The Bharatiya Nagarik Suraksha Sanhita Bill 2023 (BNSS) which seeks to repeal and replace the Code of Criminal Procedure 1973 (CrPC), proposes to give a clarification regarding the ‘Police Custody Period’.
Section 187 (2) of the BNSS, which is a kind of mirroring provision of Section 167 (2) CrPC, stated that the 15-day police custody can be sought on a whole, or partially, at any time during the initial 60 days (if the offence is punishable with death, imprisonment for life or imprisonment for a period of not less than 10 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 grants permission to the investigating agency to seek 15-day police custody in ‘tranches’ across the first 40/60 days of the investigation. It 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 present (existing) provision regarding 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 caused conflicting views. One view is that the 15-day police custody has to be obtained at once and that too within the first 15 days of remand. The view attracted a majority as it was endorsed by the Supreme Court in 1992 in the case CBI v. Anupam Kulkarni. The judgment held that no detention in police custody can be attracted after the expiry of the first fifteen days and after the said period; the detention should be only in judicial custody.
The view in Anupam Kulkarni was doubted by a coordinate bench off the Supreme Court in April this year in CBI v. Vikas Mishra. In this case, the Court granted permission to CBI to have 4 days of police custody on the ground that there was no effective interrogation during the period of first remand because the accused was not well and thus was hospitalized.
Recently, in 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 whole period of investigation lasting 60 or 90 days, as a whole.
A two-judge bench of Justice AS Bopanna and MM Sundresh observed, “his 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 a total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation.”
Moreover, the bench also referred Anupam Kulkarni to a larger bench for reconsideration in the case.
This is concern ed with extension of police custody. We known to fact that more time in custody means more chances to human rights violations. NHRC since almost three decades, a numbers of reports have been reported on this aspect.