A Deeper Thought On The “Pre-Trial Detention” Of An Accused Person Under Section 187 Of BNSS

C O N T E N T S

I had occasion to comment upon the defects and inadequacies behind Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short). It is rather surprising that no Constitution Court has, so far to my knowledge, taken Judicial notice of the infirmities in Section 187 of BNSS. I wish to again delve deeper into the problem.

2. For the sake of convenience it will be profitable to evaluate Section 167 Cr.P.C. and Section 187 BNSS by means of a comparative table as below –

COMPARATIVE TABLE OF S. 167 Cr.P.C. AND S.187 BNSS

THE MECHANICS OF “DETENTION” UNDER SECTION 167 Cr.P.C. AS JUDICIALLY SETTLED

Before noticing the infirmities in Section 187 of BNSS, it will be profitable to examine the mechanics of “detention” under section 167 of the now repealed Cr.P.C. which had withstood the test of time.

ARRESTING OFFICER'S DUTY

Q.1 What are the pre-requisites and modalities to be followed by an “arresting officer” while arresting a person ?

Ans. “Arrest” is a condition precedent for taking a person into judicial custody. (Vide para 50 of Directorate of Enforcement v. Deepak Mahajan AIR 1994 SC 1775 = (1994) 3 SCC 440 – S. Ratnavel Pandian, K. Jayachandra Reddy – JJ.) The arresting officer should follow Sections 35 to 62 of Chapter V of BNSS (Sections 41 to 60 A of Chapter V Cr.P.C.) while arresting a person. In addition to and along with the above statutory provisions the arresting officer shall also comply with the directions issued by the Supreme Court of India in –

1. D. K. Basu v. State of W. B. AIR 1997 SC 610
2. Joginder Kumar v. State of U.P. AIR 1994 SC 1349
3. Som Mittal v. Govt. of Karnataka AIR 2008 SC 1126
4. Bhavesh Jayanti Lakhani v. State of Maharashtra (2009) 9 SCC 551
5. M. C. Abraham v. State of Maharashtra (2003) 2 SCC 649
6. Arnesh Kumar v. State of Bihar AIR 2014 SC 2756
7. Rini Johar (Dr.) v. State of M.P. (2016) 11 SCC 703 29
8. State of Maharashtra v. Christian Community Welfare Council of India AIR 2004 SC 7 (for arrest of a female)

Q.2 What are the arresting officer's duty “under Section 167 (1) Cr.P.C.” ?

Ans. In a case where a person has been “arrested and detained” in the custody of an authorised officer –

(i) If the officer concerned is satisfied that there are no grounds for believing that the accusation or information against the accused is well founded, he can avoid producing the accused before the nearest Magistrate and can release the accused from custody. (Vide para 10 of Manoj v. State of M. P. AIR 1999 SC 1403 = (1999) 3 SCC 715 – K. T. Thomas, M. B. Shah – J.)

The nearest Magistrate referred to in S.167 (1) Cr.P.C.?

Q.3 Should not the “nearest Magistrate” envisaged under Section 167 (1) Cr.P.C. be the “Magistrate having the jurisdiction” under Chapter XIII of Cr.P.C. to try the case or to commit the case under Section 209 Cr.P.C. for trial to the Court of Session ?

Ans. No. The nearest Magistrate need not necessarily be the Magistrate having the jurisdiction to try the case or commit the same for trial to the Court of Session. This is so in the best interests of the “arrestee” who has the fundamental right under Article 22 (2) of the Constitution of India to be produced before the “nearest Magistrate” within 24 hours of his arrest excluding the time taken for journey from the place of arrest to the Court of the Magistrate. Sections 57 and 167 (1) Cr.P.C. supplement the above Constitutional provision. The policy of law is that investigation into the alleged offence should be completed within 24 hours of the arrest of the accused failing which his liberty cannot be curtailed beyond the said period unless a Judicial authority sanctions such continued custody. That is why it is said that a person who has been arrested shall not be kept under detention beyond 24 hours of the arrest without the authorization by the nearest Magistrate. Such Magistrate need only be a Magistrate having the authority of law. Hence, it is enough that the accused is taken as early as possible to the nearest Magistrate rather than to search for the jurisdictional Magistrate i.e. the Magistrate having the jurisdiction to either try the case or commit the same for trial. If the jurisdictional Magistrate also happens to be the nearest Magistrate, it will be well and good.

