Section 187 of BNSS (corresponds to sec. 167 CrPC) deals with the procedure to be followed when the investigation of a case cannot be completed within 24 hours (the time limit prescribed by Section 58 (57 CrPC) for producing an arrested person before a Magistrate).
Sec. 187. (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 58, 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 Magistrate a copy of the entries in the diary hereinafter specified 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, 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.
(3) The Magistrate may authorise the detention of the accused person, 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 sub-section 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 ten years or more;
(i) 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 so released under the provisions of Chapter XXXV for the purposes of that Chapter:
(4) 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 audio-video electronic means.
(5) 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 sub-section (3), 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 produced before the Magistrate as required under sub-section (4), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the audio-video electronic means, as the case may be:
Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution:
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.
(6) Notwithstanding anything contained in sub-section (1) to sub-section (5), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Magistrate have been conferred, a copy of the entry in the diary hereinafter specified relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he máy think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order;
and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in sub-section (3): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(7) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(8) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(9) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(10) Where any order stopping further investigation into an offence has been made under sub-section (9), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (9) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
Comment
Person arrested not to be detained more than twenty-four hours.
Sec. 58. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court, whether having jurisdiction or not.
Breakdown of sec. 187 BNSS
1. Obligation to Present the Accused Before a Magistrate (Sub-section 1):
If the investigation cannot be completed within 24 hours, and there are valid reasons to believe the accusation is well-founded, the police officer in charge must:
- Send a copy of the case diary (details of the investigation) to the nearest Magistrate.
- Produce the accused before the Magistrate along with the request for detention.
2. Detention Authorization by Magistrate (Sub-sections 2 & 3):
The Magistrate may:
- Authorize Detention for Up to 15 Days at a Time:
- This could be in police custody or judicial custody.
The total duration of detention cannot exceed:
- 90 days: For serious offenses punishable by death, life imprisonment, or imprisonment for 10 years or more.
- 60 days: For all other offenses.
- Now police custody can be sought after the expiration of initial 15 days.
After the expiry of this period (60 or 90 days), the accused must be released on bail, provided they furnish the bail.
3. Police vs. Judicial Custody:
The Magistrate must ensure:
- Police custody is granted only for interrogation and investigation purposes.
- Once the initial period is over, the accused may be sent to judicial custody (detention in jail under court supervision).
4. Safeguards for the Accused:
The Magistrate must ensure the accused is:
- Physically present when police custody is being granted.
- Subsequent extensions of judicial custody can be made through physical or video production.
5. Special Cases and Exceptions:
- If a Magistrate is not available, the accused can be presented before an Executive Magistrate (Sub-section 6).
The Executive Magistrate can:
- Authorize detention for a maximum of 7 days.
- Transfer the case to a Judicial Magistrate for further orders.
6. Protection for Women and Minors:
- If the accused is a woman under 18 years of age, they must be detained in a remand home or a recognized social institution, not in regular police or judicial custody.
7. Investigations Beyond Six Months (Sub-sections 9 & 10):
If the investigation is not completed within 6 months for summons cases, the Magistrate can:
- Stop the investigation, unless special reasons are shown by the investigating officer.
The Sessions Judge can vacate this order if it is necessary for justice.
Example
1. Scenario: Arrest and Delay in Investigation
A person is arrested for a serious robbery case on Monday at 10 AM.
By Tuesday (24 hours later), the police realize they need more time to investigate (e.g., to recover stolen goods or gather more evidence).
The police must:
- Submit the case diary to the nearest Magistrate.
- Produce the accused before the Magistrate and request custody.
2. Magistrate’s Decision
The Magistrate reviews the case and authorizes:
- Police custody for 5 days to allow interrogation.
- After 5 days, the accused is sent to judicial custody if further police interrogation is not required.
3. Extended Custody
- If the case is punishable by life imprisonment or death (e.g., a murder case), the accused can remain in custody for a total of 90 days while the investigation continues.
- For lesser offenses, the limit is 60 days.
After this period, the accused must be released on bail if they apply and fulfill the conditions.
4. Exception: Magistrate Not Available
- If no Magistrate is available (e.g., during holidays), the police can take the accused to an Executive Magistrate, who can authorize custody for up to 7 days.
Object
The entire object of Sec. 187 BNSS, however, is to facilitate investigation and not detention without trial. The idea is to prevent disappearance of material evidence and to prevent vexatious and belated prosecutions, clearly in consonance with the concept of fairness of trial enshrined in Art. 21 of the Constitution.
The object is to see that persons arrested by the police are brought before the Magistrate with the least possible delay so that the Magistrate could decide whether the persons produced should further be kept in police custody and also to allow them to make such representations as they may wish to make [Chadayam Makki v State, 1980.CrLJ 1195 (Ker)].
Remand
Remand under Section 187 BNSS refers to the process where a Magistrate authorizes the detention of an arrested person in police custody or judicial custody when the investigation cannot be completed within the initial 24 hours after arrest.
Leading cases on police remand
Central Bureau of Investigation vs. Anupam J. Kulkarni (1992) SC
The case of Central Bureau of Investigation vs. Anupam J. Kulkarni (1992) SC is a landmark judgment particularly concerning the interpretation of Section 167 of the Code of Criminal Procedure, 1973 (CrPC).
Background:
In September 1991, four diamond merchants and their driver were abducted in Delhi.
- The Central Bureau of Investigation (CBI) took over the investigation and arrested Anupam J. Kulkarni on October 4, 1991.
- He was produced before the Chief Metropolitan Magistrate on October 5, 1991, and was initially remanded to judicial custody until October 11, 1991.
- On that date, the CBI sought police custody for further interrogation, which the Magistrate granted.
