Relevant Rulings Under BNSS

The binding precedents in cases decided under Cr.P.C, to the extent of pari materia
provisions in B.N.S.S, con=nue to hold the ?eld even a@er 30.6.2024. As regards the
new provisions / addi=ons / modi?ca=ons in BNSS in comparison to Cr.P.C, they are
open for interpreta=on, =ll they are considered and interpreted by authorita=ve
pronouncements of High Courts and Supreme Court. Many High Courts, including
Bombay High Court, have interpreted some provisions of BNSS a@er 1 st July 2024. It is
necessary to examine the relevant provisions and fact-situa=on of the case before
applying the cita=ons in this list.

Sr. No. Cita6on Proposi6on

1. i) When FIR is registered prior to 1.7.2024,
Chowgule & Co. Vs. provisions of Cr.P.C. shall con=nue to apply to
S. 482/531
BNSS Public Prosecutor inves=ga=on in respect of such FIR.
ii) Bail applica=on ?led on or a@er 1.7.2024
S. 438/484
2024 SCC OnLine Bom 2501 has to be considered under BNSS, 2023, even
Cr.P.C.
if inves=ga=on con=nues under Cr.P.C.
iii) Even under S. 482 of BNSS (old S. 438
Cr.P.C.), Sessions Court has inherent power to
grant ad-interim an=cipatory bail pending
disposal of main applica=on.

2. Hyder Ali Vs. State of Kant. 1) The maximum period of police custody
S. 187 BNSS/ (Para 13 of HC website copy) u/s. 187 BNSS can be 15 days.
(conGrmed by Supreme Court,
S. 167 Cr.P.C. by a non-speaking order, both 2) The words “ten years or more” in 187(3)(i)
HC Judgment & SC Order of BNSS would mean that minimum
aPached below this list) punishment imposable should be 10 years.
3. The taking of cognizance u/s 223 of BNSS
Sri Basanagouda would come a@er recording of statement of
S. 223 BNSS/
Vs. complainant. The Magistrate should examine
S. 200 Cr.P.C.
Sri Shivananda the complainant on oath & other witnesses
present & then issue no=ce to the accused for
Cri. No. 7526/2024
giving opportunity of hearing before taking
(Karnataka High Court)
cognizance.
indiankanoon.org/doc/148891090
(Judgments of Supreme Court on “taking
cognizance” be perused before relying upon this
ruling. It is sebled law that a Magistrate takes
cognizance when he applies his mind and decides
to proceed further in the complaint.)
 Sr. No. Cita6on Proposi6on
4. Parvinder Vs. Directorate Power of High Court or Sessions Court to stay
S. 483(3) BNSS/ an order gran=ng bail during pendency of
S. 439(2) Cr.P.C. 2024 SCC OnLine SC 1765
applica=on for cancella6on of bail – Scope of
S. 483(3) BNSS / S. 439(2) of Cr.P.C. discussed.
(Gulabrao Deokar Vs. State
followed)
(2013) 16 SCC 190
5. In Re : The Court in its own Direc=on to Union of India to take steps to
S. 329(4) BNSS/ mo=on : 19.12.2011 no=fy Na=onal Ins=tute of Bio Medical
S. 293(4) Cr.P.C. Generics (NIBMG) as a CFSL lab and its
2024 SCC OnLine Cal 6610
scien=sts as Govt. Scien6Gc Experts u/s.
329(4) of BNSS / 293(4) of Cr.P.C.
6. Abhishek Jain Vs. State Appeal/applica=on/revision ?led on or a@er
S. 531 BNSS/
S. 484 Cr.P.C.
2024 SCC OnLine P&H 9874 1.7.2024 shall be governed by BNSS and not
by Cr.P.C.

7. Abdul Khader Vs. State Appeal ?led on or a@er 1.7.2024 shall be

S. 531 BNSS/ governed by BNSS and not by Cr.P.C.
S. 484 Cr.P.C. 2024 SCC OnLine Ker 3919

(Case of Abhishek Jain from Wrong descrip=on of provision does not

Punjab & Haryana High Court require dismissal, but amendment/correc=on
followed except one point) can be allowed.

8. Krishan Joshi Vs. State All pending mabers prior to coming into force
S. 531 BNSS/ of BNSS, 2023 shall con=nue to be governed
S. 484 Cr.P.C. 2024 SCC OnLine Raj 2042
by the old Code i.e. Cr.P.C., 1973.

9. Gurpreet Singh Vs. State Pe==on ?led under S. 482 of Cr.P.C. on

S. 531 BNSS/ 3.7.2024 is dismissed as not maintainable in
S. 484 Cr.P.C.
2024 SCC OnLine P&H 10531
view of repeal of Cr.P.C. w.e.f. 1.7.2024.
(Case of Abhishek Jain from (Please note that opportunity to amend/correct
same High Court followed) the cause =tle is not given to pe==oner)

10. Deepu Vs. State FIR registered on or a@er 1.7.2024 for okence
S. 531 BNSS/ commibed prior to 1.7.2024, okence would
S. 484 Cr.P.C. 2024 SCC OnLine All 4289
be registered under IPC but inves=ga=on will
con=nue as per BNSS.

11. Vijay Sharma Vs. State Inves6ga6on starts from date of registra=on
S. 531 BNSS/ of FIR and if FIR is registered on or a@er
S. 484 Cr.P.C. 2024 SCC OnLine Raj 2897
1.7.2024, inves=ga=on would start under
(Above case of Deepu Vs. State BNSS.
from Allahabad HC followed)

12. The Tug of War Around Ar6cle on the enforcement of BNSS, 2023
S. 531 BNSS/ July 1, 2024 w.e.f. 1.7.2024 & its ekect on the pending
S. 484 Cr.P.C.
2024 SCC OnLine Blog Exp 67 cases.
 Sr. No. Cita6on Proposi6on
13. Mafabhai Vs. State Dras=c power of canceling / revoking order of
S. 473 BNSS/ remission cannot be exercised without serving
S. 432 Cr.P.C. 2024 SCC OnLine SC 2982
show cause no=ce on the convict.

14. RE : Inhuman Condi=ons Direc=on to Suptd. of Jails across the country

S. 479 BNSS/ in 1382 Prisons for immediate implementa6on of S. 479 of
S. 436-A Cr.P.C. BNSS, to process applica=ons of under-trial
WP (Civil) No. 406/2013 accused persons upon their comple=on of
(Supreme Court) one-half/one-third period as the case may be.
(retrospec6ve e\ect to S. 479 of BNSS)

****

Relevant Case Laws for BNSS / Cr.P.C. on Important Points of Criminal Trial

Sr. No. Cita6on Proposi6on

15. CBI Vs. Anupam Kulkarni Accused cannot be remanded to police
(1992) 3 SCC 141 custody a@er expiry of ?rst 15 days.
S. 187 BNSS/
S. 167 Cr.P.C. Budh Singh Vs. State (2000) In Anupam Kulkarni : Even at the stage of ?rst
9 SCC 266 produc=on for remand, Magistrate can grant
bail to accused if an applica=on is made and if
(Anupam Kulkarni is followed he is sa=s?ed that there are no grounds to
in Budh Singh on the point of remand him to custody, but if he is sa=s?ed
“no PC a@er ?rst 15 days”) that ‘further’ remand is necessary, then he
should act as provided u/s. 167 Cr.P.C.

Accused against whom serious okence is

added subsequently in the same crime & who
Pradeep Ram Vs. State
is already on bail, one course of ac=on is to
(2019) 17 SCC 326
cancel his bail & commit him to police
Sushila Aggarwal Vs. NCT custody, other op=on is to get him arrested
(2020) 5 SCC 1 and grant his custody without canceling bail
(Pradeep Ram is followed in u/s. 437(5) of Cr.P.C.
Sushila’s case on the point of In Sushila Aggarwal : An=cipatory bail is not
“grant of custody without limited to a ?xed period and normally it
cancella=on of bail”)
should enure without restric=on on =me.

16. V. Senthil Balaji Vs. State The ra=o laid down in the Judgments of Anupam
(2024) 3 SCC 51 → Kulkarni and Budh Singh is doubted and issue is
S. 187 BNSS/ referred to larger Bench.
S. 167 Cr.P.C. CBI Vs. Vikas Mishra
View taken in Anupam Kulkarni requires
(2023) 6 SCC 49 →
reconsidera=on.
 Sr. No. Cita6on Proposi6on
17. CREF Finance Vs. Shree
Shanthi (2005) 7 SCC 467 Applica6on of mind by the Magistrate for the
S. 223 BNSS/ purpose of proceeding u/s. 200 of Cr.P.C. and
Bhagat Ram Vs. Surinder
S. 200 Cr.P.C. subsequent sec=ons amounts to taking
(2004) 11 SCC 622
cognizance.
Ajit Kumar Vs. State
1963 Supp (1) SCR 953

18. Gautam Navlakha Vs. NIA Period of custody commences not from =me
(2022) 13 SCC 542 of arrest but from the =me the accused is Grst
S. 187 BNSS/ remanded to PC or JC.
S. 167 Cr.P.C.
The period of 60/90 days under 167 Cr.P.C. has
ED Vs. Kapil Wadhawan to computed from the date when Magistrate
2023 SCC OnLine SC 972 authorizes remand.

