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 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...

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

Justice V Ramkumar

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