​15-day remand & ‘default bail’

Existing provision: The Constitution and the CrPC prohibit

detention of an accused in custody beyond 24 hours, if not
produced before a magistrate during that time.
The magistrate is empowered to extend custody [either police or
judicial] up to 15 days if the investigation cannot be completed
within 24 hours since the detention of the accused.
Section 167 of the CrPC, however, allows the magistrate to
authorise the detention of the accused person — “otherwise than in
the custody of the police” — beyond a period of 15 days.
Simply put, this section allows the magistrate to extend judicial
custody beyond 15 days, up to a maximum of 60 or 90 days,
depending on the extent of punishment prescribed.
Under Section 167(2), an accused can be detained in custody for a
maximum of 90 days for a crime punishable with death, life
imprisonment or a sentence of over 10 years.
This duration is 60 days in the case of other offences.
In some special statutes such as the Narcotic Drugs and
Psychotropic Substances (NDPS) Act, the period of detention can
extend to 180 days. If the investigative agencies do not complete
their investigation within this time, the arrested person is entitled
to ‘default bail’.
Proposed provision:Clause 187 of BNSS-II, which seeks to replace
Section 167 of the CrPC, while retaining the “default bail” provision,
allows detention in custody to be authorised beyond the 15-day
period, without the stipulation that it must be “otherwise than in
police custody”. This was being understood as extending the
maximum time allowed for an accused to be kept in police custody,
to 60 or 90 days from the earlier 15.
A few critics felt that this omission may be inadvertent, but others
feared that this may impinge on the rights granted to an accused
under Article 21 of the Constitution. It has also been pointed out
that extended police custody exposes the accused to increased
likelihood of custodial violence, and makes them vulnerable to
forced confessions.
Union Home Minister Amit Shah has clarified, however, that it was
a misconception that the new bill increased total police custody for
an accused after initial arrest from 15 to 60 days.
Clarifying that the total police custody cannot exceed fifteen days,
he said that the provision is introduced to allow flexibility, so that
police can seek custody in different spells over 40 or 60 days as the
case may be. In any case, the clarification must be added to the new
bill to make the provision clearer and to prevent its misuse.
Use of handcuffs
Section 43 of BNSS-II allows a police officer to use handcuffs while
making an arrest or producing such a person in court, keeping in
view the nature and gravity of the offence.
Handcuffs: according to the proposed code, can be used on a
person who is a habitual or repeat offender, or who escaped from
custody, or who has committed an offence of organised crime,
terrorist act, drug-related crime, or illegal possession of arms and
ammunition, murder, rape, acid attack, counterfeiting of coins and
currency notes, human trafficking, sexual offence against children,
or offence against the State.
The Supreme Court has held in the past that handcuffing is prima
facie inhuman, unreasonable, arbitrary and as such repugnant to
Article 21, ruling that in the extreme circumstances that a prisoner
needs to be handcuffed, the escorting authority must record
reasons for doing so, and the police need to obtain special orders
from the magistrate for the same.
The provision, however, does not incorporate these safeguards.