This article compares the police custody provisions under Section 187 of BNSS 2023 and Section 167 of CrPC 1973, highlighting key changes introduced by the new law. Both sections govern how long individuals can be detained during investigations, but BNSS 2023 brings more flexibility by allowing police custody to be split over multiple periods.

This update addresses challenges faced by investigators under the older law, which restricted police custody to 15 days of detention, limitation, and flexibility. The article also discusses the CBI vs. Anupam J. Kulkarni case, which influenced these reforms. It explores the pros and cons of the new system, including better support for complex cases, but warns of potential misuse if not carefully monitored.[1]

Introduction
Section 187 in the BNSS Act 2023 has brought new changes to the laws governing police custody in India. This section is designed to update and improve upon Section 167 of the CrPC, 1973, which has long been the guiding law for police detention. Both sections share similarities in their approach to handling detention during investigations, but they also differ in key areas, particularly regarding the duration and management of police custody.[2] This article compares the provisions of Section 187 of BNSS 2023 with Section 167 of CrPC 1973, highlighting their similarities and differences, and discusses the need for these new reforms in light of past judicial rulings.

Similarities

• Investigation within 24 hours: Both Section 187 of BNSS 2023 and Section 167 of CrPC 1973 require that the investigating officer complete the investigation or gather significant information within 24 hours of arrest.
• Reporting to Magistrate: If the investigation cannot be completed within 24 hours, the officer must transmit a copy of the entries made in the case diary to the nearest magistrate and forward the accused for a judicial decision on continued detention.
• Magistrate's Decision: The magistrate has the discretion to either grant bail or order the detention of the accused if bail is not applicable or has been revoked.
• Detention Periods for Serious Offenses: For offenses punishable by death or life imprisonment, both acts allow for a maximum detention of 90 days.
• Detention Periods for Lesser Offenses: For other offenses, the maximum period of detention under both sections is 60 days.
• Police Custody Limits: Under both sections, the period of police custody during any type of detention cannot exceed 15 days.
• Right to Bail after Detention: Once the total detention period (90 days or 60 days) ends, the accused has the right to seek bail.

The Case of CBI vs. Anupam J. Kulkarni

A landmark case relevant to the interpretation of police custody provisions is CBI vs. Anupam J. Kulkarni, which revolved around the application of Section 167 of CrPC 1973.

In this case, the Supreme Court of India considered whether an accused, after being placed in judicial custody following the initial 15 days of police custody, could be returned to police custody later for further interrogation. The court ruled that under Section 167 of CrPC 1973, police custody is strictly limited to the first 15 days of detention. Once the accused has been placed in judicial custody, they cannot be returned to police custody.

This judgment set a significant precedent, ensuring that police custody was tightly controlled and subject to judicial scrutiny.[6] It also underscored the importance of protecting the rights of individuals in custody and restricting the police's ability to extend detention periods indefinitely.

Need for New Laws
Over time, the rigid interpretation of Section 167 of CrPC 1973, especially after the CBI vs. Anupam J. Kulkarni case, made it difficult for law enforcement agencies to conduct thorough investigations within the tight framework of 15 continuous days of police custody. This limitation became particularly problematic in complex cases involving multiple accused persons or intricate criminal networks, where more time was needed for questioning.[7]

The BNSS Act 2023, through Section 187, was introduced to address these challenges. The new section allows for greater flexibility in police custody by enabling split custody periods, offering investigative agencies more time to gather evidence while still maintaining safeguards to protect the rights of the accused. The new law seeks to strike a balance between effective investigation and preventing the misuse of custodial powers by law enforcement.

Differences
While both Section 187 of BNSS 2023 and Section 167 of CrPC 1973 share common principles, they differ in key areas regarding police custody:

• Custody Period:
  • Under Section 187 of BNSS 2023, the total custody period remains the same at 90 days for serious offenses and 60 days for lesser offenses, but the allocation of police custody within these periods allows for more flexibility.
  • In contrast, Section 167 of CrPC 1973 mandates that police custody must be completed within the first 15 days of detention. After this, only judicial custody (jail custody) is permitted.
     
• Continuous vs. Split Custody:
  • Under Section 167 of CrPC 1973, the 15 days of police custody must be continuous. Once the accused is transferred to judicial custody, they cannot be returned to police custody for further interrogation.
  • Section 187 of BNSS 2023, on the other hand, introduces the option for split custody. This means that while police custody is still limited to 15 days in total, it can be divided into non-continuous periods, allowing the accused to be transferred back to police custody from judicial custody if further interrogation is required. The total duration of police custody remains capped at 15 days but can be utilized flexibly throughout the investigation period.
     
• Flexibility in Investigation:
  • Section 167 of CrPC 1973 provides a more rigid framework, which can sometimes restrict investigators when dealing with complex cases.
  • Section 187 of BNSS 2023 offers law enforcement agencies the ability to manage custody periods more effectively, which can be crucial for detailed or lengthy investigations.
     
