Supreme Court clarifies scope of police custody under Section 187(2) BNSS

Why in the News?

The Supreme Court held in The State of Andhra Pradesh vs Suda Suresh Veera Venkata Naga Raju that Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 enlarges the window during which police custody may be sought. The ruling has exposed the difference between the new code and the old regime, under which police custody was confined to the first 15 days of remand alone. Police custody is now available in parts, though in aggregate not exceeding 15 days, during the first 40 or 60 days of detention.

What is Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023?

1. Governing provision: Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the criminal procedure code that replaced the Code of Criminal Procedure, 1973, governs the detention of an accused when investigation cannot be completed in 24 hours.
2. Enlarged window: Under Section 187(2), a magistrate may authorise detention not exceeding 15 days in the whole, or in parts, at any time during the initial 40 days or 60 days of a total detention period of 60 or 90 days.

What is default bail?

1. Definition: Where investigation is not completed within the stipulated period, the accused becomes entitled to release, widely known as default bail.
2. Time limits under Section 187(3): Judicial detention may extend up to 90 days for offences punishable with death, life imprisonment or imprisonment of 10 years or more, and up to 60 days for any other offence.

What is the current status of pre-trial custody rights in India?

1. Twenty four hour rule: Section 58 of the BNSS provides that a person arrested without warrant cannot be detained beyond 24 hours without a magistrate’s authorisation under Section 187.
2. Fifteen day cap on police custody: Police custody remains capped at 15 days in aggregate, but may now be spread across the early investigation period rather than the first 15 days alone.
3. Right to counsel: Section 38 of the BNSS entitles an arrested person to meet an advocate of choice during interrogation, though not throughout interrogation.
4. Recording safeguard: Audio visual recording of the actual interrogation and of any discovery or recovery satisfies the transparency requirement.

Constitutional provisions related to arrest and detention:

1. Article 22(1): Guarantees the right to be informed of grounds of arrest and to consult a legal practitioner of choice.
2. Article 22(2): Requires production before the nearest magistrate within 24 hours of arrest.
3. Article 21: Protects life and personal liberty, permitting deprivation only by a just, fair and reasonable procedure established by law.
4. Article 20(3): Protects against self incrimination, relevant to the presence of counsel during interrogation.

What did the Supreme Court hold?

1. No absolute outer limit: A magistrate cannot place an absolute and non extendable outer limit on custody, since such a limit forecloses recourse to Section 187(2) of the BNSS.
2. Purpose of the change: The enlarged window is intended to meet situations where fresh facts, discoveries or leads emerge during the course of investigation.
3. Additional custody granted: The Court permitted 7 days of additional police custody so that the total police remand would not exceed 15 days.
4. Facts of the case: In a custodial death case the victim’s body remained untraced, the original CCTV hard disks were yet to be discovered, and recoveries under the Bharatiya Sakshya Adhiniyam were imminent.

How does the new remand window differ from the old code?

1. Old Section 167 CrPC: Detention in police custody could not be granted beyond the initial 15 days in the whole under Section 167 of the Code of Criminal Procedure, 1973.
2. Alteration within the window: Even under the old code, during the first 15 days a magistrate could alter custody from judicial to police and back.
3. New flexibility: Under the BNSS police custody may be sought in parts across the first 40 or 60 days, keeping the aggregate at 15 days.

What did the Court hold on the presence of an advocate?

1. Not continuous: Section 38 does not contemplate the continuous, ongoing physical presence of an advocate for the entirety of each interrogation session.
2. Line of sight: The advocate may remain present within the site of interrogation from where he can see the accused, but not throughout the questioning.
3. Recording over escort videography: Instead of uninterrupted videography of the accused in transit, audio visual recording of the interrogation and of any recovery meets the requirement.

What are the major debates surrounding the enlarged custody window?

1. Liberty versus investigation: Spreading police custody across 40 or 60 days risks repeated custodial spells, weighed against the need to pursue late emerging leads.
2. Magistrate’s discretion: The ruling limits a magistrate’s power to foreclose future custody, raising the question of how liberty is protected during the extended window.
3. Counsel access: The line of sight standard for the advocate leaves open how effectively the right against coercion is protected during interrogation.

Way Forward:

1. Reasoned remand orders: Require magistrates to record specific reasons linking each spell of police custody to investigative need.
2. Guard against repeat custody: Frame guidelines to prevent the enlarged window becoming a route to successive custodial spells.
3. Effective counsel access: Clarify practical standards for an advocate’s presence to protect against coercion.
4. Mandatory recording compliance: Ensure audio visual recording of interrogation and recovery is uniformly implemented and preserved.
5. Judicial training: Orient magistrates on the new remand architecture to balance liberty with investigation.

Conclusion:

The Court has clarified that police custody under the BNSS is capped at 15 days in aggregate but may be sought in parts through the first 40 or 60 days of investigation, not the first 15 days alone. The ruling reflects the legislative intent to accommodate fresh discoveries during a probe. The interpretation now governs how magistrates authorise and structure police remand under the new code.

Back2Basics:

BNSS, BNS and BSA

1. Bharatiya Nyaya Sanhita, 2023: Replaced the Indian Penal Code, 1860 as the substantive criminal law.
2. Bharatiya Nagarik Suraksha Sanhita, 2023: Replaced the Code of Criminal Procedure, 1973 governing procedure, arrest, investigation and trial.
3. Bharatiya Sakshya Adhiniyam, 2023: Replaced the Indian Evidence Act, 1872 governing admissibility of evidence.
4. Effective date: The three codes came into force on 1 July 2024.
5. Zero FIR and e-FIR: The BNSS recognises registration of a First Information Report irrespective of jurisdiction and enables electronic reporting.

PYQ Relevance

[UPSC 2026] Which of the following statements about a Zero First Information Report (Zero FIR) under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is/are correct?

1. A Zero FIR can be lodged at a police station, even though the place of commission of a cognizable/non-cognizable offence is outside the territorial jurisdiction of that police station. 2. The Officer-in-Charge of the police station where a Zero FIR has been lodged may, with the permission of the competent authority, initiate a preliminary enquiry. 3. Under Zero FIR, it is obligatory for the informant to furnish information electronically.

(a) 1 and 2 (b) 2 and 3 (c) 1 and 3 (d) 1 only

Answer: D