SC Clarifies Police Custody Timing And Advocate's Interrogation Rights Under BNSS

Supreme Court of India Clarifies Police Custody Timing and Advocate's Interrogation Rights Under BNSS

The Supreme Court of India has delivered a landmark ruling that fundamentally reshapes how police custody and advocate access operate under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), India's new criminal procedure code. In a judgment arising from a custodial-death investigation originating in Andhra Pradesh, the apex court has clarified two critical issues that will influence investigative practice and defence representation across Indian law enforcement agencies and courts.

The dual holding addresses long-standing ambiguities in custodial detention and interrogation rights. First, the Supreme Court of India has ruled that police custody under Section 187(2) of the BNSS need not be sought as a single continuous block within the first fifteen days of remand. Instead, police may seek custody in separate parts or tranches, provided the aggregate duration does not exceed fifteen days across the entire permissible detention period. Second, the court has clarified that Section 38 of the BNSS, which guarantees an arrested person the right to meet an advocate of choice, does not require that advocate to remain physically present throughout the entire interrogation process. The Supreme Court in India set aside a High Court condition that had mandated continuous physical presence of defence counsel during questioning, holding such a requirement to be neither mandated by statute nor practicable in investigative settings.

These rulings emerge from a case involving allegations of custodial death in Andhra Pradesh, where investigative and procedural disputes had reached the highest court of India regarding the proper interpretation of remand custody provisions and advocate access rights under the newly enacted criminal procedure framework. The case status in Supreme Court of India had drawn attention from criminal law practitioners, police departments, and civil rights advocates, given the foundational nature of the questions at stake.

Reinterpreting Section 187(2) BNSS: Custody in Parts, Not Necessarily Continuous

Under the previous Code of Criminal Procedure, 1973, police custody remand was typically sought and granted as a continuous period. The Supreme Court of India's new interpretation of Section 187(2) BNSS introduces flexibility that was not explicitly stated in the statutory language but which the court found to be consistent with the statute's overall architecture and investigative necessity.

The ruling permits investigating officers to seek police custody on multiple occasions during a remand period, rather than requesting the maximum fifteen days upfront. This means that if an investigation requires custodial interrogation at different stages—for instance, to confront an accused with newly recovered evidence or statements from co-accused—police may return to court and seek fresh custody orders. Crucially, however, the aggregate of all such custody periods cannot exceed fifteen days from the date of arrest.

This interpretation carries significant implications for investigative strategy. It allows police flexibility to conduct interrogation in phases, release an accused into judicial custody between phases, and seek fresh custody only when investigation progresses to a point requiring further questioning. The Supreme Court of India reasoned that such an approach serves both investigative efficiency and the interests of accused persons, as it prevents prolonged continuous detention while preserving police access to custodial interrogation when genuinely necessary.

The ruling also implicitly recognises that investigations do not always unfold in a linear fashion. Evidence may be recovered, witnesses may be examined, or forensic reports may become available at different points in time. The flexibility to seek custody in tranches rather than as a single block allows investigative strategy to adapt to these developments without requiring police to seek custody for the full fifteen-day period upfront, which may be unnecessary and wasteful of remand time.

However, the Supreme Court of India's judgment also establishes a clear ceiling. The aggregate of all custody periods—whether sought in two parts, three parts, or more—cannot exceed fifteen days. This ceiling is non-negotiable and reflects the constitutional safeguards against prolonged custodial detention embedded in Articles 20 and 21 of the Indian Constitution. The ruling thus balances investigative necessity with fundamental rights protection, a principle central to the Supreme Court in India's jurisprudence on criminal procedure.

Section 38 BNSS and the Advocate's Right: Physical Presence Not Mandatory Throughout Interrogation

The second pillar of the Supreme Court of India's ruling addresses a more contentious issue: the nature and extent of an advocate's right to be present when an arrested person is interrogated. Section 38 of the BNSS provides that an arrested person has the right to meet an advocate of choice, a provision designed to ensure legal representation from the moment of arrest.

A High Court had previously imposed a condition requiring the chosen advocate to be physically present throughout the entire interrogation process. This condition was framed as a safeguard against custodial abuse and to ensure that the arrested person had continuous legal advice and oversight during questioning. However, the Supreme Court of India has now set aside this requirement, holding that it is neither mandated by Section 38 nor by any other provision of the BNSS.

The Supreme Court in India reasoned that the statute grants an arrested person the right to meet an advocate, not necessarily the right to have that advocate sit beside them during every moment of interrogation. The court acknowledged that continuous physical presence of an advocate throughout custodial interrogation could impede legitimate investigative questioning and would place an impractical burden on the legal profession, as advocates would be required to remain on premises for extended periods.

Instead, the Supreme Court of India held that Section 38 should be read as conferring the right to consult with an advocate before interrogation commences, to have access to that advocate during breaks or intervals in questioning, and to seek legal advice if the interrogation is resumed. The advocate may be called into the police station or interrogation facility on reasonable notice, and the arrested person may communicate with their legal representative at appropriate intervals.

This interpretation aligns with practical realities of police investigation while still protecting the core right to legal representation. It ensures that an arrested person is not denied access to their advocate, but it does not require the advocate's continuous physical presence in a way that would render custodial interrogation impractical or transform the interrogation room into a three-party conversation.

The ruling is significant for the legal profession in India. Advocates will no longer face a statutory obligation to remain physically present throughout custodial interrogation, a requirement that would have created logistical and professional challenges. Instead, defence counsel can advise their clients before and after interrogation sessions, and can be present during the interrogation if the client and investigator agree, but such presence is not mandatorily required.