One Of The Absurdities Pointed Out In Section 187 (2) Of BNSS Continues To Pose A Threat To The Liberty Of An Accused Person

Section 187 (1) and (2) of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS for short) read as follows:-

187: Procedure when investigation cannot be completed in twenty-four hours.--

“(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the 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, 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.”

The words “in such custody as such Magistrates thinks fit, for a term not exceeding 15 days in the whole, or in parts” mean that it is open to the Magistrate to authorise either “Police custody” or “judicial custody” as he thinks fit and such custody can be for a term not exceeding 15 days or in parts. This custody could be spread over for a term of the first 40 days or 60 days, as the case may be.

2. The said Section does not say that the maximum period of police custody which could be spread over within the first 40 days (in cases where the default period is 60 days) and within the first 60 days (in cases where the default period is 90 days), can only be for 15 days. A provision similar to clause (a) of the first proviso to Section 167 (2) Cr.P.C. which restricts the maximum period of police custody to 15 days, is missing in Section 187(2) of BNSS. The result is that a Magistrate can now authorise detention of an accused person in police custody for 15 days and then authorise a day's judicial custody and then again authorise police custody for another 15 days and so on within the first 40 days or 60 days, as the case may be.

3. The Home Minister's speech made in good faith in the Lok Sabha that the total duration of "police custody" can only be for 15 days in the 40 or 60 days, is not reflected in the Section, nor does it have the effect of amending the law as it stands. In spite of my cautioning all concerned long back about the absurdity behind Section 187 (2) of BNSS nobody appears to have paid any attention to the aforesaid main defect in that Section.

4. Expressing the need to prevent the subtle evasion and artful circumvention of a statute, Justice M.N. Venkatachaliah in his inimitable style has observed in para 13 of Dinesh chandra Jamnadas Gandhi V. State of Gujarat AIR 1989 SC 1011 = (1989) 1 SCC 420 as follows:

"The degree of precision should be such that not only those who read it in good faith understand, but also those who read it in bad faith do not misunderstand".

Section 187(2) of BNSS which on the face of it is capable of being misapplied, should be suitably amended to express the true legislative intendment.

Author is Former Judge, High Court of Kerala. Views Are Personal.