DUTIES OF THE “NEAREST MAGISTRATE”

Q.4 What are the duties under Section 167 (2) Cr.P.C. of the “nearest Judicial Magistrate” to whom an “arrestee” has been forwarded under Section 167 (1) Cr.P.C. ?

Ans. A If the nearest Magistrate happens to be the “Jurisdictional Magistrate” –

1. Discharge the accused if the arrest was illegal –

• He should first ascertain whether the arrest and/or detention of the person produced before him, was valid and legal. If the arrest and/or detention was illegal, the Magistrate should straightaway discharge the accused under Section 59 of Cr.P.C. (Vide para 9 of Arnesh Kumar v. State of Bihar AIR 2014 SC 2756 = (2014) 8 SCC 273 – C. K. Prasad, Pinaki Chandra Ghose – JJ; Para 102 of Gautam Pratap Navlakha v. National Investigation Agency (2022) 13 SCC 542 = 2021 KHC 6278 (SC) – Uday U. Lalit, K. M. Joseph – JJ.)

2. If the arrest and/or detention was legal and valid – 

• but, there are no grounds for believing that the accusation or information against the accused is well founded,

or

if the nearest jurisdictional Magistrate considers further detention unnecessary even at the time of the initial production of the accused before him, he may, instead of remanding the accused to custody, grant bail to the accused. (This power to grant “bail” is available only to the jurisdictional Magistrate and not to the nearest non-jurisdictional Magistrate)

(A remand order passed under Section 167 (2) Cr.P.C. involves continued detention within the meaning of Section 167 (2) Cr.P.C. (Vide paras 78 of Gautam Pratap Navlakha (Supra – (2022) 13 SCC 542).

3. If the arrest and/or detention was legal and valid –

• and there are grounds for believing that the accusation or information against the accused is well founded, the nearest jurisdictional Magistrate may, from time to time, “authorise” the detention of the accused in such custody as the Magistrate may think fit. (i.e. “police custody” or “judicial custody”, as the case may be) for a term not exceeding 15 days in the whole. (Vide Section 167 (2) Cr.P.C.)

(The words “from time to time” mean that this total period of remand to Police or Judicial custody for the first 15 days can be by a single order or several orders passed within the first 15 days which is the maximum.) (Vide para 13 of CBI, Spl. Investigation Cell – 1, New Delhi v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 – A. M. Ahmadi, K. Jayachandra Reddy – JJ.)

Such an order for detention (remand) shall not be passed mechanically but on proper application of mind. (Vide para 10 of State of U.P. v. Ram Sagar Yadav AIR 1985 SC 416 = (1985) 1 SCC 552 – Y. V. Chandrachud – CJI, Amarendra Nath Sen – JJ; Para 24 of Manubhai Ratilal Patel v. State of Gujarat AIR 2013 SC 313 = (2013) 1 SCC 314 – K. S. Radhakrishnan, Dipak Misra- JJ; Para 63 of Gautam Pratap Navlakha (Supra – (2022) 13 SCC 542.)

Police remand should be an exception and not the rule. (Vide para 10 of Satyajit Ballubhai Desai v. State of Gujarat (2014) 14 SCC 434 = 2014 KHC 2511 (SC) – G. S. Singhvi, Gyan Sudha Misra – JJ. )

In the same occurrence or transaction “Police custody” can be given only during the first 15 days of remanded detention under any circumstance. (Vide paras 16 and 17 of Chaganti Satyanarayana v. State of A.P. AIR 1986 SC 2130 = (1986) 3 SCC 141 – A.P. Sen, S. Natarajan – JJ; Para 8 of CBI v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 – A. M. Ahmadi, K. Jayachandra Reddy – JJ; Para 5 of

Budh Singh v. State of Punjab (2000) 9 SCC 266 = 2001 Cri.L.J 2942 = 2000 KHC 764 (SC) – 3 Judges – A. S. Anand, R. C. Lahoti, S. N. Variava – JJ; Paras 7 and 10 of Devender Kumar v. State of Haryana (2010) 6 SCc 753 = 2010 Cri.L.J. 3849 – Altamas Kabir, Cyriac Joseph – JJ.)

