LITIGATION STRATEGY UNDER SECTION 187 BNSS, 2023

Posted on February 25, 2026 by Admin

⚖ LITIGATION STRATEGY UNDER SECTION 187 BNSS, 2023

(Police Custody Remand Defence Framework)

🔎 I. Understand the Structural Change

Under Section 187 BNSS:

Total police custody = maximum 15 days
But can be granted any time within first 40 days (60-day offences)
or first 60 days (90-day offences)

👉 Therefore, the defence must now attack:

Necessity
Delay
Misuse of extended window
Article 21 proportionality

🧠 II. Core Defence Arguments Against Police Custody

1️⃣ ARGUMENT OF DELAY (Strategic Ground)

If police seek custody after 20–30 days:

Defence Submission:

“The investigating agency had ample opportunity during earlier period. The belated request indicates lack of diligence and violates proportionality under Article 21.”

Even though BNSS permits extended window, you argue:

Late custody = harassment
Investigation cannot be improved by delay
Liberty strengthened with time

Use reasoning from:

Manubhai Ratilal Patel v. State of Gujarat (application of mind)
Jayrajsinh Temubha Jadeja v. State of Gujarat (reasoned order)

2️⃣ ARGUMENT OF “NO SPECIFIC NECESSITY”

Police must show:

Recovery pending?
Discovery under Evidence Act?
Confrontation with co-accused?
Digital extraction required?

If grounds are vague:

“Investigation is at crucial stage”

→ Argue mechanical request.

3️⃣ ARGUMENT OF PRIOR INTERROGATION

If accused already interrogated during:

Informal custody
Transit remand
Earlier police custody

Argue:

“No fresh grounds shown. Previous custody not demonstrated to be ineffective.”

4️⃣ ARGUMENT OF DOCUMENTARY / ECONOMIC OFFENCE

In financial crimes:

Argue:

Evidence is documentary
Already seized
Custodial interrogation unnecessary

Use principle from:

State through CBI v. Anil Sharma
(Custody justified only when necessary for effective interrogation)

5️⃣ ARGUMENT OF PROPORTIONALITY (Constitutional Strategy)

BNSS expanded custody window.

Argue:

Section 187 must be read in light of Article 21.
Expanded window ≠ automatic entitlement.
Custody must satisfy proportionality test:
- Legitimate aim
- Necessity
- Least restrictive measure

This opens constitutional challenge space in future litigation.

📊 III. Tactical Courtroom Approach

Step 1: Demand Case Diary Inspection

Magistrate must examine it.

Step 2: Ask Court to Record:

Specific purpose of custody
Why judicial custody insufficient
Why earlier opportunity not used

Step 3: Seek Limited Custody

If unavoidable:

Ask for reduced days (1–2 instead of 7–10)
Ask for interrogation timing limits

🧾 IV. Grounds for Revision / High Court Challenge

If remand granted mechanically:

File:

Revision under BNSS equivalent of Sec 397 CrPC
Petition under inherent powers

Grounds:

Non-application of mind
No specific necessity
Violation of Section 187 structure
Violation of Article 21

📘 V. Strategy in Multiple FIR Cases

If accused already in judicial custody in FIR 1:

Police must:

Obtain production warrant
Follow fresh remand procedure

Use reasoning from:

Pradeep Ram v. State of Jharkhand

⚠ VI. When Police Custody Is Likely to Be Granted

Realistically, courts grant PC when:

✔ Recovery of weapon
✔ Custody of mobile / digital devices
✔ Identification of co-accused
✔ Terror / NDPS / organized crime cases

In such cases:

Focus on reducing duration, not full rejection.

🎯 Golden Defence Formula Under BNSS

“Total police custody is capped at 15 days, and expanded window under Section 187 does not dilute the constitutional obligation of strict judicial scrutiny.”

📌 10-Second Courtroom Submission Model

“Your Honour, Section 187 permits custody but does not mandate it. The prosecution has failed to demonstrate specific investigative necessity. Liberty under Article 21 demands strict scrutiny. Judicial custody is sufficient.”