New Delhi: From the period for sending an accused from police custody to judicial custody and vice versa, to the use of handcuffs, the new criminal law bills passed by Parliament Wednesday to replace the Indian Penal Code and the Code of Criminal Procedure, make several provisions harsher in many ways.
The government had introduced three bills to replace existing criminal laws — Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872 — in Parliament in August this year.
The bills were then referred to a 31-member parliamentary standing committee on Home Affairs, headed by Bharatiya Janata Party (BJP) MP Brij Lal, for review. This panel adopted its report on the bills on 7 November, with opposition MPs pointing out several errors and recommending more than 50 changes.
The government then withdrew the criminal law bills and reintroduced newer versions of the Bharatiya Nyaya Sanhita (BNS-II to replace the IPC), the Bharatiya Nagarik Suraksha Sanhita (BNSS-II to replace the CrPC), and the Bharatiya Sakshya Bill (BSB-II to replace the Indian Evidence Act).
The bills incorporate a few changes recommended by the House panel, while ignoring several of its recommendations.
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Police & judicial custody
Existing provision: Section 167 of the CrPC talks about custody — judicial and police — during the investigation stage.
Judicial custody means that the accused has been detained by a judicial magistrate and is lodged in central or state prison. As against this, in police custody, the accused is detained in a police station or lockup, and is in the physical custody of the police.
Currently, in the first 15 days of detention, the custody can be changed from police to judicial and vice-versa, and can also be intermittent.
Though a few Supreme Court benches have disagreed, the apex court has ruled in more cases than one that police custody can be authorised only in the first 15 days of remand once the accused is produced before a magistrate, even if the accused is unavailable for interrogation by the police for some days during this 15-day period.
This, the court asserted, was done to “protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers”.
Proposed provision: The new bill settles this by allowing detention in police custody for 15 days — in whole or in parts — at any time in the first 40 or 60 days out of the investigation period of 60 or 90 days (depending on the crime), respectively, thereby extending the reach of police custody to later stages of the probe and making an accused more vulnerable to procedural persecution.
Further, courts are usually more receptive to allowing bail applications during judicial custody of an accused. With the possibility of the accused being sent to police custody at any point during the investigation period, chances of him securing bail even during judicial custody might shrink.
The parliamentary standing committee on Home Affairs had in its report taken note that clause 187 of the first bill could be vulnerable to misuse by authorities and needed further clarity.
According to the report, experts consulted by the committee had recommended simplifying clause 187, which they found to be “too complex”.
They pointed out that the general rule is that police custody should be taken in the first 15 days of remand, and the window of 40/60 days for taking custody should only be utilised as an exception, when the accused is trying to avoid police custody or due to extraneous circumstances, which are not within the control of the investigating officer.
The panel suggested that for more transparency and accountability, the investigating officer, at the time of seeking police custody, must record the reasons as to why custody was not sought during the initial 15-day remand.
The House panel then recommended that a suitable amendment should be brought in to provide greater clarity in the interpretation of the proposed provision.
15-day remand & ‘default bail’
Existing provision: The Constitution and the CrPC prohibit detention of an accused in custody beyond 24 hours, if not produced before a magistrate during that time.
The magistrate is empowered to extend custody [either police or judicial] up to 15 days if the investigation cannot be completed within 24 hours since the detention of the accused.
Section 167 of the CrPC, however, allows the magistrate to authorise the detention of the accused person — “otherwise than in the custody of the police” — beyond a period of 15 days.
Simply put, this section allows the magistrate to extend judicial custody beyond 15 days, up to a maximum of 60 or 90 days, depending on the extent of punishment prescribed.
Under Section 167(2), an accused can be detained in custody for a maximum of 90 days for a crime punishable with death, life imprisonment or a sentence of over 10 years.
This duration is 60 days in the case of other offences.
In some special statutes such as the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the period of detention can extend to 180 days. If the investigative agencies do not complete their investigation within this time, the arrested person is entitled to ‘default bail’.
Proposed provision: Clause 187 of BNSS-II, which seeks to replace Section 167 of the CrPC, while retaining the “default bail” provision, allows detention in custody to be authorised beyond the 15-day period, without the stipulation that it must be “otherwise than in police custody”. This was being understood as extending the maximum time allowed for an accused to be kept in police custody, to 60 or 90 days from the earlier 15.
A few critics felt that this omission may be inadvertent, but others feared that this may impinge on the rights granted to an accused under Article 21 of the Constitution. It has also been pointed out that extended police custody exposes the accused to increased likelihood of custodial violence, and makes them vulnerable to forced confessions.
Union Home Minister Amit Shah has clarified, however, that it was a misconception that the new bill increased total police custody for an accused after initial arrest from 15 to 60 days.
Clarifying that the total police custody cannot exceed fifteen days, he said that the provision is introduced to allow flexibility, so that police can seek custody in different spells over 40 or 60 days as the case may be. In any case, the clarification must be added to the new bill to make the provision clearer and to prevent its misuse.
Use of handcuffs
Section 43 of BNSS-II allows a police officer to use handcuffs while making an arrest or producing such a person in court, keeping in view the nature and gravity of the offence.
Handcuffs, according to the proposed code, can be used on a person who is a habitual or repeat offender, or who escaped from custody, or who has committed an offence of organised crime, terrorist act, drug-related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offence against children, or offence against the State.
The Supreme Court has held in the past that handcuffing is prima facie inhuman, unreasonable, arbitrary and as such repugnant to Article 21, ruling that in the extreme circumstances that a prisoner needs to be handcuffed, the escorting authority must record reasons for doing so, and the police need to obtain special orders from the magistrate for the same.
The provision, however, does not incorporate these safeguards.
(Edited by Amrtansh Arora)
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