- However, due to Kulkarni’s alleged illness, he was hospitalized and remained there until October 21, 1991, preventing the police from taking him into custody during this period.
Subsequently, the CBI applied again for police custody, but the Magistrate, referencing a prior judgment, denied the request. Aggrieved, the CBI filed a revision petition before the High Court, which granted bail to Kulkarni without addressing the legality of remanding an accused to police custody after the initial 15-day period. The CBI then approached the Supreme Court.
Issues Raised:
The primary issue before the Supreme Court was whether an accused person could be remanded to police custody after the expiration of the initial 15-days period as prescribed under Section 167 of the CrPC?
Arguments:
- CBI’s Argument: The CBI contended that a combined reading of Section 167(2) and its proviso indicates that even if police custody was not obtained during the initial 15-day period, remand to police custody at a later stage is not precluded.
- Respondent’s Argument: Kulkarni’s defense argued that police custody, if granted by the Magistrate under Section 167 CrPC, should only be during the first 15 days from the date of production before the Magistrate. They contended that any subsequent custody should be judicial, and granting police custody after the initial 15 days was not permissible.
Judgment:
The Supreme Court held that detention in police custody is generally disfavored by law and should only be permitted in special circumstances. The Court clarified that after the expiry of the initial 15-day period, an accused cannot be remanded to police custody, even if new offenses are discovered. The Magistrate has the authority to order detention in police custody during the first 15 days after judicial scrutiny. However, after this period, any further remand can only be in judicial custody. The Court partially approved the judgment in State (Delhi Admn.) vs. Dharam Pal and others and elucidated the procedure for custody and remand under Section 167 of the CrPC.
Conclusion:
This judgment established that after the initial 15-day period following an accused’s production before a Magistrate, any further detention must be in judicial custody. Detention in police custody beyond this period is not permissible.
Recent developments
View that there cannot be police custody beyond 15 days from date of arrest should be reconsidered – In the case of CBI v. Anupam J. Kulkarni AIR 1992 SC, this Court observed that there cannot be any police custody beyond 15 days from the date of arrest. The view taken by this Court in the case of Anupam J. Kulkarni requires re-consideration.
Central Bureau of Investigation v. Vikas Mishra AIR 2023 SC
The case of Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra (2023) addresses significant issues concerning police custody duration and the accused’s conduct during investigations.
Facts:
- The Central Bureau of Investigation (CBI) registered a case against officials of Eastern Coalfield Limited, the Central Industrial Security Force (CISF), and the Railways.
- Under Section 120B read with Section 409 of the Indian Penal Code (IPC), along with relevant provisions of the Prevention of Corruption Act.
- The respondent, Vikas Mishra, was arrested and initially remanded to seven days of police custody.
- However, during this period, he was hospitalized, which hindered the CBI’s ability to interrogate him. Subsequently, the Special Court granted him interim bail. .
Arguments:
- CBI’s Argument: The CBI contended that due to the respondent’s hospitalization during the initial police custody period, they were unable to conduct the necessary interrogation.
- Respondent’s Argument: The defense relied on the Supreme Court’s decision in CBI v. Anupam J. Kulkarni (1992), asserting that police custody cannot be granted beyond the initial 15-day period from the date of arrest. They maintained that since this period had elapsed, any further police custody would be impermissible.
Conclusion:
The Supreme Court acknowledged the precedent set in the Anupam J. Kulkarni case, which restricts police custody to the first 15 days following an arrest. However, the Court emphasized that an accused should not be allowed to frustrate the judicial process through their conduct, such as seeking hospitalization to avoid interrogation. The Court granted the CBI an additional four days of police custody, noting that the initial period had been effectively nullified due to the respondent’s hospitalization. The Court also indicated that the principle established in the Anupam J. Kulkarni case might require reconsideration to prevent misuse by accused individuals.
Development
The Supreme Court granted the CBI 4 additional days of police custody, even though the initial 15-day period had lapsed.
This decision marks a departure from the strict interpretation of the 15-day rule, introducing an exception in cases where an accused deliberately prevents interrogation
Remand under BNSS [Sec. 187 (2) BNSS]
Police Remand can be sought even after the initial 15 days Remand of accused can be sought under BNSS
- within first 40 days of arrest in cases where the offence is punishable with less than 10 years imprisonment.
- within first 60 days of arrest in cases where the offence is punishable for more than 10 years imprisonment.
Note: Under CrPC the Police Remand of accused could be sought only during the initial 15 days after arrest.
Default bail
Default bail under Section 187(2) BNSS is the statutory right of an accused to be released on bail if the investigating agency fails to complete the investigation and file the charge sheet within the prescribed time limit:
1. Time Limits:
- 90 days: For offenses punishable with death, life imprisonment, or imprisonment of 10 years or more.
- 60 days: For all other offenses.
2. Conditions:
- The accused must apply for bail after the time limit expires.
- The accused must be willing to furnish
Cancellation of default bail
The law, which emerges is that mere filing of the charge-sheet subsequent to a person is released on default bail under section 167(2) Cr.PC. cannot be a ground to cancel the bail of a person, who is released on default bail. However, on filing of the charge-sheet on conclusion of the investigation, if a strong case is made out and on merits, it is found that he has committed a non-bailable offence/crime, on the special reasons/grounds and considering section 437(5) and section 439(2)Cr.PC., over and above other grounds on which the bail to a person, who is released on bail can be cancelled on merits. [Paras 9.5, 10, 11 and 12] – State v. T. Gangi Reddy AIR 2023 SC 457.
Default bail can be cancelled on merits after presentation of chargesheet – There is no absolute bar that once a person is released on default bail under section 167(2) Cr. PC., his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the trial court concerned, etc. [Para 11] – State v. T. Gangi Reddy AIR 2023 SC 457.