BNSS 2023: Police Custody Beyond 15 Days Alters Remand Rules

• The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, Section 187, removes a phrase that previously restricted police custody beyond 15 days.
• This change may now permit police remand to extend beyond the traditional 15-day limit.
• BNSS Section 187(2) allows for 15 days of police detention, in parts, within initial periods of 40, 60, or 90 days.
• The Indian Constitution's Article 21 guarantees the right to life and liberty, requiring any deprivation to be just and fair.
• Police custody is primarily for interrogation, while judicial custody aims to prevent evidence tampering and protect the accused.

This critical alteration in the statutory framework, specifically the removal of the phrase 'otherwise than in the custody of police,' fundamentally changes the scope of police remand and may permit police custody to extend beyond the traditional 15-day limit.

The recently enacted Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 introduces a notable alteration in the statutory framework governing police custody, particularly through its Section 187. A critical change involves the removal of the specific phrase "otherwise than in the custody of police" from the provisions that dictate detention periods. This modification fundamentally changes the scope of police remand and may permit police custody to extend beyond the traditional 15-day limit, a significant departure from previous legal practice.

Under the erstwhile Criminal Procedure Code (CrPC) Section 167(2), while a Magistrate could authorize detention for up to fifteen days in total, any further detention beyond this period was explicitly required to be in custody other than that of the police. The BNSS, however, now allows for a Magistrate to authorize detention 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 a total detention period of sixty days or ninety days, as specified in sub-section (3) of Section 187. This revised wording suggests a potential for extended periods of police interrogation that were previously curtailed.

At the heart of India's legal system lies Article 21 of the Constitution, which guarantees every individual the fundamental right to life and liberty. This crucial protection dictates that a person can only be deprived of these rights through a "procedure established by law." The Supreme Court, in its landmark ruling in *Maneka Gandhi v. Union of India*, further clarified that such a procedure must be just, fair, and reasonable, not arbitrary, ensuring that any deprivation of liberty adheres to principles of natural justice.

Despite these constitutional safeguards, the reality of police custody often raises serious concerns. Individuals held within the confines of a police station or lock-up are vulnerable not only to potential physical pain but also to profound mental agony. Instances of physical assault or even rape in police custody highlight the severe trauma that can be inflicted, experiences that frequently extend beyond the purview of legal compensation or adequate redress. The potential for extended police custody under the new BNSS framework thus brings these inherent vulnerabilities into sharper focus.

Both police custody and judicial custody are established forms of detention, approved under both the Criminal Procedure Code, 1973, and now the Bharatiya Nagarik Suraksha Sanhita, 2023, each serving distinct investigative and protective purposes. Police custody is typically granted to empower investigating agencies to interrogate an accused or suspect. The primary objective is to unearth the truth behind the commission of a crime, or to ascertain the suspect's involvement, with the individual held in a police lock-up. The true intent behind seeking remand in police custody is fundamentally for interrogation.

Conversely, the legislative intent behind judicial custody is to isolate the accused from the alleged crime. This aims to prevent them from influencing or tampering with any witnesses or evidence related to the case. Furthermore, judicial remand also serves to protect the accused from potential violence or retribution from society. During judicial remand, the accused is generally held in a prison or a facility officially designated as a prison by either the Central or State Government.

Section 187(2) and (3) of the BNSS specifically address the matter of police remand for an accused, outlining the new parameters for detention. A Magistrate may now authorize the detention of an accused for a term not exceeding fifteen days in total, but critically, this can be done "in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days," depending on the nature of the offense. This provision marks a significant departure from the previous CrPC framework, which strictly limited police custody to a maximum of fifteen days in its entirety.

This revised structure suggests that while the total duration of police custody might still be capped at fifteen days, the flexibility to impose these fifteen days "in parts" over an extended initial period of up to ninety days could allow for prolonged periods of custodial interrogation. This contrasts sharply with the earlier regime where, after the initial fifteen days, an accused would typically be moved to judicial custody, thereby limiting direct police access for further questioning.

Defense lawyers and compliance officers in India must be aware that the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, specifically Section 187, may permit police remand to extend beyond the traditional 15-day limit, significantly impacting defense strategies, bail applications, and the scope of investigative powers. This change necessitates a re-evaluation of client advice regarding detention periods.

Source: Original analysis based on legal commentary.