4. After the first remand, if grounds exist for further detention –

• If the Jurisdictional Magistrate is satisfied that “adequate grounds exist for further detention”, the said Magistrate may order “further detention” beyond the first 15 days. But such further detention can only be in “judicial custody”. No “Police custody” can be given after the first 15 days of detention/remand. (Vide Clause (a) of the First Proviso to Section 167 (2) Cr.P.C. and para 9 of State of Kerala v. Sadhanandan 1984 Cri.L.J. 1823 = 1984 KLT 747 – V. Bhaskaran Nambiar – J (Approved in paras 6, 11 and 13 of CBI v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 – A. M. Ahmadi, K. Jayachandra Reddy – JJ.); para 8 of CBI, Spl. Investigation Cell – 1, New Delhi v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 – A. M. Ahmadi, K. Jayachandra Reddy – J; Para 5 of Budh Singh v. State of Punjab (2000) 9 SCC 266 = 2001 Cri.L.J 2942 = 2000 KHC 764 (SC) – 3 Judges – A. S. Anand, R. C. Lahoti, S. N. Variava – JJ.)

(The nearest non-jurisdictional Magistrate can only authorise the initial detention for 15 days and does not have the power to order further detention beyond the first 15 days. If such non-jurisdictional Magistrate considers that further detention beyond 15 days is necessary, he has to forward the accused to the Jurisdictional Magistrate for the said purpose. If such non-jurisdictional Magistrate considers that further detention beyond 15 days is not necessary, then also he has to forward the accused to the Jurisdictional Magistrate)

Depending on the length of punishment prescribed for the offence alleged, the total period of remanded detention of the accused can only be for 60 days or 90 days, as the case may be. (Vide clauses (i) and (ii) of paragraph (a) of the first proviso to Section 167 (2) Cr.P.C.)

B If the nearest Magistrate happens to be a “non-jurisdictional Magistrate”—

1. Discharge the accused if the arrest was illegal –

• He should first ascertain whether the arrest and/or detention of the person produced before him, was valid and legal. If the arrest and/or detention was illegal, the Magistrate should straightaway discharge the accused under Section 59 of Cr.P.C. (Vide para 9 of Arnesh Kumar v. State of Bihar AIR 2014 SC 2756 = (2014) 8 SCC 273 – C. K. Prasad, Pinaki Chandra Ghose – JJ.)

2. If the arrest and/or detention was legal and valid –

• but, there are no grounds for believing that the accusation or information against the accused is well founded,

or

if the nearest non-jurisdictional Magistrate considers further detention unnecessary even at the time of the initial production of the accused before him, he may, order the accused to be forwarded to the Jurisdictional Magistrate who alone has the authority to grant “bail” to the accused. (Vide Section 167 (2) Cr.P.C.)

3. If the arrest and/or detention was legal and valid –

• and there are grounds for believing that the accusation or information against the accused is well founded, the nearest non-jurisdictional Magistrate may, from time to time, “authorise” the detention of the accused in such custody as the Magistrate may think fit. (i.e. “police custody” or “judicial custody”, as the case may be) for a term not exceeding 15 days in the whole. (Vide Section 167 (2) Cr.P.C.)

(The words “from time to time” mean that this total period of remand to Police or Judicial custody for the first 15 days can be by a single order or several orders passed within the first 15 days which is the maximum. (Vide para 13 of CBI, Spl. Investigation Cell – 1, New Delhi v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 – A. M. Ahmadi, K. Jayachandra Reddy – JJ.)

Such an order for detention (remand) shall not be passed mechanically but on proper application of mind. (Vide para 10 of State of U.P. v. Ram Sagar Yadav AIR 1985 SC 416 = (1985) 1 SCC 552 – Y. V. Chandrachud – CJI, Amarendra Nath Sen – JJ.

