The court clarified that under Section 187 of BNSS, police custody for offences punishable up to ten years is limited to 15 days within the first 40 days of investigation.

CAV ORDER

M.NAGAPRASANNA, J.

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 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 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 BNS S is within 40 days. Those 40 days having lapsed, there was no warrant to grant police custody is the reason 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 BNS S, 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 and the police custody must be