Open Letter to Home Minister - Amend sec. 187(3) BNSS in line with clarification on police custody!
By Kavita Srivastava, V. Suresh
To
Shri Amit Shah
Hon’ble Minister of Home Affairs
Union of India,
North Block, New Delhi 110001.
Email: hm@mha.gov.in
Shri Arjun Meghwal,
Hon’ble Minister for Law and Justice,
Government of India,
4th Floor, ‘A’ Wing, Shastri Bhavan,
New Delhi.
Email: mljoffice@gov.in
Sub.: Police Custody: Home Minister’s Clarification on maximum length of Police Custody in BNSS being 15 days – Amend sec. 187(3) BNSS to bring it in conformity with sec. 167(2) Proviso, Criminal Procedure Code.
Ref.: Union Home Minister’s Press Conference on 01st July, 2024
Dear Sirs,
We welcome the statement made by the Hon’ble Home Minister made in a Press Conference on 01st July, 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.
The Indian Express[1] has quoted you as 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”.
As the Union Home Minister, and the key architect of the 3 new laws, your clarification is very important as it helps bring clarity to the issue as to 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).
However 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.
In the light of this clarification we wish to point out that the controversy arose regarding the length of police custody because of the fact that the new sec. 187 BNSS was literally a verbatim copy of the previous sec. 167 CrPC, with the omission of 8 words, which gave a totally different interpretation to the new provision on police remand.
Omission of 8 words from Proviso to sec. 167(2) CrPC from sec. 187 BNSS
To enable us to better understand the confusion/ controversy, we are reproducing the 2 provisions below, to demonstrate why the omission of 8 words from sec. 167 CrPC when formulating sec. 187 BNSS does lead to the interpretation that police custody is no longer limited to a maximum period of 15 days from the date of arrest.
| Proviso to Section 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… |
Danger in Deletion of 8 words from the CrPC on Police Custody
The effect of dropping the 8 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:
- 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. - 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.
Clarification does not have force of law: Why the amendment to sec. 187 BNSS is crucial
We would like to point out that while your clarification through the Press Statement that the maximum period of `Police Custody’ remains 15 days is very welcome, it is however not sufficient for the following reasons.
Firstly, this clarification does not have the force of law.
Secondly, 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 your clarification that police custody will continue to remain a maximum of 15 days, 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.
Yours sincerely,
Kavita Srivastava (President)
V. Suresh (General Secretary)
++++++
CC: Dr. Rajiv Mani, Union Law Secretary,
Department of Legal Affairs,
Government of India, New Delhi.
[1] https://indianexpress.com/article/india/maximum-police-custody-still-15-days-can-be-spread-over-two-months-amit-shah-9427079/ @ 05Jul2024