'Allowing Police Custody Beyond First 15 Days Vulnerable To Misuse' : Parliamentary Panel Suggests Amendment To BNSS (New CrPC Bill)

The Parliamentary Standing Committee has expressed certain concerns with the provision in the Bharatiya Nagarik Suraksha Sanhita Bill (BNSS) which allows police custody after the first fifteen days of remand.

BNSS was introduced by the Union Government in the Monsoon Session to replace the Code of Criminal Procedure 1973.

Clause 187(2) of the BNSS provides that the 15 day police custody can be sought on a whole, or in parts, at any time during the initial 60 days (if the offence is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years) or during the initial 40 days (in respect of other offences).

If we compare this clause with its corresponding provision in the CrPC, Section 167(2)(a)), we find that the phrase "otherwise than in the custody of the police" is missing in the BNSS. This suggests that police custody can be extended by a Magistrate beyond the initial 15 days under the BNSS, unlike the existing provision.

The Parliamentary Standing Committee on Home Affairs received suggestions in this regard which pushed for establishing a general rule that police custody should be taken within the first 15 days of remand. The extended windows of 40 or 60 days for taking custody should be treated as exceptions, applicable only when the accused is attempting to evade police custody or due to extraneous circumstances beyond the control of the investigating officer. Stakeholders had proposed that the police should record reasons explaining why police custody was not attainable during the initial fifteen days of remand and obtain orders from the Magistrate.

The Committee noted a potential vulnerability to misuse due to a lack of explicit clarification.

It recommended “There is a concern that this clause could be vulnerable to misuse by authorities, as it does not explicitly clarify that the custody was not taken in the first fifteen days either due to the conduct of the accused or due to extraneous circumstances beyond the control of the Investigating Officer. The Committee recommends that a suitable amendment may be brought to provide greater clarity in the interpretation of this clause.”

Can police custody be sought beyond 15 days?: Supreme Court Verdicts and Calls for Reconsideration

The view in the 1992 judgment in CBI v. Anupam J. Kulkarni case, which limits police custody to the first 15 days, has been doubted by a coordinate bench of the Supreme Court in CBI v. Vikas Mishra, where police custody beyond 15 days was permitted.

In the recent V. Senthil Balaji v. State case, the Supreme Court interpreted Section 167(2) to allow an aggregate of shorter periods of custody over the entire investigation period, contrary to the Anupam J. Kulkarni interpretation. A two-judge bench of Justice AS Bopanna and MM Sundresh observed, “this period of 15 days has to be reckoned, qua either a police custody or a custody in favor of the investigating officer, spanning over the entire period of investigation…The period of 15 days being the maximum period would span from time to time with a total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation.”

It referred the Anupam J. Kulkarni case to a larger bench for reconsideration, indicating a potential shift in the interpretation of the law.

Difference between police custody and judicial custody

In judicial custody, where the accused is held in prison, the investigating agency cannot interrogate the individual without explicit permission from the magistrate. This limitation is considered a safeguard to prevent potential threats, torture, or undue influence during the interrogation process.

In contrast, police custody offers law enforcement agencies more leeway in conducting investigations. The ease with which the police can interrogate individuals in their custody has raised concerns about the vulnerability of the accused, especially if the upper limit on the duration of police custody is removed

Other recommendations made by the Committee are as follows-

Empowering Magistrates to impose community service as punishment 

Clause 23 of the BNSS, which outlines the sentences that Magistrates may pass was scrutinized by the Committee. It noted that Judicial Magistrate 1st/2nd Class couldn’t community service as a form of punishment.

Recognising the significance of community service as a means of societal restitution, the committee proposed an amendment to Clause 23(2) and (3), to empower the Court of a Judicial Magistrate of the first or second class to have the authority to impose community service as a form of punishment.

No handcuffing in “economic offenses” (Clause 43)

While acknowledging the necessity of handcuffing in select heinous crimes, the Committee suggested excluding 'economic offenses' from this category.

Affidavit and additional inquiry before magistrate orders investigation(Clause 175)

Clause 175 (3) states that:- ‘Any Judicial Magistrate empowered under section 210 may, after considering the application made under clause (b) of sub-section (4) of section 173 and submission made in this regard by the police officer, order such an investigation as above-mentioned.’

The Committee advocated for inbuilt safeguards, suggesting that the Judicial Magistrate empowered under Section 210 consider applications made under Section 173(4) only if supported by an affidavit. An additional inquiry may be conducted to prevent misuse.

Striking a balance in protecting public servants and preventing misuse and delay

Clause 210(3), outlines that the magistrate must receive a report containing facts and circumstances of the incident from the officer superior to such public servant. Additionally, the magistrate is required to consider the assertions made by the public servant regarding the situation that led to the alleged incident

The committee recommended introducing a strict timeline for the submission of the superior officer's report as a procedural safeguard in Clause 210(3). This proposed amendment aims to strike a balance between protecting public servants and ensuring a timely and fair legal process.

Application for discharge can be filed before framing of charges as per settled law

Clause 262(1) stipulates that an accused individual may prefer an application for discharge within sixty days from the date of framing of charges

To align it with the established law, the Committee proposed a change from "within a period of sixty days from the date of framing of charges" to "within a period of sixty days from the date of supply of documents."

Allowing defence evidence electronically through audio-video

The existing Clause 266(1) outlines the traditional process where the accused is called upon to enter their defense and produce evidence, including any written statements, to be filed by the Magistrate.

The committee recommended adding a proviso to Clause 266. This addition aims to enable the recording of defense evidence through audio-video electronic modes. However, the Committee is cautious about the potential risks of witness tampering or intimidation and suggests that such recordings should only take place at designated government facilities.

Notes of Dissent by Opposition Leaders

In a stern critique of certain provisions within the proposed Bharatiya Nagarik Suraksha Sanhita (BNSS), Congress Party leader and Member of Parliament, Adhir Ranjan Choudhary, expressed disapproval of Clause 43(3) in the BNSS, which deals with the procedures for making arrests. Drawing on the Supreme Court's landmark decision in Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, he argued that the use of handcuffs is an affront to human dignity and a violation of Article 21, emphasizing that such measures reflect a colonial-era mindset of punitive state control rather than prioritizing citizen welfare.

He also pointed out concerns with Clause 187(2) and 187(3) which relates to procedure when an investigation exceeds 24 hours, He underscored that the extension of the detention period to 15 days in police custody contrasts with the decision in CBI v. Anupam J Kulkarni (1992) 3 SCC 141.

Earlier, when the bill was introduced, Senior Advocate Kapil Sibal commented in social media that the proposed changes allowed "draconian use of police powers"

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Report on Bharatiya Sakshya Bill here

Report on Bharatiya Nagarik Suraksha Sanhita here

Report on Bharatiya Nyaya Sanhita here.