19. Magistrate has power to order a person to

give his voice samples for purpose of
S. 349 BNSS /
Ritesh Sinha Vs. State of
inves=ga=on.
S. 311-A Cr.P.C. U.P. (2019) 8 SCC 1
Procedure to obtain Gngerprint evidence of
Sonvir Vs. State of Delhi
accused as per The Iden=?ca=on of Prisoners
(2018) 8 SCC 24
Act, 1920.

20. Sunil Batra Vs. State

(1978) 4 SCC 494 Handcu_ng of prisoners – discussed.
S. 43 BNSS/
Prem Shankar Vs. Delhi
S. 46 Cr.P.C.
Admin. (1980) 3 SCC 526
Handcupng of under trial prisoners is
Ci=zens for Democracy Vs. permissible only in very excep=onal
State (1995) 3 SCC 743 situa=ons.

21.
Statement of vic=m under 164 Cr.P.C. should
S. 183(6)(a) State of Karnataka Vs.
be recorded, as far as possible, before lady
Proviso BNSS / Shivanna (2014) 8 SCC 913
Magistrate.
S. 164 Cr.P.C.

22.
The applica=on seeking direc=on for
Priyanka Srivastava Vs.
S. 175 BNSS/ registra=on of FIR must be supported by an
S. 156(3) State (2015) 6 SCC 287
a_davit.
Cr.P.C.
23.
Vic6m’s right to be heard and par=cipate in
S. 2(y), S. 230 Jagjeet Singh Vs. Ashish
hearing of bail and other criminal
BNSS/ S. 2(wa) Mishra (2022) 9 SCC 321
Cr.P.C.
proceedings.

24. Fundamental rights cannot be voluntarily

Basheshar Nath v. CIT
waived by ci=zens.
1958 SCC OnLine SC 7
 Sr. No. Cita6on Proposi6on
25.
Magistrate has jurisdic=on u/s. 167(2) to
Directorate of Enforcement
authorize deten6on of a person arrested by
S. 187 BNSS/ Vs. Deepak (1994) 3 SCC
authorized opcer under special act.
S. 167 Cr.P.C. 440

26. Zero FIR : Police cannot refuse to record FIR

on ground of lack of territorial jurisdic=on –
S. 173 BNSS/ State of AP Vs. Puna= they should record the informa=on and
S. 154 Cr.P.C. 1994 Supp (1) SCC 590 forward the same to police sta=on having
jurisdic=on.

27. State Vs. K. H. Annegowda S.484(2) Cr.P.C. - Trial pending before

(1977) 1 SCC 417 commencement of new code, shall be
S. 531 BNSS/ proceeded with in accordance with the
Janardan Rao Vs. State
S. 484 Cr.P.C. provisions of old code.
1975 SCC OnLine Bom 109
[S. 531 of BNSS is iden=cal to S. 484 Cr.P.C.
State Vs. Ramprakash which had repealed the old code of 1898,
1977 SCC OnLine Bom 78 except the proviso to sub-sec=on(2)(a) and
2(d) which are omibed in S. 531]

28. Sanc6on for prosecu6on, whether necessary

D. Devaraja Vs. Owais and if so whether it has been obtained, may
S. 218 BNSS/ (2020) 7 SCC 695 be determined at any stage of proceedings.
S.197 Cr.P.C.
29. Manoj Vs. State Document and informa=on not relied on by
(2023) 2 SCC 353 prosecu=on - As a maber of rule, in all
S.230 BNSS/ criminal trials be furnished to the accused.
S.207 Cr.P.C. Ponnusamy Vs. State
2022 SCC OnLine SC 1543
Obliga=on of Prosecu=on to disclose evidence
Sidharth Vashisht Vs State to accused- extent and scope.
(2010) 6 SCC 1

30. Ritu Chhabaria Vs. UOI

2023 SCC OnLine SC 1805 Default bail is a fundamental right of accused
S.187 BNSS/ - Right of accused cannot be scubled by ?ling
S.167 Cr.P.C. incomplete chargesheets.
Judgebir Singh Vs. NIA
2023 SCC OnLine SC 543 Default bail - Accused cannot seek default bail
merely because charge-sheet is ?led without
sanc=on and cognizance has not been taken.

31. Alterna=ves before Magistrate when ?nal

report is ?led.
S.193 BNSS/ State Vs. Hemendhra
S.173 Cr.P.C. 2023 SCC OnLine SC 515 Further inves6ga6on is permissible u/s 173(8)
even a@er the ?nal report is laid before
Magistrate and accepted.
 Sr. No. Cita6on Proposi6on
32. To carry out further inves=ga=on even a@er
?ling of charge-sheet is a statutory right of the
S.193 BNSS/ Vinubhai Malaviya Vs. State police. The law does not mandate taking prior
S.173 Cr.P.C. (2019) 17 SCC 1 permission of the Magistrate for such further
inves=ga=on.

33.
A. Sreenivasa Vs. Rakesh Sanc=on to public servant under special law
S.218 BNSS/ Sharma (2023) 8 SCC 711 and penal laws.
S.197 Cr.P.C.
34. Delay in delivery of Judgment – Unexplained
R.C. Sharma Vs. Union of long interval between conclusion of
S. 392 BNSS / India, (1976) 3 SCC 574 arguments and delivery of Judgment shakes
S.353 Cr.P.C. the con?dence of people in the Judicial
Anil Rai Vs. State
(2001) 7 SCC 318 system and akects rights of par=es under
Ar=cle 21.
Interna=onal Vs. Registrar
2012 (2) Mh.L.J.

35. Krishan Kumar Vs. State Sec. 53-A of Cr.P.C. --- DNA proGling of rape
(2011) 7 SCC 130 accused – relevance, necessity.
S. 52 BNSS /
S.53-A Cr.P.C. Chotkau Vs. State In view of S. 53-A & 164-A of Cr.P.C., where
(2023) 6 SCC 742, DNA pro?ling has not been done or it is held
followed in : back from the Trial Court, an adverse
Munna Pandey Vs. State consequence would follow for the
2023 SCC OnLine SC 1103 prosecu=on.

36.
Ghulam Hassan Vs. Material that may be considered while
S.251 BNSS/ Mohammad Maqbool framing charge and manner of considera=on.
S.228 Cr.P.C. (2022) 12 SCC 657

37.
Evidence can be recorded through VC and the
State of Maharashtra Vs.
S.308 BNSS/ presence of accused u/s. 273 of Cr.P.C. does
Dr. Praful AIR 2003 SC 2053
S.273 Cr.P.C. not only mean physical presence.

38.
Arjun Khotkar Vs. Kailash
(2020) 7 SCC 1
S. 63 BSA/ Produc=on of 65-B(4) Cer=?cate is mandatory
S. 65-B only in case of secondary electronic evidence.
Anwar Vs. Bashir
Evidence Act
(2014) 10 SCC 473
39.
Extent of assistance by vic6m’s counsel to
Rekha Murarka Vs. State prosecu=on would depend on facts of each
S. 338 BNSS/
(2020) 2 SCC 474 case – scope & manner of assistance.
S. 301 Cr.P.C.
 Sr. No. Cita6on Proposi6on
40.
Aparna Bhab Vs. State Judicial sensi=vity while dealing with sexual
S. 480/
482/483 BNSS AIR 2021 SC 1492 okences, gender sensi6vity. (This case is
Equivalent : arising out of direc=on of MP High Court to
S. 437 XYZ Vs. State of M.P. the accused to go to the house of vic=m and
/438/439 (2021) 16 SCC 179 get =ed rakhi from her also pay “shagun”.
Cr.P.C.

41. Lalita Kumari Vs. Govt.

(2014) 2 SCC 1 Sec. 154(1) of Cr.P.C. mandates registra=on of
S.173 BNSS/ an FIR on receipt of informa=on regarding
Ramdev Food Vs. State
S.154 CrPC commission of cognizable okence.
(2015) 6 SCC 439

42.
Witness Protec6on Scheme – It is bounden
Sunil Saini Vs. State
S.398 BNSS duty of State to ensure that lives of its ci=zens
2023 SCC OnLine SC 968
and other persons are at all =mes protected.

43. Inves=ga=ve techniques – Narcoanalysis,

Polygraph and Brain Ac=va=on Pro?le - If
S.349 BNSS/ Selvi Vs. State done without consent, violate the right to
S.311-A (2010) 7 SCC 263 remain silent under Ar=cle 20(3) & Ar=cle 21
Cr.P.C. of Cons=tu=on of India.

44. In-camera trial be held in rape cases and

State of Punjab Vs. Gurmit other cases of sexual abuse such as S. 354 & S.
S.366 BNSS/ (1996) 2 SCC 384 377 of IPC.
S.327 Cr.P.C.
Sakshi Vs. UOI S. 354 & S. 377 of IPC added in the Judgment
(2004) 5 SCC 518 of Sakshi.

45.
Vic6m Compensa6on Scheme (medical
S. 396 BNSS/ Laxmi Vs. UOI
assistance, a@er care and rehabilita=on of
S.357-A (2014) 4 SCC 427
vic=ms of acid aback).
Cr.P.C.

