Coming to grips with the BNSS on matters of Custodial Remand

One of the more significant changes to Indian criminal procedure brought about by the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] is the regime governing remands to police custody during an ongoing investigation. 

As those familiar with the legal regime may know, Section 167(2) of the erstwhile Criminal Procedure Code, 1973 [Cr.P.C.] had been read by courts as casting two rules: (1) permitting a maximum 15 days of police custody remand during investigation (found clearly within the statute) and (2) allowing this remand to be granted only in the first fifteen days after an arrest. The BNSS has retained rule (1), and modified rule (2). Section 187 of the BNSS now permits the 15 days of police custody to be sought at any point of time within the first forty or sixty days of arrest, depending on the severity of an offence.

I’m not interested in the debates about whether this relaxation of the first fifteen days rule is good policy or bad. Instead, I wanted to flag an issue of some practical relevance arising from the changes to this regime, which has received surprisingly little attention. This is the impact on legal strategy for opposing remand and seeking bail, and pre-trial custody more generally.

Police custody remand is widely understood and accepted as being the critical investigative step in cases. It allows police practically unregulated and unhindered access to an accused for questioning in a coercive setting — since lawyers aren’t permitted to participate in the questioning process. The outcome of police custody is often a confession of some sort, which leads to further clues. Usually, requests for such custody would be granted for short periods — so if police ask for a week, they normally get 3 days in which they get done whatever is needed, and come back to ask for more custody if needed.

Because of the importance wielded by police custody remand, lawyers in the grand-old Cr.P.C. days would not file for bail in serious crimes till it was clear that police custody remand was over. In most cases, this meant waiting out the first fifteen days period, and then moving for bail, because even if police had not sought police custody for that entire period, they could no longer seek such custody due to the first fifteen day rule. Courts also understood this logic and it would be an active consideration for deciding bails — if no further police custody remand was possible, it was understood that further pre-trial custody had no real investigative purpose. 

Now, though, police custody can theoretically be sought for and granted at any time till forty or sixty days of an arrest. For an rational investigator, it would make sense to not exhaust the total police custody period in the first fifteen days. This places both judges and lawyers in a bind, because now you cannot reasonably argue that there is no investigative purpose for further custody till forty or sixty days after an arrest.

How will this play out in the medium to long term? Custody periods may lengthen; some guidance may come from appellate courts on how magistrates should treat requests for police custody made belatedly, It may well not lead to any change at all, as police may rarely, if ever, ask for that period of remand that they may have been left with.