The Supreme Court clarifies the scope of police custody under the BNSS

Story so far:

The Supreme Court recently ruled in The State of Andhra Pradesh vs Suda Suresh Veera Venkata Naga Raju that Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) widens the window during which an investigating agency can seek police custody. Such detention is now available in parts under the BNSS, although in the aggregate it does not exceed 15 days during the first 40 or 60 days of the total permissible period of detention, rather than being limited to only the first 15 days of detention.

The court also decided that although the right to meet with the defense counsel of the election is guaranteed under Section 38 of the BNSS, it does not in any case count on the continuous, permanent physical presence of the defense counsel for the entire duration of each interrogation.

Case considered by DV

In a custodial death case, where the dead body of the deceased victim remained unaccounted for, the original hard drives of the CCTV system were yet to be discovered and discovery led by the Bharatiya Sakshya Adhiniyam (BSA) was imminent, the Magistrate of the Court granted eight days of police custody (allowing the accused to be present for 12 days) to be absent. in police custody. One of these two defense attorneys could be present at any time during the investigation. The order made it clear that “under no circumstances shall the period of police custody granted under this order be extended”.

During the appeal, the Andhra Pradesh High Court modified some of the conditions relating to the period of police custody and the presence of a defense lawyer during the investigation. The State therefore challenged the above conditions in the Supreme Court on the ground that these conditions directly interfered with the rights of the investigating officer to conduct an unhindered investigation.

The Supreme Court ruled that the concerns expressed by the investigative body were realistic and justified, bearing in mind the statutory regime under the BNSS, which widens the field of police custody. A magistrate or a court in the exercise of its power of supervision cannot set an absolute and non-extendable outer limit on detention, because such a limit precludes the application of Section 187(2) of the BNSS, regardless of what the investigation may yet reveal.

The court therefore allowed 7 days of (additional) police custody so that the total period of police custody, including the time granted by the lower courts, would not exceed 15 days.

Current Police Detention Act

Section 58 of the BNSS provides that no person arrested by the police without a warrant can be detained for more than 24 hours, unless authorized by a judge under Section 187.

Section 187(2) of the BNSS provides that if it appears to the investigating officer that the investigation cannot be completed within 24 hours and there are reasons to believe that the charge is justified, the judge may authorize the detention of the accused for a period not exceeding 15 days in whole or in part, at any time during the initial 600 days or days from the commencement of detention. 90 days depending on the circumstances.

Section 187(3) provides that the judge may authorize the (judicial) detention of the accused for more than 15 days, if he is satisfied that there are sufficient reasons for this, for a period longer than – (i) 90 days, if the investigation concerns a crime punishable by death, life imprisonment or imprisonment for more than 10 years; ii) 60 days if the investigation relates to another crime. In case the investigation is not completed within the above stipulated period, the accused may be released, which is commonly known as bail in default.

The Supreme Court held in the Suda Suresh case that this legislative change was intended to respond to situations where new facts, discoveries or clues may emerge during the course of an investigation. For this reason, the police detention window has been extended from the original 15 days up to 40 days or 60 days of investigation.

Previously, Section 167 of the Criminal Code stipulated that the detention of the accused in a police cell cannot be allowed for more than 15 days. However, during this first period of 15 days, the magistrate could change the nature of custody from judicial to police and vice versa.

In the presence of a lawyer

Section 38 of the BNSS stipulates that “when any person is arrested and questioned by the police, he has the right to meet with a lawyer of his choice during the interrogation, but not during the interrogation”. This provision is pari materia to Section 41-D CPC.

The Supreme Court held that a plain reading of the provision makes it clear that it does not contemplate the continuous and permanent physical presence of counsel throughout each interrogation, whether visual or audible distance is maintained. The court held that an unqualified claim to continuous presence would go beyond what is contemplated by section 38 of the BNSS itself. The court therefore modified the condition imposed by the High Court and ruled that such a lawyer would be allowed to remain at the place of questioning only where he could see the accused respondent. Furthermore, the lawyer must not interfere in the investigation process at any cost.

Regarding the issue of video recording and camera documentation, the Court also decided that instead of a continuous video recording of the accused’s transit between individual locations, the requirement would be met by an audiovisual recording of the actual hearing of the interrogation and any discovery or enforcement proceedings conducted with the accused.

(RK Vij is a former Indian police officer.)

Published – 13 Aug 2026 07:30 IST