46.
Acid aPack vic6m – Law discussed on
S. 396 BNSS/ Ravada Sasikala Vs. State
compensa=on u/s. 357-A of Cr.P.C. (Laxmi Vs.
S.357-A (2017) 4 SCC 546
UOI followed)
Cr.P.C.

47. Speedy trial of cases under POCSO Act –

Direc=ons issued to all Special Courts to
S. 346 BNSS Alakh Srivastava Vs. UOI complete the Trial in a =me-bound manner –
/ (2018) 17 SCC 291 Steps to provide child friendly atmosphere in
S.309 Cr.P.C. Special Courts.
 Sr. No. Cita6on Proposi6on
48. Life imprisonment means rest of life of convict
-Power to impose sentence without remission
S.473 BNSS/ UOI Vs. V. Sriharan for par=cular period can be exercised only by
S.432 Cr.P.C. (2016) 7 SCC 1 High Court and Supreme Court and not by
Sessions Court.

49.
The GR providing special scheme for
S.473 BNSS/ Sonu @ Ashwin Vs. State remission of sentence on the occasion of 125
S.432 Cr.P.C. Cri. W.P. 865/2023 – 1.8.24 years of Birth Anniversary of Dr. B. R.
Ambedkar is clari?ed by Bombay High Court
(indiankanoon.org/doc/151546847) on the point of “cut-ok date” men=oned in
that GR and its applicability.

50. Transit (extra-territorial) an6cipatory bail –

Scope and power – Such power should be
Priya Indoria Vs. State
S.482 BNSS/ exercised in excep=onal and compelling
(2024) 4 SCC 749
S.438 Cr.P.C. circumstances.

51. Satender An=l Vs. CBI

(2021) 10 SCC 773 i) Proper exercise of power to grant
S. 480, 482
& 483 - 2021 SC OnLine SC 3302 bail/an=cipatory bail
BNSS/ ii) Direc=ons issued to inves=ga=ng agency
(2022) 10 SCC 51 and Courts.
S. 437, 438
& 439 - 2023 SCC OnLine SC 452 iii) Guidelines based on categoriza=on of
Cr.P.C. okences issued for exercise of discre=on by
(2024) 9 SCC 177
Court for grant of bail.
(2024) 9 SCC 198
(Orders/Judgments in same Case)
52.
Ravi Ghumare Vs. State Death sentence – Object of determining
(2019) 9 SCC 622 quantum of sentence has to be “society
S.52 BNSS/
centric” – Great importance is of the
S.53-A CrPC
standpoint of a vic=m which includes his/her
guardian or legal heirs.
“Y – STR” method of DNA analysis – It
provides a unique way of isola=ng only the
male DNA mixed with the DNA of vic=m – It is
useful for corrobora=on in sexual assault
cases and it can be well used as exculpatory
evidence in many cases.
53.
When a Magistrate receives a complaint, he is
S.173, 175, HDFC Securi=es Vs. State not bound to take cognizance if the facts
223 BNSS / (2017) 1 SCC 640 alleged do not disclose commission of an
S.154, 156, okence.
200 Cr.P.C.
 Sr. No. Cita6on Proposi6on
54.
H. S. Bains Vs. State S. 156 & 200 Cr.P.C. - Op=ons before the
S.175, 223 (1980) 4 SCC 631 Magistrate - Exercise of discre=on to select
BNSS/ course of ac=on.
S.156, 200 Suresh Jain Vs. State
Cr.P.C. (2001) 2 SCC 628

Lalaram Vs. State

2020 SCC OnLine All 1497

55.
Vishnu Tiwari Vs. State Final police report and exonera=on by
S.193, 210, (2019) 8 SCC 27 Magistrate – No=ce to informant mandatory -
223, 225 Independent applica=on of mind - When
BNSS / protest pe66on may be treated as complaint
S.173, 190, for cognizance.
200, 202
Cr.P.C.
56.
Mohd. Ataullah Vs. Ram
Once Magistrate directs inves=ga=on by
S.210, 225, Mahto (1981) 2 SCC 266
police u/s. 202 Cr.P.C., he must wait for the
227 BNSS / said report & not issue process on the basis of
S.190, 202, Banwarilal Vs. Ramdeo
same material.
204 Cr.P.C. Baba 2004 (4) Mh.L.J. 341

57.
Nandini Satpathy Vs. P. L. Right against self-incrimina6on - right to
Art. 20(3) of Dani (1978) 2 SCC 424 remain silent – scope discussed.
Cons6tu6on
of India / S.
161 Cr.P.C.

58.
Tarsem Lal Vs Directorate Order accep=ng Bonds u/s 88 CrPC from the
S.91 BNSS/ 2024 SCC OnLine SC 971 accused does not amount to grant of bail.
S.88 CrPC
59.
Trial in Absen6a – provision for speedy trial in
Hussain Vs. Union of India
S.356 BNSS case of absconding accused – Bangladesh
(2017) 5 SCC 702
CrPC provision discussed.

60.
Prem Prasad Vs State Normally when accused is absconding,
S. 482 BNSS/ (2022) 14 SCC 516 An=cipatory Bail cannot be granted.
S. 438 Cr.P.C.

Imposi=on of maximum sentence without

Rahul Gandhi Vs. Purnesh
61. assigning reasons- Trial Judge expected to give
(2024) 2 SCC 595
proper reasons.
 Sr. No. Cita6on Proposi6on
62.
S. 335 BNSS/ Jayendra Thakur Vs State Recording evidence in absence of accused-
S. 299 Cr.P.C. (2009) 7 SCC 104 Condi=ons precedent for invoking S.299 CrPC

63.
S. 335 BNSS/ Nirmal Singh Vs. State All condi=ons must be established by
S. 299 Cr.P.C. (2000) 4 SCC 41 Prosecu=on before invoking S.299 CrPC.

64.
S. 335 BNSS/ Sukhpal Singh Vs. State
Above two Rulings followed.
S. 299 Cr.P.C. 2024 SCC Online SC 800

65.
No6Gca6ons issued by State Govt. under the
Aires Vs. Vishwajeet
S. 531 BNSS/ Criminal Law Amendment Act, 1932 are saved
(2017)11 SCC 62
S. 484 Cr.P.C. by S. 484 of Cr.P.C. & S. 8 of General Clauses
Act, they shall con6nue to operate despite
Kahera Sayed Vs. State
repeal of Cr.P.C. 1898 & enactment of Cr.P.C.
2017 SCC OnLine Bom 445
1973.

66. High Court or Sessions Court can exercise

S. 483(3) power under S. 439(2) of Cr.P.C. to set aside
BNSS/ Gulabrao Deokar Vs. State unjus=?ed, illegal or perverse bail order which
S. 439(2) is an independent ground for cancella6on of
(2013) 16 SCC 190
Cr.P.C. bail, in addi=on to the accused misconduc=ng
himself or commiwng breach of terms and
condi=on on which bail is granted.

67. Prabir Purkayastha Vs. Arrest of any person : Dikerence between the
Art. 22(1) & phrases “reasons for arrest” and “grounds of
State, (2024) 8 SCC 254
(5) of arrest”.
Cons=tu=on
of India
68. Sharif Ahmed Vs. State Issuance of non-bailable warrants – Cannot
be issued in a rou=ne manner – Liberty of an
2024 SCC OnLine SC 726
individual cannot be curtailed unless
necessary in the larger public interest.

69. Puranlal Dhurve Vs. State Prosecutor and Trial Judge are required to
S. 346 BNSS/ ensure strict compliance of S. 309 Cr.P.C.
S. 309 Cr.P.C 2024 SCC OnLine Bom 3437 (S. 346 BNSS). Weekly program should be
submibed and scrupulously followed.

70. Shahrukh Vs. State Magistrate has statutory power to grant

S. 43 BNSS/ permission to arrest a female a@er sunset and
S. 46 Cr.P.C 2024 SCC OnLine Bom 3136 before sunrise.
 Sr. No. Cita6on Proposi6on
71. Vishal Ravani Vs. StateGrounds of arrest not communicated to the
S. 47 BNSS/ accused as per the requirement of law – his
S. 50 Cr.P.C. 2024 SCC OnLine Bom 3859 arrest declared illegal and he is directed to be
released. (Okence u/s. 420, 406 IPC)

72. Rajrishi Bindawat Vs. State

In a serious okence, when presence of
S. 47 BNSS/ accused is established in the okending car
S. 50 Cr.P.C. 2024 SCC OnLine Bom 3660 which caused the mishap, and remand
applica=on clearly provided the reasons for
his arrest, accused cannot take beneGt that
grounds of arrest are not communicated.
73. Madhankumar Vs. Deputy Indefeasible right of accused to be released
S. 187 BNSS/ on default bail cannot be curtailed by
S. 167 Cr.P.C. 2024 SCC OnLine Mad 6902 imposing onerous condi=on.

