The sixty-first day, the ninety-day offence, and the septic-tank statement
On 3 March 2024, the body of a moneylender was found in a village near Kota with stab wounds. The police registered an FIR under Section 103(1) of the Bharatiya Nyaya Sanhita, 2023 (murder). The accused was arrested on 5 March 2024 and produced before the Magistrate on 6 March 2024. Remand was extended from time to time. On 4 May 2024, the sixty-first day after arrest, the investigating officer filed a chargesheet under Section 103(1). On 5 May 2024, the accused applied for default bail under Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, contending that the sixty-day period had expired and the chargesheet was filed one day late. The prosecution replied that murder is punishable with death or imprisonment for life and the period is ninety days. During interrogation, the accused allegedly told the sub-inspector, 'I hid the knife in the septic tank behind my house.' The police recovered a knife from that tank. The sub-inspector also obtained the accused's signature on a written statement. A neighbour's statement was recorded under Section 180 BNSS; he later says the police threatened him.
1. Is the accused entitled to default bail under Section 187(3) BNSS? Work through the statutory period and the effect of the chargesheet.
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The right to default bail under Section 187(3) BNSS arises only if the investigation is not completed within the statutory period. The proviso prescribes 90 days for an offence punishable with death, imprisonment for life, or imprisonment for not less than ten years, and 60 days for other offences. Murder under Section 103(1) BNS is punishable with death or imprisonment for life. The applicable period is therefore 90 days, not 60. The chargesheet was filed on the 61st day, well within 90 days, and before the bail application. Once a chargesheet is filed before the application, the indefeasible right to default bail is extinguished. The accused cannot claim bail merely because the 60-day period, which does not apply, had run out. The application should be dismissed. The position would differ if the offence were one punishable with less than ten years and no chargesheet had been filed within 60 days.
2. How should the court treat the accused's statement to the sub-inspector and the recovery of the knife?
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Section 25 of the Evidence Act makes a confession to a police officer inadmissible, and Section 26 excludes a confession made in police custody unless it is made before a Magistrate. The words 'I hid the knife' are confessional and cannot be proved. Section 27 (now Section 23(2) BSA) permits only so much of the information as distinctly leads to the discovery of a fact. The prosecution may prove that the accused pointed out the septic tank and that a knife was recovered, but not the accompanying confession. If the police already knew where the knife was, or if the tank was open and accessible, the discovery is not 'distinct' and the evidence loses its value. The signed statement is inadmissible; obtaining a signature does not cure the bar. The recovery is only a circumstance and must be linked to the crime by forensic evidence, such as blood group or fingerprints, before it can support conviction.
3. What is the evidentiary status of the neighbour's statement recorded under Section 180 BNSS, and how should the court deal with his allegation of police threat?
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A statement recorded under Section 180 BNSS (the successor to Section 161 CrPC) is not signed by the witness and is not substantive evidence. It can be used only to contradict the witness when he is examined in court, after the procedure in Section 145 of the Evidence Act is followed. The neighbour's allegation that the police threatened him goes to the voluntariness and credibility of the statement, but it does not convert the statement into evidence. If the neighbour resiles in court, the prosecutor may seek the court's permission to cross-examine him, but his earlier statement cannot be treated as proof of its contents. The court should examine him in chief and, if necessary, allow contradiction; it should not rely on the police record as a substitute for testimony.