'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 ReconsiderationThe 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 removedOther 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...

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

Suraj Parmar

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