74. Daljit Singh Vs. State S. 174-A IPC (non-appearance in response to a

S. 84 BNSS / proclama=on u/s. 82 Cr.P.C.) is an
S. 82 Cr.P.C 2025 SCC OnLine SC 1 independent substan=ve okence and can
con=nue even if the proclama=on issued u/s.
S. 174-A 82 Cr.P.C. has ex=nguished.
IPC /
S. 209 BNS
75. George Vs. State of Kerala The non-obstante clause in S. 19 of the POCSO
S. 218 Act is not inconsistent with S. 197 of Cr.P.C. /
BNSS / 2024 SCC OnLine Ker 7431 218 BNSS and it does not exclude the
S. 197 Cr.P.C applicability of S. 197 of Cr.P.C. / 218 BNSS.

Girish R. Agrawal,
Joint Director, MJA

****
 1

Reserved on : 12.12.2024
R
Pronounced on : 13.12.2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13TH DAY OF DECEMBER, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.13459 OF 2024

C/W

WRIT PETITION No.33526 OF 2024 (GM – RES)

IN CRIMINAL PETITION No.13459 OF 2024

BETWEEN:

STATE OF KARNATAKA
BY KAVOOR POLICE STATION,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU – 560 001.
... PETITIONER
(BY SRI B.N.JAGADEESHA, ADDL.SPP)

AND:

1. KALANDAR SHAFI
S/O LATE ISMMAIL,
AGED ABOUT 39 YEARS,
RESIDING AT NO. 11-29/1, NEAR GOODU,
B’MUDA VILLAGE,
BANTWAL TALUK,
 2

D.K.DISTRICT – 574 211.

2. MAHAMMAD MUSTHAFA @
PALKHAN MUSTHFA,
S/O LATE IDDINABBA,
AGED ABOUT 50 YEARS,
RESIDING AT NO. 7-44 B, 7TH BLOCK,
KRISHNAPURA, KATIPALLA,
MANGALURU - 575 030.

3. SHOAIB,
S/O LATE UMMAR HUSSAIN,
AGED ABOUT 45 YEARS,
RESIDING AT NO. 7-216, SITE NO.298,
AYISHA IMAN, 7TH BLOCK,
KRISHNAPURA, KATIPALLA
MANGALURU - 575 030.
... RESPONDENTS
(BY SRI B.LETHIF, ADVOCATE FOR R-1 AND R-3;
SRI HASHMATH PASHA, SR.ADVOCATE FOR
SRI KARIAPPA N.A., ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF

THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 PRAYING TO
SET ASIDE THE ORDER DATED 04.12.2024 PASSED IN
CR.NO.150/2024 ON THE FILE OF THE JMFC (III COURT)
MANGALURU AND CONSEQUENTLY ALLOW THE REQUISITION FILED
BY THE PETITIONER AS PAYED FOR AND THEREBY GRANT POLICE
CUSTODY OF THE ACCUSED NOS.3 TO 5 SO AS TO ENABLE THE
POLICE TO CONDUCT FURTHER INVESTIGATION AND GRANT SUCH
OTHER AND FURTHER RELIEF’S AS THIS HON’BLE COURT DEEMS
FIT AND PROPER UNDER THE CIRCUMSTANCES OF THIS CASE.
 3

IN WRIT PETITION No.33526 OF 2024

BETWEEN:

HYDER ALI
AGED ABOUT 52 YEARS
S/O B.M.AHAMMED BAVA
RESIDING AT FLAT NO.1904
ABHIMAN HILLS
LIGHTHOUSE HILL ROAD
MANGALURU – 575 003.
... PETITIONER

(BY SRI P.P.HEGDE, SR.ADVOCATE FOR

SRI VENKATESH SOMAREDDI, ADVOCATE)

AND:

1 . STATE OF KARNATAKA
BY KAVOOR POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA AT
BENGALRUU – 560 001.

2 . MR.KALANDAR SHAFI
AGED ABOUT 39 YEARS
S/O LATE ISMAIL
11-29/1 GOODINA BALI
MOODU GRAMA
BANTWAL – 575 003.

3 . MR.MOHAMMED MUSTAFA
AGED ABOUT 50 YEARS
S/O LATE IDINABBA
7-44B, 7TH BLOCK
KRISHNAPURA, KATIPALYA
MANGALURU – 575 003.
 4

4 . MR.SHOIB
AGED ABOUT 45 YEARS
S/O LATE UMMER HUSSAIN
RESIDING AT 298, AYISHA IMAN
7TH BLOCK, KATIPALYA
MANGALURU – 575 003.
... RESPONDENTS

(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;

SRI B.LETHIF, ADVOCATE FOR R-2 AND R-4;
SRI HASHMATH PASHA, SR.ADVOCATE FOR
SRI KARIAPPA, N.A., ADVOCATE FOR R-3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF
BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 PRAYING TO
QUASH THE ORDER DTD. 04.12.2024 PASSED IN CRIME NO.
150/2024 OF KAVOOR POLICE STATION BY JMFC III COURT,
MANGALURU VIDE ANNEXURE-D REJECTING THE APPLICATION OF
R-1 SEEKING CUSTODY OF R-2 TO 4 VIDE ANNX-C AND ETC.,

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR

ORDERS ON 12.12.2024, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

Both these petitions call in question a solitary order dated

04-12-2024 passed by the Judicial Magistrate First Class (III Court)

Mangalore, by which the Court rejects the requisition of the

 5

prosecution for grant of Police custody of the accused. Writ Petition

No.33526 of 2024 is preferred by the complainant and Criminal

Petition No.13459 of 2024 is preferred by the State.

2. Heard Sri P.P. Hegde, learned senior counsel appearing for

the petitioner in the writ petition No.33526 of 2024;

Sri B N Jagadeesha, learned Additional State Public Prosecutor

appearing for petitioner in Criminal Petition No.13459 of 2024 and

for respondent No.1 in writ petition No.33526 of 2024; Sri B.Lethif,

learned counsel appearing for respondents 2 and 4 in writ petition

and respondents 1 and 3 in Criminal Petition and Sri Hasmath

Pasha, learned senior counsel appearing for respondent No.3 in Writ

Petition and respondent No.2 in Criminal Petition.

3. Facts, in brief, germane are as follows:-

On 06-10-2024 brother of the original complainant one

B.M.Mumtaz Ali dies leading to registration of crime in Crime

No.150 of 2024 for offences punishable under Sections 190, 308(2),

308(5), 351(2) and 352 of BNS. Pursuant to registration of crime

 6

accused Nos.1 and 5 are arrested and produced before the learned

Magistrate, after which, it appears, they were remanded to judicial

custody. Subsequently, during investigation on 10-10-2024 accused

Nos. 2, 3 and 4 were arrested and produced before the learned

Magistrate and were also remanded to judicial custody. On

12-10-2024 the Investigating Officer causes arrest of accused No.6

and produced him before the learned Magistrate who has remanded

him to judicial custody. The learned Magistrate then on a

requisition made by the Police grants police custody of accused Nos.

1 to 3. In the course of investigation, the prosecution is said to

have come across certain voice samples of accused persons which

were recorded and which were within the knowledge of the Court.

The prosecution then files an application seeking police custody.

This comes to be objected to by the accused. On the application

and the objection, the concerned Court passes the impugned order

by which police custody that is sought by the prosecution comes to

be rejected, on the ground that the period of investigation in the

case at hand 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 is the reason

 7

rendered by the concerned Court to reject the

application/requisition. Challenging these orders, the petitioners-

State and the complainant - are before this Court in these petitions.

4. The learned senior counsel Sri P.P.Hegde, appearing for the

complainant and the Additional State Public Prosecutor for the State

would vehemently contend that the punishment imposable in the

case at hand for an offence of abetment to suicide is ten years.

Section 187 of BNSS, which is akin to Section 167 of the earlier

regime Cr.P.C., would clearly permit investigation in an offence

punishable with ten years or more to 90 days. The period for filing

the charge sheet is 90 days and under Section 187 of the BNS if the

period of investigation is 90 days, the police custody available in

total for 15 days would be between day one to day 60. If it is

interpreted that the offences are punishable with less than ten

years, the police custody will be for 15 days between day one to

day forty. Both the learned counsel would contend that Section 108

of BNS which deals with abetment to suicide is punishable up to ten

years. Therefore, it should be construed that it is ten years or more

 8

and the police custody must be extended to a period from day one

to day 60 and not restricted to day one to day forty.

5. The learned Additional State Public Prosecutor would

however add that many voice samples are procured during

investigation which had to be put to the accused for which police

custody is imperative. The prosecution has now filed an application

to add the offence of abetment for ransom as obtaining under

Section 140(2) of BNS which is akin to Section 364 of the earlier

regime of IPC which is punishable with death or imprisonment for

life. The application is yet to be considered at the hands of the

learned Magistrate.

6. The learned senior counsel Sri P. P. Hegde appearing for

the complainant would submit that investigation is yet to complete

despite passing of 60 days from registration of crime. However,

applications are moved before the concerned Court for grant of

statutory bail and these people who have rendered themselves in

heinous and horrendous offences will walk out of the prison on

erroneous interpretation of Section 187 by the concerned Court.

