The concept of police custody is a crucial aspect of criminal procedure, allowing investigating  agencies to detain a “suspect” for questioning and evidence gathering. However, this power  must be balanced with the fundamental right to liberty enshrined in Article 21 of the Indian  Constitution. The State’s innate tendency to make things easier for itself and thus difficult for  citizens can be seen in the changes that have been made (without consultation) to the provisions  regarding police custody via the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—the  replacement for the Code of Criminal Procedure, 1973 (CrPC). This article discusses the  changes in police custody provisions via the BNSS and the implications of such change. 

Understanding remand: CrPC section 167 

Section 167 of CrPC empowers a Magistrate to remand an accused person to different forms of  custody during the investigation process. It is invoked when the investigation cannot be completed  within 24 hours of arrest. The provision aims to strike a balance between two competing interests: 

▪ Protecting Individual Liberty: The provision ensures that an individual’s liberty is not  unduly curtailed, and that detention is subject to judicial oversight. 

▪ Facilitating Effective Investigation: This empowers the investigating agencies to gather  evidence and interrogate the accused, ensuring a thorough investigation. 

Sub-section (2) of Section 167 is particularly significant as it lays down the procedure for remand  and sets a maximum limit of 15 days for police custody. The proviso to Section 167(2) further  elaborates on this limit, allowing for judicial custody beyond 15 days and setting overall time limits  for investigation (60 or 90 days, depending on the severity of the offense) after which the accused  would or could be released on bail. 

Evolution of judicial interpretation 

The interpretation of Section 167(2) and its proviso has seen a shift over the years, shaped by  significant judicial pronouncements: 

▪ CBI vs. Kulkarni (1992): In this landmark case, the Supreme Court interpreted the proviso to  Section 167(2) to mean that police custody was strictly limited to the first 15  days following the arrest.[1] This interpretation was aimed at safeguarding the accused from  prolonged police detention, considered detrimental to individual liberty. This view was  subsequently followed in Budh Singh v. State of Punjab (2000) — a three-judge bench order,  solidifying the understanding that the 15 days of police custody had to be availed within the  first 15 days of remand.[2] 

▪ CBI vs Vikas Mishra (2023): The Supreme Court, acknowledging the practical challenges  faced by investigating agencies, particularly in complex financial crimes, revisited the  interpretation of Section 167(2) in this case. While the case dealt with the calculation of the  15-day period, the Court expressed the view that the earlier interpretation disallowing police  custody beyond 15 days required reconsideration.[3] 

▪ V. Senthil Balaji v. The State (2023): This case became pivotal in redefining the  understanding of police custody under Section 167(2). The Supreme Court, while upholding  the arrest and custody of the accused, interpreted the provision to allow for an aggregate of  shorter custody periods spread across the entire investigation period (60 or 90 days). The  Court reasoned that this interpretation was consistent with the provision’s language and its 

objective of balancing individual liberty with the need for effective investigation.[4] Justice  Sundresh, authoring the judgment, emphasised: 

“The period of 15 days being the maximum period would span from time to time with the total period  of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of  investigation. We may also hasten to add that the proviso merely reiterates the maximum period of 15  days, qua a custody in favour of the police while there is absolutely no mention of the first 15 days  alone for the police custody.” 

The Senthil Balaji judgment clarified that the 15 days of police custody need not be a continuous  period and can be sought in shorter durations throughout the investigation, as long as the total does  not exceed 15 days. 

BNSS Section 187: The New Landscape 

The Senthil Balaji judgement was delivered on August 7, 2023, and soon after, Union Home Minister  Amit Shah introduced the three criminal law bills— Bharatiya Nyaya Sanhita (BNS), Bharatiya  Nagrik Suraksha Sanhita (BNSS), Bharatiya Sakhshya Adhiniyam (BSA) as new Penal, Criminal  Procedure and Evidence Laws respectively. 

