

The Judgement can be read here:

In the case of Kaushal Kishore vs. State of Up and Others (2023) 4 SCC 1, clarified that every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression under Article 19(1)(a) only in the sense that it was intended by the framers of the Constitution, to be exercised. This is the true content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to a communication of ideas. Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by the State.

However, what is clear is that the right to freedom speech and expression, in plural d democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, and these do not permit such rights to be employed in a manner so as to attack the rights of another. If speech, ensuing from persons of political, social or any other authority by their utterance impact the dignity and right to life of a fellow citizen or a depressed section, with also a potential to create circumstances for him/them that are exclusivist or make them prone to violence, this constitutes Hate Speech.

The Judgement can read here:

In the case of Tehseen Poonawala vs. Union of India and Others (2018) 9 SCC 501, the Supreme Court of India discussed preventive, remedial and punitive measures in order to identity and prevent the incidents of hate speeches. The court further recorded that mob vigilantism and mob violence have to be prevented by the governments by taking strict action. That rising intolerance and growing polarisation expressed through incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. The State has a sacrosanct duty to protect its people from unruly elements and perpetrators of vigilantism, with utmost sincerity.

The Judgement can be read here:

Conclusion:

There is no doubt that India’s long standing religious and cultural harmony among the peoples of different beliefs and faith, infected and affected by the hate and inflammatory statements made by politicians and giving rise to mob violence, lynching, harassment etc. Hate Speech has now become a tool and short cut to get publicity and the politicians are instead of curbing the incidents of hate speeches are encouraging the wrongdoers to fulfill their “hateful propaganda”, “destructive messages” and “biased speeches” for vote bank politics at the cost of integrity and harmony of the nation.

All these rich jurisprudential developments have been wilfully ignored by both government and Parliament that hastily passed the 2023 BNS Laws. Instead of addressing the inadequacies of the previous IPC and CrPC, the BNS 2023 makes the prevalent laws even more regressive and police authorities armed with more power.

In the arena of hate speech, BNS 2023 is not just wanting as a set of laws that will ensure prosecution but in fact may harbour in an era that is conducive to the vulnerable victim communities being further targeted and criminalized.

Related:

Towards a Hate Free Nation: Handbook for Police & Administration

New Criminal Laws: Reform or Repression? Insights from Legal Experts

Bharatiya Nyaya Sanhita Bills: Pro-People Reforms or Draconian Changes?

Debating India’s New Criminal Laws: Moving Away from Colonization or Towards Authoritarianism?

The post Modi’s government bypasses SC & Law Commission, no nuanced, strong penal sections on Hate Speech: BNS, 2023 appeared first on SabrangIndia.

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.

Related:

New Criminal Laws: Future risks for democracy and rights in India

From colony to police state? India’s new criminal laws receive dissent

The post Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister appeared first on SabrangIndia.