 9

7. Per-contra, the learned senior counsel Sri Hasmath Pasha

appearing for the respondents would vehemently refute the

submissions in contending that there is no change in Section 187 of

BNSS in comparison to Section 167 of the Cr.P.C. What should be

looked into is not Section 167 or 187, it is the offence that is

alleged. The offence, in the case at hand, is the one punishable

under Section 108 of the BNS which is Section 306 of the IPC. It is

punishable up to ten years. If it is punishable up to ten years, the

period of investigation is 60 days. If the period of investigation is

60 days, the police custody runs from day one to day forty totally

for 15 days. The period is admittedly over. Therefore, the police

custody cannot be sought after forty days in terms of Section 187

of BNSS. He would contend that the order of the learned

Magistrate does not require any interference. Learned counsel

Sri B. Lethif representing other accused would also toe the lines of

the learned senior counsel and seek dismissal of these petitions.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.
 10

9. In furtherance whereof, what requires consideration and

interpretation is the purport of statutory provisions. At the outset, I

deem it appropriate to notice the order that has driven the

petitioners to this Court in these petitions. The order reads as

follows:

“…. …. ….

18. In the present case accused persons were given to

police custody as follows:

Accused no.1 Smt. Rehmath From 4.15 PM of 09.10.2024

and accused no.2 Shohaib till 4.15 PM of 17-10-2024 (8
were given to police custody days)

Accused by name Abdul From 3.30 PM of 10.10.2024

Sattar, Kalandar Shafi and till 3.30 PM of 17-10-2024 (7
Mohammed Musthafa days)
were given to police
custody
Accused persons by name Were produced in Home
Smt. Rehmath, Shohaib, office at 17-10-2024 at 2.45
Abdul Sattar, Kalandar Shafi PM
and Mohammed Musthafa
were given to police custody
Accused persons by name From 3.30 PM of 22.10.2024
Smt. Rehmath, Abdul Sattar till 3.30 PM of 25-10-2024 (3
and Kalandar Shafi were days)
given to police custody

Accused persons by name in Open Court on 25-10-2024

Smt. Rehmath, Abdul Sattar at 1.45 PM.
and Kalandar Shafi were
produced
 11

19. In Rakesh Kumar Paul, the Supreme Court by 2:1

majority (Justices Madan B Lokur and Deepak Gupta in
majority, Justice Prafulla C Panth in dissent).

20. In Sec. 187(3)

(i) - 90 days where investigation relates to an

offence punishable with death, imprisonment
for life or imprisonment for a term of 10 years
or more.

21. But in the present case, maximum punishment for

the alleged offences are imprisonment either description for
a term which may extend to 10 years. This court relied on
judgment of Hon'ble Supreme Court In Rakesh Kumar Paul
vs. State of Assam and Rajiv Choudary Vs. State (NCT)
of Delhi. As per the observation of the Hon'ble Apex Court
this case is comes under the category of 187 (3)(ii) of
B.N.S.S. Hence, as per the provision of B.N.S.S., I.O. must
seek police custody within 40 days from the date of arrest.
But in this case, I.O. seeks police custody after the lapse of
statutory period. Hence requisition filed by the I.O. is hereby
rejected.”

The Court records the offences alleged. The offences alleged are

the ones punishable under Section 108, 308(2), 308(5), 351(2) and

352 of BNS as on the date of consideration of application for Police

custody before the learned Magistrate. The said provisions read as

follows:-

“108. Abetment of suicide.—If any person commits

suicide, whoever abets the commission of such suicide, shall
be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable
to fine.
… … …
 12

308. Extortion.—(1) …
(2) Whoever commits extortion shall be punished with
imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
… … …
(5) Whoever commits extortion by putting any person
in fear of death or of grievous hurt to that person or to any
other, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine.
… … …
351. Criminal intimidation.—(1) …
(2) Whoever commits the offence of criminal
intimidation shall be punished with imprisonment of either
description for a term which may extend to two years, or
with fine, or with both.
… … …

352. Intentional insult with intent to provoke

breach of peace.—Whoever intentionally insults in any
manner, and thereby gives provocation to any person,
intending or knowing it to be likely that such provocation will
cause him to break the public peace, or to commit any other
offence, shall be punished with imprisonment of either
description for a term which may extend to two years, or
with fine, or with both.”

Section 108 of BNS punishes for abetment to suicide which is

Section 306 of the earlier regime, IPC. The maximum term of

punishment may extend to ten years. Section 308 deals with

extortion. Section 308(2) punishes a person who commits extortion

by a term up to 7 years and Section 308(5) if it is extortion putting

the person in fear of death, the term may extend to ten years. The
 13

other two provisions under Sections 351 and 352 have maximum

punishment of 2 years. Therefore, the offences alleged in the case

at hand, at this juncture, have their punishments to run up to a

maximum of ten years and the phrases used “may extend to ten

years”. Section 187 of BNSS which deals with conduct of

investigation reads as follows:

“187. Procedure when investigation cannot be

completed in twenty-four hours.—(1) Whenever any
person is arrested and detained in custody, and it appears
that the investigation cannot be completed within the period
of twenty-four hours fixed by Section 58, and there are
grounds for believing that the accusation or information is
well-founded, the officer in charge of the police station or the
police officer making the investigation, if he is not below the
rank of sub-inspector, shall forthwith transmit to the nearest
Magistrate a copy of the entries in the diary hereinafter
specified relating to the case, and shall at the same time
forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person

is forwarded under this section may, irrespective of
whether he has or has no jurisdiction to try the case,
after taking into consideration whether such person
has not been released on bail or his bail has been
cancelled, authorise, from time to time, the detention
of the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the
whole, or in parts, at any time during the initial forty
days or sixty days out of detention period of sixty days
or ninety days, as the case may be, as provided in sub-
section (3), and if he has no jurisdiction to try the case
or commit it for trial, and considers further detention
unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction.
 14

(3) The Magistrate may authorise the detention

of the accused person, beyond the period of fifteen
days, if he is satisfied that adequate grounds exist for
doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this
sub-section for a total period exceeding—

(i) ninety days, where the investigation relates

to an offence punishable with death,
imprisonment for life or imprisonment for a
term of ten years or more;

(ii) sixty days, where the investigation relates to

any other offence,

and, on the expiry of the said period of ninety days, or

sixty days, as the case may be, the accused person
shall be released on bail if he is prepared to and does
furnish bail, and every person released on bail under
this sub-section shall be deemed to be so released
under the provisions of Chapter XXXV for the purposes
of that Chapter.”

(Emphasis supplied)

Section 187 of BNSS deals with procedure when investigation

cannot be completed within 24 hours. Section 187(3) which is

Section 167(2) of the earlier regime forms the fulcrum of the entire

lis. The language deployed and the purport has slightly changed

from the earlier regime. Now the period of investigation has twin

conditions. The investigation, as was earlier obtaining, has its

completion period of 90 days, where the investigation relates to an

offence punishable with death, imprisonment for life or

 15

imprisonment for a period of ten years or more, for the remaining

offences, it is 60 days. I now deem it appropriate to juxtapose with

Section 167 of the Cr.P.C., Section 167 of the Cr.P.C., reads as

follows:

“167. Procedure when investigation cannot be

completed in twenty-four hours.—(1) Whenever any person
is arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of twenty-
four hours fixed by Section 57, and there are grounds for
believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making
the investigation, if he is not below the rank of sub-inspector,
shall forthwith transmit to the nearest Judicial Magistrate a copy
of the entries in the diary hereinafter prescribed relating to the
case, and shall at the same time forward the accused to such
Magistrate.

(2) The Magistrate to whom an accused person is

forwarded under this section may, whether he has or has
not jurisdiction to try the case, from time to time,
authorise the detention of the accused in such custody as
such Magistrate thinks fit, for a term not exceeding
fifteen days in the whole; and if he has no jurisdiction to
try the case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:

Provided that—

(a) the Magistrate may authorise the detention of the

accused person, otherwise than in the custody of
the police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so,
but no Magistrate shall authorise the detention of
the accused person in custody under this paragraph
for a total period exceeding,—
 16

(i) ninety days, where the investigation relates

to an offence punishable with death,
imprisonment for life or imprisonment for a
term of not less than ten years;

(ii) sixty days, where the investigation relates to

any other offence, and, on the expiry of the
said period of ninety days, or sixty days, as
the case may be, the accused person shall be
released on bail if he is prepared to and does
furnish bail, and every person released on bail
under this sub-section shall be deemed to be
so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in

custody of the police under this section unless the
accused is produced before him in person for the first
time and subsequently every time till the accused
remains in the custody of the police, but the Magistrate
may extend further detention in judicial custody on
production of the accused either in person or through the
medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially

empowered in this behalf by the High Court, shall
authorise detention in the custody of the police.

Explanation I.—For the avoidance of doubts, it is hereby

declared that, notwithstanding the expiry of the period specified
in paragraph (a), the accused shall be detained in custody so
long as he does not furnish bail.

Explanation II.—If any question arises whether an

accused person was produced before the Magistrate as required
under clause (b), the production of the accused person may be
proved by his signature on the order authorising detention or by
the order certified by the Magistrate as to production of the
accused person through the medium of electronic video linkage,
as the case may be:
 17

Provided further that in case of a woman under eighteen

years of age, the detention shall be authorised to be in the
custody of a remand home or recognised social institution.

