Slight Tweak In New Regime Qua S. 187(3) BNSS In Juxtaposition To S. 167(2) CrPC Has Not Changed Purpose Of Provision: Karnataka HC
The Karnataka High Court remarked that a slight tweak in the new regime qua Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in juxtaposition to Section 167(2) of the Criminal Procedure Code (CrPC) has not changed the purpose of the provision.
The Court remarked thus in Writ Petitions preferred against the solitary Order of the Judicial Magistrate First Class (JMFC) by which it rejected the requisition of the prosecution for grant of Police Custody of the accused.
A Single Bench of Justice M. Nagaprasanna observed, “A slight tweak in the new regime qua 187(3) of BNSS in juxtaposition to Section 167(2) of the earlier regime – the Cr.P.C. has not changed the purpose of the provision. … The phraseology of the words ‘ten years or more’ found in sub-clause (i) of Section 187(3) of the BNSS would mean, the minimum threshold punishment imposable on an offence under the BNS should be ten years.”
The Bench noted that, in Section 167(2) CrPC, 90 days of investigation is permitted, where imprisonment is for a term not less than ten years and in BNSS, the same 90 days is permitted where imprisonment is for a term of ten years or more.
“In the considered view of this Court, it is only a play of words”, it added.
Additional State Public Prosecutor (Addl. SPP) B.N. Jagadeesha appeared on behalf of the Petitioner while Senior Advocate Hasmath Pasha, Advocates B. Lethif, and Kariappa N.A. appeared on behalf of the Respondents.
Brief Facts -
In October 2024, the Original Complainant’s brother died, leading to registration of crime for the offences punishable under Sections 190, 308(2), 308(5), 351(2), and 352 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Pursuantly, the accused persons were arrested and produced before the Magistrate after which they were remanded to judicial custody. The Magistrate on a requisition made by the Police, granted police custody of Accused Nos. 1 to 3 and during the investigation, the prosecution came across certain voice samples of the accused.
The prosecution then filed an Application seeking police custody and this was objected by the accused. The concerned Court passed an Order by which police custody being sought, was rejected on the ground that the period of investigation in the case was 60 days and the police custody available in terms of Section 187 of BNSS is within 40 days. Those 40 days having lapsed, there was no warrant to grant police custody was the reason rendered by the Court to reject the Application/requisition. Challenging this, the Petitioner was before the High Court.
The High Court in view of the above facts, said, “Section 167 (2) had also the same phraseology but it read as 90 days where investigation relates to an offence with death, imprisonment for life. These words are identical for imprisonment for a term of not less than ten years. The marked difference between Section 167 (2) of Cr.P.C., and Section 187 of BNSS is only in these words. … Section 167(2) using the words ‘not less than ten years’ would be, that the imposable punishment would be at ten years. Section 187(3) using the words ‘ten years or more’, is to the same effect, it only depicts a threshold sentence of ten years.”
The Court observed that if the prosecution wanting 90 days to file their final report, it will only be for an offence which has minimum sentence of ten years and if the offence now alleged against the accused are noticed, it does not have a threshold minimum sentence of ten years, but it is extendable up to ten years.
“Therefore, the term can be between one year to ten years. If it is one year to ten years, Section 187(3) of BNSS cannot be pressed into service for the purpose of police custody or any other reason for that matter, as the investigation for offences punishable upto ten years must get completed in 60 days. I hasten to add that it is only in few cases where it relates to life, death or ten years or more, the investigation can be for 90 days. In all other offences under the IPC or BNS, investigation must complete within 60 days”, it further clarified.
The Court added that there can be no other interpretation and the purport of the words “up to five years or five years and more or extendable up to five years, or up to ten years”, have borne judicial interpretation from time to time.
“The language deployed of the statute i.e., BNSS projects no ambiguity. Therefore, the order rendered in terms of Section 187 does not also brood any ambiguity. There is no error, much less an error apparent on the face of the record. Therefore, it becomes a clear case where if the offence is punishable where term can be extended up to ten years, it could vary from one to ten. The police custody in such cases would be available for 15 days within the first 40 days of investigation. 15 days could vary from day one to day forty, but the total would be 15 days. If the offence is punishable with ten years or more with the minimum sentence being ten years, the police custody would range from day one to day sixty, 15 days in total”, it also noted.
The Court said that, if the offences now alleged are taken note of against these accused, the maximum punishment is that can be extended up to ten years and is not ten years or more and, therefore, the police custody should be within forty days of investigation and final report is filed within 60 days of investigation.
“It is brought to the notice of the Court that the prosecution filed the application invoking Section 140 of BNS. If that has been invoked, it is for the concerned Court to pass orders by regulating its procedure. The interpretation that fell to the hands of the Court is interpreted as aforesaid”, it concluded.
The Court, therefore, summarised the findings as below –
• The offence in the case at hand, does not bear a minimum threshold sentence of ten years, but is extendable or to an extent of ten years, which would mean, discretion available to the concerned Court to impose punishment up to ten years. Therefore, the minimum threshold is not ten years.
• Completion of investigation in a punishment which is up to ten years is undoubtedly 60 days. Rest of the other offences, be it death, life imprisonment of ten years and more, would be 90 days.
• If the investigation is to complete within 60 days, the period of police custody would run from day one day forty of registration of the crime. If it is 90 days, it would run from day one to day 60, maximum period in both the cases is 15 days of police custody.
• In the case at hand, the offence is punishable up to ten years, Therefore, the police custody is only from day one to day forty.
Accordingly, the High Court rejected the Petitions.
Cause Title- State of Karnataka v. Kalandar Shafi & Ors.
