Guest Post: Section 187 of the BNSS

(This is a guest post by Aadi Belhe)

The President gave assent to the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (‘BNSS’) on the 25th of December, 2023. This Act is intended to replace the Code of Criminal Procedure, 1973 (‘Code’) due to its “colonial” nature. Section 187 of the BNSS deals with pre-trial detention in cognizable cases and is the equivalent of section 167 of the Code. This piece argues that the text of section 187 suffers from a fundamental issue brought about by an attempt on the part of Parliament to change the existing legal position on pre-trial custody. Further, I point out that the text of section 187 is such that courts cannot salvage it.

Bewildering Nature of Section 187

The Supreme Court has held in multiple cases such as CIT, Agri. v. Keshab Chandra Mandal and Kanailal Sur v. Paramnidhi Sadhu Khan that the words of a statute must be given effect to, irrespective of the consequences, if their meaning is plain. I would argue that this rule of interpretation cannot be applied to section 187 since a plain reading of this section is impossible.

To discuss the issue, it is necessary to first look at the relevant parts of section 187:

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate. 

(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. 

(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; 

(ii) sixty days, where the investigation relates to any other offence, 

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

The issue with section 187 is present in section 187(2) and its interplay with 187(3). A corollary of the power to grant detention “at any time during the initial forty days or sixty days” is that the 15 days of detention ordered under 187(2) need not be the first 15 days of the detention period. In other words, out of the total detention period of 60 or 90 days provided for under section 187, it is not necessary that the first 15 days of detention be ordered under section 187(2). Further, this detention can be in "such custody" as the court thinks fit.

This gives rise to a conundrum, and flowing from it are some serious problems. The conundrum is that now a court has power to grant custody at any time during the first 40 or 60 days of one's detention, such that detention may be from Day 11 to Day 20 only, or this period coupled with Day 25 to Day 28. Which brings the question — what about detention prior to Day 11, and what about the intervening period between Day 25 and Day 28? Section 187(2) seems to assume the existence of some other power-conferring provision under which detention can be ordered during those periods in the first 15 days of detention when the accused is not detained under sub-section (2). Section 187(3) cannot be used to plug these gaps since it becomes applicable only after the 15th day of detention under section 187(2) is over. 

The conundrum may seem a theoretical problem, but is arguably quite a serious problem as it undermines what appears to be the legislative intent behind section 187(2). It can be inferred this intent was to change the position obtaining under Section 167(2) of the Code since it would not have otherwise made Section 187(2) a modified version of section 167(2). Currently, as clarified by the Supreme Court in CBI v. Anupam J. Kulkarni (‘Anupam’), police custody cannot be granted beyond the initial period of 15 days provided under section 167(2). While a division bench of the Court has expressed its reservations regarding the correctness of this view in V. Senthil Balaji v. State, no judgment has overruled Anupam. It would thus seem to be the case that the main purpose behind the changed wording of section 187(2) was to ensure the nullification of Anupam by extending the period during which detention in police custody could be ordered. Get rid of the first fifteen days by expanding it statutorily to the first forty or sixty days. 

If we are correct to assume that this was the intent, it has gotten severely muddied through the drafting of section 187. Sub-clause (2) does not clarify the only detention in police custody is being conceived of, and just says that the court may authorise detention in "such custody" as deemed fit. Similarly, sub-clause (3) does not specify the kind of detention beyond fifteen days i.e., whether detention will be in police custody or judicial custody. Read together then, section 187(2) and (3) make very little sense, because while section 187(2) talks of fifteen day remands up to a certain period (first 40 / 60 days) to possibly take us beyond the first fifteen day logic, sub-clause (3) says that detention beyond fifteen days is possible and to an extent renders 187(2) redundant. 

Courts Cannot Fix the Clause

Arguably, the only sensible way to apply section 187 would be to use it exactly like section 167 of the Code is used. This entails using section 187(2) for the first 15 days of detention and section 187(3) for the rest of the detention period. Still, this would not resolve the problem fully, creating serious gaps which can result in scenarios such as authorising detention in police custody for much more than fifteen days.

The text of the section is such that nothing short of adding or subtracting words from the section is going to clear up this confusion. Thus, this situation fits well within the rule laid down in Bhavnagar University v. Palitana Sugar Mill (Pvt) Ltd. In this case, the Supreme Court had laid down that the wording of a provision can be altered only if restraining from doing so would lead to absurdity or unworkability.

However, this gives rise to a further difficulty. In what manner should section 187 be altered by courts? In Inco Europe Ltd. v. First Choice Distribution (A Firm) (‘Inco’), the House of Lords stated that the driving aim of alteration must be conformity with the purpose of the provision. This case also laid down that courts should keep in mind the wording which might have been used by Parliament had it noticed the error before enactment happened. While not binding on Indian courts, it provides a sound principle of statutory interpretation. As mentioned earlier, section 187 is so incomprehensible that the manner in which Parliament intended to change existing law is not clear. Thus, it is not possible to arrive at any reasonably certain conclusion regarding the words which might have actually been used by Parliament.

However, it has been laid down in cases such as Commissioner of Income Tax v. M/s Hindustan Bulk Carriers that statutory provisions have to be interpreted in such a manner that they are workable in nature. Thus, the Supreme Court will have to give some interpretation to section 187 to make it coherent if a case revolving around that section were to come before it. I would argue that subtracting the words “at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days” from section 187(2) would be the best possible way forward. This would bring the law back to the position under the Code. While this would not be in consonance with the intention of Parliament, it would not be possible for the Supreme Court to do anything else since this intention is itself unascertainable.

Due to the above reasons, it would be best if Parliament itself passed an amendment as soon as possible to rectify section 187. This is unfortunate given the fact that sections like section 187 are going to be heavily used once the BNSS comes into force on 1st of July 2024. It seems probable that the implementation of the BNSS is going to be rough when it comes to the pre-trial stage due to section 187.

Conclusion

Keeping aside the merits of the change which Parliament intended to bring about through section 187(2), it is clear that it has failed to bring it about in a comprehensible manner. The propensity of Parliament to pass poorly drafted laws had been criticised a few years ago by the then Chief Justice of India N.V. Ramana. It is rather perturbing that Parliament is not willing to take such criticism to heart. One can only hope that Parliament soon amends section 187 and does not hastily pass laws in the future, at least insofar as crucial legislations like the BNSS are concerned.