19 December 2024 - Legal Updates

1. Section 187 BNSS | Police Custody Must Be Within First Forty Days For Offences Punishable Upto 10 years Imprisonment: Karnataka High Court

The Karnataka High Court has ruled that, under Section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), police custody for up to 15 days must be sought within the first 40 days for offences punishable by up to 10 years of imprisonment. The court clarified that the phrase "punishable for ten years or more" in Section 187 BNSS refers to offences where the minimum punishment is 10 years, not those with a maximum punishment of up to 10 years. The court further explained that for offences carrying a punishment of between 1 and 10 years, police custody under Section 187(3) BNSS cannot be sought, as investigations for such offences must be completed within 60 days.

Section 187(3) stipulates that a Magistrate may authorize the detention of an accused person for more than 15 days if satisfied that sufficient grounds exist for doing so. However, the total period of detention under this sub-section shall not exceed: (i) 90 days for investigations related to offences punishable by death, life imprisonment, or a term of 10 years or more; (ii) 60 days for investigations related to other offences. Once the 90-day or 60-day period expires, the accused must be released on bail if they are willing and able to provide bail.

In his December 13 order, Justice M. Nagaprasanna stated, “In cases where the offence is punishable by a term that can extend up to ten years, the sentence can range from one to ten years. Police custody in such cases is allowed for 15 days within the first 40 days of the investigation. The 15-day custody can be spread across any time between day one and day forty, but the total duration will not exceed 15 days. However, if the offence carries a punishment of ten years or more, with a minimum sentence of ten years, the police custody will extend from day one to day sixty, with the total duration being 15 days.”

For context, Section 187(3) of BNSS corresponds to Section 167(2) of the Criminal Procedure Code (CrPC). Under Section 167(2) of the CrPC, the investigation must be completed within 90 days for offences punishable by death, life imprisonment, or a term of ten years or more. For other offences, the investigation period is 60 days. The BNSS mirrors this provision, allowing up to 90 days for investigations involving offences punishable by ten years or more.

In comparing the provisions, the court remarked, “In this Court's view, it is merely a matter of semantics. While Section 167(2) uses the phrase 'not less than ten years,' meaning the punishment imposed would be at least ten years, Section 187(3) uses 'ten years or more,' which essentially conveys the same idea, indicating a minimum sentence of ten years.”

The court further explained, “If the prosecution seeks 90 days to submit their final report, it can only apply to an offence carrying a minimum sentence of ten years. For offences punishable between one and ten years, Section 187(3) of BNSS cannot be invoked for police custody or any other purpose, as investigations into such offences must be completed within 60 days. It should be noted that only in cases involving life sentences, death sentences, or sentences of ten years or more can the investigation period extend to 90 days. For all other offences under the IPC or BNSS, the investigation must be completed within 60 days. This is the only interpretation that can be accepted,” the court concluded.

The court further clarified, “In Section 187 of BNSS, the phrase 'an offence punishable for ten years or more' clearly means that the minimum punishment is ten years, not a punishment of up to ten years.”

It observed, “For offences with a punishment of up to ten years, the investigation must be completed within 60 days. For other offences, such as those punishable by death, life imprisonment, or ten years or more, the investigation period can extend to 90 days.”

The bench issued this clarification while dismissing a petition filed by the state government, which had challenged a December 4 order passed by the Judicial Magistrate First Class (III Court) in Mangalore. In that order, the court had denied the prosecution's request for police custody of the accused charged under Sections 108, 308(2), 308(5), 351(2), and 352 of BNSS.

The court ruled that the investigation period for the case in question was 60 days, and the police custody allowed under Section 187 of BNSS could only be granted within the first 40 days. Since those 40 days had already passed, there was no basis to grant further police custody.

Referring to the relevant provisions, the bench stated, “The offences alleged in this case are punishable with a maximum term of ten years, with the phrase 'may extend to ten years' used in the legislation.”

It concluded, “Since the offence in this case is punishable by up to ten years, police custody can only be granted from day one to day forty.”

Therefore, the court upheld the magistrate’s order and dismissed the petition.

Case- State of Karnataka vs. Kalandar Shafi & Others

2. Fully Developed Foetus Right To Enter This World, Live A Healthy Life: Rajasthan High Court Declines Termination of 30 weeks Pregnancy

In rejecting the application for the termination of a 30-week pregnancy by an alleged rape victim, the Rajasthan High Court reaffirmed that a fully developed fetus also has the right to life under Article 21 of the Constitution.

The court noted, “The medical report shows that the fetus is gaining weight and fat and is nearing natural birth. Its vital organs, such as the brain and lungs, are almost fully developed, preparing for life outside the womb. The fetus is alive with a heartbeat, and therefore, termination of the pregnancy at this stage is neither advisable nor feasible. A fully developed fetus has the right to life under Article 21 of the Constitution, with the opportunity to enter the world and live a healthy life free of abnormalities.”

The bench, led by Justice Anoop Kumar Dhand, observed that the Medical Board's report indicated that terminating the pregnancy at such an advanced stage was unsafe, as it posed the risk of premature delivery, which could negatively impact the unborn child's neurological development and also endanger the petitioner's life.

The court was hearing a writ petition in which the petitioner, who was allegedly raped, sought permission to terminate her 30-week pregnancy. The petitioner argued that since the child was conceived as a result of the assault, giving birth to the child would serve as a constant reminder of the trauma and atrocities she had endured.

According to the Medical Board's opinion, terminating the pregnancy was deemed unsafe for the petitioner due to the advanced gestational stage and her age. The Board warned that attempting to terminate the pregnancy at this stage could lead to premature delivery, potentially causing the unborn child to suffer from abnormalities.

In light of this, the Court concluded that there was no evidence to contradict the Medical Board's opinion. The Court further stated that the delay in approaching the Court had worsened the situation, and therefore, any directive to terminate the pregnancy would pose a risk to both the petitioner’s life and the life of the fetus.

The Court also acknowledged that while the law recognizes a woman's autonomy in deciding whether to continue a pregnancy, given the unchallenged opinion of the Medical Board, the circumstances in this case did not allow for the termination of the pregnancy.

As a result, the petition was dismissed with instructions to the State to provide the petitioner with appropriate maternal and nursery care, offer the option of putting the child up for adoption after birth, and ensure the petitioner receives adequate compensation.

Case- Victim vs. State of Rajasthan & Ors.