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Default Bail: The Infirmities Noted...

Default Bail: The Infirmities Noted In Section 187 Of The Bharatiya Nagarik Suraksha Sanhita, 2023

Justice V Ramkumar

19 March 2024 1:58 PM IST

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Default Bail: The Infirmities Noted In Section 187 Of The Bharatiya Nagarik Suraksha Sanhita, 2023

C O N T E N T S Sl. Order. I N N E R T I T L E S Para No. 1 COMPARATIVE TABLE SHOWING SECTION 167 Cr.P.C AND SECTION 187 OF BNSS 2 MY COMMENTS ON SECTION 187 OF BNSS 1 to 6 3 The change from the “nearest judicial ...

C O N T E N T S

Sl. Order.	I N N E R T I T L E S		Para No.
1	COMPARATIVE TABLE SHOWING SECTION 167 Cr.P.C AND SECTION 187 OF BNSS
2	MY COMMENTS ON SECTION 187 OF BNSS		1 to 6
	3	The change from the “nearest judicial Magistrate” to “nearest Magistrate”, not justified	1
	4	Newly introduced obligations under Section 187 (2) Cr.P.C without any purpose	2
	5	The words “or in parts” after the words “15 days in the whole” in Section 187 (2), superfluous.	3
	6	Whether the proclaimed objective of “police custody” for 15 days altogether within the first 40 days of the default period of 60 days and within the first 60 days of the default period of 90 days, has been achieved in Section 187 (2) of BNSS.	4
	7	The “nearest Magistrate” who is not the “jurisdictional Magistrate” can pass only the “first remand”.	5
	8	Does detention in “police custody” means detention in “police station”?	6

Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“The BNSS” for short) is claimed to be the provision corresponding to Section 167 of the Code of Criminal Procedure, 1973 (“The Cr.P.C.” for short). A table showing both the above Sections in juxtaposition is given below :-

Code of Criminal Procedure, 1973

Bharatiya Nagarik Suraksha Sanhita, 2023

“Section 167: 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 57, 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 Judicial Magistrate a copy of the entries in the diary hereinafter prescribed 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, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; 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:

Provided that--

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding--

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.

Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.

(2A) Notwithstanding anything

contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a Sub-Inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.”

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.

(3) 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, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

(i) imprisonment for life or imprisonment for a term of ten years or more;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

(4) No Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the audio-video electronic means.

(5) No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in sub-section (3), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under sub-section (4), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the audio-video electronic means, as the case may be:

Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution:

Provided further that no person shall be detained otherwise than in police station under police custody or in prison under judicial custody or a place declared as prison by the Central Government or the State Government.

(6) Notwithstanding anything contained in sub-section (1) to sub-section (5), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Magistrate have been conferred, a copy of the entry in the diary hereinafter specified relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in sub-section (3):

(7) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(8) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(9) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(10) Where any order stopping further investigation into an offence has been made under sub-section (9), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (9) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.

MY COMMENTS ON SECTION 187 OF BNSS

The change from the “nearest judicial Magistrate” to “nearest Magistrate”, not justified

1. Section 167 (1) Cr.P.C obligates the arresting officer to forward the arrestee to the nearest Judicial Magistrate along with copy of the entries in the case-diary.

As against the above, Section 187 (1) of BNSS obligates the arresting officer to produce the arrestee before the nearest Magistrate. “Nearest Judicial Magistrate” has been done away with under Section 187 (1) of BNSS. It is not known as to why this deviation was made. If the framers of BNSS were of opinion that there could be contingencies when the “nearest Judicial Magistrate” could not be available and, therefore, the accused along with the case-diary entries may have to be produced before the “nearest Executive Magistrate”, sub-section (6) (corresponding to sub-section (2A) of Section 167 Cr.P.C). is precisely for that purpose. According to me, having regard to the separation of the Judiciary from the Executive after the Code of Criminal Procedure, 1898, the deletion of the word “judicial” in Section 187 (1) Cr.P.C, deviating from Section 167 (1) Cr.P.C, was uncalled for.

Newly introduced obligations under Section 187 (2) Cr.P.C without any purpose

2. Sub-section (2) of Section 187 BNSS obligates the Magistrate to consider whether the person who has been arrested and brought before him –

“has not been released on bail, or
his bail has been cancelled.

This is a new provision introduced in Section 187 (2) of BNSS. I fail to see the relevance of such a provision introduced in Section 187 of BNSS in deviation from Section 167 (2) Cr.P.C. The question as to whether the arrestee produced before the Magistrate was released on bail earlier or his bail was cancelled, is according to me, totally foreign to the scope of sub-section (2) of Section 187 of BNSS.

The words “or in parts” after the words “15 days in the whole” in Section 187 (2), superfluous.

3. The words “from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole” occurring in Section 167 (2) Cr.P.C. are capable of only one meaning. The said meaning is that the power of the nearest Magistrate to authorise detention of the accused is only for a maximum period of 15 days and the words “from time to time” are indicative of the fact that the said power can be exercised even for broken periods altogether totaling to 15 days in the whole.

