The Change In Remand Law As Per The Bharatiya Nagarik Suraksha Sanhita, 2023.

Three new criminal laws have been passed by the Parliament to replace the existing Code of Criminal Procedure, 1973 (Cr.P.C.), the Indian Penal Code, 1860 (I.P.C.) and Indian Evidence Act, 1872 (I.E.A.). These new laws will come into force on 1 July 2024. However, even though the objective of the enactment of these laws were to create an empathy-driven legal framework, several provisions need to be reconsidered, since its enforcement will amount to a diametrically opposite result. The remand provisions under the BNSS are being examined here.

Remand

Under the Code of Criminal Procedure, 1973 (Cr.P.C.), when a person accused of a punishable offence is arrested by the police he must be produced before a Magistrate within 24 hours. His custody may be extended by the Magistrate only as per the procedure prescribed in Section 167 of the Cr.P.C. If the police desire custodial interrogation of the accused, they must move an application seeking remand of the accused in police custody. If they do not seek police custody, or if the Magistrate decides that the same is not required, the accused is sent to jail and is regarded to be in judicial custody. After he is first produced before the Magistrate no accused can be remanded to police custody for more than 15 days in total. Beyond this period an accused can only be remanded to judicial custody. A Magistrate is also bound to record reasons for extending the period of remand whether under police or judicial custody. The accused also has the right to apply for bail at any stage of remand. Prior to the conclusion of investigation and the filing of the chargesheet, the maximum period of police plus judicial remand that can be granted by a Magistrate to a person accused of a crime carrying a minimum sentence of 10 years is 90 days, and in all other cases is 60 days. Therefore, the State machinery is duty-bound to complete the investigation and file a chargesheet in Court within 60 or 90 days depending on the crime, or else the accused must be released on bail.

For several decades it was settled law that an accused may be sent to police custody only within the first fifteen days of his presentation before the Magistrate after the arrest. The Supreme Court held in State (Delhi Admn.) v. Dharampal & Ors. (1980), that subsequent to these 15 days the accused can only be sent to judicial custody. While endorsing this position, the Supreme Court in the case of C.B.I. v. Anupam J. Kulkarni (1992) held, “The detention in police custody generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only be a remand granted by a magistrate for reasons judicially scruitnised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers.” This settled principle of law has been followed by Courts all over the country with a view to ensure that Constitutional rights of an accused are safeguarded and do not go below a minimal 'human dignity' threshold.

However, in the recent judgements of CBI v. Vikas Mishra (2023)6 SCC 49, and V. Senthil Balaji v. The State (2023), the Supreme Court reconsidered the position of whether police custody can be granted after the initial period of 15 days, in the event that the investigating agency could not avail of police remand within the first 15 days. It is worthy to note that, barring the Unlawful Activities (Prevention) Act, 1967(UAPA), which allows for a maximum period of 30 days in police custody, no India criminal statute permits an accused to be in police custody for more than the initial maximum limit of 15 days.

The legislative intent behind limiting custodial access of the police to an accused, is to safeguard his or her right to life and liberty. The purpose of remand is not punitive in nature. The purpose of police custody is to give the police means to gather evidence through custodial interrogation, and the purpose of permitting his judicial custody during investigation for the remaining statutory period of 60 or 90 days is to ensure that the accused does not tamper with evidence, threaten witnesses or flee – which is also the justification for maintaining judicial custody of the accused subsequent to the filing of the chargesheet and commencement of trial.

The permissible police remand period of 15 days and total permissible remand period 60 and 90 days prior to filing of the chargesheet as per the Indian criminal law, is in stark contrast to the law in other jurisdictions. In other jurisdictions, if a suspect is arrested, the police are bound to complete the investigation and also file charges within a significantly shorter period, failing which the suspect must be released from custody. In the U.K., for lesser crimes the police may only hold the accused for up to 24 hours, before which they must either charge him with an offence or release him. For indictable offenses, the permissible police detention period is 36 hours extendable to a maximum of 96 hours.

Effective 1 July 2024, the CrPC, 1973, is being replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The equivalent to Section 167 of CrPC, 1973 is Section 187 of the BNSS. Sub-section (2) of Section 187 permits an accused to be remanded to police custody for a maximum of 15 days, which can be broken up into separate periods but will cumulatively add up to 15 days, at any time during the initial 40 days or 60 days, out of the total pre-chargesheet detention period of 60 days or 90 days. Additionally, sub-section (3) provides that “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...” Importantly, this provision does not specify whether 'custody' is police custody or judicial custody, thereby rendering it open for wide interpretation by the Courts.

The Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment was adopted by the United Nations in 1988. These Principles, as well as the International Covenant on Civil and Political Rights (ICCPR), 1966 and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, explicitly state that an accused person must be treated with fairness and with dignity. Article 10(1) of the ICCPR, 1966, states, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. Even the Model Prison Manual, 2016 released by the Ministry of Home Affairs, makes several provisions to ensure that every person lives with dignity in prison, which includes right to clothes, bedding, space, nutritious food, etc. All these principles and provisions have been recognized by the superior Courts while interpreting the Right to Life and Liberty under Article 21 of the Constitution. If the law permits an accused to spend weeks or months in a police station only for the purposes of interrogation, all of these rights and safeguards will be rendered a nullity. Some might argue that, the police will seldom seek police custody after the initial period of 15 days. However, the very fact that the strongest arm of the executive is given this power, amounts to disarming the ordinary citizen of his basic rights and dispossessing the judiciary of its duty to safeguard Constitutional principles.

Hence, the B.N.S.S. must be reconsidered, so that the rights of citizens are central to any law reform. Otherwise, it will lead to an inference that the B.N.S.S. privileges a panoptic model of surveillance and punishment rather than arriving at the truth through fair inquiry, investigation and trial, thereby digressing from the very purpose for which these new laws were enacted. Reformation and not retributive justice must be the basis on which these new laws are enforced.

Author is an Advocate Practicing in the Karnataka and Delhi Courts

Views Are Personal