Introduction
BNSS (Bhartiya Nagrik Suraksha Sanhita) has been enacted to replace the earlier Code of Criminal Procedure, 1973, which provides the general procedure for criminal proceedings. Crpc has been replaced with the BNSS, as today, in 2024, India can’t afford to be governed by the decades-old colonial laws. Accordingly, the BNSS has been based on the current needs of India and prescribes the time period for various proceedings within which the proceedings are required to be completed, for example, trial, appeal, and pronouncement of judgment. This has been done so for the speedy disposal of the cases.
Apart from that, other changes have also been made in the BNSS, and one such change is with respect to the period of remand. Earlier, Section 167 of the Crpc dealt with the period of remand and other related things, which now has been replaced with Section 187 of the BNSS. It is found that the remand law in BNSS is more stringent and oppressive in nature. It is also alleged that this change in law of remand is against the rights of the accused and is more colonial in nature. It is a negative change in the BNSS.
This law noted aims to present before the readers what is remand, the law on remand and a comparison of the law of remand between the two laws.
What is remand?
To put on remand means to take the custody of the person and keep him in confinement. Generally, it is done during the investigation process so that the presence of the accused is secured. Remand is of two types: judicial remand and police remand.
In police remand, the accused remains under direct surveillance and in the custody of police officers. The police officers may directly interrogate the accused while he is in custody. However, in judicial remand, there is no direct presence of the police officers. The accused remains in judicial custody.
Law on Remand in India
The law on remand is governed by the Constitution, the principles of criminal jurisprudence, and the Code of Criminal Procedure (present BNSS). Firstly, according to the constitutional principles, the order of remand (whether judicial or police) directly interferes with the rights of the accused of personal liberty and right to life. Therefore, an order of remand must be ordered after considering the nature of the offense and the background of the accused. It is only when the Court is satisfied that the presence of the accused is required for the investigation and otherwise it can’t be secured that an order of remand may be made.
Also, according to the principles of criminal jurisprudence, the accused is innocent until proven guilty, and therefore, individual liberty and personal freedom should not be infringed without any strong basis. Section 167 of the Code of Criminal Procedure contains the provisions with respect to remand. The section contains the provisions relating to judicial remand and police remand.
The Section clearly limits the period of remand for the maximum period of 90 days when the offense is punishable with life imprisonment, death, or imprisonment of more than 10 years; otherwise, the period of remand is 60 days. Section 167 clearly states that in the total period of remand, the police remand may be ordered for only 15 days, and that too in the initial period. After the first 15 days are over, the court can’t order for the police remand. This interpretation was also confirmed by the Supreme Court at various occasions.
In the case of CBI v. Anupam Kulkarni (1992), the Supreme Court held that police custody can be taken only for the initial 15 days, and after that only judicial custody is allowed. This is done to protect the accused from the harassment and torture of the police officers.
Changes done in BNSS
The rule of remand is reflected under Section 187 of the BNSS. According to Section… now the period of police remand or the police custody may be ordered only for the 15 days. However, such an order may be even after the initial 15 days. It means that the 15 days of police remand may be ordered from the 90 days, which may be initial, in between, or even at the end.
It is argued that it is in conformity with other judgments of the Supreme Court, as in Balaji Senthil v. State and CBI v. Vikas Mishra (2023). In these cases, the Supreme Court has also stated that the period of police remand may be for the initial period or may be ordered for a later point of time. However, the total period must not extend 15 days at any cost.
Conclusion
The government has replaced the decades-old CrPC with the BNSS with the objective of reforming the system and protecting the rights of individuals. However, the provision of remand is one such negative change that takes us back to the colonial era. It is highly debated. Therefore, this provision required reconsideration.
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