Case at a Glance

What is Police Custody?

Police custody refers to a situation in which an accused person is placed under the custody of the investigating police pursuant to an order of a Magistrate. It is primarily sought when investigators believe that custodial interrogation is necessary for an effective investigation.

Police custody may facilitate activities such as:

• Interrogation of the accused.
• Confrontation of the accused with evidence or other suspects.
• Recovery of material objects.
• Discovery of information relevant to the investigation.
• Reconstruction of the scene of an offence.
• Identification of other persons involved in the offence.

Police custody is, however, subject to judicial oversight. The investigating agency cannot simply decide to take an accused into police custody; the relevant Magistrate must authorise such custody in accordance with Section 187 BNSS.

Section 187 BNSS: The New Remand Framework

Section 187 BNSS broadly deals with the procedure to be followed when investigation cannot be completed within the initial period prescribed after arrest and the accused has to be produced before a Magistrate.

The provision replaced Section 167 of the CrPC when the new criminal laws came into force on 1 July 2024.

What Does Section 187(2) BNSS Provide?

Section 187(2) permits a Magistrate to authorise detention in custody for a total period of up to 15 days. The significant change is that this 15-day police custody does not necessarily have to be completed at the beginning of the remand period.

Depending upon the maximum permissible period of detention applicable to the offence, the police custody can be sought during a wider window:

In both situations, the aggregate police custody cannot exceed 15 days.

Understanding the 15-Day Rule with an Example

Suppose an offence falls within the 60-day detention category. Under Section 187 BNSS, the police could potentially seek custody in separate spells within the first 40 days, provided that the total period of police custody does not exceed 15 days.

The precise period and necessity of each spell remain subject to judicial authorisation. The provision does not give the police an automatic right to obtain 15 days of custody.

Police Custody vs Judicial Custody

The 60-Day and 90-Day Rule

Section 187(3) BNSS provides the broader framework governing the maximum period of detention during investigation.

• 90 days: Where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for a term of ten years or more.
• 60 days: In other cases.

If the investigation is not completed and the charge-sheet is not filed within the applicable period, the accused may become entitled to default bail, subject to the statutory conditions.

What Was the Issue Before the Supreme Court?

The case arose from an investigation concerning the alleged custodial death of a person in Andhra Pradesh. The respondent, a police officer, was arrested in connection with the investigation and the prosecution sought his police custody for custodial interrogation, recovery of evidence, identification of other persons involved and reconstruction of the circumstances surrounding the alleged offence.

The Magistrate granted police custody but imposed several safeguards, including restrictions on where interrogation could take place and requirements concerning videography and the safety of the accused. The Andhra Pradesh High Court subsequently modified some of these conditions.

The State approached the Supreme Court, arguing that the restrictions were so extensive that they made effective custodial interrogation and recovery of evidence practically impossible.

Supreme Court's Interpretation of Section 187 BNSS

The Supreme Court held that Section 187(2) and Section 187(3) BNSS represent a significant departure from the position under the erstwhile Section 167 CrPC.

Under the BNSS, the maximum 15 days of police custody can be availed of in parts during the statutory initial detention window. It is therefore incorrect to assume that police custody must necessarily be completed within the first 15 days following arrest.

CrPC vs BNSS: What Changed?

The Earlier Supreme Court Position: CBI v. Anupam J. Kulkarni

Under the old CrPC regime, the leading decision was CBI v. Anupam J. Kulkarni (1992). The Supreme Court held that police custody could be authorised only during the first 15 days of remand. After that period, the Magistrate could authorise judicial custody, but could not subsequently send the accused back to police custody merely because further interrogation became necessary.

The BNSS has now legislatively altered this position. Section 187 expressly expands the period during which the aggregate 15 days of police custody can be utilised.

Why Did the Supreme Court Uphold the Wider Custody Window?

The Court recognised that investigations do not always proceed in a predictable sequence. New evidence, fresh leads, recoveries or information may emerge after the initial period of detention.

If the law completely prohibited any subsequent police custody after the first 15 days, investigators could be prevented from properly acting upon such developments even when custodial interrogation was legitimately necessary.

The wider statutory window under Section 187 BNSS therefore allows investigators to seek custody when genuine investigative requirements arise, while keeping the overall police custody capped at 15 days.

But Does Section 187 Give Police an Automatic Right to Custody?

No.

The provision does not give investigating agencies an unrestricted power to keep an accused in police custody whenever they wish. Police custody continues to require judicial authorisation.

The Magistrate must consider the reasons put forward by the investigating agency and determine whether custodial interrogation is justified in the circumstances of the case.

The change introduced by Section 187 is therefore about the time window within which police custody can be sought, not about removing judicial control over remand.

Section 38 BNSS: Right to Meet an Advocate During Interrogation

Another important issue considered by the Supreme Court was the scope of Section 38 BNSS.

Section 38 provides an arrested person with the right to meet an advocate of their choice during interrogation, though not throughout the interrogation.

The Supreme Court clarified that this provision does not mean that an advocate has a right to remain physically present throughout the entire interrogation session.

Balancing Investigation and Constitutional Rights

The judgment is important because the Court did not treat effective investigation and protection of accused persons as mutually exclusive objectives.

Police custody is a powerful investigative tool, but it operates within the constitutional framework of Article 21. An accused person continues to possess the right to life, personal liberty and dignity while in custody.

At the same time, safeguards cannot be designed in such an impractical manner that they completely defeat the purpose of lawful custodial interrogation.

What About Videography of Interrogation?

The lower courts had imposed extensive videography-related safeguards in the case. The Supreme Court found that requiring uninterrupted videography in circumstances such as lengthy transit could become impractical because of issues including battery limitations, connectivity and other logistical difficulties.

The Court therefore emphasised that safeguards must be effective and workable. A safeguard that is impossible or excessively difficult to implement may ultimately become counterproductive.

At the same time, the Court did not reject the importance of transparency and protection of the accused during police custody. The investigation must continue to comply with constitutional and statutory safeguards.

Default Bail Under Section 187 BNSS

The 60-day and 90-day periods under Section 187 are also important because they are connected with the accused's right to default bail.

Where the investigation is not completed and the charge-sheet is not filed within the applicable statutory period, the accused may acquire a right to default bail, subject to fulfilment of the statutory requirements.

Remember: The 15-day police custody limit and the 60/90-day overall detention period are two different concepts.

Practical Example for RJS Aspirants

Suppose an accused is arrested for an offence falling within the 90-day category. The police initially obtain 8 days of custody.

After the accused is placed in judicial custody, investigators discover new evidence that makes further custodial interrogation necessary. Under Section 187 BNSS, the police may seek another spell of police custody within the permissible statutory window.

If the Magistrate considers the request justified, another spell may be granted. However, the total police custody across all spells cannot exceed 15 days.

Why is This Judgment Important?

• It provides the Supreme Court's first major interpretation of the revised police-custody framework under Section 187 BNSS.
• It marks a significant departure from the Anupam J. Kulkarni position under Section 167 CrPC.
• It confirms that the 15 days of police custody may be taken in separate spells.
• It clarifies the 40-day and 60-day windows within which such custody may be sought.
• It preserves judicial oversight over every request for police custody.
• It clarifies the scope of the accused's right to meet an advocate under Section 38 BNSS.
• It emphasises the need to balance effective investigation with Article 21 safeguards.

Frequently Asked Questions (FAQs)

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