Custody of Arrested Persons During Investigation Clause 187

Custody of Arrested Persons During Investigation Clause 187

 

 Cl.58 of the BNSS, like s.57 CrPC, provides that arrested persons cannot be detained in police custody108 beyond 24 hours. Cl.187 BNSS provides for the procedure when investigation cannot be completed within such 24 hours, and the accused is produced before a magistrate to determine custody. This clause seeks to replace s.167 CrPC, with some crucial modifi cations. Cl.187 BNSS retains the timelines of sixty or ninety days and the concept of default bail, as in the CrPC. However, unlike s.167 CrPC, Cl.187(2) additionally provides that the detention in custody of fi fteen days (in whole or in part) can be at any time during the initial forty or sixty days out of the sixty or ninety days period, as the case may be. Consistent with the position under the CrPC, Cl.187(2) empowers any magistrate to authorise detention, irrespective of whether they have jurisdiction to try the case; whereas Cl.187(3) requires a jurisdictional Magistrate. Further, Cl.187(3) provides that detention in custody can be authorised beyond the period of fi fteen days, but omits the phrase ‘otherwise than in police custody’; implying that police custody can also be provided in such further period. It also specifi es that the Magistrate should consider the status of the accused regarding bail, while giving custody. Additionally, through a new proviso added in Cl.187(5), it defi nes the kind of custody permissible under the provision. This piece discusses the signifi cant modifi cations proposed in Cl.187, especially concerning police custody, along with possible implications.

I. Background S.167 of the erstwhile CrPC, 1898 simply provided that the Magistrate could authorise detention not exceeding fi fteen days. However, this provision was observed more in its breach than its compliance, with the police fi ling preliminary 108 In police custody, the accused is in the custody of the police for interrogation and investigation purposes, and is held in a lock-up at the police station. In judicial custody, the accused is in the custody of the magistrate and is held in a jail or prison. reports to extend the detention period till the investigation was completed.109 Ultimately in the new CrPC of 1973,110 a proviso was introduced in s.167(2) to empower the Magistrate to authorise detention in custody beyond the period of fi fteen days, but up to a maximum of sixty or ninety days (depending on the extent of punishment prescribed); provided that such further custody beyond the period of fi fteen days, could not be in police custody. Cl.167 also introduced default bail for the accused, if investigation was not completed within such sixty or ninety days. It is clear from the scheme of ss.57 and 167 CrPC that the intention is to limit police custody and protect the accused from unscrupulous police offi cers.111 Sub-clauses (2)(b), (2)(c), and (3) of s.167 CrPC112 make it evident that the law understands the necessity of safeguards before such custody is granted. Custodial torture and deaths in police custody are a well documented reality,113 and has been consistently acknowledged by the judiciary for its pervasiveness and as a matter of grave concern.114 Constitutional protections against police excesses include Art.22(2) which provides for the right of every arrested and detained person to be produced before the nearest magistrate within twenty-four hours; Art.21 has been judicially interpreted to include the right against torture and assault by the state and its functionaries.115 Further, the judiciary has brought in specifi c safeguards to prevent police excesses during custody, such as by laying down guidelines for 115 D.K. Basu [17], [22]. 114 D.K. Basu v. State of West Bengal (1997) 1 SCC 416; Nilabati Behera v. State of Orissa (1993) 2 SCC 746; State of Madhya Pradesh v. Shyamsunder Trivedi (1995) 4 SCC 262; Prakash Kapadia v. Commissioner of Police (Ahmedabad City) 2014 SCC Online Guj 11365. 113 Project 39A, Death Penalty India Report, Volume II, 2016, Page 20 onwards; National Campaign Against Torture, India: Annual Report on Torture-2020, 2021. 112 These provisions are retained in the BNSS. Cl.187(4) BNSS (similar to s.167(2)(b) CrPC) requires physical production of the accused before police custody can be granted. Cl.187(5) BNSS (similar to s.167(2)(c) CrPC) bars second class magistrates, unless specially empowered by the High Court, from authorising police custody. Cl.187(7) BNSS (similar to s.167(3) CrPC) imposes an additional requirement of recording written reasons on the magistrate while granting police custody. 111 Central Bureau of Investigation v. Anupam Kulkarni (1992) 3 SCC 141 [10]. 110 The statement of objects and reasons of CrPC 1973 referred to fair trial, timely investigations and procedures that ensured a fair deal to the poorer sections of the community. 109 Law Commission of India, Forty-fi rst Report (The Code of Criminal Procedure, 1898), Vol I, Pages 76-77 (Law Commission of India Report no. 41, 1969); Central Bureau of Investigation v. Anupam Kulkarni (1992) 3 SCC 141, Page 147. arrest and detention in D.K. Basu v. State of West Bengal,116 and measures like installation of CCTV cameras in police stations.