Police remand should be an exception and not the rule. (Vide para 10 of Satyajit Ballubhai Desai v. State of Gujarat (2014) 14 SCC 434 = 2014 KHC 2511 (SC) – G. S. Singhvi, Gyan Sudha Misra – JJ. )

4. After the first remand, if grounds exist for further detention –

• If the non-jurisdictional Magistrate is satisfied that “adequate grounds exist for further detention” of the accused beyond the first 15 days of detention but he has no jurisdiction to try the case or commit it for trial, he may direct the accused to be forwarded to the Jurisdictional Magistrate who alone can authorise further detention of the accused beyond the first 15 days of detention and such further detention can only be in “Judicial custody”. (Vide paragraph (a) to the first proviso to Section 167 (2) Cr.P.C. and Anupam J. Kulkarni (Supra – AIR 1992 SC 1768); Budh Singh (Supra - (2000) 9 SCC 266); Gautam Pratap Navlakha (Supra - (2022) 13 SCC 542) etc.)

Such Jurisdictional Magistrate alone can also grant “bail” to the accused.

(The bar against granting “police custody” beyond the first 15 days of detention under clause (a) of the first proviso to Section 167 (2) Cr.P.C. applies even if a new or additional offence is subsequently revealed in the very same occurrence of transaction in which the accused was remanded to Judicial custody. In order to make the bar inapplicable, the new offence should have been committed in yet another occurrence or a different transaction all together. (Vide paras 11 and 13 of CBI v. Anupam J. Kulkarni AIR 1992 SC 1768 = (1992) 3 SCC 141 – A. M. Ahmadi, K. Jayachandra Reddy – JJ; Para 11 of State of Maharashtra v. Bharathy Chandamal Varma (Mrs.) @ Ayesha Khan AIR 2002 SC 285 = (2002) 2 SCC 121 – K. T. Thomas, S. N. Phukan – JJ.)

THE DEVIATIONS MADE IN SECTION 187 OF BNSS FROM SECTION 167 Cr.P.C., IS NOT LEGALLY SOUND AND SUPPORTABLE

Q.5 Whether the expression “Magistrate” in Section 187 (1) BNSS as against the expression “Judicial Magistrate” in Section 167 (1) Cr.P.C. is a desirable deviation ?

Ans. No. It is true that under Section 3 (1) of BNSS the expression “Magistrate” will ordinarily mean a “Judicial Magistrate”. But that was the position under Section 3 (1) of Cr.P.C. as well. Still Section 167 (1) Cr.P.C. specifically used the expression “Judicial Magistrate” by way of abundant caution because during the absence of the Judicial Magistrate the functions of the Judicial Magistrate can be temporarily exercised by the Executive Magistrate as well in view of Section 167 (2A) Cr.P.C. Similar is the position under the BNSS also. Section 187 (6) of BNSS is on identical terms as Section 167 (2A) Cr.P.C. Hence, to avoid any confusion, retention of the word “Judicial Magistrate” in Section 187 (1) BNSS would have been more appropriate.

Q.6 Whether the deviation made in sub-section (2) of Section 187 BNSS from sub-section (2) of Section 167 Cr.P.C., is legally sustainable ?

Ans. No. It cannot be supported due to the reasons stated hereinbelow –

Sub-section (2) of Section 187 BNSS reads as follows –

“(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.”

The earlier part of the deviation in S.187 (2) BNSS considered

We will first deal with the first highlighted portion in the above sub-section. I fail to see as to why the nearest Magistrate before detaining the accused to “police custody” or “judicial custody”, as the case may be, should consider whether the “accused has not been released on bail” or “his bail has been cancelled”. In my humble opinion both the above considerations are alien to the context.

The latter part of the deviation in S.187 (2) BNSS considered

Let us now deal with the second highlighted portion in the above sub-section. For the sake of convenience the said highlighted portion is once again extracted herebelow –

“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.”

Let us apply the above highlighted portion to a case involving an offence where the maximum period of detention permissible under sub-section (3) for the purpose of investigation, is 90 days. We will also assume that the accused is arrested and produced within 24 hours of his arrest with a remand application before the nearest Magistrate who is not the jurisdictional Magistrate.

