The newly introduced Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has replaced Section 167 of the Code of Criminal Procedure (CrPC), 1973, concerning the permissible period of remand a magistrate may authorize when an arrestee is presented by the police. However, the language of Section 187, although aimed at addressing previous ambiguities, has inadvertently introduced new points of confusion, arguably misrepresenting legislative intent regarding the duration and division of police custody

Contextual Background and Judicial Precedents:

Historically, the interpretation of Section 167 of the CrPC was clear on the statutory limitation of 15 days for police custody, as established by the Supreme Court in CBI v. Anupam J. Kulkarni (1992). This judgment clarified that police custody could only be granted within the first 15 days of an individual's remand. Subsequent judgments, including Budh Singh v. State of Punjab (2000), upheld this view, which reflected legislative intent that the initial 15 days should be the maximum period for police custody. However, in CBI v. Vikas Mishra (2023), the Supreme Court questioned this understanding and suggested that the interpretation in Anupam J. Kulkarni might require reconsideration, opening the discussion on whether the 15-day police custody period could be split or granted at any point within the 60- or 90-day investigative period.

This debate prompted further judicial scrutiny, culminating in the recent referral by the Supreme Court in V. Senthil Balaji v. State (2023), where the Court recommended that a larger bench resolve the question of whether the maximum 15-day police custody should be restricted to the initial 15 days or distributed across the entire investigation period. The newly enacted Section 187 was introduced to settle this issue legislatively but appears to fall short due to its drafting language.

Dissecting Section 187: Legislative Ambiguities and Points of Concern:

Section 187 allows a magistrate to authorize up to 15 days of police custody "in the whole, or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be". While this language ostensibly enables flexibility, it inadvertently creates ambiguity, particularly by omitting the phrase "otherwise than in custody of police". This omission, crucial to distinguishing judicial custody from police custody, could be interpreted to mean that police custody may exceed the previously intended limitations, potentially extending throughout the entire remand period.

The following table illustrates the key distinctions between Section 187 of the BNSS, 2023, and the corresponding Section 167 of the CrPC, 1973, while pinpointing problematic areas in the current BNSS drafting:

Provision and Purpose	BNSS - Section 187 (2023)	CrPC - Section 167 (1973)	Highlighted Issues in BNSS
Purpose of Section	Procedure for remand when investigation cannot be completed within 24 hours of arrest	Procedure for remand when investigation cannot be completed within 24 hours of arrest	No substantive change in purpose; however, new interpretative issues emerge from BNSS phrasing.
Maximum Police Custody	Up to 15 days, "in whole or in parts, at any time during the initial 40/60 days out of detention period of 60/90 days"	Limited to 15 days in total, specifically within the first 15 days	Ambiguity may lead to unintended interpretations of extending police custody beyond 15 days, conflicting with the established precedent under CrPC's restricted scope for police custody.
Judicial Custody Limits	Judicial custody authorized for the remainder of 60/90 days, depending on offense gravity	Judicial custody similarly authorized up to 60/90 days	Omits the term "otherwise than in the custody of police," risking judicial custody being confused with police custody, challenging custody boundaries set by prior CrPC provisions.
Presentation Requirement	Initial physical presentation before magistrate required; subsequent via electronic means permitted	Consistent with CrPC, permitting initial physical presentation and later electronic means	Consistent with CrPC; no noted issues.
Authority of Second Class Magistrates	Restricts police custody authorization to specially empowered Second Class Magistrates	Similarly restricts authorization to specially empowered Second Class Magistrates	Consistent with CrPC; no noted issues.
Detention When Judicial Magistrate Unavailable	Permits up to 7 days of detention by an Executive Magistrate if Judicial Magistrate is unavailable	Permits up to 7 days of detention by an Executive Magistrate if Judicial Magistrate is unavailable	Consistent with CrPC, but may benefit from procedural specifics on authority transfers if multiple magistrates are involved.
Chief Judicial Magistrate Oversight	Mandates forwarding detention orders to Chief Judicial Magistrate	Mandates forwarding detention orders to Chief Judicial Magistrate	Consistent with CrPC; no noted issues.
Investigation Timeline in Summons Cases	Permits magistrate to halt investigation if incomplete within six months unless special grounds exist	Permits magistrate to halt investigation if incomplete within six months unless special grounds exist	Consistent with CrPC; no noted issues.
Special Provisions for Women and Minors	Requires females under 18 to be detained in remand homes or recognized social institutions	Requires females under 18 to be detained in remand homes or recognized social institutions	Consistent with CrPC; no noted issues.

Critical Points of Legislative Ambiguity and Oversight:

• Absence of "Otherwise than in Custody of Police": The BNSS's Section 187 does not include the term "otherwise than in custody of police" within sub-section (3), a phrase essential in clarifying that judicial custody, not police custody, is intended for the period exceeding the initial 15 days. Without this distinction, there is a risk of interpreting the statute to allow police custody to extend through the entire remand period, contravening prior interpretations of CrPC Section 167.
   
• Ambiguity in the Language: The phrase "in the whole, or in parts, at any time during the initial forty days or sixty days out of the detention period" is placed under sub-section (2), which governs both police and judicial custody. To mitigate misinterpretation, this language should be relocated to sub-section (3), which specifically addresses the detention period's limits.
   
• Incoherent Structuring of Sub-Sections: Structurally, Section 187 would benefit from swapping sub-sections (2) and (3) for better clarity. Sub-section (3) could outline the maximum 60/90-day period, followed by sub-section (2), which specifies the initial police custody limitations. This adjustment would streamline interpretation and clarify custody boundaries within the broader detention timeline.
  Proposed Change of Section 187 for Enhanced Clarity:

To address these ambiguities, the following restructuring of Section 187 could better align with legislative intent:

1. The magistrate may authorize police custody for up to fifteen days, in whole or in parts, at any time during the initial forty or sixty days of the detention period of sixty or ninety days, respectively, in cases where bail has not been granted or has been cancelled.
    
2. Judicial custody beyond the fifteen-day period may be authorized by the magistrate if adequate grounds exist, provided that the total detention period shall not exceed:
   
   1. Ninety days for offenses punishable with death, life imprisonment, or imprisonment for ten years or more.
   2. Sixty days for any other offense.
   3. Judicial Implications of Legislative Ambiguity:

Without further legislative amendments, Section 187's current wording risks triggering interpretive challenges and prolonged judicial review. The uncertainty over police custody's duration may necessitate repeated court interpretations, contributing to judicial backlogs and delaying justice delivery.

Conclusion: Addressing Precision in Section 187 of BNSS:
The current drafting of Section 187 in the Bharatiya Nagarik Suraksha Sanhita, 2023 features the critical importance of precision in legislative language, particularly within criminal procedural statutes affecting individual liberty. To avoid misinterpretation and ensure true adherence to legislative intent, statutory language should be crafted with utmost clarity. Given the high caseloads and pressing need for judicial efficiency, ambiguous provisions like Section 187 may impede the expeditious dispensation of justice, warranting an immediate legislative review to enhance the section's clarity and structural coherence.