(2-A) Notwithstanding anything contained in sub-section

(1) or sub-section (2), the officer in charge of the police station
or the police officer making the investigation, if he is not below
the rank of a sub-inspector, may, where a Judicial Magistrate is
not available, transmit to the nearest Executive Magistrate, on
whom the powers of a Judicial Magistrate, or Metropolitan
Magistrate have been conferred, a copy of the entry in the diary
hereinafter prescribed relating to the case, and shall, at the
same time, forward the accused to such Executive Magistrate,
and thereupon such Executive Magistrate, may, for reasons to
be recorded in writing, authorise the detention of the accused
person in such custody as he may think fit for a term not
exceeding seven days in the aggregate; and, on the expiry of
the period of detention so authorised, the accused person shall
be released on bail except where an order for further detention
of the accused person has been made by a Magistrate
competent to make such order; and, where an order for such
further detention is made, the period during which the accused
person was detained in custody under the orders made by an
Executive Magistrate under this sub-section, shall be taken into
account in computing the period specified in paragraph (a) of
the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid,

the Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the
entries in the diary relating to the case which was transmitted to
him by the officer in charge of the police station or the police
officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention

in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial

Magistrate making such order shall forward a copy of his order,
with his reasons for making it to the Chief Judicial Magistrate.

(5) If in any case triable by Magistrate as a summons-

case, the investigation is not concluded within a period of six
 18

months from the date on which the accused was arrested, the
Magistrate shall make an order stopping further investigation
into the offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the
interests of justice the continuation of the investigation beyond
the period of six months is necessary.

(6) Where any order stopping further investigation into an

offence has been made under sub-section (5), the Sessions
Judge may, if he is satisfied, on an application made to him or
otherwise, that further investigation into the offence ought to be
made, vacate the order made under sub-section (5) and direct
further investigation to be made into the offence subject to such
directions with regard to bail and other matters as he may
specify.”
(Emphasis supplied)

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. In Section 167(2), 90 days of

investigation is permitted, where imprisonment is for a term

not less than ten years. 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. Section 167(2) using the words ‘not less than ten years’
 19

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.

10. Therefore, 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. If the offence now alleged against these

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.

In the considered view of the Court, there can be no other

interpretation. The purport of the word ‘up to five years or five

 20

years and more or extendable up to five years, or up to ten years’,

have borne judicial interpretation from time to time.

11. The Apex Court in the case of RAJEEV CHAUDHARY v.

STATE (NCT) OF DELHI1 interpreting Section 167(2) or the words

found therein “imprisonment for a term of not less than ten years”

has held as follows:

“…. …. ….
6. From the relevant part of the aforesaid sections, it
is apparent that pending investigation relating to an offence
punishable with imprisonment for a term “not less than 10
years”, the Magistrate is empowered to authorise the
detention of the accused in custody for not more than 90
days. For rest of the offences, the period prescribed is 60
days. Hence in cases where offence is punishable with
imprisonment for 10 years or more, the accused could
be detained up to a period of 90 days. In this context,
the expression “not less than” would mean
imprisonment should be 10 years or more and would
cover only those offences for which punishment could
be imprisonment for a clear period of 10 years or
more. Under Section 386 punishment provided is
imprisonment of either description for a term which
may extend to 10 years and also fine. That means,
imprisonment can be for a clear period of 10 years or
less. Hence, it could not be said that minimum
sentence would be 10 years or more. Further, in
context also if we consider clause (i) of proviso (a) to
Section 167(2), it would be applicable in case where
investigation relates to an offence punishable (1) with
death; (2) imprisonment for life; and (3) imprisonment
for a term of not less than ten years. It would not
cover the offence for which punishment could be
1
(2001) 5 SCC 34
 21

imprisonment for less than 10 years. Under Section

386 IPC, imprisonment can vary from minimum to
maximum of 10 years and it cannot be said that
imprisonment prescribed is not less than 10 years.”

(Emphasis supplied)

Later, the Apex Court in the case of RAKESH KUMAR PAUL v.

STATE OF ASSAM2 carrying forward the interpretation afore-

quoted, has held as follows:

“…. …. ….

71. A bare reading of Section 167 of the Code

clearly indicates that if the offence is punishable with
death or life imprisonment or with a minimum
sentence of 10 years, then Section 167(2)(a)(i) will
apply and the accused can apply for “default bail” only
if the investigating agency does not file charge-sheet
within 90 days. However, in all cases where the
minimum sentence is less than 10 years but the
maximum sentence is not death or life imprisonment
then Section 167(2)(a)(ii) will apply and the accused
will be entitled to grant of “default bail” after 60 days
in case charge-sheet is not filed.

72. Even if I were to assume that two views are

possible and third category envisaged in Section
167(2)(a)(ii) is ambiguous, as suggested by learned Brother
Pant, J., then also I have no doubt in my mind that a statute
which curtails the liberty of a person must be read strictly.
When any human right; a constitutional fundamental right of
a person is curtailed, then the statute which curtails such
right must be read strictly. Section 167 of the Code lays

2
(2017) 15 SCC 67
 22

down the procedure established by law by which a

person can be deprived of his personal liberty
guaranteed to him under Article 21 of the Constitution
of India. If two meanings could be attributed to such a
provision then the courts must lean towards liberty
and accept that interpretation of the statute which
upholds the liberty of the citizen and which keeps the
eternal flame of liberty alive. If words are ambiguous
then also the court should be reluctant to accept that
interpretation which curtails the right of a human
being of being free.”
(Emphasis supplied)

The Apex Court holds that even an assumption of two views

emerging possible it should be in favour of the liberty under Article

21 of the Constitution of India. Later, the Apex Court in the case of

M. RAVINDRAN v. INTELLIGENCE OFFICER, DIRECTORATE OF

REVENUE INTELLIGENCE3 has held as follows:

“…. …. ….
II. Section 167(2) and the Fundamental Right to Life and
Personal Liberty

17. Before we proceed to expand upon the parameters

of the right to default bail under Section 167(2) as
interpreted by various decisions of this Court, we find it
pertinent to note the observations made by this Court
in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State
of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] on
the fundamental right to personal liberty of the person and
the effect of deprivation of the same as follows : (SCC p.
472, para 13)

3
(2021) 2 SCC 485
 23

“13. … Personal liberty is one of the cherished

objects of the Indian Constitution and deprivation of the
same can only be in accordance with law and in
conformity with the provisions thereof, as stipulated
under Article 21 of the Constitution. When the law
provides that the Magistrate could authorise the
detention of the accused in custody up to a maximum
period as indicated in the proviso to sub-section (2) of
Section 167, any further detention beyond the period
without filing of a challan by the investigating agency
would be a subterfuge and would not be in accordance
with law and in conformity with the provisions of the
Criminal Procedure Code, and as such, could be violative
of Article 21 of the Constitution.”

17.1. Article 21 of the Constitution of India provides

that “no person shall be deprived of his life or personal
liberty except according to procedure established by law”. It
has been settled by a Constitution Bench of this Court
in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union
of India, (1978) 1 SCC 248] , that such a procedure cannot
be arbitrary, unfair or unreasonable. The history of the
enactment of Section 167(2) CrPC and the safeguard of
“default bail” contained in the proviso thereto is intrinsically
linked to Article 21 and is nothing but a legislative exposition
of the constitutional safeguard that no person shall be
detained except in accordance with rule of law.

17.2. Under Section 167 of the Code of Criminal

Procedure, 1898 (“the 1898 Code”) which was in force prior
to the enactment of the CrPC, the maximum period for which
an accused could be remanded to custody, either police or
judicial, was 15 days. However, since it was often
unworkable to conclude complicated investigations within 15
days, a practice arose wherein investigating officers would
file “preliminary charge-sheets” after the expiry of the
remand period. The State would then request the Magistrate
to postpone commencement of the trial and authorise further
remand of the accused under Section 344 of the 1898 Code
till the time the investigation was completed and the final
charge-sheet was filed. The Law Commission of India in
Report No. 14 on Reforms of the Judicial Administration (Vol.
II, 1948, pp. 758-760) pointed out that in many cases the
accused were languishing for several months in custody
 24

without any final report being filed before the courts. It was
also pointed out that there was conflict in judicial opinion as
to whether the Magistrate was bound to release the accused
if the police report was not filed within 15 days.

17.3. Hence the Law Commission in Report No. 14

recommended the need for an appropriate provision
specifically providing for continued remand after the expiry
of 15 days, in a manner that “while meeting the needs of a
full and proper investigation in cases of serious crime, will
still safeguard the liberty of the person of the individual”.
Further, that the legislature should prescribe a maximum
time period beyond which no accused could be detained
without filing of the police report before the Magistrate. It
was pointed out that in England, even a person accused of
grave offences such as treason could not be indefinitely
detained in prison till commencement of the trial.

