S.187 BNSS | Police Custody Must Be Within First Forty Days For Offences Punishable Upto 10 Years Imprisonment : Karnataka High Court
Mustafa Plumber
18 Dec 2024 10:16 PM IST
The Karnataka High Court has held that as per Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the 15-day police custody must be sought within the first forty days in cases of offences which are punishable upto ten years of imprisonment
It clarified that the phraseology used in Section 187 BNSS is an offence punishable "for ten years or more", explaining that 10 years or more would mean that the threshold punishment is 10 years and not a punishment up to 10 years. The court said that if the punishment term is between 1-10 years then Section 187(3) BNSS cannot be pressed for police custody as probe for offences punishable upto 10 years must be completed in 60 days.
Section 187(3) states that the Magistrate may authorise the detention of the accused person, beyond 15 days, if he is satisfied that adequate grounds exist for doing so. However no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding–(i) 90 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) 60 days, where the investigation relates to any other offence.
On the expiry 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.
Justice M Nagaprasanna in his December 13 order said, “Where if the offence is punishable where term can be extended up to ten years, it could vary from one to ten. The police custody in such cases would be available for 15 days within the first 40 days of investigation. The 15-days could vary from day one to day forty, but the total would be 15-days. If the offence is punishable with ten years or more with the minimum sentence being ten years, the police custody would range from day one to day sixty, 15-days in total.”
For context, Section 187(3) of BNSS was Section 167(2) of Criminal Procedure Code. Under Section 167 (2) CrPC investigation, has its completion period of 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a period of ten years or more and for the remaining offences, it is 60 days. In BNSS, the same 90 days is permitted where imprisonment is for a term of ten years or more.
“If the prosecution wants 90 days to file their final report, it will only be for an offence which has a minimum sentence of ten years. If it is one year to ten years, Section 187(3) of BNSS cannot be pressed into service for the purpose of police custody or any other reason for that matter, as the investigation for offences punishable up to ten years must get completed in 60 days. I hasten to add that it is only in few cases where it relates to life, death or ten years or more, the investigation can be for 90 days. In all other offences under the IPC or BNS, investigation must complete within 60 days. In the considered view of the Court, there can be no other interpretation,” it said.
Further, it clarified, “In Section 187 of BNSS the phraseology is an offence punishable for ten years or more. Ten years or more would unequivocally mean that the threshold punishment is ten years, and not a punishment up to ten years".
It observed, “Completion of investigation in a punishment which is up to ten years is undoubtedly 60-days. Rest of the other offences, be it death, life imprisonment of ten years and more, would be 90 days.”
The bench gave the clarification while dismissing a petition filed by the state government which had challenged a December 4 order passed by the Judicial Magistrate First Class (III Court) Mangalore. In the impugned order the court had rejected the requisition of the prosecution for grant of police custody of the accused who are charged under Section 108, 308(2), 308(5), 351(2) and 352 of BNS.
The court had held that the period of investigation in the case at hand was 60 days and the police custody available in terms of Section 187 of BNSS is within 40 days. Those 40 days have lapsed, there was no warrant to grant police custody
The bench referring to the provisions said, “The offences alleged in the case at hand, have their punishments to run up to a maximum of ten years and the phrases used “may extend to ten years”.
Thus it held “In the case at hand, the offence is punishable up to ten years, Therefore, the police custody is only from day one to day forty.”
Accordingly, it upheld the magistrate court order and dismissed the petition.
Case Title: State of Karnataka & Kalandar Shafi & Others
Appearance: Additional SPP B N Jagadeesha for Petitioner.
Advocate B Lethif for R-1 AND R-3.
Senior Advocate Hashmath Pasha for Advocate Kariappa N A for R2.
Citation No: 2024 LiveLaw (Kar) 518
Case No: CRIMINAL PETITION No.13459 OF 2024 C/W WRIT PETITION No.33526 OF 2024
