Introduction

• The word 'custody' means apprehending someone for protective care.
• The words "custody" and "arrest" are not synonymous. It is true that in every arrest there is custody but vice versa is not true.

Types of Custody

• There are two types of custody:
  • Police Custody:
    • When the police officer brings the accused to the police station it is called police custody.
    • In case of police custody, the police have the physical custody of the accused.
    • Here the accused is lodged in the police station lock up.
    • The purpose of police custody is to give the police means to gather evidence through custodial interrogation.
  • Judicial Custody:
    • It means the accused is in the custody of the concerned Magistrate.
    • Here the accused is lodged in jail.
    • The purpose of permitting judicial custody is to ensure that the accused does not tamper with the evidence, threaten the witnesses or flee.

Section 58 of BNSS

• Section 58 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides that:
  • No police officer
  • Shall detain in custody a person arrested
  • For a period longer than is reasonable
  • Shall not in the absence of a special order of a Magistrate under Section 187
  • Exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court

Section 187 of BNSS

About:

• Section 187 of BNSS provides for procedure when the investigation cannot be completed within 24 hours.
  • Section 187 (1) provides that:
    • Whenever any person is arrested and detained in custody
    • It appears that the investigation cannot be completed within 24 hours fixed by Section 58
    • And there are grounds for believing that the information or accusation is well founded
    • The officer in charge of police station (not below the rank of sub-inspector) shall forthwith transmit to the nearest Magistrate
    • A copy of entries in the diary and shall at the same time forward the accused to such Magistrate.
  • Section 187 (2) provides:
    • The Magistrate to whom the accused is forwarded under this Section
    • Irrespective of whether he has jurisdiction or not
    • After taking into consideration whether such person has not been released on bail or his bail has been cancelled
    • Authorize from time-to-time detention in such custody as such Magistrate thinks fit
    • For a term not exceeding fifteen days in whole, or in parts
    • At any time during the initial 40 days or 60 days out of detention period of 60 days or 90 days as the case may be as provided in sub-section (3)
    • and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
  • Section 187 (3) provides:
    • The Magistrate may authorize 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 authorize the detention of the accused person in custody under this sub-section for a total period exceeding:
      • 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;
      • sixty days, where the investigation relates to any other offence
    • And on expiry of the said period of 90 days or 60 days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.
• Comparison between Section 167 of Criminal Procedure Code, 1973 (CrPC) and Section 187 of BNSS:

• Problems with Section 187 of BNSS:
  • It is to be noted that Section 167 of CrPC provided that the police custody can be granted only for the period of 15 days (as the expression used is otherwise than in custody of the police, beyond the period of fifteen days) and for rest of the period only judicial custody can be granted.
  • In the case of CBI v. Anupam J. Kulkarni (1992) a two-judge bench held that the maximum period of police custody is fifteen days which is limited to the first fifteen days.
  • This was followed by a 3- judge bench in Budh Singh v. State of Punjab (2000). Later, a two-judge bench in CBI v. Vikas Mishra (2023) took the contrary view and observed that Anupam J. Kulkarni requires reconsideration.
  • In August 2023 a two-judge bench in V. Senthil Balaji v. State took note of the differences and referred the matter to the larger bench.
  • Section 187 of BNSS has come into picture in the background of this controversy.
  • In Section 187 of BNSS the words “in such custody as such magistrate thinks fit, for a term not exceeding 15 days in the whole or in parts” mean that it is open to the Magistrate to authorize either “police custody” or “judicial custody”.
  • This custody can be spread over the period of the first 40 days or 60 days as the case may be.
  • The Section nowhere says that the maximum period of police custody can be only 15 days.
  • The result as per the language of the provision is that now Magistrate can now authorize detention of an accused person in police custody for 15 days and then authorize a day’s judicial custody and then again authorize police custody for another 15 days and so on within the first 40 days or 60 days as the case may be.
  • Honorable Home Minister made a speech in Lok Sabha that the total duration of police custody can only be 15 days in the 40 or 60 days. However, this is not reflected in the Section.

Conclusion

The intended purpose of Section 187 of BNSS is to balance the interest between the rights of the accused and the rights of the prosecution. However, the legislative drafting has resulted in certain loopholes in the provision which might aggravate the situation for the accused. The need is to bring an amendment to the provision in order to make it clear that police custody shall be restricted to only 15 days, which can be spread over the period of 40 days or 60 days as the case may be.