• Going by the aforesaid highlighted portion, the Magistrate can remand the accused in such custody as he thinks fit from time to time but not exceeding 15 days in the whole at any time during the initial 60 days of detention. Since, the first remand under Section 187 BNSS can be “at any time” during the initial period of 60 days, if the nearest Magistrate decides to exercise the right of first remand only after 30 days of production of the accused –
• What is the nature of the custody of the accused till the Magistrate exercises the right of remanding the accused ?
• Will the accused be in “custodia legis” ? If so, where ?
• What should the officer who initially produced the accused before the Magistrate, do ?
• Is not the Constitutional mandate under Article 22 (2) nakedly breached by Section 187 BNSS ?
• Which Magistrate (the non-jurisdictional nearest Magistrate or the Jurisdictional Magistrate) will exercise the right of remanding the accused after 30 days of his production before the nearest Magistrate ?

(We do not get from Section 187 BNSS any answer for the above queries.)

• The highlighted portion of the Section pre-supposes that the accused will be in custody at least for 60 days, and during the said period of 60 days there seems to be no restriction whatsoever on the Magistrate remanding the accused and putting him in “Police custody” or “Judicial custody” or both (in parts) but at the same time, taking care to see that each spell of custody does not exceed 15 days at a time. But the latter part of sub-section (2) of Section 187 BNSS which says that if the nearest Magistrate has no jurisdiction to try the case or commit it for trial and if he considers that further detention of the accused is unnecessary, he has to forward the accused to the Jurisdictional Magistrate. If so –

Where is the question of the nearest Magistrate on discovering that he has no jurisdiction to try or commit the case, remanding the accused again to “police custody” or “judicial custody” after the first 15 days of detention ?

• Supposing, on the accused being forwarded to the Jurisdictional Magistrate, is granted bail, where is the question of even the Jurisdictional Magistrate remanding the accused to Police or Judicial custody beyond the first 15 days of detention ?
• Section 187 of BNSS does not contain a provision similar to clause (a) of the first proviso to Section 167 (2) Cr.P.C. which limits the “police custody” only to the first 15 days of remand. There is also no provision in Section 187 BNSS which says that the maximum period of police custody which can be given is only for 15 days in every case. If so –

In the absence of such a provision in Section 187 BNSS, is it not permissible for the Magistrate to give “police custody” and “judicial custody” alternatingly for the first 60 days limiting the custody to 15 days every time ?

• The above deviation made in Section 187 BNSS from Section 167 (2) Cr.P.C. as clarified by the Union Home Minister, was aimed at preventing accused persons from evading interrogation by being admitted to hospital during their remand period. If this was the object behind the deviation, I am afraid that the said object is not achieved by the provision in Section 187 (2) BNSS. If accused persons during their remand period are attempting to evade interrogation by the investigating agencies by getting themselves admitted in hospitals under false pretexts, there could have been appropriate changes made in the Section by insisting on more reliable proof regarding the alleged ailments and also by excluding the period of hospitalization for the purpose of investigation including interrogation. The existing provision under Section 187 (2) of BNSS is liable to be misused by those in charge of administration of justice.

Q.7 Whether the “second proviso” to Section 187 (5) is justifiable ?

Ans. No. It cannot be justified for the reasons stated below –

The “second proviso” to S.187 (5) BNSS considered

• The second proviso to Section 187 (5) BNSS is yet another ludicrous deviation. Even at the risk of repetition, it is reproduced herebelow –

“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.”

“Police custody” is authorised by the Magistrate evidently for the purpose of investigation which includes custodial interrogation during which proceedings the accused may have to be taken to various places to identify persons and objects. (Vide para 95 of Gautam Pratap Navlakha (Supra – (2022) 13 SCC 542). But the above proviso says that a person under “Police custody” shall be detained only in the Police Station. This is absurd. It is not known as to what prompted the framers of BNSS to make such an unworkable provision. With regard to “Judicial custody” made mention of in the aforesaid second proviso, it was unnecessary since provision is already there in Section 457 BNSS (corresponding to Section 417 Cr.P.C.) and it is, therefore, an instance of legislative surplusage which should, as far as possible, be avoided.

MY CONCLUSION

There was absolutely no justification for the deviations made as above in Section 187 BNSS from Section 167 Cr.P.C. Apart from the fact that those deviations are legally unsustainable, they are liable to be misused. How is that such a patently contradictory and arbitrarily worded Section, has now for more than one year of its coming into force, escaped the notice of the legal fraternity and the Constitutional Courts in this country ? It is dangerous to allow such a pernicious provision to remain in the statute book.

Author is Former Judge, High Court of Kerala. Views Are Personal.