As against the above provision in the Cr.P.C, sub-section (2) of Section 187 of BNSS in spite of limiting the period of first remand to 15 days in the whole, the words “for a term not exceeding fifteen days in the whole or in parts” in Section 187 (2) of BNSS is a surplusage. The words “from time to time” in the same provision indicate that the power to authorise detention within the outer limit of 15 days can be exercised from time to time. Hence, the words “or in parts” were redundant.

Whether the proclaimed objective of “police custody” for 15 days altogether within the first 40 days of the default period of 60 days and within the first 60 days of the default period of 90 days, has been achieved in Section 187 (2) of BNSS.

4. Let us first examine the scheme under the Cr.P.C. As per Section 167 (2) read with clause (a) of the first proviso thereto, every person arrested and produced before the nearest Magistrate can be remanded to “police custody” only for the first 15 days of remand. This “police custody” can also be for broken periods altogether totaling to 15 days during the first 15 days of remand. All further remands, if any, beyond first 15 days can only be to “judicial custody”. (Vide –

Chaganti Satyanarayana v. State of A. P. AIR 1986 SC 2130 = (1986) 3 SCC 141 – A. P. Sen, S. Natarajan – JJ;
CBI v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 – A. M. Ahmadi, K. Jayachandra Reddy – JJ;
Budh Singh v. State of Punjab (2000) 9 SCC 266 = 2001 Cri.L.J. 2942 – 3 Judges – A. S. Anand, R. C. Lahoti, S. N. Variva – JJ;
Naresh Kumar Yadav v. Ravindra Kumar AIR 2008 SC 218 = (2008) 1 SCC 632 – Dr. Arijit Pasayat, Lokeshwar Singh Panta – JJ;
Devender Kumar v. State of Haryana (2010) 6 SCC 753 – Altamas Kabir, Cyriac Joseph – JJ).

The Supreme Court has been very strict in interpreting Clause (a) of the proviso to Section 167 (2) Cr.P.C. Even when more offences in the very same occurrence have been subsequently disclosed during investigation after the initial period of 15 days of remand (whether to police or judicial custody), it has been held that no “police custody” can be granted after the first remand of 15 days. It has also been held that the said bar, however, will not operate if a new occurrence comes to light after the first remand for 15 days. But of late, even the Supreme Court is seen relaxing the interpretation given to the aforesaid clause in Section 167 (2) Cr.P.C. (Vide V. Senthil Balaji v. State rep. by Deputy Director 2023 SCC OnLine SC 934 = 2023 KHC 6758 – A. S. Bopanna, M. M. Sundresh - JJ.) In paragraph 88 (v) of its verdict the Supreme Court in Senthil Balaji (Supra) has gone to the extent of holding that the maximum period of 15 days of police custody is meant to be applied during the entire period of investigation of 60 days or 90 days as a whole. This interpretation is patently contrary to the interpretation placed on the above clause under Section 167 (2) Cr.P.C. in all the 5 earlier verdicts of the Supreme Court referred to above of which Budh Singh (Supra) was by a three Judge Bench binding on the Bench which decided Senthil Balaji.

Now let us examine the scope of Section 187 (2) of BNSS. The proclaimed object of deviating from Section 167 (2) Cr.P.C. and its proviso, was to enable the Magistrate to order “police custody” of the accused for a total period of 15 days in the whole or in parts any time within the default period of 60 days or 90 days as the case may be. In other words, it was not intended to confine the “police custody” only to the first remand of 15 days. But, sub-section (2) of Section 187 of BNSS as now enacted, provides for a still more dangerous consequence. Shorn of the unnecessary words in the said provision, Sub-section (2) of Section 187 of BNSS now reads as follows :-

“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, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 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).”

A plain reading of the above provision suggests that the nearest Magistrate may, from time to time, authorise the detention of the accused in “police custody” or “judicial custody” as he thinks fit, for a term not exceeding 15 days in the whole or in parts, at any time during the first 40 days of detention in a case where the default period is 60 days and at any time during the first 60 days of detention in a case where the default period is 90 days. To put it differently, the nearest Magistrate (who in most cases will not be the jurisdictional Magistrate) can go on ordering “police custody” or “judicial custody” alternatively (but for 15 days or parts, at a time) during the first 40 days of the 60 days or the first 60 days of the 90 days, as the case may be. There is no mention that the “police custody” ordered can only be for a total period of 15 days during the entire period of 40 days or 60 days, as the case may be. In other words, sub-section of Section 187 of BNSS does not say that “police custody” can be ordered upto 15 days during the first 40 days or 60 days, as the case may be.