17.4. The suggestion made in Report No. 14 was

reiterated by the Law Commission in Report No. 41
on The Code of Criminal Procedure, 1898 (Vol. I, 1969,
pp. 76-77). The Law Commission re-emphasised the
need to guard against the misuse of Section 344 of the
1898 Code by filing “preliminary reports” for
remanding the accused beyond the statutory period
prescribed under Section 167. It was pointed out that
this could lead to serious abuse wherein “the arrested
person can in this manner be kept in custody
indefinitely while the investigation can go on in a
leisurely manner”. Hence the Commission
recommended fixing of a maximum time-limit of 60
days for remand. The Commission considered the
reservation expressed earlier in Report No. 37 that
such an extension may result in the 60-day period
becoming a matter of routine. However, faith was
expressed that proper supervision by the superior
courts would help circumvent the same.

17.5. The suggestions made in Report No. 41 were

taken note of and incorporated by the Central Government
while drafting the Code of Criminal Procedure Bill in 1970.
Ultimately, the 1898 Code was replaced by the present CrPC.
The Statement of Objects and Reasons of the CrPC provides
 25

that the Government took the following important

considerations into account while evaluating the
recommendations of the Law Commission:

“3. The recommendations of the Commission

were examined carefully by the Government, keeping in
view, among others, the following basic considerations:

(i) an accused person should get a fair trial in

accordance with the accepted principles of
natural justice;

(ii) every effort should be made to avoid delay in

investigation and trial which is harmful not only
to the individuals involved but also to society;
and

(iii) the procedure should not be complicated and

should, to the utmost extent possible, ensure fair
deal to the poorer sections of the community.”

17.6. It was in this backdrop that Section 167(2) was

enacted within the present day CrPC, providing for time-
limits on the period of remand of the accused, proportionate
to the seriousness of the offence committed, failing which
the accused acquires the indefeasible right to bail. As is
evident from the recommendations of the Law Commission
mentioned supra, the intent of the legislature was to balance
the need for sufficient time-limits to complete the
investigation with the need to protect the civil liberties of the
accused. Section 167(2) provides for a clear mandate
that the investigative agency must collect the required
evidence within the prescribed time period, failing
which the accused can no longer be detained. This
ensures that the investigating officers are compelled
to act swiftly and efficiently without misusing the
prospect of further remand. This also ensures that the
court takes cognizance of the case without any undue
delay from the date of giving information of the
offence, so that society at large does not lose faith and
develop cynicism towards the criminal justice system.

17.7. Therefore, as mentioned supra, Section

167(2) is integrally linked to the constitutional
 26

commitment under Article 21 promising protection of

life and personal liberty against unlawful and arbitrary
detention, and must be interpreted in a manner which
serves this purpose. In this regard we find it useful to
refer to the decision of the three-Judge Bench of this
Court in Rakesh Kumar Paul v. State of Assam [Rakesh
Kumar Paul v. State of Assam, (2017) 15 SCC 67 :
(2018) 1 SCC (Cri) 401] , which laid down certain
seminal principles as to the interpretation of Section
167(2) CrPC though the questions of law involved
were somewhat different from the present case. The
questions before the three-Judge Bench in Rakesh
Kumar Paul [Rakesh Kumar Paul v. State of Assam,
(2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] were
whether, firstly, the 90-day remand extension under
Section 167(2)(a)(i) would be applicable in respect of
offences where the maximum period of imprisonment
was 10 years, though the minimum period was less
than 10 years. Secondly, whether the application for
bail filed by the accused could be construed as an
application for default bail, even though the expiry of
the statutory period under Section 167(2) had not
been specifically pleaded as a ground for bail. The
majority opinion held that the 90-day limit is only
available in respect of offences where a minimum ten
year' imprisonment period is stipulated, and that the
oral arguments for default bail made by the counsel
for the accused before the High Court would suffice in
lieu of a written application. This was based on the
reasoning that the court should not be too technical in
matters of personal liberty. Madan B. Lokur, J. in his
majority opinion, pertinently observed as follows : (SCC pp.
95-96 & 99, paras 29, 32 & 41)

“29. Notwithstanding this, the basic legislative

intent of completing investigations within twenty-four
hours and also within an otherwise time-bound period
remains unchanged, even though that period has been
extended over the years. This is an indication that in
addition to giving adequate time to complete
investigations, the legislature has also and always put a
premium on personal liberty and has always felt that it
would be unfair to an accused to remain in custody for a
 27

prolonged or indefinite period. It is for this reason and

also to hold the investigating agency accountable that
time-limits have been laid down by the legislature. …
***

32. … Such views and opinions over a prolonged

period have prompted the legislature for more than a
century to ensure expeditious conclusion of
investigations so that an accused person is not
unnecessarily deprived of his or her personal liberty by
remaining in prolonged custody for an offence that he or
she might not even have committed. In our opinion, the
entire debate before us must also be looked at from the
point of view of expeditious conclusion of investigations
and from the angle of personal liberty and not from a
purely dictionary or textual perspective as canvassed by
the learned counsel for the State.

***

41. We take this view keeping in mind that in

matters of personal liberty and Article 21 of the
Constitution, it is not always advisable to be formalistic
or technical. The history of the personal liberty
jurisprudence of this Court and other constitutional
courts includes petitions for a writ of habeas corpus and
for other writs being entertained even on the basis of a
letter addressed to the Chief Justice or the Court.”

(emphasis supplied)

Therefore, the courts cannot adopt a rigid or formalistic

approach whilst considering any issue that touches upon the
rights contained in Article 21.

17.8. We may also refer with benefit to the recent

judgment of this Court in S. Kasi v. State [S. Kasi v. State,
(2021) 12 SCC 1 : 2020 SCC OnLine SC 529] , wherein it
was observed that the indefeasible right to default bail under
Section 167(2) is an integral part of the right to personal
liberty under Article 21, and the said right to bail cannot be
suspended even during a pandemic situation as is prevailing
currently. It was emphasised that the right of the accused to
be set at liberty takes precedence over the right of the State
to carry on the investigation and submit a charge-sheet.
 28

17.9. Additionally, it is well-settled that in case

of any ambiguity in the construction of a penal statute,
the courts must favour the interpretation which leans
towards protecting the rights of the accused, given the
ubiquitous power disparity between the individual
accused and the State machinery. This is applicable
not only in the case of substantive penal statutes but
also in the case of procedures providing for the
curtailment of the liberty of the accused.

17.10. With respect to the CrPC particularly, the

Statement of Objects and Reasons (supra) is an
important aid of construction. Section 167(2) has to be
interpreted keeping in mind the threefold objectives
expressed by the legislature, namely, ensuring a fair
trial, expeditious investigation and trial, and setting
down a rationalised procedure that protects the
interests of indigent sections of society. These objects
are nothing but subsets of the overarching
fundamental right guaranteed under Article 21.

17.11. Hence, it is from the perspective of

upholding the fundamental right to life and personal
liberty under Article 21 that we shall clarify and
reconcile the various judicial interpretations of Section
167(2) for the purpose of resolving the dilemma that
has arisen in the present case.
… … …
V. Rights of the Prosecutor under Section 167(2) CrPC
read with Section 36-A(4), NDPS Act

20. There also appears to be some controversy on

account of the opinion expressed in Hitendra Vishnu
Thakur [Hitendra Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] that the Public
Prosecutor may resist grant of default bail by filing a report
seeking extension of time for investigation. The Court held
that : (SCC p. 635, para 30)
 29

“30. … It is, however, permissible for the Public

Prosecutor to resist the grant of bail by seeking an
extension under clause (bb) by filing a reportfor the
purpose before the court. However, no extension shall
be granted by the court without notice to an accused to
have his say regarding the prayer for grant of extension
under clause (bb). In this view of the matter, it is
immaterial whether the application for bail on ground of
“default” under Section 20(4) is filed first or the report
as envisaged by clause (bb) is filed by the Public
Prosecutor first so long as both are considered while
granting or refusing bail. If the period prescribed by
clause (b) of Section 20(4) has expired and the court
does not grant an extension on the report of the Public
Prosecutor made under clause (bb), the
court shall release the accused on bail as it would be an
indefeasible right of the accused to be so released. Even
where the court grants an extension under clause (bb)
but the charge-sheet is not filed within
the extended period, the court shall have no option but
to release the accused on bail if he seeks it and is
prepared to furnish the bail as directed by the court.”

(emphasis in original and supplied)

This was affirmed by the Constitution Bench in Sanjay

Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC
(Cri) 1433] , wherein it was held that the grant of default
bail is subject to refusal of the prayer for extension of time, if
such a prayer is made. This seems to have given rise to the
misconception that Sanjay Dutt [Sanjay Dutt v. State,
(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] endorses the view
that the prosecution may seek extension of time (as
provided for under the relevant special statute) for
completing the investigation or file a final report at any time
before the accused is released on bail, notwithstanding the
fact that a bail application on ground of default has already
been filed.

20.1. The observations made in Hitendra Vishnu

Thakur [Hitendra Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] and Sanjay
Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC
(Cri) 1433] to the effect that the application for default bail
and any application for extension of time made by the Public
 30

Prosecutor must be considered together are, in our opinion,

only applicable in situations where the Public Prosecutor files
a report seeking extension of time prior to the filing of the
application for default bail by the accused. In such a
situation, notwithstanding the fact that the period for
completion of investigation has expired, both applications
would have to be considered together. However, where the
accused has already applied for default bail, the Prosecutor
cannot defeat the enforcement of his indefeasible right by
subsequently filing a final report, additional complaint or
report seeking extension of time.

