This article has been written by Syed Raiyyan (1st year of BA.LLB course at Rajiv Gandhi National University of Law (RGNUL), Patiala.)
On 21 December 2023, the Parliament, in the absence of more than 100 opposition MPs, passed the three criminal Acts–– Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam. However, the new laws have already received criticism from many fronts. The fact that these were passed in the absence of many opposition members, suspended on flimsy ground, has not helped the clamour. The bills passed seek to replace the British-era penal laws and shed the spectre of colonial subjugation and tyranny once and for all, emphasizing Indianness and the welfare of Indian people. Yet, critics have pointed out that some changes threaten people’s liberty and widen the scope for misuse of power by law enforcement agencies. One provision that has come under intense scrutiny is Clause 187(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which deals with police custody of an accused
Police Custody under CrPC
Police custody is an integral part of any investigation. Though the Constitution ensures that the accused can choose to not give any information to the police or provide any evidence during this period, the importance of police custody has been acknowledged by the Supreme Court on multiple occasions. Police custody allows the investigating officers for inceptive interaction with the accused. However, the police or any other investigating agency is expected to be reasonable and not act like the perpetrators themselves. Thus, a proper procedure of investigation for the police needs to be established to ensure legitimate and orderly conduct. Yet, this procedure must be balanced to ensure that the rights of the accused are not infringed while at the same time providing enough space for the investigating bodies to properly perform the necessary investigations.
Police custody is dealt with under Section 57 and Section 167 of the CrPC. Section 57 entails that no person can be detained in police custody for more than 24 hours unless a magistrate order under Section 167 of the CrPC is passed regarding the same. Once the period of 24 is over, the police officer seeking to hold a person under custody must apply for a magistrate order under Section 167, expressing that the investigation could not be completed within 24 hours and that there is a legitimate cause to keep the person under custody, which may be either police or judicial. If the magistrate is content with the police officer’s opinion, they may pass an order under Section 167 for further detention of the individual.
To shield the accused from needless harassment during the investigation and trial, Section 167(2) of the Criminal Procedure Code restricts the accused’s custody to a police officer or investigating agency only during the first 15 days of incarceration, and after that, the accused’s custody cannot be transferred to a police officer or investigating agency, as held by the Supreme Court in Central Bureau of Investigation v. Anupam J. Kulkarni and concurred Budh Singh v. State of Punjab. Furthermore, Section 167(2a) says that detention, if exceeding fifteen days, ‘must be otherwise than in police custody’. According to this interpretation, the balance of the procedure regarding police custody has been tipped in favour of the accused.
The Supreme Court, however, has cast a shadow of doubt on this interpretation in its recent judgments. In Central Bureau of Investigation v. Vikas Mishra, the court questioned the rigid approach laid down in the Anupam Kulkarni case and expressed its concern regarding its potential misuse. The Court held, “It is true that in the case of Anupam J. Kulkarni (supra), this Court observed that there cannot be any police custody beyond 15 days from the date of arrest. In our opinion, the view taken by this Court in the case of Anupam J. Kulkarni (supra) requires reconsideration.” In the case, the court was deciding whether to allow police custody beyond the said period of fifteen days. Initially, the Special Court granted the police custody of the accused for seven days. The accused then got himself admitted to the hospital after two days of the initial seven days of police custody and as a result, the investigating agency could not properly conduct the interrogation. Further, at later stages, the accused had refused to cooperate with the CBI and ‘frustrated’ the course of law. In such a situation, while allowing the CBI police custody for the remaining period, the court observed: “. . .by not permitting the CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process.”
In the V. Senthil Balaji v. The State Represented By Deputy Director And Ors. case, the issue resurfaced. The Supreme Court, in dismissing the plea of Senthil Balaji, the Minister of Tamil Nadu, and his wife against the Directorate of Enforcement (ED), held that the allotted 15-day police custody period can be the total of smaller periods of custody requested during the investigation’s entire duration of 60 or 90 days. Anupam Kulkarni (1992) has therefore been referred by the bench to a larger bench for reconsideration. The Court stated,
“We are conscious of the fact that a different interpretation has been given as to how the total 15 days which could be sought for by an investigating agency, should be construed and reckoned…This period of 15 days has to be reckoned, qua either a police custody or a custody in favour of the investigating officer, spanning over the entire period of investigation…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.”
As the issue remains under judicial review, the government has decided to alter the provision for police custody through the recent BNSS.
What Does the New Provision Say?
Clause 187(2) of the BNSS provides for the police custody of an accused for fifteen days, either in whole or in parts, at any time, ‘during the initial forty days or sixty days out of detention period of sixty days or ninety days.’ This differs from its corresponding Section 167(2) in the Code of Criminal Procedure (CrPC). The CrPC limits the power of remand by restricting police to seek custody only during the first fifteen days of investigation. Further, The BNSS has no corresponding Clause to Section 167(2a), leaving an unsettling vagueness, and allowing room for misuse of the provision. This has been strongly criticized, with many experts calling for explicit safeguards against the misuse of police power. In its report, the Parliamentary Standing Committee on Home Affairs mentioned that the provision does not provide enough security for the accused. It further expressed concerns about the possibility of its misuse and conveyed its apprehensive that it may result in detention in police custody even beyond fifteen days. After the first draft of the bill introduced in the monsoon session of 2023, one of the suggestions made by the Committee was an amendment to the mentioned Clause. The Committee’s report states–
“There is a concern that this clause could be vulnerable to misuse by authorities, as it does not explicitly clarify that the custody was not taken in the first fifteen days either due to the conduct of the accused or due to extraneous circumstances beyond the control of the investigating officer. The committee recommends that a suitable amendment may be brought to provide greater clarity in the interpretation of this clause.”
Despite the recommendations, the Clause appeared unchanged in the final draft that was eventually passed in December.
Section 167(2) acts as a bulwark of justice against the undue exercise of power by the police or other investigating agencies. Expounded as another ‘limb of Article 21’ by the Supreme Court, it manifests the Article in spirit. It seeks to provide for a process of investigation that does not undermine the liberty of the accused, whilst ensuring that the investigating agencies are not stifled and can properly conduct the required investigation. The Supreme Court while referring the matter to a larger bench in the Senthil Balaji case had described it as “the proviso creates a fine balance between individual liberty and adequate investigation.” Given its importance, any reckless or hasty decision could have grievous consequences.
Despite reservations from the standing committee, the government has decided to alter the existing proviso. Considering that the interpretation of the proviso is already under judicial review, it would have been proper to either wait for the judgment and codify the interpretation given by the court or incorporate the proviso as it was in the previous Act and wait for the Supreme Court to come to a conclusion. Further, this change has blurred the process and draped a veil of confusion around the issue for investigation agencies and the executive as to which definition is to be relied upon (it must be kept in mind despite being in reconsideration the previous interpretation has not yet been overturned). It is disappointing, to say the least, that the limb of a fundamental right in the Constitution has been operated on with such little concern.