The introduction of BNSS to replace the CrPC brought a shift in the legislative approach towards  police custody. Section 187 of BNSS, the corresponding provision to Section 167 of CrPC, retains the  15-day limit on police custody. However, it introduces a crucial change in its wording, allowing  investigating agencies to seek this period “in the whole or in part over 60 or 40 days”. This phrasing  does not explicitly restrict police custody to the initial 15 days, unlike the proviso (as was interpreted  in Kulkarni) in Section 167(2) of CrPC. This change in the BNSS aligns with the two-judge bench’s  reasoning in the Senthil Balaji Case. 

This change has sparked a debate and serious concerns about potential misuse and its impact on  individual liberties. The lack of clear guidelines in BNSS regarding the circumstances under which  police custody can be sought beyond the initial 15 days has amplified these concerns. The bills were  subsequently referred to the Department-related Parliamentary Standing Committee on Home Affairs  for its examination and report. 

Ignoring the suggestions of the Standing Committee 

The Parliamentary Standing Committee on Home Affairs, while reviewing the BNSS  Bill, recommended incorporating specific safeguards to address this ambiguity. In the report it had  adopted on November 6, 2023, it recommended that a suitable amendment may be brought to provide  greater clarity in the interpretation of Section 187. This recommendation was based on the  suggestions from stakeholders arguing that as a general rule, custody should be taken in first 15 days  of remand and the further window should only be utilised as an exception, when the accused is trying  to avoid police custody or due to extraneous circumstances which are not within the control of the  investigating officer. 

Essentially, the committee sought to strike a balance between the rights-based approach and the  approach of giving investigating agencies the necessary time. However, these suggestions did not  materialise in the bills that were re-introduced and later passed in the Lok Sabha in December 2023.  The BNSS came into force in July 2024. 

How does it matter if 15 days of police custody is in part or whole? 

Under the old CrPC regime, police could only request custody during the first 15 days of an  investigation. After that, the accused was either placed in judicial custody or granted bail.

Under the new BNSS regime, the police can request custody in parts. For instance, they may request a  4-day custody period, after which the accused could be granted bail. However, since the police still  have 11 days of custody left, they can later request another 4-day custody, potentially a week after the  accused is granted bail. This means the 15-day custody limit could be stretched across the first 40 or  60 days, depending on the severity of the offense. 

This matters for three key reasons: 

1. The accused may face harassment through repeated police custody requests, disrupting their  ability to function in daily life while on bail. 

2. Not merely harassment –police custody is often an axiom for custodial torture– and prolonged  availability of remand to an already powerful (and often brutalised police force) is likely to  make accused victims to this in greater intensity in future. 

3. Judicial officers may hesitate to grant bail until the police have exhausted their full 15-day  custody allowance. Why? Granting bail early could require a cumbersome process of  cancelling bail and approving further custody requests from the police. 

4. When the CrPC was enacted in 1973, technological resources were far less advanced than  they are today. Even then, the custody limit was capped at 15 days during the initial  investigation period, as interpreted in the Kulkarni Case. With modern advancements like  CCTV, facial recognition, and advanced forensics, allowing police to use the same 15-day  period in parts grants them disproportionately higher power. 

Implications 

Potential for misuse: 

The lack of explicit safeguards in BNSS regarding police custody beyond 15 days raises concerns  about potential misuse and prolonged detention without adequate justification. For instance, the police  could request custody on the 15th day of investigation while the accused is in judicial custody for a  few days. Under the old regime, the police were required to seek custody within the first 15 days, after  which the accused could apply for bail. However, now the accused is more likely to remain in  prolonged detention until the police exhaust their 15 days of custody, effectively delaying the  opportunity for bail. 

Additionally, the right to claim custody in parts grants the police more power than before. For  example, consider a situation where person X is arrested on Day 1 and sent to police custody by the  court for 5 days on Day 2. On Day 7, X is released on bail. Until Day 16, X cooperates with the police  by attending investigation sessions daily while on bail. However, on Day 17, X, frustrated with the  line of questioning, decides to stop going to the questioning sessions. Since the police still have 10  days of custody remaining, they could use it as leverage to harass X. This skewed power dynamic  makes it challenging for the accused to exercise their liberty, even when cooperating with the  investigation. 