20.2. It must also be added and it is well settled

that issuance of notice to the State on the application
for default bail filed under the proviso to Section
167(2) is only so that the Public Prosecutor can satisfy
the court that the prosecution has already obtained an
order of extension of time from the court; or that the
challan has been filed in the designated court before
the expiry of the prescribed period; or that the
prescribed period has actually not expired. The
prosecution can accordingly urge the court to refuse
granting bail on the alleged ground of default. Such
issuance of notice would avoid the possibility of the
accused obtaining default bail by deliberate or
inadvertent suppression of certain facts and also
guard against multiplicity of proceedings.

20.3. However, Public Prosecutors cannot be

permitted to misuse the limited notice issued to them
by the court on bail applications filed under Section
167(2) by dragging on proceedings and filing
subsequent applications/reports for the purpose of
“buying extra time” and facilitating filling up of
lacunae in the investigation by the investigating
agency.”
(Emphasis supplied)

The Apex Court, in the afore-quoted judgment, dealt with interplay

of Section 167(2), the fundamental right to life and personal liberty.

 31

The Apex Court holds that resolution of the dilemma of

interpretation of Section 167(2) should always be leaning towards

the purport of Article 21 of the Constitution of India. The

unmistakable inference of afore-quoted elucidation by the Apex

Court is that when the punishment is up to ten years, the

investigation is 60 days and in those cases, the accused were held

entitled to statutory bail, if the investigation is not completed within

60 days. In Section 187 of BNSS the phraseology is offence

punishable for ten years or more. As observed hereinabove, ten

years or more would unequivocally mean that the threshold

punishment is ten years, and not a punishment up to ten years.

12. Three decades ago, a learned single Judge of this Court in

the case of DHARMASINGH v. STATE OF KARNATAKA4, while

interpreting the provisions of Narcotic Drugs and Psychotropic

Substances Act has held as follows:

“…. …. ….

5. The learned Government Pleader relied on 1991

Criminal Law Journal, 654 [Narcotics Control
Bureau v. Kishan Lal.] wherein the Supreme Court has laid
down as follows:—

4
ILR 1992 KAR 3137
 32

“Section 37 as amended starts with a non-

obstante clause stating that notwithstanding anything
contained in the Code of Criminal Procedure, 1973 no
person accused of an offence prescribed therein shall be
released on bail unless the conditions contained therein
were satisfied. The N.D.P.S. Act is a special enactment
and it was enacted with a view to make stringent
provisions for the control and regulation of operations
relating to narcotic drugs and psychotropic substances.
That being the underlying object and particularly when
the provisions of Section 37 of NDPS Act are in negative
terms limiting the scope of the applicability of the
provisions of Cr. P.C. regarding bail, it cannot be said
that the High Court's powers to grant bail under Section
439, Cr. P.C. are not subject to the limitation mentioned
under Section 37 of the NDPS Act. The non-obstante
clause with which the section starts should be given its
due meaning and clearly it is intended to restrict the
powers to grant bail. In case of inconsistency between
Section 439, Cr. P.C. and Section 37 of the NDPS Act,
Section 37 prevails. The provisions of Section 4, Cr. P.C.
also make it clear that when there is a special
enactment in force relating to the manner of
investigation, enquiry or otherwise dealing with such
offences, the other powers under Cr. P.C. should be
subject to such special enactment. In interpreting the
scope of such a statute the dominant purpose underlying
the statute has to be borne in mind. Consequently the
power to grant bail under any of the provisions of Cr.
P.C. should necessarily be subject to the conditions
mentioned in Section 37 of the NDPS Act.”

In view of the interpretation of Section 37 by the Supreme

Court in the said Ruling, the provisions of Cr. P.C. regarding
bail are subject to the conditions mentioned in Section 37 of
the Act. The learned Counsel for the petitioners have argued
that Section 37 will be applicable only to a person who is
accused of an offence which is punishable for a term of
minimum 5 years or more. According to them if the offence
is punishable for a term less than 5 years, Section 37 of the
Act will not be attracted. The relevant provision of Section 37
of the Act lays down that no person accused of an offence
punishable for the term of imprisonment for a period 5 years
or more shall be released on bail unless the conditions laid
down in sub-section (b)(1)(2) are satisfied. Now it will have
 33

to seen whether the expression “an offence punishable for a

term of imprisonment of 5 years or more under this Act”
means that it refers to an offence for which the minimum
punishment is 5 years or more. In A.I.R. 1988 SC 1875 [Dr.
Ajay Pradhan v. State of Madhya Pradesh.] , the Supreme
Court while dealing as to how the words in statutes are to be
interpreted has laid down guidelines in the following
words:—

“A rule must be interpreted by the written text. If

the precise words used are plain and unambiguous, the
Court is bound to construe them in their ordinary sense
and give them full effect. The plea of inconvenience and
hardship is a dangerous one and is only admissible in
construction where the meaning of the statute is
obscure and there are alternative methods of
construction. Where the language is explicit its
consequences are for Parliament, and not for the Courts,
to consider.”

In A.I.R. 1954 SC 496 [Tolaram v. State of Bombay.] , the

Supreme Court has given guidance as to how the penal
provisions in an Act are to be interpreted in the following
words:—

“If two possible and reasonable constructions can

be put upon a penal provision, the court must lean
towards that construction which exempts the subject
from penalty rather than the one which imposes penalty.
It is not competent to the Court to stretch the meaning
of an expression used by the Legislature in order to
carry out the intention of the Legislature.”

Interpreting the expression “punishable for a term of

imprisonment of 5 years or more” in the light of the
Supreme Court Ruling quoted above, I am of the
opinion that the expression means that the offence
should be punishable with minimum of 5 years or more
because the words “or more” are added only to
emphasise that the offences punishable with minimum
5 years or more are to be offence for which the
provision of Section 37 of the Act is made applicable.
The said expression means that the offence should be
punishable with minimum of 5 years or more. The
 34

words “or more” are to be read with reference to “5

years” in their grammatical meaning. “5 years or
more” mean that the basis is 5 years and “or more” is
the period that has to be considered with reference to
the basis of “5 years”. If the intention of the
Legislature was to make Section 37 of the Act
applicable to the offences which are punishable even
upto 5 years or less, then the Legislature would not
have used the expression “5 years or more”. It could
have simply said for any offences. It could not have
qualified the words offence in Section 37 with the
expression “punishable for a term of imprisonment for
5 years or more.” Therefore the expression means that
the offence must be punishable with the punishment
which shall be not less than 5 years, but it can be
more. The Ruling of the Supreme Court reported in
1991 Criminal Law Journal 654 [Narcotics Control
Bureau v. Kishan Lal.] can be distinguished on the
ground that the Supreme Court has not considered this
aspect of Section 37 in that Ruling.

6. The offence alleged against the petitioner is

punishable under Section 20 of the Act with a term
which may extend to 5 years and shall also be liable to
fine, which may extend to Rs. 50,000/-. The offence
alleged against the petitioner is punishable in
maximum upto 5 years and not for a term of
imprisonment for 5 years or more. The maximum
punishment provided is 5 years and Section 37 of the
Act applies to the offences punishable with
imprisonment which cannot be less than 5 years but it
can be more. Therefore, the provisions of Section 37 of
the Act will not be attracted to the offence under
Section 20 of the Act as the maximum punishment
provided for the offence is 5 years. If the punishment
for the offence under Section 20 were to be not less
than 5 years but 5 years or more, then Section 37
would have been attracted.”

(Emphasis supplied)
 35

A learned single Judge holds that five years and more would be,

that the minimum sentence should be five years. Under Section

187(3) of BNSS the phrase used is ten years or more. It is

axiomatic that the threshold punishment is ten years.

13. The petitioners have placed reliance upon certain

judgments of this Court and that of Apex Court. In the case of

KNIT PRO INTERNATIONAL v. STATE OF NCT OF DELHI

reported in (2022) 10 SCC 221 the Apex Court holds that when the

punishment can go up to three years, the maximum punishment

imposable becomes three years. Therefore, those offences are

cognizable. The same was the interpretation of this Court in the

case of ANI TECHNOLOGIES PRIVATE LIMITED v. STATE OF

KARNATAKA – W.P.No.32942 of 2017 decided on 20-12-2021.

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
 36

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.

14. If the offences now alleged are taken note of against

these accused, the maximum punishment is that can be extended

up to ten years. It is not ten years or more. 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.

 37

SUMMARY OF FINDINGS:

(i) 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.

(ii) 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.

(iii) 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.

(iv) 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.

(v) 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
 38

would run from day one to day 60, maximum period in

both the cases is 15 days of police custody.

(vi) 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.

15. For the aforesaid reasons, finding no warrant to interfere

with the order passed by the concerned Court, the petitions deserve

to be rejected and are accordingly, rejected.

Pending application if any, also stand disposed.

Sd/-
(M. NAGAPRASANNA)
JUDGE
Bkp
CT:MJ