First and foremost, is that the nearest Magistrate (who need not be the jurisdictional Magistrate) is given the power to make such authorizations during the period of 40 days or 60 days, as the case may be. This is in naked violation of the mandate under Article 22 (2) of the Constitution of India the salutary object of which is to render illegal the detention of the accused in the custody of the Police beyond 24 hours. Once the nearest Magistrate authorizes the detention of the accused in judicial or police custody for a total period of 15 days or parts beyond 24 hours of detention in police custody, there are two objectives achieved by such authorization. One is legalizing the custody of police beyond 24 hours. The second is, after the first remand, the authority of the nearest Magistrate who is not the jurisdictional Magistrate, to deal with the accused comes to an end. He has to thereafter order the accused to be forwarded to the jurisdictional Magistrate who alone can pass further orders of remand or grant bail even as per the second limb of Section 187 (2) of BNSS. It is this great principle which is flagrantly violated by sub-section (2) of Section 187 of BNSS by making the aforesaid deviation from Section 167 (2) Cr.P.C. and its proviso. Even if the intendment behind Section 187 (2) of BNSS was to give a total period of 15 days of police custody any time within the 40 days or 60 days, as the case may be, that would be a patently unjust provision which is likely to be misused by the police and other investigating agencies. In such a case, the sword of Damocles in the form of police custody will be hanging over the head of the accused for the entire period of detention. Moreover, the object of a provision like Section 167 (2) Cr.P.C. and its proviso is not to continue the investigation till 60 days or 90 days as the case may be. The said outer period has been fixed as the penalty which the investigating officer should pay if his investigation is not concluded within the said period.

Sub-section (2) of Section 187 of BNSS is patently unconstitutional and cannot, therefore, stand the scrutiny of the Court. What the framers of BNSS should have taken into consideration was, in case, the accused in a given situation was incapable of being interrogated due to illness or any other valid reason, a provision to exclude the period of illness etc. with adequate safeguards from the first 15 days of remand would have been more appropriate.

The “nearest Magistrate” who is not the “jurisdictional Magistrate” can pass only the “first remand”.

5. As per the scheme under Section 57 read with Section 167 Cr.P.C. the purpose of forwarding the arrestee to the nearest Magistrate (who may not be the jurisdictional Magistrate) is to ensure that the continued custody of the arrestee (accused) with the arresting officer beyond 24 hours is either put an end to or extended at the earliest by the intervention of the nearest Magistrate. This is an inviolable and inflexible mandate under Article 22 (2) of the Constitution of India. The said nearest Magistrate has the jurisdiction to pass only the first remand order for a maximum period of 15 days. Thereafter, if the arrestee is to be granted bail or if his detention is to be continued beyond the first 15 days, that can be done only by the jurisdictional Magistrate. In other words, when the nearest Magistrate (who is not the jurisdictional Magistrate) has authorised the detention of the accused (arrestee) for a total period of 15 days in the whole, he becomes functus officio and any order for “bail” or “further detention” can be passed only by the jurisdictional Magistrate. But, shockingly, Section 187 (2) of BNSS gives the nearest Magistrate the power to authorise the detention of the arrestee in such custody as the Magistrate thinks fit for a term not exceeding 15 days in the whole at any time during the initial period of 40 days (if the default period applicable under Section 187 (3) is 60 days) and during the initial period of 60 days (if the default period applicable under Section 187 (3) is 90 days.)

This provision revolts against the basic rule under Section 187 (2) itself, besides conferring on the non-jurisdictional Magistrate (including Executive Magistrate) the power to extend the remand beyond the first fifteen days. Moreover, since the above provision does not limit the total period of “police custody” to 15 days anywhere within the default period applicable (which was the proclaimed objective of the framers of BNSS), now going by the wording of the provision the non-jurisdictional Magistrate can order “police custody” or “judicial custody” alternatingly for the entire period of 60 days or 40 days, as the case may be, but making sure that each of the custodies does not exceed 15 days in the whole. This is a patently illegal provision made in deviation of the existing provision in Section 167 (2) Cr.P.C.

Does detention in “police custody” mean detention in “police station”?

6. To crown all, the second proviso to sub-section (5) of Section 187 of BNSS says that no person shall be detained otherwise than in “police station” under “police custody” and otherwise than in “prison” under “judicial custody” or a place declared as “prison” by the Central or State Government.

This again is an absurd provision. The very purpose of seeking “police custody” of an accused is for the purpose of investigation which is not to be carried out within the 4 walls of the “police station”. If a recovery admissible under Section 27 of the Indian Evidence Act (corresponding to Section 23 of the Bharatiya Sakshya Adhiniyam, 2023) is to be effected, how can the accused be confined to the “police station” for the said purpose ? It may even be necessary to take the accused to faraway places in connection with the investigation of a case.

Likewise, in the face of Section 417 Cr.P.C. (corresponding to Section 467 of BNSS) entitling the State Government to specify in which place a person committed to “judicial custody” shall be confined, the latter part of the second proviso to sub-section (5) of Section 187 of BNSS is really redundant.

Author is Former Judge, High Court of Kerala.

Views Are Personal

Default Bail: The Infirmities Noted In Section 187 Of The Bharatiya Nagarik Suraksha Sanhita, 2023

Justice V Ramkumar

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