In D.K. Basu vs. State of West Bengal (1996), the Supreme Court emphasised that in custodial crimes,  the real concern is not only the infliction of physical pain but also the mental agony endured within  the four walls of a police station or lock-up.[5] The new provision in the BNSS, by enabling the  police to claim custody repeatedly within the 40/60-day period—depending on the severity of the  offence—contradicts the judicial philosophy outlined in D.K. Basu. 

Judicial Oversight: 

The role of the judiciary becomes even more critical in ensuring that this power is exercised  judiciously and that the rights of the accused are protected. Magistrates must rigorously scrutinise the 

grounds for seeking police custody at each stage, ensuring it is genuinely necessary for the  investigation and not used as a tool for harassment or coercion. However, whether judicial officers  will exercise such prudence or remain reluctant due to the challenges mentioned above remains to be  seen. 

Higher judiciary’s role – past and future 

Both CBI v. Vikas Mishra and Senthil Balaji v. State demonstrate a judicial inclination towards  prioritising the needs of investigation over a strict interpretation of the 15-day custody limit enshrined  in Section 167(2) CrPC. However, these judgments fall short of providing a nuanced approach that  balances both perspectives. The intent behind the Kulkarni case’s limitation of police custody to the  first 15 days was to ensure there was no room for police excess. Since then, police powers have grown  stronger, yet rather than achieving a balance between police authority and individual liberty, the  Supreme Court judgments in Vishal Misra and Senthil Balaji have adopted a unidimensional  approach. 

The judgments could have explored the possibility of resetting the 15-day clock in situations beyond  the investigating officer’s control rather than calling for a re-examination of the general rule  established in the Kulkarni case. 

For instance, if an accused falls seriously ill during custody, necessitating hospitalization and thereby  preventing effective interrogation, the court could have considered pausing the 15-day countdown and  resuming it upon the accused’s recovery. This approach would balance the need for a thorough  investigation with the accused’s right to health and a fair opportunity to respond to allegations. 

Similarly, in situations like CBI v. Vikas Mishra, where the accused obtained interim bail, other legal  challenges or procedural delays could hinder the investigating agency’s access to the accused within  the initial 15-day period. The judgments could have acknowledged such scenarios and allowed for a  recalibration of the 15-day limit to ensure the investigation is not unfairly prejudiced. 

To address this lack of balance, the higher judiciary could develop jurisprudence that empowers and  enables lower courts to scrutinize police custody petitions seeking custody in parts, while carefully  considering the rights of the accused. Although this will take time, it will provide the necessary  balance that the BNSS currently lacks in Section 187. 

Conclusion 

While the current BNSS makes the questions posed by the court in Senthil Balaji and Vishal  Misra almost infructuous, it is a constant expectation from the Supreme Court to exercise caution in  calling established judgments and rules into question, which, unfortunately, was not met in these  orders. 

In a recent case, Prem Prakash vs. Union of India (2024), a two-judge bench of the Supreme Court  stated as follows[6]: 

“The principle that ‘bail is the rule, and jail is the exception’ is only a paraphrasing of Article 21 of the  Constitution of India, which states that no person shall be deprived of his life or personal liberty  except according to the procedure established by law. Liberty of the individual is always a rule, and  deprivation is the exception. Deprivation can only be by the procedure established by law, which has  to be a valid and reasonable procedure.” 

While this judgment relates to a different factual matrix, its emphasis on deprivation being an  exception underscores the need to balance the rights of investigating agencies and the liberty of the  individual under Article 21.

On the other hand, the Criminal Procedure Code should not serve as a machinery for the state’s  exercise of unbridled power. The government, too, could issue Standard Operating Procedures (SOPs)  or even undertake an amendment to the BNSS to provide the necessary clarification and balance the  power of the police. The amendments could range from specifying offences for which police custody  in parts could be sought to defining situations in which police custody could be justified.