Bharatiya Nyaya Sanhita, 2023: A Critical Examination of Section 187(2)

The Bharatiya Nyaya Sanhita, 2023 (BNSS) is a significant legislative development aimed at modernizing criminal procedure in India. However, within its framework, certain provisions have raised concerns. One such provision is Section 187(2), which has been highlighted for its potential to undermine the rights of accused individuals. This article delves into the paradoxical implications of this section, particularly in the context of hit-and-run cases, and evaluates its impact on justice and liberty.

Understanding Section 187(2) of BNSS

Section 187 of BNSS deals with the procedure when an investigation cannot be completed within twenty-four hours of an arrest. The section is divided into two subsections:

1. Section 187(1): Mandates that if an investigation cannot be completed within twenty-four hours, the officer in charge must forward the accused to the nearest Magistrate, along with a copy of the diary entries related to the case.
2. Section 187(2): Provides the Magistrate with the authority to authorize the detention of the accused in “such custody as the Magistrate thinks fit” for a term not exceeding fifteen days in total, within the initial forty or sixty days, depending on the case. This custody can be either police or judicial, and can be divided into parts within the allowed period.

The Paradox and Its Implications

The primary issue with Section 187(2) lies in its potential for misapplication due to its ambiguous language. The provision does not explicitly limit the maximum duration of police custody, unlike the corresponding clause in the Cr.P.C. (Code of Criminal Procedure), which restricts police custody to fifteen days. Instead, Section 187(2) permits a Magistrate to alternately authorize police custody and judicial custody, potentially leading to extended periods of police detention.

For instance, a Magistrate could authorize fifteen days of police custody, followed by a day’s judicial custody, and then another fifteen days of police custody, and so on, within the first forty or sixty days. This could result in prolonged periods of police custody, well beyond what was presumably intended by the drafters of the BNSS.

Legislative Intent vs. Legislative Reality

The apparent gap between legislative intent and the actual wording of Section 187(2) reflects a significant concern. The Home Minister’s speech in the Lok Sabha suggested that the total duration of police custody should be capped at fifteen days within the initial forty or sixty days. However, this verbal clarification does not amend the statutory language and thus fails to address the underlying issue in the legal text.

The absence of a clear restriction on police custody duration in the statute itself allows for potential misuse. This discrepancy highlights a broader issue with legislative drafting where the precision of legal language is crucial to ensure that the statute operates as intended.

Judicial Interpretation and the Need for Reform

Justice M.N. Venkatachaliah’s observation in Dinesh Chandra Jamnadas Gandhi v. State of Gujarat underscores the necessity for precise legislative drafting. According to Justice Venkatachaliah, the degree of precision in legal text should prevent both misinterpretation and manipulation.

In the case of Section 187(2), the lack of specificity opens avenues for legal loopholes and misapplication. The section, as currently worded, can lead to extended periods of police custody that may infringe on the liberty of accused persons. This is particularly concerning in hit-and-run cases, where the accused could be subjected to prolonged detention, affecting their fundamental rights.

Proposed Amendments and Future Directions

To address the issues with Section 187(2), a few amendments could be considered:

1. Explicit Limitation on Police Custody: Incorporating a clear restriction on the maximum duration of police custody, similar to the Cr.P.C., would align the provision with legislative intent and prevent misuse.
2. Clarification of Custody Terms: Revising the language to explicitly define the terms and limits of custody could enhance clarity and reduce the risk of legal loopholes.
3. Judicial Oversight: Ensuring that extended periods of custody require a higher level of judicial scrutiny could safeguard against potential abuses.

The BNSS represents a progressive step in the evolution of criminal law in India. However, for it to effectively serve justice and protect individual rights, careful attention must be given to its provisions. Section 187(2) of BNSS, with its current ambiguities, illustrates the critical need for precision in legal drafting to balance the imperatives of justice and individual liberty.

~Laksh Verma(Trainee)