Author’s Note
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace the Code of Criminal Procedure, 1973 (Cr.P.C.) with a restructured framework of procedural law. Section 187 of the BNSS corresponds to Section 167 of the Cr.P.C., governing the procedure when an investigation cannot be completed within twenty-four hours of arrest.
However, a careful reading of Section 187 reveals significant deviations from the well-settled scheme of the Cr.P.C. that may undermine constitutional safeguards concerning personal liberty and judicial independence. The following analysis critically examines these deviations and their potential constitutional infirmities.
1. The Shift from “Nearest Judicial Magistrate” to “Nearest Magistrate” — A Regressive Move
Under Section 167(1) of the Cr.P.C., an arrested person must be produced before the nearest Judicial Magistrate, ensuring that the initial decision on detention lies within the judicial, not executive, domain.
In contrast, Section 187(1) of the BNSS directs that the arrestee be produced before the nearest Magistrate, thereby eliminating the word “judicial.” This seemingly minor linguistic change has grave implications, as it permits the Executive Magistrate to exercise remand powers — a direct encroachment upon the principle of separation of powers enshrined in Article 50 of the Constitution.
Such a deviation is neither justified nor necessary, given that the BNSS already provides for contingencies where a Judicial Magistrate is unavailable. This change dilutes a hard-won constitutional safeguard and represents a retrograde step in India’s criminal jurisprudence.
2. Redundant Obligations under Section 187(2) — Procedural Confusion without Purpose
Section 187(2) introduces a requirement for the Magistrate to consider whether the accused “has not been released on bail” or “his bail has been cancelled.”
This addition is wholly misplaced. The question of bail status has no relevance at the stage of first remand, where the court’s concern is limited to determining whether continued detention is warranted pending investigation. By inserting this clause, the BNSS introduces procedural clutter into an otherwise straightforward process, serving neither clarity nor justice.
3. The Phrase “or in Parts” — Linguistic Redundancy and Legal Surplusage
The Cr.P.C. permitted a Magistrate to authorize detention “for a term not exceeding fifteen days in the whole,” which the courts have consistently interpreted to mean that such detention can be granted intermittently or “from time to time.”
By adding the words “or in parts” in Section 187(2) of the BNSS, the legislature has committed a drafting redundancy. The phrase adds no substantive meaning, as the expression “from time to time” already implies flexibility in remand duration. Such careless drafting undermines the precision expected in a modern legal code.
4. Police Custody Beyond the First Fifteen Days — A Constitutional Breach
Under the Cr.P.C., as interpreted by landmark judgments such as Chaganti Satyanarayana v. State of A.P., CBI v. Anupam J. Kulkarni, and Budh Singh v. State of Punjab, the police are allowed custody for a maximum of fifteen days — either in one stretch or in parts — only during the first fifteen days of detention.
Section 187(2) of the BNSS, however, allows police custody to be sought at any time during the first 40 or 60 days (depending on the offence category). This drastically alters the protective scheme of the Cr.P.C. by enabling the police to recall an accused from judicial custody into police custody at any stage of the investigation.
Such a provision effectively keeps the accused under a perpetual threat of police custody, violating the spirit of Article 21 and Article 22(2) of the Constitution. It opens the door to abuse, coercion, and custodial manipulation under the guise of investigation.
This change not only negates decades of judicial refinement but also undermines the rationale behind limiting police custody — to prevent prolonged or arbitrary deprivation of liberty.
5. Non-Jurisdictional Magistrate Empowered to Extend Custody — A Structural Flaw
Under the Cr.P.C., only the nearest Magistrate (who may not be the jurisdictional Magistrate) is authorized to pass the first remand order, typically not exceeding fifteen days. Thereafter, only the jurisdictional Magistrate may extend detention or consider bail.
Section 187(2) of the BNSS dismantles this carefully balanced scheme. It empowers even a non-jurisdictional Magistrate, potentially an Executive Magistrate, to authorize repeated remands within the first 40 or 60 days. This provision contradicts both the constitutional mandate and established criminal procedure, allowing a non-judicial officer to interfere in the judicial process.
Such empowerment of an Executive Magistrate to extend custody undermines judicial independence and violates the doctrine of functus officio, whereby a Magistrate who has passed the first remand order cannot exercise further powers in the same case.
6. Confinement “Only in Police Station” — A Practical Impossibility
The second proviso to Section 187(5) stipulates that no person shall be detained “otherwise than in a police station” under police custody or “otherwise than in a prison” under judicial custody.
This clause reflects a poor understanding of investigation dynamics. The purpose of police custody is to enable effective investigation — often requiring the accused’s presence at locations other than the police station (e.g., recovery sites, identification spots, or reconstruction venues).
By rigidly confining custody to the police station, the provision becomes impractical and self-contradictory. It could hinder lawful evidence collection and even conflict with Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 27 of the Indian Evidence Act, 1872).
7. The Constitutional Perspective: A Step Backwards
Section 187 of the BNSS violates key constitutional principles:
- Article 22(2): By enabling non-judicial magistrates to authorize extended detention, it erodes judicial control over custody.
- Article 21: By expanding police custody duration, it threatens personal liberty and due process.
- Article 50: By merging judicial and executive functions, it subverts the doctrine of separation of powers.
This section, in its present form, represents a constitutional regression rather than procedural reform.
8. Conclusion: A Case for Legislative Reconsideration
Section 187 of the BNSS, though intended to streamline investigation procedures, introduces fundamental infirmities that weaken constitutional protections and judicial oversight. It extends police powers, narrows judicial discretion, and undermines the structural safeguards embedded in the Cr.P.C.
True reform should enhance efficiency without compromising liberty. The deletion of “Judicial” from “Magistrate,” the extended window for police custody, and the empowerment of non-jurisdictional magistrates are all steps in the wrong direction.
Unless amended, Section 187 risks constitutional invalidation for violating the basic tenets of criminal justice.
Disclaimer
The views and opinions expressed in this article are solely those of the author, R.K. Samyal, Advocate, based on his independent legal interpretation of the Bharatiya Nagarik Suraksha Sanhita, 2023. They do not represent the views of any institution, forum, or organization with which the author is associated. This article is intended solely for educational and analytical purposes and should not be construed as legal advice.