A Statutory and Constitutional Perspective!
By Adv. Kamlakant (Raju) Poulekar,
Mb No. 98902 16867
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced important changes to the law relating to criminal investigation. One of the most significant provisions is Section 193(2), which mandates that the investigation “shall be completed within two months.” The important question that arises is whether the expiry of this period, without completion of the investigation and submission of the police report, entitles the accused to statutory or default bail under Section 187 BNSS.
Although this issue is yet to be conclusively decided by the Hon’ble Supreme Court of India, it must be examined in the light of the language employed by Parliament, the scheme of the BNSS, settled principles of statutory interpretation and the constitutional guarantee of personal liberty under Article 21 of the Constitution of India.
The first principle of statutory interpretation is that where the language of a statute is plain and unambiguous, it must ordinarily be given its natural and ordinary meaning. Section 193(2) uses the word “shall” while prescribing that the investigation shall be completed within two months. The use of the word “shall” ordinarily indicates a mandatory legislative command unless the statute itself suggests otherwise. Parliament has consciously prescribed a definite time limit for completion of the investigation. In the absence of any indication that the provision is merely directory, the Court must give effect to the language chosen by the Legislature.
Section 193, however, cannot be read in isolation. It must be read as a whole. Sub-section (2) mandates completion of the investigation within two months, while sub-section (3) requires the Investigating Officer, after completing the investigation, to forward the police report to the Magistrate and also provides a mechanism for extension of time. Thus, the statutory scheme contemplates one continuous process, namely completion of the investigation followed by submission of the police report. The filing of the police report is the culmination of the investigation. Therefore, the statutory period prescribed for completion of the investigation necessarily governs the filing of the police report as well.
Section 187 BNSS does not independently prescribe the period within which an investigation must be completed. It merely provides the consequence that follows if the investigation is not completed within the period prescribed by law. Therefore, it may legitimately be argued that there cannot ordinarily be two different statutory timelines governing the very same investigation, one for completion of investigation under Section 193(2) and another for accrual of the right to default bail under Section 187. Such an interpretation finds no express support in the language of the BNSS and may result in an inconsistency within the statutory scheme.
The legislative intent becomes clearer from the extension mechanism incorporated in Section 193 itself. Parliament has specifically empowered the investigating agency to seek an extension of time from the competent Court for completing the investigation. This is a significant indication of legislative intent. If the investigating agency were otherwise free to continue the investigation beyond two months without obtaining an extension, the statutory provision enabling extension would serve little practical purpose.
This conclusion is supported by well-settled principles of statutory interpretation. The doctrine of harmonious construction requires every provision of a statute to be interpreted in a manner that gives effect to the entire enactment. The Rule Against Surplusage requires that no provision should be treated as redundant or unnecessary.
The doctrine of casus omissus also assumes significance. Courts cannot supply omissions which the Legislature has consciously not provided. The BNSS nowhere states that the consequence under Section 187 will arise only after the expiry of a different period despite the mandatory timeline prescribed under Section 193(2). In the absence of such express language, the Court cannot read into the statute an exception which Parliament itself has not enacted.
Similarly, the principle of expressio unius est exclusio alterius supports the same interpretation. Parliament has expressly prescribed a mandatory period for investigation and has also expressly provided a mechanism for extension of that period. It has not created any separate or additional timeline postponing the operation of Section 187. The express inclusion of one mechanism ordinarily excludes the implication of another.
One of the principal objects behind introducing fixed timelines under the BNSS is to ensure expeditious investigation, avoid unnecessary delay and prevent prolonged incarceration of accused persons awaiting completion of investigation. An interpretation which permits the investigating agency to continue the investigation beyond the prescribed period without obtaining an extension may defeat the very object which Parliament intended to achieve.
The law relating to default bail is well settled. In Uday Mohanlal Acharya v. State of Maharashtra, the Constitution Bench of the Supreme Court held that the right to default bail is an indefeasible right which accrues immediately upon expiry of the statutory period, provided the accused avails of the right before the filing of the charge-sheet. The same principle has been consistently reaffirmed in Union of India v. Nirala Yadav, Rakesh Kumar Paul v. State of Assam, Bikramjit Singh v. State of Punjab and M. Ravindran v. Intelligence Officer. These decisions recognise that default bail is not merely a procedural right but an important safeguard flowing from the constitutional guarantee of personal liberty under Article 21.