• Flexibility and Split Custodial Periods: Advantages and Disadvantages:
  • Advantages:
    • Enhanced Investigation Capability: The ability to split custodial periods enables investigators to revisit suspects for additional questioning as new evidence or leads emerge. This can be crucial in complex cases where timelines for gathering information can be unpredictable.
    • Adaptability to Case Requirements: Investigators can adjust their approach based on the specifics of the case, allowing for a more responsive and effective law enforcement process.
    • Improved Justice Delivery: The flexibility can lead to more accurate and just outcomes by allowing sufficient time for thorough investigations without unnecessary delays.
       
  • Disadvantages:
    • Increased Psychological Stress: The potential for repeated transfers between police and judicial custody can lead to heightened stress and anxiety for the accused, who may feel under continuous scrutiny. This could raise ethical concerns regarding the treatment of individuals in custody.
    • Risk of Misuse: The flexibility in custody arrangements might be exploited by law enforcement to extend detention periods unnecessarily. There is a danger that police could use the provisions to prolong interrogation without sufficient justification, undermining the protections designed to safeguard individual rights.
    • Improved Justice Delivery: The flexibility can lead to more accurate and just outcomes by allowing sufficient time for thorough investigations without unnecessary delays.

Conclusion
In conclusion, the introduction of Section 187 in the BNSS 2023 represents a significant step forward in updating India's police custody laws. By offering flexibility in custodial periods while retaining judicial oversight, this new provision seeks to enhance the effectiveness of investigations and address some of the limitations of Section 167 of CrPC 1973.

However, it is crucial to remain vigilant against potential misuse of these new powers and to uphold the rights of the accused. As the legal landscape continues to evolve, ongoing scrutiny and evaluation of these reforms will be essential to ensure that the balance between effective law enforcement and the protection of individual rights is maintained. Such measures are essential for building a fairer and more just criminal justice system in India.

Citations
Central Bureau of Investigation v. Anupam J. Kulkarni, AIR 1992 SC 1768.

• This Supreme Court case established the principle that police custody is limited to the initial 15 days of detention under Section 167 of the CrPC. Once judicial custody is ordered, police custody cannot be reinstated, emphasizing judicial oversight in custodial durations.
• The Criminal Procedure Code, 1973 (CrPC), Sections 167 and 187 (BNSS 2023):
  • Section 167 of the CrPC governs the procedural requirements for police custody and judicial detention, limiting police custody to 15 days, with extended detention for serious offenses capped at 90 days and lesser offenses at 60 days. The BNSS Act, 2023, Section 187, introduces the concept of split custody, allowing police custody to be divided over non-consecutive periods within the 15-day limit, aimed at flexibility in complex cases.
• India Code, "The Indian Penal Code, 1860," Ministry of Law and Justice, Government of India, https://indiacode.nic.in/:
  • Source for statutory definitions, including the legal provisions related to criminal detention under Indian law.
• Law Commission of India Reports on Detention and Custodial Reforms:
  • The Law Commission has periodically examined and provided recommendations for custodial reforms, often advocating for more flexible custody provisions to address modern investigational needs.
• Agrawal, Aishwarya. "Central Bureau of Investigation vs Anupam J. Kulkarni." LawBhoomi, 18 March 2024. Accessed 21 October 2024. https://lawbhoomi.com/central-bureau-of-investigation-vs-anupam-j-kulkarni/:
  • Detailed case analysis and legal commentary on CBI v. Anupam J. Kulkarni, examining the Supreme Court's interpretation of police custody limitations under CrPC.

End Notes:

1. Central Bureau of Investigation v. Anupam J. Kulkarni, AIR 1992 SC 1768: This Supreme Court case established the principle that police custody is limited to the initial 15 days of detention under Section 167 of the CrPC. Once judicial custody is ordered, police custody cannot be reinstated.
2. Agrawal, Aishwarya. "Central Bureau of Investigation vs Anupam J. Kulkarni." LawBhoomi, 18 March 2024. Accessed 21 October 2024.
3. The Criminal Procedure Code, 1973 (CrPC), Sections 167 and 187 (BNSS 2023): Section 167 of the CrPC governs procedural requirements for police and judicial detention, capping police custody at 15 days and serious offenses' detention at 90 days.
4. India Code, "The Indian Penal Code, 1860," Ministry of Law and Justice, Government of India.
5. Central Bureau of Investigation v. Anupam J. Kulkarni, AIR 1992 SC 1768.
6. Central Bureau of Investigation v. Anupam J. Kulkarni, AIR 1992 SC 1768.
7. The Criminal Procedure Code, 1973 (CrPC), Sections 167 and 187 (BNSS 2023).
8. Agrawal, Aishwarya. "Central Bureau of Investigation vs Anupam J. Kulkarni." LawBhoomi, 18 March 2024.
9. The Criminal Procedure Code, 1973 (CrPC), Sections 167 and 187 (BNSS 2023).
10. India Code, "The Indian Penal Code, 1860," Ministry of Law and Justice, Government of India.
11. Central Bureau of Investigation v. Anupam J. Kulkarni, AIR 1992 SC 1768.
12. The Criminal Procedure Code, 1973 (CrPC), Sections 167 and 187 (BNSS 2023).

Written By: Nilesh Nagda, Mohan Lal Sukhadia University Udaipur, Rajasthan [email protected]