Supreme Court clarifies scope of police custody under BNSS

What happened (Supreme Court ruling on BNSS police custody and advocate presence)

The Supreme Court interpreted BNSS provisions governing police remand (police custody) and an accused person’s access to an advocate during interrogation and custody. The Court’s outcome was twofold: (1) magistrates/courts should not impose an absolute, non-extendable outer limit on police custody that would block the practical operation of Section 187(2) BNSS, and (2) the right of counsel under Section 38 BNSS does not extend to continuous uninterrupted physical presence throughout interrogation.

In the case involving a custodial-death allegation, a magistrate had granted eight days of police custody. The reported context was that CCTV evidence was not initially traced and further discoveries under the Bharatiya Sakshya Adhiniyam (BSA) were expected, and the magistrate order also allowed the accused to nominate two advocates of choice to be present during custody, while stating that custody could not be extended under that order.

On appeal, the Andhra Pradesh High Court modified conditions, including changes related to how the police-custody period should be treated and permissions around advocate presence across the investigation. The State challenged the modifications before the Supreme Court, arguing that the conditions interfered with the investigating officer’s ability to conduct an unhindered investigation.

The Supreme Court is reported to have accepted that the investigating agency’s concerns were justified. The Court held that a court/magistrate cannot impose an absolute non-extendable outside limit on police custody because it would foreclose recourse to Section 187(2) BNSS. The Supreme Court therefore permitted additional police custody while ensuring that the overall police remand would not exceed the BNSS limit (overall police custody cap of 15 days under Section 187(2)).

On advocate presence, the Supreme Court is reported to have modified the High Court’s approach by setting practical limits. Under Section 38 BNSS, the Supreme Court held that the lawyer may remain present within the site of interrogation where they can see the accused. The Court also stated that continuous uninterrupted videography of the accused’s transit between locations is not required; recording of the actual interrogation and recording of proceedings of discovery/recovery involving the accused satisfies the requirement.