The Karnataka High Court in Govinda v. State of Karnataka has taken the view that Section 193(2) is intended primarily to ensure expeditious investigation for the benefit of victims and does not regulate the accused’s entitlement to default bail. While the objective of protecting the rights of victims cannot be disputed, it may respectfully be argued that this interpretation does not fully reconcile the mandatory language employed by Parliament with the overall statutory scheme. If no legal consequence follows from breach of the mandatory timeline prescribed under Section 193(2), the provision may arguably lose much of its practical legal effect notwithstanding the Legislature’s use of imperative language. Whether this interpretation is ultimately accepted by the Hon’ble Supreme Court remains to be decided.
A further interpretative difficulty demonstrates why authoritative guidance from the Hon’ble Supreme Court has become necessary. Section 187 computes the period relevant for default bail from the date of the first remand, whereas Section 193(2) prescribes that the investigation must be completed within two months from the date on which the information is recorded and it is so keeping in mind the legislative intent of completing investigation without unnecessary delay as envisaged in section 193(1) of BNSS. These two provisions may operate differently depending upon the stage at which the accused is arrested. Consider a case where the accused is arrested on the 55th day after registration of the FIR. Upon expiry of two months from the date of recording of the information, the accused may have undergone only five or six days of custody. If the investigating officer has neither filed the final report within the two-month period nor obtained an extension under Section 193(3), the question that arises is whether the accused immediately becomes entitled to default bail, notwithstanding that the period contemplated under Section 187 from the date of the first remand has not expired. The BNSS provides no express answer to this apparent conflict.
Conversely, another anomaly may arise where the accused has remained in custody for more than two months from the date of the first remand. Since Parliament has reduced the statutory period for completion of investigation from ninety days to two months under Section 193(2), the accused may legitimately contend that the reduced statutory timeline governs the right to default bail under Section 187 as well. Consequently, where two months have elapsed from the date of the first remand and no final report has been filed, the accused may argue that the statutory period for completion of investigation has expired and that an indefeasible right to default bail has accrued, notwithstanding that ninety days from the date of remand have not elapsed. This contention flows from the legislative mandate embodied in Section 193(2), which prescribes two months as the maximum period for completion of investigation unless a lawful extension is granted under Section 193(3).
These competing interpretations expose an apparent inconsistency within the statutory framework which the BNSS itself does not reconcile. If Section 193(2) is construed as prescribing the statutory outer limit for completion of investigation, failure to file the final report within that period without obtaining an extension would prima facie entitle the accused to claim default bail? Conversely, if Section 187 alone is treated as governing the accrual of the right to default bail, the investigating agency may continue the investigation until the expiry of the period computed from the date of remand, thereby substantially diluting the mandatory two-month requirement enacted by Parliament under Section 193(2). The BNSS contains no express provision reconciling these competing timelines, nor has the Hon’ble Supreme Court yet authoritatively resolved this important question of law.
The issue must also be examined in the backdrop of Article 21 of the Constitution. The Supreme Court has repeatedly held that no person can be deprived of personal liberty except by a procedure established by law which is fair, just and reasonable. The law relating to default bail has consistently been interpreted as a safeguard against prolonged pre-trial detention resulting from delay in investigation. It is equally well settled that where two reasonable interpretations of a procedural statute are possible, the interpretation which advances personal liberty and protects constitutional rights should ordinarily be preferred.
In my respectful view, a harmonious reading of Sections 187 and 193 BNSS indicates that Parliament intended to prescribe a single statutory timeline for completion of investigation, subject only to extension granted by the competent Court in accordance with law. Upon expiry of that period, without completion of the investigation, submission of the police report or grant of a lawful extension, the statutory consequence contemplated under Section 187 may legitimately follow, provided the accused fulfils the requirements laid down by law. Such an interpretation gives full effect to the language employed by Parliament, preserves the efficacy of the extension mechanism, avoids rendering Section 193(2) redundant and remains consistent with the settled principles of statutory interpretation as well as the constitutional guarantee of personal liberty under Article 21.
Until the Hon’ble Supreme Court finally settles the controversy, the interpretation that best harmonises Sections 187 and 193, gives meaningful effect to every provision of the BNSS and advances the constitutional value of personal liberty deserves serious judicial consideration. After all, the law of default bail is not intended to defeat the administration of criminal justice. It is intended to ensure that investigations are conducted within the limits prescribed by Parliament and that individual liberty is not sacrificed to avoidable delay.
Disclaimer : The views expressed in this article are solely those of the author and are intended to contribute to academic and legal discourse based on the author’s interpretation of the relevant statutory provisions and judicial precedents. This article should not be construed as legal advice or as an opinion on the merits of any past, pending or future litigation. The views expressed herein are personal to the author. Nothing contained in this article is intended to scandalise, undermine, lower the dignity of, or interfere with the administration of justice by any court or tribunal.
