Bharatiya Nagarik Suraksha Sanhita (New CrPC Bill) Allows Police Custody After First 15 Days Of Arrest

The Bharatiya Nagarik Suraksha Sanhita Bill 2023(BNSS), which seeks to repeal and replace the Code of Criminal Procedure 1973(CrPC), proposes to make a significant clarification regarding police custody period.

Section 187(2) of the BNSS, which is the mirroring provision of Section 167(2) CrPC, says 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).

Noted criminal law practitioner Rebecca M.John, Senior Advocate, explained that this provision allows the investigating agency to seek 15-day police custody in "tranches"  across the first 40/60 days of the investigation. This means that police custody can be sought in different spells beyond the first 15-day period after arrest. She also pointed out the provision makes it clear that the police custody cannot exceed 15 days; however, it need not be sought in one-go within the first 15 days of arrest, as it is commonly understood now, but can be had in different spells across 40 or 60 days as the case may be.

The existing provision in relation to police custody- Section 167(2) CrPC - does not expressly state that 15-days police custody can be sought in a staggered manner across the period of investigation. This has led to conflicting views. One view is that the 15-day police custody has to be obtained as whole at once, that too within the first 15 days of remand. This view gained predominance as it was endorsed by the Supreme Court in 1992 in the case CBI v. Anupam Kulkarni. This judgment held that there cannot be any detention in the police custody after the expiry of first fifteen days and after the said period, detention should it should be only in judicial custody.

The view in Anupam Kulkarni was doubted by a coordinate bench of the Supreme Court in April this year in CBI v.Vikas Mishra. In this case, the Court allowed CBI to have 4 days police custody on the ground there was no effective interrogation during the period of first remand as the accused was hospitalized.

Last week, in in the case V.Senthil Balaji v. State, a two-judge bench of the Supreme Court interpreted Section 167(2) to hold that 15-day-period of police custody can be an aggregate of shorter periods of custody sought over the entire period of investigation lasting 60 or 90 days, as a whole. 

"This period of 15 days has to be reckoned, qua either a police custody or a custody in favour 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 the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation", observed the bench comprising Justices AS Bopanna and MM Sundresh.  The bench also referred Anupam Kulkarni to a larger bench for reconsideration.