The implications of amendments to three criminal codes on civil liberties and the integrity of the legal process remain subject to ongoing debate and scrutiny

Parliament has passed three criminal codes, among which the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeks to amend the Code of Criminal Procedure, 1973 (CrPC). There is one provision in BNSS that seeks to increase the number of days within which police custody (PC) can be sought. When someone is in police custody, it means they are held by the police in a lockup at the station. On the other hand, judicial custody means they are held in a central jail.

The investigating agency gets 24 hours to investigate if they are not able to complete the investigation within that bracket, they must get permission from the magistrate, who can grant custody of the accused for up to 60/90 days, depending on the seriousness of the crime.

However, within this timeframe of 60/90 days, the magistrate is restricted to granting PC for the initial 15 days from the date of arrest, beyond which only judicial custody can be granted. This 15-day limit was extensively discussed in the Anupam Kulkarni v. CBI case, where the Supreme Court ruled that an accused cannot be held in PC beyond 15 days from the date of arrest and PC in total can be for a maximum of 15 days, which means that PC could be granted by the magistrate in parts for the first 15 days or as a whole.

Understanding the new law

According to Section 187 of the BNSS, the PC can be granted within the first 40 days (for less serious offences) or 60 days (for more serious offences) after the accused is arrested. The change implies that the prescribed 15-day period of custody can now be split into shorter periods of custody sought over 40 days for offences punishable up to 10 years or 60 days for other offences. This represents a departure from the current practice under Section 167 of the CrPC, where PC can only be obtained within the initial 15 days. Consequently, concerns have been raised regarding the Government’s rationale behind this change, particularly considering the act’s aim to prioritise a people-centric criminal justice system. However, further arguments necessitate the examination of two significant cases.

Judgements that led to a paradox: First, in the case of Vikas Mishra v. CBI, where the CBI wanted more time to question Vikas Mishra, who was accused of corruption and conspiracy. Despite being in custody for seven days, he was hospitalised and later released on bail. The CBI argued that they couldn't interrogate him properly during this time. However, Vikas’s lawyers cited the court’s ruling that said PC beyond 15 days from the arrest date is not allowed. Nonetheless, the court granted custody to the police and noted that every accused person must respect the investigation and court proceedings and went on to mention that these ways of hindering the pursuit of justice would not be tolerated.

Second, in the case of Senthil Balaji v. The State, the Supreme Court decided that the maximum 15 days PC period can be split into shorter periods over the entire investigation, which can last either 60 or 90 days as against the general rule of granting PC in first 15 days, it also questioned its judgement of Anupam Kulkarni and further, said that this interpretation needs to reviewed by a larger bench.

By analysing the two judgements passed last year we can conclude that there is a growing inclination towards favouring the investigating agency. Despite the accused attempting to avoid initial PC in the first case due to medical reasons, it’s essential to recognise that the accused might exploit the 15-day bar by taking the excuse of loopholes on grounds of a medical emergency.

However, the second case sets a precedent keeping the investigation process at the heart of the criminal justice system which poses a potential series of inconsistencies.  Therefore, Section 187 of the BNSS aims to definitively resolve the existing confusion and prevent future inconsistencies regarding the timeline within which PC can be sought and sets the limit of 40/60 days.

It seeks to find a middle path where the civil liberties of the accused are not exploited as the maximum number of days for which the PC can be granted is still 15 days which now can be granted in parts in 40/60 days and also favours investigating agencies by granting a reasonable time for custodial interrogation, which is crucial for uncovering the truth as denying the investigating agency the opportunity for further interrogation gives an advantage to the accused to disrupted the legal process.

(The writer is a law student; views expressed are personal)